Debates of the Senate (Hansard)
1st Session, 37th Parliament,
Volume 139, Issue 90
Wednesday, February 20, 2002
The Honourable Dan Hays, Speaker
Wednesday, February 20, 2002
The Senate met at 1:30 p.m., the Speaker in the Chair.
The Hon. the Speaker: Honourable senators, we begin today with
tributes to our former colleague the Honourable H.A. Bud Olson, P.C., who passed
away on February 14, 2002.
Hon. Joyce Fairbairn: Honourable senators, it is with great sadness
but with warm and rollicking memories that I pay tribute today to a dear friend
and former Senate colleague, Bud Olson, who died last Thursday in Medicine Hat.
He was truly a great parliamentarian, a passionate patriot for Canada and
perhaps one of the toughest, most knowledgeable and outspoken ambassadors of his
area, of his province of Alberta and of Western Canada that I have ever known.
As a hands-on farmer and rancher, love and respect for the land was the
foundation of the political career he carved out over almost 40 years. It
sustained him through troubled times; it sparked his political philosophy; and
it undoubtedly gave him that wonderful mix of courage, honour, humour and, on
occasion, mighty outrage that made him one of the most compelling speakers I
have heard. Whether in a small county room or on an election platform or in his
seat in the House of Commons or in the Senate, Bud commanded the attention of
his listeners, whether they liked what he was saying or not. He was first
attracted to the Social Credit Party, which dominated life in Alberta from 1935,
when William Aberhart started a political prairie fire that was to last for 36
years. Bud was a trusted confidant and warrior with former Premier and Senator
Ernest Manning, who guided our province through the excitement and the
challenges of the development of the energy industry, as well as the burgeoning
trade of agricultural products around the world.
Bud began a long life in Parliament in 1957, when he entered the House of
Commons. As a Social Credit member, he won five elections, and as its House
Leader became the strongest voice for that party in Ottawa. I met him back in
1962, when I was a new member of the Parliamentary Press Gallery. As a rookie, I
learned the process from the pros. Bud Olson was one of the most outstanding
debaters and procedural experts during those tough and defining years of
minority governments in the 1960s. It was tough, but it was also a lot of fun.
As his party began to split up at the federal level, he chose to join the
Liberal ranks and in 1968 became the first Minister of Agriculture in the
government of Pierre Elliott Trudeau. The appointment could not have been a
better one for the country, but, regrettably, our party members were wiped out
in the Alberta election during 1972.
Bud entered the Senate in 1977. He became Leader of the Opposition in 1979,
was appointed to lead a super-cabinet ministry of economic and regional
development in 1980, and he served also as Leader of the Government in this
place from 1982 to 1984. This chamber really became his second home. He was
vigorous in committee and comfortable in this place, where he played a very
spirited role in anything to do with agriculture, the Constitution, the
environment, and the list goes on.
Bud was never lost for words. In fact, he never needed a note at any point.
Some of those who served in the Senate while he was with us will remember that.
They will also remember that when aroused, he virtually lifted these rafters
with his mighty voice and his rhetoric. It was great to hear if you were on his
side of the house, but it was daunting if you were opposed.
Our Speaker, Senator Hays, and myself looked to Bud as a mentor. He was a
very fine teacher. Privately, he was quiet, gentle and kind, with an infectious
sense of humour. He was a tough political fighter.
As his health declined, the long trip back and forth from Southern Alberta to
Ottawa took its toll. In 1996, he quietly made up his mind that it was time to
go. As Leader of the Government in the Senate at that time, I was truly saddened
because, in his heart, he felt that he had more left to give. He gladly accepted
the role of Lieutenant-Governor of Alberta, which was offered to him by Prime
As he left, Bud told me the one thing he wanted to do was to spend the time
left to him urging his fellow Albertans, particularly young people, to recognize
and take pride in the tremendous benefits of a strong and united Canada. He did
so as vigorously as health would allow.
In 2000, Bud retired to his home in Medicine Hat with his beloved wife,
Lucille. Last month they celebrated their fifty-fifth wedding anniversary. He
always credited her with giving him the strength and the support that enabled
him to fulfil his goals.
As everyone in this chamber knows, it is tough to maintain family life in
politics, but Bud's inner devotion to his children, Bud Jr., Sharon, Andrea and
Juanita, was steady as a rock. At some point, our conversations always centred
on his pride in his children and grandchildren.
I was in Russia last week when Bud died, and I feel as though my life has
been diminished. I am grateful for all those years of friendship and support,
and I will never forget the strong and generous Albertan, who truly helped to
change attitudes, as one of the finest citizens in what he believed to be the
finest country in the world.
We send our deepest sympathies to Lucille, to his family, and to his
multitude of friends. He will not be forgotten.
Hon. Dan Hays: Honourable senators, it is difficult to do justice to a
life like Bud Olson's in a few minutes. I am grateful to Senator Fairbairn for
her words. She summarized the highlights of Bud's life and some of his personal
qualities very well.
