Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, 53 years ago today, the General Assembly of the United Nations,
meeting at the Palais du Chaillot in Paris, proclaimed the Universal Declaration
of Human Rights "as a common standard of achievement for all people and all
Up until the very last moment, it was not certain that Canada would number
among the 48 states voting in favour of the declaration. On December 7, 1948, a
survey of member states indicated that Ottawa would not support the vote. When
this was realized, and given the company that Canada would be in among the eight
states planning to abstain, such as Apartheid South Africa, Canada fortunately
Today, honourable senators, in Canada, Parliament must work very hard to
resist the type of rationalization of the Ottawa of the 1940s, which flirted
with not supporting the Universal Declaration. Parliament must become the
sentinel for the protection and promotion of human rights and not allow itself
to be co-opted in the direction of limiting the human rights of Canadians.
Parliament must also be on guard against those who camouflage the limiting of
human rights behind the screen of a new vocabulary that speaks of existential
phenomena, which is nothing but a cover to shroud a new flirtation with the
limiting or derogation of rights standards that Canadians embrace.
Honourable senators, if there ever was a shibboleth, it is the watchword of
human security, the new criterion of those who would seek to permit the
limitation or abrogation of human rights. The claim that the right to human
security somehow trumps other rights is an error. It is as much an error as the
claims of those who postulate that economic, social and cultural rights trump
civil and political rights. Rather, honourable senators, there is an inherent,
intrinsic unity of human rights. This is the principle that must inform any
measure that would seek to limit or abrogate human rights in the name of human
In 1948, the General Assembly also decided to prepare a covenant or treaty on
human rights to provide the machinery to implement the rights articulated in the
declaration. Since 1976, Canada has been bound by the covenant, both on civil
rights and economic rights. Of great importance to Canada these days are the
provisions of Article 4 of the International Covenant on Civil and Political
Rights, which sets out the parameters on any attempt by Canada to limit or
abrogate the rights of Canadians. These limits, for example, include the right
never to be subjected to torture, and the right to be free from racial, ethnic
or religious discrimination, even in times of public emergencies, where the life
of the nation itself may be threatened.
The non-emergency, statutory limitations to human rights, such as those in
anti-terrorist legislation, are subject to the communication mechanism of the
optional protocol of the Covenant on Civil and Political Rights. It is my
prediction that Canadians will successfully use this vehicle, and that the
currently proposed anti-terrorist legislation will be found to limit the human
rights of Canadians, contrary to the international guarantees to which we are
Hon. Yves Morin: Honourable senators, you will remember that at our
last sitting I expressed my support for the right of francophones to have access
to health care services in their mother tongue, and I applauded the initiatives
of the francophone leaders in that respect.
Therefore, I was very pleased on Friday to hear the unanimous decision of the
Ontario Court of Appeal regarding the Montfort Hospital. This decision confirms
the right of francophone minorities to health services in French.
This legal argument strengthens, if you will, the medical evidence to the
effect that health services, whether we are talking about health promotion and
protection, diagnosis or therapy, can only be efficient and effective if they
are provided in the patient's language.
The decision of the Ontario Court of Appeal was welcomed by our government,
as illustrated by the statements of Ministers Stéphane Dion and Don Boudria.
According to Radio-Canada, there is a possibility that the Government of
Ontario may, with the support of the Government of Quebec, ask the Supreme Court
to overturn this decision.
I am asking Mr. Harris and Mr. Landry to put an end to this legal warfare and
to recognize once and for all the fundamental constitutional rights of
Hon. Michael A. Meighen: Honourable senators, it gives me great
pleasure to rise to acknowledge the fifty-third anniversary of the United
Nations Universal Declaration of Human Rights, proclaimed on this very day in
It is important that we mark this day, especially this year, in this country,
where we are struggling to find the right balance between the preservation and
promotion of human rights while, at the same time, drafting laws that will
enable our government, our police forces and other agencies to mount an
effective fight against terrorism.
Both Bill C-36, which is before us now in the Senate, and Bill C-42, which
is in the other place, curtail certain rights in the name of the fight against
terrorism. We, as legislators in this chamber of sober second thought, are
called upon to determine whether the government, in achieving its purpose, has
successfully protected the rights of all Canadians.
For guidance in our deliberations, we can do little better than take into
consideration some of the clauses of the International Covenant on Economic,
Social and Cultural Rights, as well as the International Covenant on Civil and
Political Rights. Both of these instruments, which proclaim rights that we seek
to apply throughout the world, contain clauses that make it crystal clear that,
even in times of emergency, certain rights remain inviolate.
Article 5 of the International Covenant on Civil and Political Rights states:
Nothing in the present Covenant may be interpreted as implying for any
state, group or person any right to engage in any activity or to perform any
act aimed at the destruction of any of the rights or freedoms recognized
herein, or their limitation to a greater extent than is provided in the
Article 4 of the International Covenant on Economic, Social and Cultural
Rights states that even in times of public emergency there can be no
discrimination on the grounds of race, colour, sex, language, religion or social
Honourable senators, we must ensure that, in Canada, even in a time when we
feel threatened by terrorism, our basic human rights remain secure.
Hon. Serge Joyal: Honourable senators, the unanimous decision brought
down by three justices of the Ontario Court of Appeal last Friday, December 7,
in the case relating to the maintenance of French-language services at Ottawa's
Montfort Hospital involves at least two significant conclusions.
First, the court states that maintenance of the rights of linguistic
minorities constitutes the basis of the entire constitutional structure of our
country. Second, the recognized constitutional protection of linguistic
minorities goes beyond the mere letter of our Constitution.
The implications arising out of these conclusions go far beyond the
constitutional theory espoused until now by authors and jurists who have written
or spoken on these matters.
I will address the first point, that protection of minority language rights
is the basis of the constitutional structure of our country.
This conclusion is based on an analysis by the court of our entire
constitutional system. According to the court, our system of government
constitutes a rational and cohesive whole. Protection of minority rights is one
of the fundamental principles of our constitutional structure.
In other words, the objective of protecting minority language rights must be
present not only in the federal structure of our country but also in the way the
legislative power is divided between the two chambers of Parliament, indeed, in
the very composition of our chamber, the Senate, where Quebec is divided into 24
senatorial divisions designed to give the anglophone minority a voice.
This conclusion by the court is an important one in that it raises questions
as to how prepared we are to recognize and protect the equal status of both
official languages in Ottawa, the national capital.
The second Appeal Court conclusion is that the linguistic rights protected
are not limited to those expressly mentioned in the Constitution Act, 1867, or
those entrenched in section 23 of the Canadian Charter, that is, the rights to
It has been sustained several times in the past, by eminent jurists,
moreover, that over and above this protection, the provinces might add on to
this list but still maintain the ability to repeal it, in accordance with the
principle of the provinces' legislative supremacy.
In the case of the Montfort Hospital, I have personally sustained the
opposite opinion, as has Honourable Senator Gauthier, in a letter to the Prime
Minister of Canada on August 9, 2000, calling upon him to ask the Attorney
General of Canada to intervene in the Court of Appeal in support of this
fundamental point, namely, that the governments' obligations with respect to
minority language rights were not restricted to those rights specifically listed
in the law.
The Court of Appeal confirmed this conclusion. It ruled that the Ontario
government may not impair the present role of the Montfort Hospital because it
is a vital institution for the life and development of the minority francophone
community. This ruling by the court is a fundamental development that will have
real consequences for the future of minority official languages communities and
for the scope of the role of Canada's Parliament and its judicial institutions.
Honourable senators, we must rejoice over this unanimous decision. It leaves
no doubt about the direction our country must take.
Hon. Gérald-A. Beaudoin: Honourable senators, in 1948, the Universal
Declaration of Human Rights was proclaimed. It would change values in our modern
world considerably. Today, I want to look at one of these rights, the right to
freedom of religion.
The right to freedom of religion, guaranteed by section 2(a) of the Canadian
Charter of Rights and Freedoms, is a fundamental right in a democracy.
There is no state religion in Canada, as the Supreme Court confirmed in
Chaput in 1955 and in Big M Drug Mart in 1985. Freedom of religion
has been the subject of a few Supreme Court decisions, particularly as it
concerns family law, youth protection, statutory leave, education law, municipal
law, tax law and criminal law.
A quick review of the jurisprudence would seem to indicate that the Lord's
Day Act violates the freedom of religion. However, a province may impose a
weekly day of rest.
This freedom of religion includes the rights of the parents to educate and
care for their children according to their religious beliefs. However, this
freedom is not absolute. In family matters, it has been decided that the test of
the interests of the child overrides the parents' freedom of religion.
Section 2(a) of the Charter recognizes the right to state one's religious
beliefs openly, without fear of reprisal. As well, pursuant to our international
commitments, freedom of religion is interpreted broadly and generously by our
courts, and limits on this freedom must be reasonable in a free and democratic
society, as set out in section 1 of the Charter.
Hon. Jean-Robert Gauthier: Honourable senators, the judgement brought
down by the Ontario Court of Appeal regarding the Montfort Hospital delighted
me. It took five years of work by a group from Ottawa-Vanier and the region of
Ottawa to save a hospital that was essential for our survival.
The Health Services Restructuring Commission ordered the closing of the
Montfort Hospital, thereby violating section 7 of Ontario's French Language
Services Act. Yes, such an act does exist in Ontario, and the commission had not
According to the Court of Appeal, the Government of Ontario's Health Services
Restructuring Commission had not taken all of the necessary measures to comply
with the act. By not giving enough weight and importance to the role of the
Montfort Hospital for the survival of the francophone minority in Ontario, the
commission did not fullfil its mandate in the public interest, according to the
judges of the Ontario Court of Appeal.
The court rejected the Government of Ontario's appeal, confirmed the order in
the guidelines of the commission and referred the whole matter to Ontario's
Minister of Health. Now we can only hope that the case will not be appealed.
The Montfort is the only hospital in Ontario to provide a whole range of
medical services and training in a French environment. The Court of Appeal also
confirmed that the Constitution's unwritten principles, as recognized by the
Supreme Court, have a formal and fundamental structural characteristic.
Its principles are those of federalism, democracy, constitutionalism, rule of
law and respect for minorities. This decision applies throughout Canada. It will
have a significant impact in all provinces.
In addition, the Court of Appeal confirmed that the French Language Services
Act enriches the language rights guaranteed by the Constitution of Canada in
order to advance the equality of status of the use of French as provided in
subsection 16.3 of the Canadian Charter of Rights and Freedoms. This decision
obviously delighted me, and I share with all French and English Canadians in
this country the victory of December 7.
Honourable senators, I will conclude my remarks by saying it is true that
there were some difficult moments. There were difficulties, there is no doubt,
but we are proud of our win. We have learned that when you are under attack you
learn to defend yourself.