Bud Olson was a product of his environment. He was born in Iddesleigh, in the
heart of the area called the Palliser Triangle, which is a difficult area to
farm. It was a land of heartbreak for many. The Olson family succeeded where
many did not. The land shaped him. It gave him his toughness and some of his
Bud was described as an unorthodox, independent-minded person. He did tend to
stick to a position longer than a more moderate person would have thought he
Bud succeeded in three areas, and Senator Fairbairn touched on them very
well: his family, his greatest success; his public service; and also as a
Senator Carstairs, Senator Taylor and I attended the funeral. Bud Jr., the
third child in the family, gave a wonderful eulogy to his father and captured
some of Bud by recounting family conversations. Bud Jr. pointed out that when
the tide turned against Bud, he would observe to the whole family, "I do not
want you to be under the false impression that this family is run as a
democracy." That was something he would have said.
Bud's public service was remarkable. Senator Fairbairn outlined the important
positions he held, culminating in becoming the Lieutenant-Governor of Alberta.
If there was one thing in his life that transcended everything, it was that he
was first, last and always an Albertan and a supporter of Albertans, in
particular the agricultural community of that province.
In the mid to late 1980s, we experienced some terrible droughts in Alberta
and Saskatchewan, particularly in Southern Alberta. We were in opposition at the
time, and Bud was pressing very hard for a program to help those in need. I can
remember him saying to me, "You know, this is a serious problem that will take a
billion dollars to fix." Lo and behold, the government of the day came up with a
billion dollars. The next day, Bud was on his feet saying that it should be $2
billion. That was the kind of commitment that he made to his constituents.
Finally, Bud was a farmer and rancher. He loved to farm. I do not think he
was ever happier than when he told stories about farming and how much he enjoyed
sitting on a combine or driving a truck to take in a good harvest, which
unfortunately was not every year in the area where he farmed.
As he aged, the farm became the responsibility of Bud Jr. Those senators who
have farm backgrounds will understand that fathers and sons on farms have a
difficult time. That period of transition does not come easily. Bud told me a
story that I think says much about him. He loved to buy machinery; he loved to
operate machinery. Every time he bought a truck or combine, he said it was one
of the best deals ever made. He and Bud Jr. bought some trucks, and he was, I
think in Bud Jr.'s mind, interfering too much in the operation. On a weekend he
was there to help, Bud said, "Do what you want, but under no circumstances drive
that truck or take it anywhere. It is not fit to drive."
As soon as Bud Jr. was out of sight, the very thing, predictably, that Bud
did was to get into the truck and drive it. Also, predictably, he got a few
miles away from the farm and the axle broke. The very thing that he was worried
about happening did happen. The way Bud dealt with the situation is interesting.
He hitched a ride, got in his car, drove to the airport, phoned Bud Jr., told
him about the breakdown and got on the plane and went to Ottawa.
Bud was a great friend, and I am grateful for having known him. His passing
leaves a void that can only be partially filled by the memories we have of the
times we shared with him, of the stories he told, of the issues he debated, and
especially of the friendship and guidance he gave.
Hon. David Tkachuk: Honourable senators, I rise to say farewell to our
former colleague the Honourable Horace Andrew Olson — Bud to his friends.
He served his province as a member of the House of Commons for a decade and
subsequently as a member of the Senate for nearly two decades. During the course
of his 30 years in Parliament, he worked on a number of committees and held the
post of Minister of Agriculture for four years. He was the Leader of the
Government in this chamber for two years, from 1982 to 1984, with concurrent
Pierre Trudeau relied on his advice, and it was Bud Olson who was given the
impossible task of selling the National Energy Program in Western Canada, a
tribute to his bravery and his loyalty to his party.
Bud Olson was an exemplary parliamentarian, aggressive but plain-spoken in
debate, noted for his knowledge both of issues and of procedure, and bringing
with him a special understanding of the problems faced by agriculture and faced
by farmers, among whom he was proud to be numbered.
Bud was, along with my friend Senator Gustafson, when I arrived here in 1993,
the two people I listened to when they spoke about agriculture; both former
members of the House of Commons, both from the Prairies, both farmers. It was
too bad that he decided to leave so early.
When Bud left the Senate in 1996 at the age of 70 — and he could have served
another five years — it was to return full-time to his native province and to
continue to serve the people of Alberta in a different capacity, namely as His
Majesty's representative, the Lieutenant-Governor. After retiring as Alberta's
fourteenth lieutenant-governor in February of 2000 and despite his failing
health, he maintained his continuing interest in Canadian and world affairs.
Honourable senators, Bud's family was a very important element of his life,
as those of you who knew him well know. I am certain that not only his wife and
four children but his 10 grandchildren found it difficult to lose the amount of
time with him that he spent with us and on his other political duties. I also
know they understood, as most of our spouses and families do, that government
and governing were not just jobs to him — they were a passion.
Not only did Alberta lose a distinguished son on February 14, the country he
served did as well.
Hon. Anne C. Cools: Honourable senators, I rise today to join
colleagues on both sides in paying tribute to the life of Senator Bud Olson, a
dear friend to me in the Senate and a dear friend to all of us here, even his
Honourable senators, it pains my heart that I was unable to attend his
funeral a few days ago, but I do want his friends and colleagues and family
members, particularly his wife, Lucille, to know that I was there in spirit with
Honourable senators, I wish to send my best and warmest regards, my support
and my condolences to dear Lucille and to all the family members and communicate
to them that my prayers are with them.
Hon. Willie Adams: Honourable senators, I should like to say a few
words about my colleague Senator Olson. Almost 25 years ago, four of us were
appointed at the same time: Senator Bud Olson, Senator Royce Frith, Senator
Peter Bosa and myself. I still remember the first time I walked into this room,
and it will be 25 years ago next April 5.
Senator Fairbairn talked about Senator Olson's time as Leader of the
Government. I remind you that, in 1980, he was Minister of State for Economic
Development and the Minister responsible for the Northern Pipeline Agency. I
have memories of him travelling across Canada. At that time, 1980, there was a
lot of exploration in the Western Arctic and Western Canada. He later became
chairman of the Energy Committee.
Senator Frith was deputy leader in the Senate at the same time Bud Olson was
Leader of the Government in the Senate. I remember Senator Bosa saying to me,
"What's wrong with you and me, Willie? We were appointed at the same time, and
now we have Senator Olson as leader and Senator Frith as deputy leader."
After the election of the Mulroney government, Senator Frith became Leader of
the Opposition in the Senate.
I have many memories of those days. When I first came here, I did not know
many people. My neighbour Senator Sparrow was here, as were Senator Graham and
Senator Austin. There are a lot of new faces in the Senate now.
We lost a good friend in Senator Olson. He was concerned about exploration
and used to travel quite a bit in the high Arctic. He was concerned about the
Arctic and the Aboriginal people.
I extend my condolences to his family.
Hon. Jack Austin: Honourable senators, Senator Bud Olson was a
colleague with whom I worked in this chamber for many years. He was also a
seatmate for a short time — one of the most interesting persons to have as a
Senator Olson was what I call a "legislative animal." He understood the
temperature or the nature of the political process in the chamber, and he
certainly understood it in cabinet and in caucus. He was a very effective person
in delivering what he needed and often what he wanted, to do the job as a
representative of Alberta.
Senator Olson was a real son of southern Alberta and southern Alberta's
agriculture. He was brought up, as Senator Hays and Senator Fairbairn said, in
that particular community, and it is a significant substratum of Alberta
society. With Senator Olson, you knew that the voice for southern Alberta was
My wife's family takes some credit for his political career. He ran in 1957
against my father-in-law, Harry Veiner, who was the mayor of Medicine Hat. My
father-in-law lost by a few hundred votes, and Senator Olson got on with his
career, and my father-in- law got on with being mayor of Medicine Hat. He
enjoyed that role. We in my family have always thought that it was a narrow
escape for my father-in-law.
As a cabinet colleague, Senator Olson was wonderful to me. We had, in my day
in cabinet, a serious discussion with the Province of British Columbia over an
agreement dealing with Expo 86 in Vancouver. Bud Olson was at my elbow helping
me with the negotiations with the Province of British Columbia. He had this
famous caution, "Watch out for the tro-ins." I said, "Bud, what is a `tro-in'?"
He said, "You know, you think you have a deal, and then they say 'tro' in this
and 'tro' in that, and then we'll sign. Watch out for the 'tro-ins'." He was a
very practical man, a very real man, a very sensible man.
Hon. Marcel Prud'homme: Honourable senators, everyone seems to have a
good story about Bud Olson, so I will give you a summary of what I have written
In 1967, you may recall that the Honourable Ernest C. Manning wrote a book
entitled Political Realignment that created a great deal of discussion among
Social Credit Party members in Alberta. As you know, Bud Olson was first a
member of the Social Credit Party before 1957, as was pointed out by Senator
Austin, not a Liberal. He was defeated in 1958 and came back in 1962, 1963 and
1965 as a Social Crediter. At that time, I happened to accompany Mr. Pearson to
Klondike Days in Edmonton, Alberta. That is where Mr. Pearson was highly
acclaimed, as you all remember. Mrs. Pearson was overheard saying, "Why, if they
like you so much, do they not vote for you?"
On the same trip with Mr. Pearson, I met a man at the opening of the
Diefenbaker Lake Dam in Saskatchewan. The man was Mr. Bert Hargrave, a great
rancher. I had never met a rancher before. I thought perhaps he had a few
hundred head of beef, but it ended up that he had over 5,000. He said, "Come and
see it." I arrived in Medicine Hat. He said, "There is a big party for Mr.