We francophones in Ontario, and elsewhere, can defend ourselves. We know how
to win with some finesse, but we hope this decision will be final. Enough
The Hon. the Speaker: I regret that the time for Senators' Statements
Hon. Joyce Fairbairn, Chair of the Special Senate Committee on Bill
C-36, presented the following report:
Monday, December 10, 2001
The Special Senate Committee on Bill C-36 (formerly the Special Senate
Committee on the Subject-Matter of Bill C-36) has the honour to present its
Your Committee, to which was referred 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, has,
in obedience to the Order of Reference of Thursday, November 29, 2001,
examined the said Bill and now reports the same without amendment, but with
the appended observations.
(For text of observations, see today's Journals of the Senate,
Appendix, p. 1103.)
The Hon. the Speaker: Honourable senators, when shall this bill be
read the third time?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I move that this bill be placed on the Orders of the Day for third reading
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, I cannot raise a point of order until we are into Orders of the Day.
However, I would like permission to examine the report. If I heard the clerk
correctly, he said that this report on Bill C-36 was being made without
amendments, but that there is an attachment. If there is an attachment, I will
be arguing that rule 97(4) does not apply, because the senators need to have an
opportunity to debate that attachment.
The Hon. the Speaker: We are in Routine Proceedings, as Senator
Kinsella observed, and I am in the process of putting the motion. I do not think
there is any objection to any senator examining the record. Accordingly, the
honourable senator should feel free to do so.
Senator Kinsella: Under what rule?
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
On motion of Senator Carstairs, bill placed on the Orders of the Day for
third reading at the next sitting of the Senate, on division.
Hon. Céline Hervieux-Payette: Honourable senators, I have the honour
of tabling the fourth report of the Standing Joint Committee on the Scrutiny of
Regulations, which concerns a subsection of the Northwest Territories Reindeer
Regulations. At this point in the year, I think it appropriate to recommend
these regulations be disallowed, as they are not, in our opinion, legal.
Hon. Richard H. Kroft: Honourable senators, with leave of the Senate
and notwithstanding rule 58(1)(i), I move, seconded by the Honourable Senator
That the Senate authorize the videotaping of segments of its proceedings,
including Royal Assent, before the Senate rises for its forthcoming Christmas
adjournment, for the purpose of making an educational video.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Hon. Senators: Agreed.
Hon. Consiglio Di Nino: Perhaps Senator Kroft could give some
clarification. Is he talking about today, tomorrow or the next couple of days?
Perhaps he can give us some indication of what it is all about.
Senator Kroft: Honourable senators, last year the Standing Committee
on Internal Economy, Budgets and Administration approved the production of an
educational video cassette about the Senate. The project has advanced to the
stage of filming, and I ask today for your agreement to permit a crew of five
individuals — a producer, two camera operators, one assistant and their advisor,
former Deputy Clerk Richard Greene — into the chamber to film parts of the
proceedings. They will be taking raw footage that will be edited for final
approval by the Standing Committee on Internal Economy, Budgets and
Administration. Their work will be undertaken with utmost discretion and with
the least interruption possible of our daily activities.
Providing Canadians with an authentic portrayal of the work that goes on in
the Senate; sharing traditions, such as the Speaker's parade; and showcasing the
architectural splendour of the chamber will help our fellow citizens gain a
better understanding of the Senate as an institution and the contribution the
Senate makes to public policy. I urge you to support this. I believe this
deserves our support.
The Hon. the Speaker: The motion of Senator Kroft was put and passed.
I should ask for leave to continue a proceeding that is not provided for in
Routine Proceedings, that of questions from one senator to another. Is leave
granted, honourable senators?
Hon. Senators: Agreed.
Senator Di Nino: Honourable senators, the request is unusual. It is
one of which most of us were not aware, and some explanation is necessary for us
to be fully informed. Senator Kroft, obviously, was prepared to give an
explanation because he read one. Therefore, it is no big surprise, but I asked a
question as well. Is this filming to take place before we rise for the Christmas
recess? Is the honourable senator talking about tomorrow, the day after or the
next day? Could he give us some indication on the process here?
Senator Kroft: Honourable senators, I do apologize for what appears to
be an element of surprise here. The filming of the video was discussed and
approved by the Internal Economy Committee, but it was some time ago, and,
obviously, it is not fresh in the minds of many of the senators, even those who
are on the committee.
The intention is to have the video completed in February, which involves
getting the recording done now before we break, and it is also an opportunity to
take advantage of the many procedural events that will take place, with quite a
full house, and even the possibility of Royal Assent. It is an unusual
opportunity, a timely one, and one we would be sorry to miss because it would
severely delay the making of this educational video. It certainly would give an
opportunity to record things that might not otherwise be available. Again, as I
said in that note, it will be subject to a full review and editing by the
Internal Economy Committee.
Hon. Eymard G. Corbin: Honourable senators, I have a question for the
chair of the committee. What assurance can he give us that a significant number
of members of the other place will be in attendance for the event, or will we be
submitted to the usual charade of the Speaker and a few acolytes?
Senator Kroft: I presume the honourable senator is referring to the
Royal Assent component. If I could give that assurance, I would be claiming
powers that far exceed even those of the Internal Economy Committee. Obviously,
every effort will be made to present the ceremony well, and a full attendance of
the members of this house through this week will be the best assurance of the
Hon. Céline Hervieux-Payette: Honourable senators, I give notice that
at the next sitting of the Senate, I will move:
That the Standing Joint Committee of the Senate and the House of Commons
for the Scrutiny of Regulations be empowered to permit coverage by electronic
media of its public proceedings with the least possible disruption of its
Hon. Céline Hervieux-Payette: Honourable senators, I give notice that
on Wednesday, December 12, 2001, I will move:
That a special committee of the Senate known as the "Special Senate
Committee on Support for La relève in the Arts" be appointed to examine the
role the Government of Canada can play through its own activities and programs
and in cooperation with the provinces and with other interested partners, to
support the coming generation of artists, arts organizations and art lovers in
Within the general framework of the negotiations undertaken by the Government
of Canada within the World Trade Organization, and the efforts to conclude a
free trade area of the Americas agreement, it is imperative that the cultural
sector be treated differently and that special measures be considered to protect
the original and authentic nature of Canadian culture.
Furthermore, in a world where communications are global, it is important that
Canadian parliamentarians gauge the impact of globalization on Canadian culture
and examine what the public and private sectors should be doing to promote and
consolidate the arts in Canada.
That is why I will be moving that a special committee of the Senate be
appointed to examine the important issue of providing support for La Relève in
That the special committee consist of five Senators, three of whom shall
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,
briefs and evidence as may be ordered by the committee;
That the committee have power to authorize television and radio
broadcasting or dissemination through the electronic media, as it deems
appropriate, of any or all of its proceedings and the information it
That the committee have power to sit during adjournments of the Senate
pursuant to rule 95(2) of the Rules of the Senate; and
That the committee present its final report no later than two years after
it is appointed.
Hon. J. Michael Forrestall: Honourable senators, I wonder if we could
find enough money to commit to film the Canadian Armed Forces now before it
disappears into oblivion.
Honourable senators, my question is directed to the Leader of the Government
in the Senate. I must preface it by saying that I am keenly disappointed in the
budget and disappointed with the reaction of the government to the positions put
forward by the various commanders in their various Level 1 business plans. This
year they will be $1.3 billion short. There simply is not enough money to
sustain the commitments of the 1994 White Paper on Defence, nor to allow the
forces to do anything except structure downward, when, in fact, what they want
to do is restructure latterly to provide a better force. In this regard, the
Level 1 business plans of the three service chiefs and the Assistant Deputy
Minister Materiel state they are $1.3 billion short per year in order to fulfil
their government assigned tasks. The Auditor General agrees. The government,
knowing that the military is $1.3 billion short of being in the black this year,
gave them $1.2 billion over five years. If they are $1.3 billion short this
year, next year and the year after that, adding inflation, one can readily see
that $1.2 billion spread over five years can mean nothing other than
Can the Leader of the Government in the Senate give us some indication as to
whether the plans for this downgrading are in place? If they are not, what steps
is the government taking either to put the plan for this restructuring in place
or, perhaps — and I think "perhaps" makes more sense — to present Canadians
with a new Defence White Paper?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
the honourable senator expresses his disappointment, and that, I suppose from
his perspective, is reasonable. However, I do not think an increase of $1.2
billion should be sneezed at. I certainly do not think $300 million for new
equipment should be seen as anything but a positive enhancement of our military
potential. I see $1.6 billion over five years towards emergency preparedness.
Yes, that does include the $1.2 billion for the military, but it is important
that we have doubled the capacity of Joint Task Force 2, our elite
anti-terrorist unit. We have enhanced laboratory networks and the purchase of
specialized equipment to deal with such things as chemical, biological and
nuclear threats and warfare. All of this must be seen as a package to make us
better prepared for terrorist acts as well as support for the military.
Senator Forrestall: Honourable senators, the Auditor General said to
be cautious when we listen to utterances such as that one and to take it with a
grain of salt. Actually, I prefer an Aspirin.
The military needs $6.5 billion over five years to fulfil its existing
shortfall in capital programs, as stipulated and called for in the Defence White
Paper of 1994. Instead, we have the Leader of the Government praising the
government for giving the Canadian military $300 million for capital purposes
over two years. To catch up with 1994, $6.5 billion is needed, and this
government is offering $300 million over the next two years. I fail to bring the
two together, and I fail to see anything to applaud in that.
What capital programs are now facing National Defence, or has the government
any? I have asked three or four questions, yet I do not get any answers. I may
ask 1,000. It would be very pleasant to get one response.
Senator Carstairs: Honourable senators, since 1999, there has been an
addition of $3.9 billion in funding for National Defence. They will receive an
additional $1.2 billion. The government did not wish to go into a deficit
position. It wished to have a balanced budget because that is the wish of
Canadians, and I think the government met the expectations of most Canadians. I
regret that the government clearly did not meet the expectations of the
Honourable Senator Forrestall, but, after all, he does not support the
government on most initiatives.
Senator Forrestall: Honourable senators, I certainly do not support
the government in what it is doing to Canada's national defence ability to meet
the directions given to it in 1994.
Can the Leader of the Government answer the following question, yes or no:
Will the government be releasing a new White Paper on Defence because of this
traumatic downgrading of the wherewithal to meet even the requirements set out
in the existing White Paper on Defence?
Senator Carstairs: Honourable senators, I have no knowledge about the
publication of a new White Paper on Defence.
We must realize that the concept of war and the whole world structure has, in
large part, changed since September 11. That is necessitating expenditures in
areas that, I would suggest to you, prior to September 11 were not considered.