Olson. The man is really in full reflection since Manning's book on political
realignment. He may go Conservative or Liberal." That was enough for me. I was a
very active Liberal for a long while. I immediately called the Prime Minister's
Office and said that there is a man here who is ready to swing, and maybe he can
swing him to the Liberal side. Well, he did, in 1968. Our esteemed former
colleague Senator Earl Hastings helped to negotiate that event. At that time, he
was a young Liberal organizer in Alberta. I do not know what took place there.
All I know is that Mr. Olson ran as a Liberal in 1968.
Something took place in the agriculture industry that displeased Mr. Hargrave
very much. He was the one who introduced me to Mr. Olson. Mr. Hargrave said, "If
you pass that bill, I will defeat you." Guess what, Bert Hargrave, in 1972,
1974, 1979 and 1980 defeated Bud Olson.
On a special note, Mr. Olson opened up Western Canada to many of the
Prud'hommes. Many members of my family are farming people. A strong, young
cousin of mine said that he would love to learn English and go to work on a
farm. He went to work on Mr. Olson's farm, learned English and became very well
liked by Mr. Olson.
I thank Mrs. Olson for having been almost a godmother to a cousin Prud'homme
from Saint-Eustache. I thank the Olson family and I offer them my most sincere
condolences. I remember all the good Senator Olson did to help some members of
my family experience Western Canada while living and working on the big Olson
Hon. Nicholas W. Taylor: Honourable senators, my tribute to Bud Olson
will be anecdotal as well.
Senator Olson and I were born about 25 kilometres apart in southern Alberta,
three-quarters of a century ago, in the middle of the Palliser Triangle.
For those honourable senators who may be unaware, Captain John Palliser was
an explorer who came out from England and Eastern Canada in the late 1800s and
took the trip from Medicine Hat to Calgary. He said that the area would never be
good for anything; it was hopeless, it was a desert. We laughed at him in 1917
and we laughed at him in 1945. Outside those two times, Palliser has been right.
Bud and I were raised in the middle of the dirty thirties. We were in the
midst of a drought, and even the ribs of a rattlesnake would show as it hung
from the edge of a fence post.
Although we were born in close proximity, I did not meet Bud playing ball or
anything like that. I first met Bud Olson in the 1957 election, when he was only
31. He took on the best debaters of the day in southern Alberta. Southern
Alberta had been a hodgepodge of political beliefs. There had been a Liberal in
the area by the name of Dr. Gershaw for many years before that, but the area was
known to be Social Credit.
When the elections came, I used to tell Bud that people would come down from
the hills with their flat black hats and their Bibles under their arms and put
him in power. In 1957, Diefenbaker captured the attention of the voters and out
Bud went. In the next election, Bud won the riding back for the Social Credit
Party and he stayed with the Social Credit Party right up to 1967, when Mr.
Pearson asked him to cross the floor.
Bud Olson was always practical in debate. He was able to take any subject and
remove it from being a Liberal or Conservative issue. He was able to speak to a
matter from the point of view of whether it was good for Alberta or for Alberta
farmers. He was particularly able at that, although he lost the election,
unfortunately, in 1972.
I took the leadership of the provincial Liberal Party in 1974 and Bud was an
adviser to me through the 1970s. Sometimes I paid attention to him; sometimes I
did not. When I did not, I usually got into trouble. When I paid attention, he
was usually right.
At that time, the national Liberal party wanted us to merge with the
provincial Social Credit Party. Much to the chagrin of the journalists, Bud and
I agreed that joining with the Social Credit Party would be political
necrophilia. The same thing might happen to our friends on the opposite side if
they contemplate joining the Canadian Alliance. In other words, history might be
repeating itself. I will let that go, as that is something members opposite will
have to decide.
Sometime in the 1970s — as if living in Alberta as a Liberal was not
dangerous enough — Bud took up flying lessons to become a pilot. He did fairly
well in the ultra-light aircraft. Learning to fly in southern Alberta is not
hard in some ways, if you have anything that has wings, you just turn and face
west and the wind will carry you up in the air in no time at all. Bud was a
fairly able pilot, but when his son had a crash, it frightened him, and so he
gave up flying.
When Bud became Lieutenant-Governor of Alberta, I took his place in the
Senate. That was six years ago. Bud had his own style and approach to things.
One of the first things he did was to move the Lieutenant-Governor's levee,
which was always held in Edmonton. Edmonton felt that was at least one thing
they got: If Calgary had the oil business, they at least had the levee. Bud took
the levee, went right over Calgary, to Medicine Hat, and held the levee down
there, much to the chagrin of the Southam press who did not own a paper in
Medicine Hat at the time. Bud said he planned to do things the way he saw fit.
Bud's debating skills always amazed me. Honourable senators must remember
that where we went to school, there was no senior matriculation. I had to move
away in order to go to university to become an engineer. Bud was smart. He did
not finish high school, although he was by far the best read and most
knowledgeable person in politics in the region, perhaps because he was
self-taught. He always amazed me with his grasp of topics. I realize that was
because he was not encumbered by too much schooling and foolishness that he
would have learned like others of us who went to university.
Bud also had a finely developed sense of humour. It was quiet, but when he
would roll those brown eyes, you knew something was coming.
One of Bud's characteristics that sticks in my mind is that he was never mean
to anybody. He was always kind. Even in debate he might be rough with his words,
but I never heard him abuse anyone working for or beside him. He was an
outstanding person in that way.
I know there is little I can say or do now to ease the sense of loss for
Lucille and the family. However, I do hope they take some consolation from the
fact that there are literally hundreds of Canadians, and particularly Western
Canadians, who believe that Canada is that much better as a country because Bud
lived in it.
Hon. Ethel Cochrane: Honourable senators, I rise today in tribute to
one of Newfoundland and Labrador's finest musicians, Mrs. Minnie White, who
recently passed away at the age of 85.
Over the course of her professional music career, she received countless
awards and accolades at home, nationally and internationally.
For Newfoundlanders and Labradorians, however, she was an ambassador of
traditional music and the accordion. Minnie's legacy is not only that she
fostered and inspired young talent, but that she gave each of us a deeper
appreciation of our roots. She skilfully blended the music of the province's
four prominent cultures, English, Irish, French and Scottish, to produce strong,
toe-tapping music that uniquely represented island culture. Through her
dignified stage presence, Minnie White helped lead the resurgence in our
province's traditional music and inspired a whole new generation to take pride
in our musical heritage.
While it was with sadness that we said farewell to Newfoundland's "First Lady
of the Accordion," we remain grateful for the lifetime of music that she gave
and the remarkable legacy she left for generations to come.
Hon. Yves Morin: Honourable senators, February is the month closest to
our hearts. Health expenditures directly or indirectly related to heart disease
and stroke total over $20 billion yearly. Worse still, these diseases are the
highest-ranking cause of deaths in Canada, in excess of 80,000 annually.
The truth is that heart disease and stroke have touched the lives of most
Heart and Stroke Awareness Month is a good time to acknowledge the
contribution of those who devote themselves to education, research, prevention
and treatment of cardiac and cerebrovascular diseases.
The Canadian Institutes of Health Research, through its Institute of
Circulatory and Respiratory Health, under the able direction of Scientific
Director Dr. Bruce McManus from Vancouver, is working in partnership with the
Heart and Stroke Foundation to support innovative research that addresses the
most relevant and pressing issues.
Monday was Heart Day on the Hill. We were visited by the President of the
Heart and Stroke Foundation, Ms Carolyn Brooks, and the President of the
Canadian Cardiovascular Society, Dr. Ruth Collins-Nakai from Edmonton.
The Heart and Stroke Foundation is a federation of ten independent provincial
foundations and one national foundation and is supported by a force of more than
250,000 volunteers across Canada. The foundation funds approximately $40 million
annually of peer-reviewed heart disease and stroke research in Canada. This
represents the largest single source of funds for research in heart disease and
stroke in the country.
Both the Institute of Circulatory and Respiratory Disease and the Heart and
Stroke Foundation are supporting Dr. Salim Yusuf of McMaster University in
Hamilton. Dr. Yusuf was responsible for the major discovery that the drug
Ramipril can reduce the risk of heart attack by 25 per cent in high-risk
patients. Now, in the SHARE study, he and his colleagues are looking at the
links between ethnicity, risk factors and heart disease rates to find out if
genetic or lifestyle differences are behind markedly different risks for heart
attacks among different ethnic groups.
Dr. Yusuf and his team are part of a strong, integrated community of
researchers working in almost every Canadian province to increase our knowledge
about cardiovascular disease.
Thanks to the knowledge contributed by research, lives can be saved and
people with these conditions will be able to enjoy a better quality of life. As
well, these discoveries will make it possible to better detect people at high
risk and will provide Canadians with information that will help them choose a
Honourable senators, although we each have but one heart and one voice, we
can unite all of our hearts and voices in support of research and of those who
are the lifeblood of an effective national health system.
Hon. Jack Austin: Honourable senators, I have the honour to table the
ninth report of the Standing Committee on Rules, Procedures and the Rights of
Parliament, dealing with the revised Rules of the Senate.
Honourable senators, this February 2002 edition of the Rules of the Senate
incorporates the amendments made on March 15, 2001 regarding the addition of two
new committees; on September 25, 2001, regarding the name change of the Rules,
Procedures and the Rights of Parliament Committee; on October 31, 2001,
regarding the name change of the National Security and Defence Committee; and on
December 14, 2001, regarding senators indicted and subject to judicial
Hon. E. Leo Kolber: Honourable senators, I give notice that at the
next sitting of the Senate, I will move:
That the date for the presentation by the Standing Senate Committee on
Banking, Trade and Commerce of the final report on its study on the present
state of the domestic and international financial system, which was authorized
by the Senate on March 20, 2001, be extended to Thursday, March 27, 2003.