Those particular issues, namely, security of our borders, security at our
airports and security in the air, are all parts of the necessity to make a fresh
examination of the real needs of Canadians in order to protect ourselves.
The Hon. the Speaker: Honourable senators, it being 8:44 p.m.,
pursuant to the order adopted by the Senate on Thursday, December 6, 2001, it is
my duty to interrupt the proceedings to dispose of all questions on the motion
of Senator Milne for the adoption of the tenth report of the Standing Senate
Committee on Legal and Constitutional Affairs (Bill C-7, in respect of criminal
justice for young persons and to amend and repeal other acts, with amendments).
The bells to call in the senators will be sounded for 15 minutes so that the
vote can take place at 9 p.m.
Resuming debate on the motion of the Honourable Senator Milne, seconded by
the Honourable Senator Rompkey, P.C., for the adoption of the tenth report of
the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-7,
in respect of criminal justice for young persons and to amend and repeal other
acts, with amendments) presented in the Senate on November 8, 2001.
Hon. Roch Bolduc: Honourable senators, my question is for the Leader
of the Government in the Senate and it concerns the budget proposal to allow
corporations to defer their winter tax installments until next summer. The
official justification for this, as given in the budget paper, is that it will
provide a cash-flow benefit to small corporations.
Will the government leader concede that the accounting effect of this measure
will be to push $2 billion of revenue from the current fiscal year into next
year and, in the process, allow the government to claim that it has a balanced
budget next year? Is not the real reason for this measure the cash-flow benefit
to the government?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
some people obviously see bogeymen where I do not think bogeymen exist. There
was a very simple reason for this decision. There has been an economic downturn.
Economic downturns usually have greater impacts on small business. In order to
give small businesses a bit of a boost, this payment can be deferred. All of the
economic forecasts say that by the second quarter the American economy will have
turned around and will be much more vibrant.
Senator Bolduc: This tax measure is only available for corporations.
It does not affect unincorporated small businesses. It will not help
unincorporated farmers to make it through the winter. It will not help most
fishermen. It will not help those in a professional practice. Could the leader
explain why, in the view of the government, this kind of cash-flow assistance is
appropriate if one is running a store or a farm or a bed and breakfast as a
corporation but not if one is running it as an unincorporated proprietor?
Senator Carstairs: Honourable senators, with the greatest respect, I
think Senator Bolduc is aware that more and more people are incorporating. Yes,
there are still some small business owners in this country who do not
incorporate, but the vast majority of them have decided that they will
incorporate for a whole raft of reasons, not the least of which is that it makes
for clearer accounting principles and practices. This was relief that the
government could readily provide, and it did so.
Senator Bolduc: Where does the minister get her statistics to prove
that there are more incorporated businesses than unincorporated ones? Come now,
that makes no sense.
Senator Carstairs: I think I indicated that more and more were
Hon. Gerald J. Comeau: Honourable senators, my question is to the
Leader of the Government as well. The minister is probably aware that there has
been a deepening problem with the dumping of Chilean farm salmon in the United
States market that has been developed by Atlantic Canadian fish farmers for
Atlantic salmon. The minister may be also aware that these fish farmers were in
Ottawa last week to try to get some help from the government. They met with
ministers and the Fisheries and Oceans Committee of the other place. They
explained how they are losing $50 million annually, which runs to approximately
$1 loss for every pound of fish they sell in the United States. We saw there was
no provision in the budget for any kind of response to this deepening problem.
Would the minister advise us as to whether there has been any discussion on what
to do with this deepening problem in Atlantic Canada?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
it is a serious problem, as the honourable senator has indicated. The dumping is
a provision that the government is monitoring very carefully. I would anticipate
that there will be further meetings with the interested parties because there
have certainly been discussions at this point and, as I understand it, they are
Senator Comeau: Honourable senators, the minister is probably aware
that approximately 4,000 people depend on this very important fishery, and it
used to be a growing fishery. It brings in about $256 million a year in revenue.
Of more importance, however, is that it is in those areas that most need that
income, the coastal communities and rural areas of Atlantic Canada. As her
colleague sitting next to her will know, this is an extremely important industry
in New Brunswick. As a matter of fact, they no longer call the provincial
department the Ministry of Fisheries but the Ministry of Fisheries and
Aquaculture. The minister knows how important it is to the people in that area,
and she may be aware that the minister from New Brunswick just this week did say
that something had to be done very quickly.
I want to impress on the minister the urgency of dealing with this situation.
I am concerned that there is no reference whatsoever to it in the budget.
Senator Carstairs: Honourable senators, as the honourable senator
indicated, the meetings with the House of Commons Fisheries and Oceans Committee
took place only last week. The honourable senator would recognize that the
budget was probably well put to bed by that time. However, that is not to say
that the Department of Fisheries is not aware of this issue. They are. It has
been the subject of ongoing negotiations and discussions. I can tell the
honourable senator that when cabinet meets later this week, I will again raise
Hon. Leonard J. Gustafson: Honourable senators, very few farmers are
The latest federal budget contains no new support for Canadian farmers
despite the fact that they have operated at a significant disadvantage compared
to their highly subsidized counterparts in the United States and Europe, and
they have struggled for the last three years. They were looking forward to the
budget, the first in just about two years, and there is no hope there for them.
This is a blow to agriculture. This budget is a security measure and offers
little in terms of our farmers and the rest of the country. There is a lot of
talk these days about security, and our farmers are facing a very serious
problem, and here again they have been let down. What answer does the minister
have for our farmers in view of this budget today?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
as the honourable senator knows, the $500-million program which was announced
last year has been continued for the next budget year, and the Minister of
Agriculture and Agri-Food is working with his provincial and territorial
colleagues, as well as with farm groups, to create a new, integrated and
financially sustainable agricultural policy. The government has reaffirmed its
commitment to this renewal and this ongoing process. Clearly this has been a
particularly difficult time for farm families, and particularly those in the
grains and oilseeds industries.
Senator Gustafson: Honourable senators, coming back from the trade
talks, the ministers laid out some hope that they would deal with the problems
that farmers are facing in regard to the trade situation and in regard to the
subsidies paid to farmers in the U.S. and Europe. Again, there is no new money
in this budget for farmers. In fact, some of the old moneys that were put in
have not been paid out. What kind of a direction is this? Does the government
have no regard for agriculture at all?
Senator Carstairs: Honourable senators, I tried to indicate to the
honourable senator that the government's commitment to continue the $500-million
program was not meant to continue into this fiscal year but will. You can call
that no new money; however, it was money that was not going to be there but will
Senator Gustafson: Honourable senators, are we then to conclude that
the government will take no additional steps whatsoever to alleviate this
situation and deal with this serious problem?
Senator Carstairs: Honourable senators, the honourable senator is well
aware that agriculture is a joint federal-provincial responsibility, and that
is why I indicated that discussions are ongoing between the Minister of
Agriculture and Agri-Food and his provincial and territorial colleagues.
However, this decision cannot be made alone by the federal government. There
must be agreement in conjunction with the support of his territorial and
Senator Gustafson: In all fairness, the discussions have been ongoing
for three or four years, and nothing has happened. This is beyond a joke now.
Something must be done. This government has had no consideration whatsoever for
agriculture. Does the minister see any change coming? There is certainly nothing
in this budget.
Senator Carstairs: Honourable senators, a few weeks ago I heard doom
and gloom from the honourable senator with respect to the WTO negotiations. They
were not going anywhere, and there would be no resolution of the subsidy issue.
That issue is now on the table. It will be resolved, and that will clearly be
the most impressive thing we can do for farmers in this country.
Hon. Mira Spivak: Honourable senators, the Commissioner of The
Environment and Sustainable Development raised in a recent report some concerns
with respect to the Great Lakes and the St. Lawrence River basin. She identified
a number of areas where she felt that the federal government could do a better
job of managing flora sustainability in the basin. Her recommendations were
targeted at the Departments of Agriculture and Agri-Food, Environment, Fisheries
and Oceans, Foreign Affairs and International Trade, Health and Natural
Resources and the Parks Canada agency.
Unfortunately, the budget does not appear to direct new funding towards these
departments or allocate new funding specifically for the managing of
sustainability in this basin. We all know how important that particular basin is
Could the Leader of the Government in the Senate give us some explanation for
this omission in the budget?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
as the honourable senator knows, that entire basin issue is part of the ongoing
responsibility of a number of departments. Those departments have all received
funding to continue to move forward on this initiative. None of their budgets
has been cut in this regard.
Senator Spivak: Honourable senators, in their responses to the
Commissioner of the Environment and Sustainable Development, all of the
departments agreed with the recommendations. All of these departments pledged to
do something to address the commissioner's concerns, depending on the
availability of resources. In today's budget, the minister has failed to give
these departments the additional financial resources to do their job. Is
anything coming up in the near future that will enable these many departments to
get the resources to do the job that is so vital to this major basin?
Senator Carstairs: Honourable senators, it is clear that the
departments have resources; if they choose to reallocate those resources to deal
with this issue, they can find the necessary dollars. They have made that
commitment, and it is my hope that they will find the necessary dollars within
Senator Spivak: Honourable senators, has the cabinet decided that
these departments should reallocate their resources in order to meet that
commitment? Is that a priority of the government at this time?
Senator Carstairs: Honourable senators, the government is committed to
meeting the goals that it indicated to the commissioner.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, my point of order relates to the earlier presentation of the special
committee's report during Routine Proceedings by Senator Fairbairn. I have
examined that report, which is on the Table. The report contains the signed bill
and attachments. Among the attachments is the three-page document that has been
circulated to all honourable senators. Therefore, we are dealing with a report
When the item was read, we heard part of what was before us, namely, that
Bill C-36 was being reported by the committee without amendments. Acting upon
that part of what was before the chamber, the Speaker acted according to rule
97(4), which reads as follows:
When a committee reports a bill without amendment, such report shall stand
adopted without any motion...
That is fine. The Speaker was correct as far as it went. If a bill is being
reported without amendment, then pursuant to that rule the Speaker is obliged to
consider that the report is adopted without any motion being made. Then the
senator in charge of the bill will move that it be placed on the Orders of the
Day for third reading on a future day, which occurred.
Honourable senators, we have before us the second report of the Special
Senate Committee on Bill C-36. I will not get into the issue of change of name;
that is another issue. The last line of the report says: "...examined the said
Bill and now reports the same without amendment, but with appended
That is the report we have. If we do not pursue this matter, there is no time
when the Senate will have an opportunity to debate the report and its appended
observations. It seems that what was envisaged by rule 97(5) is what is
applicable right now. Rule 97(5) provides as follows:
When the report recommends amendments to a bill, or makes proposals that
require implementation by the Senate, consideration of the report shall not be
moved unless notice has been given pursuant to rule 57(1)(e) or rule 58(1)(g),
as the case may be.