Hon. J. Michael Forrestall: Honourable senators, my question is with
regard to Joint Task Force 2. Can the Leader of the Government in the Senate
tell us exactly who is charged with authorizing JTF2 to engage in
counter-terrorist operations? Does authorization to use deadly force rest only
with the Minister of National Defence or does it rest solely with the Prime
Hon. Sharon Carstairs (Leader of the Government): Honourable senator,
as do all members of our armed forces, Joint Task Force 2 take their immediate
orders from line of command, but ultimately the Minister of National Defence is
responsible for the administration of that department.
Senator Forrestall: Honourable senators, is it not true that only the
Prime Minister can authorize use of JTF2 because of its specialized functions
with regard to the use of deadly force, both abroad and here in Canada?
Senator Carstairs: Honourable senators, that is not my understanding
of the line of responsibility for JTF2. However, if I am incorrect in that, I
will get back to the honourable senator as quickly as possible.
Hon. J. Michael Forrestall: Does the Leader of the Government in the
Senate, as a minister of the Crown, and the only minister in this chamber,
receive copies of significant incident reports and/or situation reports from the
Privy Council Office with regard to military operations? If not, is there a
reason why not?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I do not receive such incident reports. I can only assume that is because it is
not within my area of responsibility. After all, my responsibility is as Leader
of the Government in the Senate. That makes me a member of the cabinet. When the
full cabinet is informed of certain incidents, I obviously am informed, but I am
not given any individual briefings.
Senator Forrestall: Honourable senators, I would not want to comment
on where that leaves the Senate, apparently, in the eyes of the cabinet.
Has the minister ever seen a written report on the activities of Joint Task
Senator Carstairs: No, honourable senators, I have not.
Hon. J. Michael Forrestall: Honourable senators, can the minister tell
the chamber on what date she first learned that members of Joint Task Force 2
took prisoners in Afghanistan?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
as I indicated in response to a similar question last week, I heard of the JTF2
apprehension of prisoners at the same cabinet meeting at which the Prime
Minister learned that information.
Senator Forrestall: Honourable senators, who told the Leader of the
Government that Canadian Forces took prisoners in Afghanistan? How exactly was
that information communicated to the minister?
Senator Carstairs: Honourable senators, I am in a difficult situation
here. I do not want to divulge anything from cabinet that is not already public
knowledge. I would not want it to be held against me for sharing that
At that cabinet meeting, we had a report from the Minister of Defence. That
information is public knowledge. In that report, we were told about the arrest
of the individuals in Afghanistan.
Hon. Pierre Claude Nolin: Honourable senators, my questions concern
more specifically Canada's military spending in the context of its obligations
Yesterday, the Financial Times referred to the comments made by NATO's
secretary-general, Lord Robertson, regarding the decision by the President of
the United States to allocate an additional $48 billion to the United States
According to Lord Robertson, if the Americans do not take any measures to
facilitate technological transfers and military equipment exports to their
allies, the operations of NATO or of future international military coalitions
could be seriously jeopardized.
NATO's secretary-general also pointed out that Canada has an obligation to
invest in certain strategic sectors of the Canadian armed forces operations, in
order to improve our forces' ability to intervene during an armed conflict.
According to Lord Robertson, Canada must either modernize its military forces or
face a decline in its influence at the international level.
Does the minister recognize that allocating an additional $1.2 billion to the
Department of National Defence over the next five years will be totally
insufficient to modernize the equipment used by our troops, since $900 million
of that amount is earmarked for security measures and operation Apollo, and only
$300 million for the procurement of military equipment?
Hon. Sharon Carstairs (Leader of the Government): There are several
parts to the honourable senator's question.
Honourable senators, the government has not made any decisions at this point
with respect to enlarging its commitment to NATO, although there have been some
agreements with the United States about partnerships in technology, which would
have some impact on equipment in the future.
As to the other aspect of the honourable senator's question, I do not have
any knowledge, but if I can obtain some information, I will share it with the
Hon. Pierre Claude Nolin: In light of the numerous problems that have
delayed the deployment of Canadian troops and military equipment in Afghanistan,
does the minister recognize that the comments of NATO's secretary-general
confirm those made by several other observers — including the Auditor General of
Canada — to the effect that the chronic under-financing of the Canadian Forces
could increase Canada's inability to fulfil its international commitments to
NATO and to the international coalition against terrorism?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
the honourable senator is addressing the problems of arranging for the strategic
lift of our troops to Afghanistan.
The reality is that only two of our allies have strategic lift capacity. One
of them is the United States and the other is the United Kingdom, both
considerably larger countries than Canada. Other countries do not have that
capacity. In my view, it would not be financially feasible to provide at any
time for all of our airlift needs in-house.
However, the government is committed to enhancing the ability of the Canadian
Forces to deploy anywhere around the globe. That is why a committee has been put
into place with respect to this initiative.