If honourable senators turn to rule 58, which is the rule we normally follow
when we have a report that is to be debated by the Senate, notice is given and
the report is taken into consideration the following day. However, rule 57(1)
refers to a special committee, and two days' notice is required.
Honourable senators, I am not so much concerned about the one or two days'
notice, which may apply in this case because this is a special committee. My
concern is that we have on the Table a report that we may not be able to
consider in its fullness, if it is not challenged. We will not have an
opportunity to adjudicate.
Regardless of how the matter may come down at the end of the debate, we are
not able to debate this report in its fullness if we are forced into third
reading. Some senators may agree with the observations, and others may disagree
with them; we do not know. However, we certainly have a right to debate any
report that is brought before us. Otherwise, what we are faced with, presumably,
is that some senators are of one view in reporting Bill C-36 without amendment,
while other senators are of another view.
The committee has done its work. We must now consider the view of all
honourable senators. The views of honourable senators can only be ascertained or
canvassed through debate. We at least have the right to debate this report prior
to the consideration of third reading.
The committee had a choice to report the bill without amendments and did
that. Rule 97(4) applies immediately. A motion to adopt is considered to have
been dealt with, and we are attending a motion for third reading. The committee
also chose to report the bill with observations. Therefore, rule 97(4) does not
apply, and more probably it is rule 97(5) that applies.
Honourable senators cannot escape the fact that on our Table is a report from
a committee that contains a dialogue with observations, recommendations or
however one wishes to describe them, and its content and substance. This chamber
has a right to debate those observations.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, in the case we are considering at this time, the committee has
reported and it is clearly indicated in its report that:
[the committee] has reported the bill without amendment.
According to rule 97(4):
When a committee reports a bill without amendment, such report shall stand
adopted without any motion...
Senator Kinsella tells us that the comments accompanying the report will have
no chance whatsoever of being considered.
I do not agree with this, because all honourable senators present during the
debate at third reading stage will certainly have the opportunity to consider
the comments accompanying this report.
The act of moving on to third reading does not mean we are to set aside the
comments accompanying the report. I believe that the procedure that should be
followed is the one set out in rule 97(4), namely, that the bill has been
reported without amendment and we need to move on to third reading.
The Hon. the Speaker: Does any other honourable senator wish to
Honourable senators, the matter seems reasonably straightforward, but I would
like to take at least a few minutes to consider my ruling. Accordingly, I will
leave the Chair in favour of the Speaker pro tempore and hopefully return
shortly with an answer to the point of order put by Senator Kinsella.
In the meantime, please proceed with Orders of the Day.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, we would like to deal first with Item No. 7, second reading of Bill
C-44, and then return to the Orders of the Day as proposed on the Order Paper.
Hon. Aurélien Gill moved the second reading of Bill C-44, to amend the
He said: Honourable senators, Bill C-44 has its origins in clause 5 of Bill
C-42, the Public Safety Act.
Honourable senators, each country can decide which individuals it will allow
within its borders. To make this decision, countries normally request
information from those presenting themselves for admission, or at least verify
the information presented in a passport or similar document. The United States
is the first country to impose new data requirements on air carriers. I will use
the United States as the example country for the remainder of my comments.
However, I caution you that Bill C-44 is written to accommodate the requirement
that foreign states be more broadly subject to the safeguards of the bill, not
just the United States.
In this regard, the United States decided to request that certain basic
information on passengers and crew members be communicated well before the
flight's expected time of arrival in the United States.
In addition, on an individual basis, the United States will be able to
request more detailed information, collected under the heading "passenger file."
As the American legislation requires the new data gathering program be in
effect on January 18, 2002, the provision intended to allow Canadian carriers to
comply is contained in its own bill, Bill C-44, to permit quick action and
compliance with the date.
Honourable senators, Bill C-44 is optional. It imposes no measures on anyone
and does not commit the Government of Canada to gather information for
communication to the U.S. government. Instead, it allows carriers to provide
certain information to a competent authority of the United States within a
I was pleased to learn, in my briefings, that the Privacy Commissioner had
seen the provisions of Bill C-44 as originally proposed and had made certain
recommendations to the Minister of Transport.
Following these consultations, an amendment was presented during the review
in committee in the other place, and I understand that the Privacy Commissioner
gave his support to the amended bill. This amendment does not seek to give new
powers to government institutions for the gathering of information on
passengers. Ours is a complex and effective legislative system to manage the
collection, use and disclosure of personal information in compliance with
The sole purpose of this amendment is to maintain this system and the values
that it promotes. This amendment does not seek to restrict government
institutions in the collection of information on passengers when such collection
is authorized under the act.
Honourable senators, we were asked to proceed quickly. The fact is that the
Americans do not need us to pass this legislation. They are prepared to conduct
long, manual searches of all carry-on and checked baggage that arrives in the
United States to follow up on their legitimate concern to ensure the safety of
their system, which was at the centre of that unbelievable tragedy. As far as we
are concerned, this is not only a matter of speeding things up for our fellow
citizens who travel to the United States for leisure or business, which is good
for both economies, but also a matter of international cooperation to identify
and deter terrorists.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, I certainly appreciate the government's eagerness to get this bill
passed as rapidly as possible, and we will not stand in its way at this stage.
However, I would like to ask that consideration be given to two or three
suggestions. One is that when the committee calls a meeting to assess the bill,
it not do so without making sure that all those interested on this side can
attend the meeting, unless it is scheduled in the committee's regular time slot.
I say that because, right now, we on this side are pressured to do not only
double duty but, in many cases, triple duty. We would like a little
comprehension on the government side for that concern in order to allow us to
give all bills, in committee and in the chamber, the evaluation they deserve.
Second, I am a little concerned about the government's position on this bill
because, according to a report from the Canadian Press, "the federal
government's controversial air passenger information legislation passed third
reading in the Commons even as the government continued efforts to clarify its
meaning." There is still some difficulty in the government explaining what
exactly the United States wants in terms of information, how much of that
information could be made public, and how much of it we would think, despite the
Privacy Commissioner's assurances, can remain private.
If honourable senators read the law that was passed by Congress and signed by
the President, not only does it require name, address, sex, passport number and
so on, but also other information that is not specified. What does that mean?
Does it mean dietary requirements, place of birth in the case of a naturalized
citizen, the name of your parents, your maiden name? It can go on forever. We
must be very careful before we rubber-stamp this bill to make sure that the
information to be given is basic information and not information that can be
used for purposes other than that for which it is required, meaning security.
Whatever assurances the Privacy Commissioner may give us, there is really
little or no privacy left in this world. Let us not kid ourselves: As soon as
information is entered into a computer or is written on a piece of paper, it
becomes public information. It is as simple as that. At least we must make every
possible effort to restrict the divulgence of information given to a first
party. Otherwise, once that is done, other parties can have access to it.
Our first concern is to ensure that when the committee meets, it is done in
consultation on this side so that all of our members of the committee can
attend. Our second concern is to ensure that the minister be there to defend his
bill and that he has the information that we require so that when the bill comes
back to us we are not asked to pass it even as the government continues efforts
to clarify its meaning, as was allowed in the other place.
Hon. Laurier L. LaPierre: My question is for Senator Gill. I would
like to know if the Government of Canada has an act similar to that of the
United States, whereby airlines in the United States must provide all necessary
information to the Canadian government on passengers arriving in Canada on board
their chartered flights?
In other words, do we have the same system here or do we allow the Americans,
again, to dictate to us?
Senator Gill: Honourable senators, if my information is correct, we do
not have similar legislation to that of the United States. We have Bill C-44.
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?
Hon. Fernand Robichaud (Deputy Leader of the Government) moved the
third reading of Bill C-40, to correct certain anomalies, inconsistencies and
errors and to deal with other matters of a non-controversial and uncomplicated
nature in the Statutes of Canada and to repeal certain provisions that have
expired, lapsed or otherwise ceased to have effect.
Motion agreed to and bill read third time and passed.
Hon. B. Alasdair Graham moved second reading of Bill C-35, to amend
the Foreign Missions and International Organizations Act.
He said: Honourable senators, I rise to speak to Bill C-35, respecting the
privileges and immunities of foreign missions and international organizations.
This bill is sponsored by the Minister of Foreign Affairs. It received third
reading in the other place on December 4, having been approved by the Standing
Commons Committee on Foreign Affairs.
As the title indicates, Bill C-35 amends the Foreign Missions and
International Organizations Act, which was enacted in Parliament in 1991. It
will be helpful to keep in mind the function of the existing act when
considering the amendments.
The existing legislation is the federal law that provides for the special
legal status in Canada of representatives of foreign states and of international
organizations. The act can be divided into two parts: The first one deals with
the legal status of foreign missions to Canada, such as embassies, high
commissions and consulates; the second deals with the legal status enjoyed by
international organizations such as the United Nations or the International
Civil Aviation Organization in Canada. It is this second aspect dealing with
international organizations that is the main subject of the amendments contained
in Bill C-35.
For centuries, international law has required the granting of special legal
status, privileges and immunities to foreign diplomats and consuls to ensure
that the representatives of a foreign state are not unduly influenced by the
authority of the receiving state. During the past century, international law has
developed special rules relating to the status of international organizations.
As states began to conduct more and more of their international affairs in the
context of multilateral organizations such as the United Nations, it came to be
accepted that such activities gave rise to the same need for immunities that
existed when the same issues were dealt with on a purely bilateral basis,
The existing legislation takes the privileges and immunities of the United
Nations, which is Schedule III of the act, as a model. It then permits the
Governor in Council, by order, to grant similar privileges and immunities to any
international organization. In 1991, the Foreign Mission and International
Organizations Act amalgamated the pre-existing Diplomatic and Consular
Privileges and Immunities Act and the Privileges and Immunities (International
For many years following the Second World War, therefore, Parliament has
given the Governor in Council the capacity, by order, to grant privileges and
immunities to international organizations. Examples of orders that have been
passed under the existing legislation or pre-existing acts include orders
granting privileges and immunities to the United Nations, the International
Civil Aviation Organization, the North Atlantic Fisheries Organization, the
Commonwealth Secretariat, and many others. There was also an order passed for
the 1988 G7 summit in Toronto and, of course, for the Halifax summit in 1995.
The main purpose of Bill C-35 is to modernize the part of the act governing
the granting of privileges and immunities to international organizations and
their international meetings. The bill will enable Canada to comply with our
existing commitments under international treaties, as well as fix several
technical inadequacies that have been detected since 1991.
Honourable senators, allow me to turn to the bill's core proposal, which is
to amend the legislative definition of international organizations.
Several years ago, the Standing Joint Committee on the Scrutiny of
Regulations adopted the formal view that the existing definition permits orders
to be made under this act only for international organizations that are created
by a treaty. This was despite the fact that orders had been made in the past for
non-treaty based organizations. Therefore, we have the odd situation where, for
example, the Sommet de la Francophonie is covered by the act as there is a
treaty relating to L'Agence and la Francophonie in that case, but the Summit of
the Americas and the G8 are not.
The change to the definition of "international organization" makes it clear
that Canada can grant privileges and immunities by order to the Organization for
Security and Cooperation in Europe, the G8, and other international
organizations that are not established by treaty but are integral to the conduct
of Canada's international relations. This amendment reflects the development in
the conduct of international relations over the last several years whereby
international summits are held by non-treaty based international bodies such as
the G8 or the G20. The amendments also represent a timely clarification, since
Canada is scheduled to host the G8 summit in Canada in Kananaskis, Alberta in
June of next year.
The proposal in this bill that has generated the most discussion adds a
provision designed to codify the common law with respect to the powers of the
RCMP in providing protection and security to international governmental
conferences that are held in Canada. It should be noted that the government has
agreed to an amendment that was proposed in the other place in the Standing
Committee on Foreign Affairs and International Trade, making clear that the RCMP
can enter cooperative arrangements with the provincial and municipal police in
sharing the responsibilities for providing security measures.
The government is clear in its intention to give a statutory base to the
powers exercised by the RCMP when providing security for the proper functioning
of an intergovernmental conference, and when providing security and protection
to persons attending the conferences, including internationally protected
I want to emphasize, honourable senators, that the government has no
intention of either broadening a police power or infringing on the lawful
demonstration of protesters. The proposal reflects the authority that police
already have in common law and in statute.
I would like to provide one of the reasons for proposing such a provision in
this bill. Shortly after the Summit of the Americas held in Quebec City last
spring, a court challenge was launched in the Tremblay case, alleging that the
perimeter fence was an inappropriate security measure. The Quebec Superior Court
held that the fence was authorized by law, and that it did not breach the
Charter. Given that Canada will be hosting international summits in the future,
the government considers it useful that this law be given a statutory basis. The
amendment has been carefully drafted in light of the common law and statutory
duties conferred on the police to keep the peace, to protect persons — including
internationally protected persons — from harm and to protect persons engaged in
lawful demonstration from unlawful interference.
Any security measures taken by the police will be subject to Charter scrutiny
and must be justified as reasonable in the circumstances. In other words, any
police measure that limits a Charter right, be it freedom of expression, freedom
of assembly or whatever, must be justifiable in a free and democratic society.
Honourable senators, I should like to speak briefly about the proposal in
this bill to clarify that the Order in Council for an international organization
or meeting exclude the obligation to issue a minister's permit to allow entry to
Canada of persons who fall within the inadmissible classes under the Immigration
Act. If there is a concern that this will give easier access to Canada by
criminals, I assure you that international organizations and their meetings will
be subject to the careful screening procedures already in place, and that the
regular consultation between the departments of Foreign Affairs, Citizenship and
Immigration, CSIS and the RCMP will not be bypassed. An Order in Council for
international organizations and their meetings provides for immunity from
immigration restrictions, not from the immigration formalities.
I now wish to comment briefly on several of the other proposals under Bill
C-35. This bill will allow the government to extend privileges and immunities to
international inspectors who come to Canada on temporary duty in order to carry
out inspections under the Chemical Weapons Convention and the Agreement with the
Preparatory Commission for the Comprehensive Nuclear Test Ban Treaty
Organization. The Chemical Weapons Convention requires that inspectors be
granted diplomatic privileges and immunities similar to those accorded to
diplomatic agents under the Vienna Convention on Diplomatic Relations. For
example, under the Chemical Weapons Convention, a team of inspectors should
receive the exemption from customs duties when they import specialized technical
equipment for their use in the conduct of their duties.
The problem is that neither the implementing legislation nor any other
Canadian legal instrument can, at present, provide the privileges and immunities
up to this level to these inspectors. As a temporary arrangement, privileges and
immunities have been provided by an Order in Council that provides less
extensive privileges and immunities. This means that Canada could be criticized
as not being in full compliance with the treaties. Therefore, it is the
government's obligation to resolve this situation as soon as possible, and this
bill does just that.
The bill also enables us to grant privileges and immunities to permit
missions accredited to international organizations, such as the International
Civil Aviation Organization located in Montreal. The bill also provides a remedy
to the specific situation where the Canada Customs and Revenue Agency can
reimburse the goods and services tax to individual representatives of the
International Civil Aviation Organization member states but not to the actual
mission offices of member states accredited to that international organization.
By enhancing our relationship with ICAO, these amendments will improve the
ability of Montreal and other Canadian cities to service the headquarters of
international organizations operating their headquarters in Canada.
I might note that, apart from the foreign policy reason for such efforts,
there are significant economic benefits that such offices bring with them. A
1988 study by the Group Secor commissioned by Montréal International estimates
the economic return of international organizations located in the host city of
Montreal to be approximately $184 million net for 1997.
Montreal is not the only Canadian host city, of course, which benefits from
the presence of international organizations. Vancouver hosts the Commonwealth of
Learning Secretariat and Halifax hosts the North Atlantic Fisheries
Another amendment of a technical nature will clarify the law with respect to
the importation of goods for foreign missions. The right of diplomatic and
consular representatives to import goods for personal use, including alcohol, is
provided under the Vienna Convention. However, an earlier federal statute, the
Importation of Intoxicating Liquors Act, states that the exclusive right of
importation of alcohol rests with the provinces. In light of this apparent
conflict, it would be useful to clarify and emphasize that importation for the
official use of foreign representatives falls under the Foreign Missions and
International Organizations Act and not under the Importation of Intoxicating
The existing act provides that Canada can provide certain privileges and
immunities to political subdivision offices of foreign states like Hong Kong on
a reciprocal basis. Legal analysis has raised the issue of whether the provision
under the act is sufficiently clear. The provision in question may be
interpreted as requiring that Canada have a provincial office operating in the
foreign state receiving privileges and immunities before Canada can extend
privileges and immunities to an office of a subdivision of that foreign state in
Canada. This interpretation would mean that privileges and immunities would have
to be withdrawn from a foreign state political subdivision office if Canada does
not have, or no longer has, a provincial office in that foreign state. As this
is not an interpretation that reflects the original intent of the provision of
this act governing the granting of privileges and immunities to political
subdivisions, this bill would clarify and ensure that the federal government may
extend privileges and immunities at a consular level to political subdivisions
of a foreign state such as Hong Kong even if Canada does not presently have a
provincial office in that foreign state.
With respect to countermeasures, Bill C-35 contains an amendment which will
authorize the Minister of Foreign Affairs to make time-limited orders under the
act that will provide the legal framework needed to authorize the detention of
diplomatic goods in response to infringements of the Vienna Conventions by
foreign states in the area of customs clearance. For example, the amendment
would provide the Canada Customs and Revenue Agency with the necessary authority
to detain the diplomatic goods of a foreign state mission whose government had
chosen to improperly detain the diplomatic goods of our Canadian mission abroad.
A final amendment to this bill is to add a provision to the act to enable the
government to issue certificates proving to courts the status of individuals,
foreign missions or international organizations covered by the act. The
authority to issue certificates of status already exists in common law. However,
it would be useful to codify this common law authority in keeping with the
federal government's approach of respecting both the civil and common legal
traditions of Canada.
In conclusion, the bill to amend the Foreign Missions and International
Organizations Act will allow Canada to live up to its international obligations
to grant privileges and immunities to international organizations. The
amendments will enable Canada to continue to safely host important international
events and summits in Canada.
In clarifying the statute with respect to the granting of tax privileges to
accredited missions of international organizations headquartered in Canada, the
bill also enhances Canada's ability to host important international
organizations such as the International Civil Aviation Organization.
This bill will be given careful scrutiny at the appropriate time by the
Standing Senate Committee on Foreign Affairs. Honourable senators, I urge your
support for this legislation.
Hon. Céline Hervieux-Payette moved that Bill C-41, to Amend the
Canadian Commercial Corporation Act be read the second time.
She said: Honourable senators, I am very pleased to have the opportunity to
speak on second reading of Bill C-41, to amend the Canadian Commercial
I wish to take this opportunity to tell you about the corporation and the
bill and then address some of the specific issues raised during examination of
the bill in the House in order to pre-empt those questions here in the Senate.
Honourable senators, as you may know, the corporation has served Canadian
interests very well ever since it was first set up by the Government of Canada
in 1946 to help with international rebuilding efforts following World War II.
The corporation is especially well known for its role in supplying defence and
aerospace requirements of other governments, especially the U.S. Department of
Defense, its biggest customer.
With the signing of the Canada-U.S. bilateral treaty, the Defense Production
Sharing Arrangement (DPSA) in 1956, the CCC became the official agency through
which U.S. Department of Defense contracts were processed for the supply of
Canadian goods and services to meet U.S. defence requirements.
In 1960, CCC signed a similar agreement with the National Aeronautics and
Space Administration (NASA) to accept contracts on the same basis as other U.S.
government buyers. CCC is continuing to play a key role on behalf of Canada as
we respond to the demand for the goods and services needed to win the war
Honourable senators, the role of CCC is not just about supplying
defence-related material, however. It has a growing reputation today for its
success in negotiating contracts to supply the non-defence procurement needs of
the United States, governments of other countries, and international
institutions such as the United Nations, and its related agencies.
Today, 30 per cent of CCC's business is in sectors such as information and
communication technology, environmental services, transportation and consumer
goods. There is significant potential to do much more in these non-defence areas
of international public procurement markets. Annually, more than 30 per cent of
its business is now being conducted in more than 30 countries in addition to the
United States. The international public sector marketplace is huge. It is
estimated to be in excess of $5 billion U.S. annually. It holds tremendous
potential for Canadian exporters, including small- and medium-sized exporters.
The Corporation is an important instrument in the government's trade development
agenda. It is a full participant in Team Canada Inc. and a valued partner of
many Canadian companies in the international marketplace.
The corporation supports Canadian exporters in three unique ways. It provides
specialized international sales and contracting services, a government-backed
contract performance guarantee on behalf of Canadian suppliers to foreign
buyers, and access to commercial sources of funding for Canadian companies that
need pre-shipment working capital to finance exports.