Hon. Pierre Claude Nolin: Every three months, NATO puts out a
publication for the general public showing the military spending of all NATO
countries. All these tables are proportionate to population and Canada is at the
bottom of the list. The Auditor General has often pointed out that, when it
comes to military spending, Canada does not compare to any of its allies.
My final question as well has to do with the speech by NATO's
secretary-general. The article in the Financial Times also mentioned that the
U.S. State Department is now reviewing its military equipment and technology
export policy with a view to greater flexibility.
Since Canada is an important trading partner of the United States in this
area, can the minister tell the members of this chamber whether the federal
government was consulted by the State Department in this connection?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I do not know of any specific negotiations or discussions that have taken place
between the Secretary of Defence of the United States and the Minister of
Defence here in Canada.
The question of equipment is always interesting. Defence expenses are part of
the overall budgetary policy of the government, which has been gradually moving
to more expenditure in the defence field. At this point, we are not, I think, at
maximum levels in terms of need.
However, it was interesting to watch CNN the other night and see 10 minutes
devoted to our Coyote, the new armoured vehicle that is being commanded by our
troops in Afghanistan. It is being commended by the Americans. The Americans
also think that we have the best rifles, and they have now accepted that our
camouflage uniforms are the way to go.
Hon. Terry Stratton: Honourable senators, my question is addressed to
the Leader of the Government in the Senate. It concerns a report out of
Pravda this morning. It reports a Japanese newspaper stating that the
Americans have landed in Iraq, in the northern no-fly zone near the Turkish
border. The Americans want to examine the opportunities for a military campaign.
Is the minister aware of this information and can she verify its accuracy?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I have no information with respect to any attack by the United States or that
their forces have landed in Iraq.
Hon. Terry Stratton: Honourable senators, my concern is that this
appears to be a unilateral step on the part of the United States. I did not
expect the minister to be able to answer. It would appear that the United States
intends to go into the no-fly zones in the northern and southern parts of Iraq.
That information should not be a surprise to us because those are areas they can
My concern is that while we have been pushing for a time to get some
agreement as to UN inspections, I am not satisfied that Canada has done all it
can to get the UN inspectors back into Iraq. If Canada had played a leading role
to this end, perhaps the events that are supposedly taking place in Iraq now
would not take place.
Can the minister give me an update or any kind of statement at all as to what
the Canadian government is doing to have UN inspectors put back in Iraq,
utilizing the historic role of Canadians in leading such an event? I would
expect, and I believe, that we are highly trusted in the Mideast.
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
the Canadian government has for a long time insisted that Iraq must live up to
its United Nations Security Council obligations and permit UN arms inspectors to
ensure that Iraq neither produces nor stores weapons of mass destruction. It is
our view that Iraq's unwillingness to accept these inspectors cannot continue
indefinitely. Our efforts have been focused through our partnerships and our
friendships in the Middle East to ensuring that Iraq meets its commitments.
Hon. Pierre Claude Nolin: Honourable senators, my question is for the
Leader of the Government in the Senate. A little earlier this week, the media
reported a telephone conversation between one of the deputy clerks of the Privy
Council, Mr. Laverdure, and his counterpart at the White House, Ms Condoleezza
Rice, security advisor to President Bush. The question of Iraq was raised. This
was a call placed by Ms Rice to her counterpart, Mr. Laverdure, during which she
asked him how the statements the Prime Minister of Canada made in Russia and in
Berlin about Iraq should be interpreted. Did these conversations touch on what
is being reported today in Pravda?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
it is the position of Canada that nothing has happened that requires Canada to
make a decision on actions in Iraq that would be any different than our present
decision, which is that Iraq has been under UN sanctions. It is the United
Nations that has made decisions with respect to any actions taken in Iraq. That
is and continues to be the position of the Government of Canada.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, my question is not to the Leader of the Government in the Senate but
rather to the Joint Chairman of the Standing Joint Committee of the Senate and
the House of Commons for the Scrutiny of Regulations.
Could the joint chairman advise this house if the committee requested that
the general counsel to the Standing Joint Committee for the Scrutiny of
Regulations, François-R. Bernier, write the letter that was published in The
My honourable colleague the Leader of the Opposition in the Senate has
referred to one sentance in the letter that says:
Additionally, I expect Senator Hervieux-Payette, a minister in the Trudeau
administration, may take exception to being identified as anything other than
In the original article to which Mr. Bernier was replying, reference was made
to "Tory Senator Hervieux-Payette."
To my friends opposite, my family name as used by members of my family does
not subscribe to the language or the ideology of a certain Kinsella who had
observations to make in today's National Post. The headline says, "Senior
MP not a true Grit, Kinsella says."
Being from a different family and school of thought, I do wish to raise a
rather serious issue. It is a curious one. Yesterday, in the other place, a
question of privilege was raised because of this letter that was sent by an
officer of a joint committee. If the Speaker of the other place decides on the
privilege, it may affect the privileges of this place.
Could the joint chairman of the committee share with the house how she
expects this matter to be resolved? Could she inform the house as to what is
Hon. Céline Hervieux-Payette: Honourable senators, some people in
Quebec were just born Liberals, and there is nothing that can be done to change
that. In my case, it is genetic.