The Canadian Commercial Corporation provides exporters with a unique
capability to access government procurement markets. It can help Canadian
exporters do more business in the international marketplace. This is because
CCC's backing, contacts and know-how translate into a significant advantage in
identifying, qualifying for and winning new business in this competitive,
specialized market. This role is important in fulfilling the government's
objective of creating high quality jobs and spurring wealth creation here at
Honourable senators, we want to make sure that CCC has the tools and the
operating structure it needs to help Canadian exporters exploit the significant
opportunities that exist in the huge public procurement market. The CCC is
finding its resources are being stretched and it needs new tools to do its work
and enhance its services. This is why Bill C-41 is now before the Senate for
Bill C-41 updates the Canadian Commercial Corporation Act in order to make
necessary changes to the corporation's governance and operating procedures, as
well as to give it new tools to serve the needs of Canadian exporters in a
commercially responsible way.
The bill proposes three changes: separating the functions of chairperson of
the board of directors and chief executive officer of the corporation;
permitting the charging of fees for service on the corporation's business not
related to the Defence Production Sharing Agreement (DPSA) business; and
authorizing the corporation to borrow funds in the commercial market.
As you can see, these amendments are very important not only to Canadian
exporters, but also to the CCC as they will help the corporation become more
self-sufficient and more commercially oriented.
While these changes may be essentially administrative and non-controversial,
honourable senators, I would take this opportunity to pre-emptively address some
of the concerns that I expect some of my colleagues in the Senate may have about
Honourable senators, one of the first thoughts that might strike my
colleagues is that CCC is not well known. While this may be true relative to its
higher profile sister crown financial institutions — the Export Development
Corporation, and Business Development Bank — CCC is actually well known and
appreciated amongst its key clientele in the aerospace and defence industry.
Last year, more than 1,700 exporters accessed CCC's services, and it
facilitated more than 5,500 contracts and amendments. That is not the record of
an unknown Crown corporation. Additionally, CCC has a growing profile among
companies in the non-defence sector, which bodes well for its revenue generation
prospect following implementation of its fee-for-service regime, which will
occur once this bill receives Royal Assent.
Honourable senators, given the high percentage of business it does with
respect to facilitating exports on behalf of Canada's aerospace and defence
industry, senators may wonder whether CCC follows Canada's military exports
controls policy. I can assure you that CCC ensures that Canada's military export
controls policy is followed as appropriate before facilitating a transaction on
behalf of Canadian exporters.
Our military export controls policy applies to the export of all military
equipment specifically designed for military use and includes a special
inter-departmental consultation when a non-OECD country is the buyer. An export
permit is not issued if the sale is to countries that pose a threat to Canada or
its allies, are involved in or under imminent threat of hostilities, or are
under UN sanctions.
An export permit is also denied if a country has a persistent record of
serious human rights abuses, unless there is no reasonable risk that the goods
might be used against the civilian population.
As a Crown corporation, wholly-owned by the Government of Canada, CCC is
required to adhere to Canada's defence and trade policies and other
international obligations. Given that we have just watched the bill to amend the
Export Development Act, Bill C-31, pass through these chambers, it is very
likely that senators will also be equally interested in CCC's ability to reflect
Canadian values on corporate social responsibility in its international
As a Crown corporation, CCC is responsible for monitoring Canadian government
policies on human rights and sustainable development and is required to adhere
to Canadian obligations. We are satisfied that the corporation adequately
undertakes this responsibility, but we realize that more can be done. The
government is working closely with CCC to develop a comprehensive strategy that
will leverage the special influence the corporation can have in international
transactions. The strategy will also build on what the corporation has already
In recognition of the importance of corporate social responsibility, the
corporation has already taken some steps to integrate corporate social
responsibility considerations into its operating environment. CCC officials are
part of a government-wide group that is encouraging and facilitating dialogue
with the private sector on promoting codes of socially responsible conduct.
Additionally, consistent with its commitment to incorporate social
responsibility, CCC contracts now include a clause prohibiting the use of bribes
or unethical business practices in other countries.
In 1999, the CCC announced its sponsorship of an award for corporate social,
ethical and environmental performance at the annual International Cooperation
Awards. The award is presented to a company that exemplifies the following: has
a corporate code of ethics, systematically integrates local community
stakeholders in project decision making and builds appropriate community support
systems into the design and implementation of a project in a developing country.
Furthermore, management has introduced an Environmental Review Framework for
the review of capital projects deemed to have potential environmental impacts.
CCC's Environmental Review Framework is patterned on the one originally adopted
by the Export Development Corporation.
CCC officials are working with colleagues at home and abroad to make sure
this policy reflects the leading practices of Canada and our international
In summary, honourable senators, it is essential that all public and private
sector institutions evolve over time in order to remain relevant and effective.
This is particularly the case with the Canadian Commercial Corporation, which
operates in an ever-changing and highly competitive global marketplace. This
legislation will ensure that the corporation is responsive to the needs of
Canadian exporters, particularly small and medium-sized enterprises.
Overall, the amendments contained in Bill C-41 will strengthen CCC's capacity
to deliver the specialized services that have spelled success in export markets
for thousands of Canadian companies and that have helped produce high quality
employment for Canadians throughout the country for many years. I urge all
senators to support it.
On motion of Senator Kinsella, for Senator Meighen, debate adjourned.
Hon. Jack Wiebe moved second reading of Bill C-37, to facilitate the
implementation of those provisions of first nations' claim settlements in the
Provinces of Alberta and Saskatchewan that relate to the creation of reserves or
the addition of land to existing reserves, and to make related amendments to the
Manitoba Claim Settlements Implementation Act and the Saskatchewan Treaty Land
He said: Honourable senators, I rise this evening to address you on second
reading of Bill C-37, which is the Claim Settlements (Alberta and Saskatchewan)
Implementations Act. Bill C-37 can perhaps best be described as another
important step in the ongoing process of fulfilling Canada's historical
obligations to Aboriginal people, obligations that in some cases date back more
than a century. For this reason alone, it deserves our careful attention and, I
believe, our full support.
While it is true that all stakeholders involved in this legislation,
including the First Nations of Alberta and the First Nations of Saskatchewan,
the Government of the Province of Saskatchewan and the Government of the
Province of Alberta, endorse and support Bill C-37, it is important that I
outline to you this evening some of the more pertinent factors of the bill.
By way of background, Bill C-37 arises out of specific commitments made to
two First Nations in Alberta, the Alexander First Nation and the Loon River Cree
First Nation. In 1998, these two First Nations signed treaty land entitlement
settlement agreements with Canada and the Province of Alberta that included a
pledge by Canada to recommend to Parliament legislation that would facilitate
the process by which lands are added to reserves.
Bill C-37 fulfils these commitments, honourable senators, but in another way,
it does a great deal more. With the approval of First Nations and the affected
provincial governments, this proposed legislation has been structured in such a
way that it may benefit other claims settlements in both Alberta and
Saskatchewan, including settlements that may be negotiated in the future.
I also wish to make it clear that the mechanisms and processes that would be
established by Bill C-37, although innovative and forward-looking, are not
completely new to Canada. In fact, this proposed legislation is patterned on
Part 2 of Bill C-14, the Manitoba Claim Settlements Implementation Act, which
was enacted by Parliament in October 2000 to facilitate claim settlements in the
province of Manitoba.
To fully appreciate the need for this legislation, it is important to first
understand the historical grievances that Canada is addressing in Alberta and in
Saskatchewan, as well as the problems that are being encountered. The solutions
proposed in Bill C-37 will then make, I am sure, a great deal of sense to you.
Between the years 1874 and 1906, Canada signed Treaties 4, 6, 7, 8 and 10
with First Nations in Alberta and Saskatchewan. Regrettably, for one reason or
another, many of the First Nations who signed or adhered to these treaties did
not receive the amount of reserve land promised to them.
Understandably, this has been a source of anger and frustration among First
Nations people in the two provinces. Long after these treaties were negotiated
and signed in good faith, many of the affected communities are still waiting for
their full land entitlement.
In fairness to the current government and to the Provinces of Alberta and
Saskatchewan, a genuine effort has been made in recent years to resolve this
historical injustice by providing additional reserve lands to First Nations with
treaty land entitlements. Toward this end, a total of 36 First Nations in the
two provinces have either signed individual treaty land entitlement settlement
agreements or are covered by a broader framework agreement in the province of
For the past several years, federal and provincial officials have been
working closely with these First Nations to help select and purchase various
parcels of land and to process these lands into reserve status. At the same
time, federal officials have been doing this same type of work for 13 specific
claim settlements in Alberta and Saskatchewan that include commitments to
expanded reserve lands.
Some treaty lands and specific claim settlements agreements have been fully
implemented to date, but as I noted earlier, many have not. In fact, one million
hectares, in excess of 2.5 million acres, are yet to be added to reserves as a
result of claim settlements in Alberta and Saskatchewan. Additional reserve
expansion commitments are expected in the future, as more claims are settled.
What exactly is the problem? Why are settlements not being implemented more
quickly? Quite simply, the processing of land into reserve status is mired in
legal and technical problems. That brings me to the primary objective of Bill
C-37, which is to facilitate that process.
This will be done in two ways. First, the current practice of conferring
reserve status through an order from the Governor in Council will be replaced
under this bill. This proposed legislation will empower the Minister of Indian
Affairs and Northern Development to set apart as reserves any lands that are
selected by Alberta and Saskatchewan First Nations under claims settlements.
This authority will help shorten the time needed to approve additions to
reserves and will avoid taxing the Order in Council process.
While the time required to obtain an order from the Governor in Council is
sometimes not insignificant, a far more difficult issue is the need to
accommodate existing third-party interests when processing land selections. This
is where Bill C-37 proposes the biggest changes and will have the greatest
impacts in terms of expediting the process.
Although Canada has clear obligations to First Nations people, it must also
respect the rights of third parties that have existing interests in lands that
may be selected for additions to reserves. Existing third-party interests on any
prospective reserve land must either be bought out and cancelled by agreement
with the third party or accommodated in a manner that is acceptable to Canada,
to the third party and to the First Nation involved. I know honourable senators
will agree that this is a fair and responsible policy.
Let me, in summary, list the main elements of Bill C-37. It will empower the
Minister of Indian Affairs and Northern Development, rather than the Governor in
Council, to confer reserve status on lands. It will introduce better, more
commercially certain ways to accommodate third-party interests during the
addition to the reserve process. Although I have not alluded to this in my
remarks thus far, the proposed legislation will make minor language amendments
to the Manitoba Claim Settlements Implementation Act to improve the application
of that legislation and keep it consistent with the similar provisions that will
apply to claims settlements in Alberta and Saskatchewan. It will amend the
Saskatchewan Treaty Land Entitlement Act to clarify which pre-reserve
designation powers will apply in different circumstances in Saskatchewan and to
deal with release issues surrounding provincial obligations that have been met
stemming from the Natural Resources Transfer Agreement for the Province of
Honourable senators should also be aware of some of the things that Bill C-37
does not do. For example, it does not give effect to any treaty land entitlement
or specific claim settlements in Alberta or Saskatchewan. Nor does Bill C-37
affect in any way a First Nation's ability to tax on-reserve third-party
interests. This proposed legislation does not provide for or permit the
expropriation of land or third-party interests in that land for reserve creation
In other words, while the overriding objective is to facilitate the transfer
of lands to reserve status, this bill also confirms and even enhances important
principles of Canadian law that protect third-party interests.
I mentioned earlier that there is a strong consensus in Alberta and
Saskatchewan that the new powers and processes set out in this bill will provide
a solution to the delays in fulfilling claim settlement agreements in both
provinces. In fact, all key stakeholders have endorsed this proposed legislation
and advised the government that they wish to see it moved forward as quickly as
As is the current practice, this bill was developed in close consultation
with the affected First Nations, the Federation of Saskatchewan Indian Nations,
treaty organizations in Alberta, and the provincial governments of Alberta and
Saskatchewan. All parties were provided with drafts of the proposed legislation
and their feedback resulted in several improvements to the bill. As well, the
Treaty Land Entitlement Committee of Manitoba Inc. has endorsed the proposed
amendments to the Manitoba Claim Settlements Implementation Act.
Honourable senators, it falls on us to take the next step to facilitate the
resolution of long-standing grievances that have blemished Canada's relationship
with First Nations in the provinces of Saskatchewan and Alberta. We have here a
bill that meets everyone's needs. Bill C-37 will help Canada fulfil its
historical obligations to First Nations people. It will foster economic
development and create jobs in First Nations communities across Alberta and
Saskatchewan. It will protect the rights of third parties that hold interests in
lands to be added to the reserves.
Honourable senators, I urge your support of this very important piece of
On motion of Senator Kinsella, for Senator Johnson, debate adjourned.
The Hon. the Speaker: Honourable senators, before proceeding beyond
Orders of the Day and other business, I will rule on the question raised earlier
today by Senator Kinsella relating to the second report of the Special Senate
Committee of the on the Subject Matter of Bill C-36.
I thank Senators Robichaud and Kinsella for their comments and their help
with respect to whether the motion of Senator Carstairs that the bill be read
the third time at the next sitting is in order, or whether it should be set down
for third reading two days hence.
Honourable senators, the practice here has been that when a committee reports
a bill without amendment, we immediately proceed to third reading. I refer you
to Bill C-11, an immigration bill dealt with by the chamber on October 23 of
this year. It was reported back with observations but without amendment, and it
did proceed to third reading, as Senator Carstairs has moved with respect to
Bill C-36. Another example dates from June 22 of last year, being Bill C-473, a
bill dealing with electoral district names. It was treated in the same way.
An issue was raised by Senator Kinsella in terms of the comments creating a
substantive part of the report that required additional time for preparation so
that debate on those observations could be full and complete. Senator Robichaud
pointed out that there is no impediment to using the observations in terms of
debate at the third reading stage. Accordingly, I do not find that a compelling
Going specifically to the rules, the rule that Senator Carstairs is relying
on in making the motion to proceed to third reading, the committee on Bill C-36
having reported the bill without amendment, is rule 97(4):
When a committee reports a bill without amendment, such report shall stand
adopted without any motion, and the Senator in charge of the bill shall move
that it be read a third time on a future day.
There is then the question of whether that rule or rule 97(5) would be
applicable. That rule refers to a report that recommends amendments, which this
committee report did not do. That particular rule refers to two previous rules,
57(1)(e) and 58(1)(g), one of which provides for one day's notice, the other for
two days' notice. The question becomes whether rule 97(4) or 97(5) is
The question of the committee on Bill C-36 being a special committee was
raised as a possible reason for the application of rule 97(5) and not 97(4).
However, I believe that matter is resolved by the definition of "committee" in
section 4(b)(i) of the rules, which defines "committee" as meaning, in part, a
Accordingly, honourable senators, I do not find the argument that the motion
to proceed to third reading on one day's notice is anything but in order. That
is my ruling, honourable senators.
Resuming debate on the motion of the Honourable Senator Austin, P.C.,
seconded by the Honourable Senator Joyal, P.C., for the adoption of the eighth
report of the Standing Committee on Rules, Procedures and the Rights of
Parliament (amendments to the Rules-Senators indicted and subject to judicial
proceedings) presented in the Senate on December 5, 2001.—(Honourable
Hon. Jack Austin: May I inquire of Senator Nolin when he will speak to
The Hon. the Speaker: The motion to stand is not a debatable motion.
Is leave granted, honourable senators, for Senator Nolin to respond?
The Senate proceeded to consideration of the tenth report of the Standing
Senate Committee on Transport and Communications (budget-Examination on issues
facing the intercity busing industry), presented in the Senate on December 6,
2001.—(Honourable Senator Bacon)
Resuming debate on the motion of the Honourable Senator Losier-Cool,
seconded by the Honourable Senator Léger:
That the Senate of Canada recommends that the Government of Canada
recognize the date of August 15 as Fête nationale des Acadiens et Acadiennes,
given the Acadian people's economic, cultural and social contribution to
Canada.—(Honourable Senator Bryden)
Hon. John G. Bryden: Honourable senators, I rise to speak briefly to
Senator Losier-Cool's motion that the Government of Canada recognize August 15
as the Fête nationale des Acadiens et Acadiennes. The contribution that has been
made by the Acadian people to the province of New Brunswick is a great one in
various aspects of the life of our province: in its public life, in its business
life, in its culture and education, and throughout the fabric of our province.
The uniqueness that is New Brunswick is very much due to it being home to two
groups of equal citizens: anglophones and francophones; Acadians and descendents
of Loyalists, English, Scots and Irish, who were welcomed by our Aboriginal
communities, a mixture which has since been leavened by somewhat of an influx of
other cultures through recent immigration.
Much of the sizzle in the steak that is New Brunswick, the bouquet in our
wine, the joie de vivre, is Acadian. The cohabitation in the home that is the
Province of New Brunswick has enhanced the lives and the opportunities of both
anglophones and Acadians. New Brunswick is the only officially bilingual
province in Canada. Over time, that status has contributed huge advantage to the
young people of New Brunswick of both anglophone parentage and francophone
parentage in that there is great concern on the part of parents of both Acadians
and anglophones in New Brunswick that their children have the opportunity,
through total immersion and second language training, to be able to speak well
and understand well both of our official languages.
The advantage that that gives to our citizens in a global economy is
significant. There are a limited number of places, certainly in the developed
world, and perhaps in the entire world, where one can speak both English and
French and one or the other of those languages is not a second language in that
The advantage has been primarily to anglophones, but the advantage that has
accrued to Acadians was most evident after the Acadian Congress a number of
years ago when Acadians from all over the world came to the province of New
Brunswick. They were amazed at the institutions of Acadian culture, education,
hospitals and social services that existed in that province. Acadians were proud
of their status, their institutions and what they had accomplished. It was
indicated to me by a number of people who were present and intimately connected
with that event that many of the Acadians in New Brunswick found themselves the
envy of Acadians elsewhere in the world.
Honourable senators, I should like to speak personally about why my family
and I have a huge affection for the Acadian people and Acadians who are our
friends. I live in a little piece of New Brunswick that is an island of
anglophones in a sea of francophones. My family came as immigrants from Scotland
in 1929. We lived in a place called Little Shemogue. We were the newcomers to a
place where by far the majority of people were French-speaking and Acadian, and
we were all dirt poor.
On many occasions, my mother told this story to my five brothers and me.
During the 1930s, my mother was very ill. As a matter of fact, it was believed
that she was dying. There were no services then. A woman by the name of Marie
Duguay came from Duguay's Point, which is 2.5 to 3 miles away from our farm. She
walked every day through the winter snow and slush and the spring mud down that
country road to our house and sat by my mother's bed. She made tea and sat with
my mother every day for weeks and months. Every day, before she left, she would
take my mother's hand and say, "You pray in your way and I will pray in my way,
and God will not take you from your sons." My mother recovered. She never
forgot that kindness, and she made very sure that her sons never forgot it,
Also at that time, there was a cooperative movement that started at Great
Shemogue. The cooperative movement was started Father LeBlanc, the French
Catholic priest of Shemogue, and the Scotsman, as my father was called. One was
the president and one was the secretary, and they worked together to form this
cooperative movement that helped to ease the poverty that existed during that
time in our province and in our country.
When times were tough and we could not afford to pay the schoolteacher in
Little Shemogue, we could not go to school there. However, we were allowed to
walk the extra mile, which made it three miles, to Great Shemogue. We attended
the Catholic school there that was run by teaching sisters. As a young boy, I
remember a teaching sister bandaging the blister on my heel, which I got because
the gum rubbers wore on the back of my foot as I walked to school in the spring.
Those things are part of a person's fabric, and there are stories like this on
Honourable senators, I will finish by speaking about an event that occurred a
couple of years ago. The conference of l'Organisation internationale de la
Francophonie at Moncton, which was a huge success, was an example of the
Acadians, the Province of New Brunswick and Canada being proud of having such a
successful event. The director general of that event was Fernand Landry. The
next summer, far too soon, he died. The Acadians lost a champion; I lost a best
friend with whom, a week before his death, I had talked about the mysteries of
life and death, the magic and eternity of love and hope, and the wonder of the
lives that each of us, as sons of the province of New Brunswick and the nation
of Canada, had had and the country and province that had nurtured us both.
Honourable senators, the legacy of Marie Duguay, Fernand Landry and thousands
of Acadians like them should be marked by making August 15 la Fête nationale des
Acadiens et Acadiennes.
Hon. Terry Stratton rose pursuant to notice of December 5, 2001:
That he will call the attention of the Senate to the fact that even in
times of crisis or emergency, certain values and rights are to remain
He said: Honourable senators, it gives me great pleasure to rise this evening
to speak to the inquiry that I set down last week. I stated then that today I
would call the attention of the Senate to the fact that, even in times of crisis
or emergency, certain values and rights are to remain inviolate.
The timing of the commencement of the debate on this inquiry is especially
noteworthy because, earlier this evening the Special Senate Committee on Bill
C-36 presented its report, reporting Bill C-36, the government's so-called
proposed anti-terrorism legislation, back from the committee unamended, except
When we think of the protection of civil rights or civil liberties, we
usually turn our minds to countries that live under oppressive regimes. When we
think of the application of the international covenants that protect human
rights in the global community, we do not even contemplate how these covenants
might be either applicable or relevant in Canada.
However, given Bill C-36 and its companion bill, Bill C-42, still in the
House of Commons, it is time for us in Canada to take stock of the protection of
civil liberties and the applicability of the various United Nations
Our theme tonight, and as we continue the debate, will be that there are some
human rights that are so precious that they cannot be derogated from by
legislation, even in the case of declared emergencies.
Therefore, in this time when we are faced with proposed legislation that
could compromise these vital human rights, we must be ever vigilant to ensure
they remain inviolate.
Honourable senators, those who speak after me will elaborate on those rights
and the protections they affect.
Hon. Donald H. Oliver: Honourable senators, I wish to begin my remarks
on this inquiry by thanking the Honourable Senator Stratton for calling the
attention of the Senate to the issue of human rights around the world. In the
scheme of the way things worked on our side of the Senate, I was supposed to put
this inquiry down last week, but I was unable to do so because I was attending
Inter-Parliamentary Union meetings in New York City. Meeting with members of the
IPU from all over the world in New York was, indeed, a very moving event for me.
As honourable senators can imagine, with the devastation of September 11 just
a few blocks from where we were meeting, and the war in Afghanistan and the
hostilities raging in the Middle East, the informal discussions certainly
concentrated on the scourge of terrorism that seems to have invaded every aspect
of the world we live in today.
Many of the countries present, Canada included, of course, are either
updating existing laws that were designed to fight terrorism or are drafting
entirely new laws to meet the sophistication of the terrorists at the beginning
of the 21st century.
There is a view that if each country passes laws that are tough enough and
insulates its borders from immigration or the acceptance of refugees, all will
be well, or, at least, the awful acts of September 11 will not be visited upon
Lost in most of this debate is the fact that anarchy and terrorism have
always been with us. Lost in this debate, for the most part, is the realization
that some human rights or civil liberties are so overarching, as already stated
tonight by Senator Stratton, that they should never be diminished by any
legislative response to terrorism.
I was particularly touched by a speech given by our Governor General,
Adrienne Clarkson, at the awards ceremony for the Canadian Journalists for Free
Expression on November 8. The theme of her speech was that people who believe
the world changed on September 11 do not know their history, do not know the
struggles of people over the centuries to be free, to govern themselves, to have
a decent standard of living, and to be free from discrimination and persecution.
The struggle against evil did not begin on September 11, nor will it ever
end. In that speech, she quoted one of history's great freedom fighters,
Aleksandr Solzhenitsyn, who said the following:
If only there were evil people somewhere, insidiously committing evil
deeds, and it were necessary only to separate them from the rest of us and
However, the world does not work that way. The distinction between good and
evil cuts across cultures, countries and human beings.
Therefore, it is with a sense of history that we must pause during this time
when governments want to be seen to be acting to root out and to punish
terrorists and to reflect on the true values of our society as they have been
written down over the years. We must remember the rights and freedoms that have
been fought for and which, from time to time, have been trampled upon by leaders
or governments pursuing their own agendas at the expense of the freedom and
rights of others.
The struggle to find the balance between the preservation of our freedoms
while still equipping the agents of our government with sufficient tools to
effectively combat terrorism has preoccupied all of us in Parliament for the
past several weeks. Bill C-36, which is before us, and Bill C-42, which has yet
to come to us, limit our rights.
In determining whether the limitations on these rights are proportional to
the end being sought or, indeed, are valid at all, many international covenants
may be consulted.
The International Covenant on Civil and Political Rights makes it clear, in
Article 4, that there are certain rights from which there can be no derogation,
certain rights that, no matter what the circumstances, remain inviolate.
Article 4 states:
In time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the States 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.
Therefore, honourable senators, even in times of public emergency that may
strike at the heart of the nation, laws cannot be passed that discriminate on
the grounds of race, colour, sex, language, religion or social origin. This is
the filter through which must pass both Bill C-36 and Bill C-42, as well as any
other legislation brought forward by this government that is supposedly aimed at
fighting terrorism but which, potentially, limits rights or discriminates on the
basis of these protected grounds.
As well, clause 2 of Article 4 states that there can be no derogation from
the rights set out in seven articles of the International Covenant on Civil and
Political Rights. The articles that contain these inviolate rights deal with the
right to life.
Article 6 (1) states:
Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
Article 7 deals with torture. It reads:
No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.
Article 8 prohibits slavery, slave trade and servitude.
Article 11 states:
No one shall be imprisoned merely on the ground of inability to fulfill a
Article 15 condemns retroactive criminal law that makes an action criminal
which, when originally done, was legal.
Article 16 states:
Everyone shall have the right to recognition everywhere as a person before
This ensures that, even in times of emergency, a government cannot treat
someone as a non-person in law.
Finally in this list of rights that cannot be diminished under any
circumstances is Article 18 by which:
Everyone shall have the right to freedom of thought, conscience and
All of the articles that I have quoted contain rights so fundamental that
they cannot be diminished, derogated from or taken away, even in times of
declared public emergency.
In Canada, we are not living in a state of emergency, even though we are
being asked to pass laws that give the police, government agencies and the
government itself extraordinary powers. We must also realize, as we have been
told, that these extraordinary powers will be with us for a very long time.
As we review Bill C-36, the anti-terrorism bill, this week, and Bill C-42,
the public scrutiny bill, in the new year, we must be ever vigilant to ensure
that the legislation is not only in compliance with the Charter of Rights and
Freedoms but also, honourable senators, in conformity with our obligations under
international human rights covenants.
Hon. A. Raynell Andreychuk: Honourable senators, 53 years ago today,
the Universal Declaration of Human Rights was adopted by the United Nations
General Assembly. Today, being International Human Rights Day, provides us with
a timely opportunity to give sober reflection to the state of human rights in
The ongoing challenge of maintaining a just state of law in Canada belongs to
all of us who live here. It is the responsibility of every Canadian to fight for
the preservation of the rules of law that have been developed since the birth of
our nation and to mobilize our greatest resistance against any attempt to undo
the gains that we have made thus far. Every one of us must take on this great
responsibility in order to ensure that each and every individual counts and that
each and every individual is valued as a human being worthy of dignity in our
society and before the courts of Canada.
The Universal Declaration of Human Rights begins, in its preamble, by
Whereas recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world...
In this way, the declaration underscores that recognition of the inherent
dignity of all human beings, as well as our equal and inalienable rights, is the
necessary vehicle that will bring us to a world of freedom, justice and peace.
During this moment of reflection on the state of human rights in Canada, we
should ask ourselves where we stand now and what future challenges we will have
Canada plays an important leadership role in the field of human rights within
the international community. As a representative democracy, we have given our
leaders the responsibility to ensure that the state respects all rights that we
believe to be inviolable. Through such mechanisms and instruments as our
Parliament, our courts, our Constitution, civilian agencies that act as watch
dogs and the like, we have built a system of checks and balances to ensure the
respect of human rights in Canada and to ensure that no one is above the law.
We have earned our commendable human rights reputation in Canada in part
because we strive to guarantee that every individual who appears before the
courts matters. Regardless of who the person is or where he or she is from, all
have the same rights before the law. The rule of law in Canada ensures that the
rights of the minority are not unduly effaced by the will of the majority.
We have matured our criminal justice system over the years in a manner such
that the paramount concern of the court is to find the delicate balance of
meting out justice while respecting the rights of the accused. We have developed
concepts of procedural fairness, due process and fundamental justice, all in an
effort to ensure that the rights of the individual are not trammelled by the
state when it seeks to redress a harm suffered by society.
In the context of criminal law, the Canadian Charter of Rights and Freedoms
seeks to protect the individual from irreparable harm caused by actions of the
state. Every day we are faced with the ever-present challenge of balancing a
variety of competing forces within society. My right to liberty must be weighed
against my right to security. Freedom of expression may offend society's right
to be free from hate-mongering. The continual friction caused by the competing
forces of individual rights and the will of the state is not lost in either the
Universal Declaration or the Canadian Charter of Rights and Freedoms.
Article 30 of the Universal Declaration states that no group or person can
invoke any right of the declaration that would permit any activity or act aimed
at the destruction of any of the rights and freedoms set out in its text. The
Canadian Charter also recognizes that no right is absolute and that a balance
must be struck among the competing interests between state and citizen. It
states in its first section that all Charter rights and freedoms may be
derogated from, so long as such derogations can be demonstrably justified in a
free and democratic society.
The Supreme Court of Canada, in the Oakes case, has elaborated a test whereby
such interests of society are weighed in relation to the rights of the
individual. The balance will tip in favour of society's interests if it can be
proved that the law that allows for such derogation meets a pressing and
substantial objective and that the means employed to do so are rationally
connected to the problem to be remedied, minimally impair the right that is
being infringed and are proportional to the problem at hand.
In Canada, as anywhere else in the world, the health of our human rights
depends on a constant diligence to attain a degree of proportionality when
evaluating the competing interests of both the individual and the state. The
state does not trump the individual. One right does not trump another.
As the members of the global village are drawn increasingly closer together
through new technology, more efficient means of transportation and an increased
understanding of distance, new challenges inevitably come to the fore.
It is natural that we may feel overwhelmed by the new problems we face. In
reaction to this, there seems to be a movement afoot in Canada that seeks to
loosen the system of checks and balances in order to confront the seemingly
overwhelming threats of today. Such a movement must be resisted. We must not be
left with the legacy legislatively that legitimizes the exercise of power
unfettered and unaccountable.
Where loss of individual rights occurs, the authority must be held to account
by scrutiny and vigilance from another body, namely, the legislative branch, or
an independent body or the courts. In a democracy, one does not police oneself.
The rule of law must incorporate not the use of power absolutely in a given
situation, but the use of power fairly and justly on some objective test.
As William Pitt so astutely observed in 1783:
Necessity is the plea for every infringement of human freedom. It is the
argument of tyrants; it is the creed of slaves.
Any call to barter away certain fundamental human rights in exchange for
security must be approached with great trepidation. Heed must be taken to the
sober voices of people such as Nadine Strossen, President of the American Civil
Liberties Union, who stated that her greatest fear is:
...that too many members of the public will embrace the government's call
to give up some freedom in return for greater safety, only to find that they
will have lost freedom without gaining safety.
Canadians have every right to seek a greater measure of security; however, we
cannot trade away rights in exchange for greater security, for we will end up
with neither. A sober reflection on the present point to which our country has
arrived in the area of human rights is cause for celebration. On this Human
Rights Day, we can set our accomplishments in striking a just balance between
the rights of the individual and the collective interests of society. These
gains could not have been arrived at without the dedication and commitment of
those who fought the hard-won battles that have brought us to where we are now.
Finally, we must maintain an unwavering commitment to continue the pursuit of
the correct balance among the competing rights that every person can claim under
the Universal Declaration of Human Rights.
I call on all senators in the coming days to carefully weigh what others have
given us in this society.