I have read Mr. Bernier's letter, as has everyone else. Honourable senators
will understand that I could not have written such a letter 15 years ago, of
course, since I have not been the co-chair of the committee for 15 years. Our
legal counsel is probably one of the best legal experts I have met in my life.
He does an admirable job, as part of an exceptional team. The facts reported in
the first article — I emphasize, the facts — were so glaring that I can, in
part, understand what motivated Mr. Bernier's actions.
As co-chair of the Joint Standing Committee on the Scrutiny of Regulations, I
intend to leave it up to the Speaker of the House of Commons to rule on the
question of privilege. Our committee executive will hold the matter in abeyance
until we hear from the Speaker of the House of Commons. We are not going to
usurp that prerogative. As soon as the Speaker of the House of Commons has made
his response public, our committee will be able to address the matter.
This committee has extremely important and substantive issues to study, and
some of the edited reports have even been published in advance on the Web sites
of political opponents. It is certainly the most talked-about committee on the
Hill right now. If this serves to publicize the Joint Committee for the Scrutiny
of Regulations, I certainly will not complain, if it makes more people aware of
it. It is probably the most obscure committee on the Hill. It is a committee I
sit on out of conviction. The membership of the committee is of exceptional
quality, and attendance has increased noticeably in the last few weeks, given
some of the topics. Regular attendance is extremely important. I think that the
fact that parliamentarians have such a significant role to play when it comes to
regulations demonstrates the degree of democracy in our system, and I am very
proud of this.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, I have the honour to table in this house a response to a question
raised in the Senate on February 7, 2002, by Senator Grafstein regarding Her
Majesty Queen Elizabeth II and the possibility of a Golden Jubilee Commemorative
(Response to question raised by Hon. Jerahmiel S. Grafstein on February 7,
2002 marks the 50th anniversary of Her Majesty The Queen's Accession to the
Throne. The Government of Canada plans to commemorate and celebrate the Golden
Jubilee throughout 2002, culminating with the Queen's royal visit in October.
The Department of Canadian Heritage has developed a Golden Jubilee Strategy,
taking into account the challenge of how best to lay the foundation for an
anniversary of truly national significance. The strategy encompasses events
and activities between February and October 2002. It is the Government of
Canada's intention to develop a Golden Jubilee medal program. The medals would
be awarded during 2002 only and would focus on the achievements of the past 50
years. The Chancellery of Government House would administer such a program.
The Hon. the Speaker informed the Senate that a message had been
received from the House of Commons returning Bill S-14, respecting Sir John A.
MacDonald Day and Sir Wilfrid Laurier Day, and to acquaint the Senate that they
have passed this bill without amendment.
Hon. Jack Wiebe moved the third 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 Entitlement Act.
He said: Honourable senators, I want to speak briefly to Bill C- 37 to say my
thanks to honourable senators on both sides of the house and the members of the
committee for their careful study and consideration of a very important piece of
legislation which will benefit the provinces of Saskatchewan and Alberta, as
well as the province of Manitoba, thus bringing the claim settlements of our
First Nations obligations into to the modern era.
I thank you for your cooperation and, in anticipation, your support for this
bill at third reading.
Hon. Janis G. Johnson: Honourable senators, I, too, wish to address
Bill C-37, in respect of First Nations' claim settlements implementation.
This bill came through the Aboriginal Peoples Committee, and it has been
reported without amendment. Our deliberations were brief, but, I believe,
thorough. A bill with so much to recommend, it does not take up much time in
committee. I congratulate all of my colleagues on the job we have done.
I am pleased this bill extends the provisions it contains to Alberta and
Saskatchewan. Similar provisions have been in effect in my province of Manitoba
since October 2000, with the passage of the Manitoba Claim Settlements
Implementation Act. This means that, if and when Bill C-37 passes, 97 per cent
of the outstanding reserve expansion commitments based on claims that have been
made by the government to date will come under these useful provisions if the
affected First Nations so choose, since 97 per cent of these communities have
been made in the three prairie provinces.
Let me provide honourable senators with some background on this technical
bill, as it has been two months since this house last debated it.
Bill C-37 has two main goals in its 14 short clauses. Both relate to
facilitating the practical implementation of claim settlements that are
concerned with reserve expansion. First, it aims to speed up the reserve
creation process. In part, this is accomplished by replacing the Governor in
Council's authority to set apart selected lands as reserves with the minister's
authority to exercise that function. Ministerial sign-off is clearly the quicker
process and speeding up this process is clearly helpful to First Nations.
Second, Bill C-37 aims to create greater economic stability for both First
Nations and third parties with interests, or proposals for such, on lands those
nations have selected to fulfil reserve expansion commitments. It will do this
by letting First Nations enter into negotiations and conclude agreements for
development with third parties before the land officially becomes a reserve, and
even before it is purchased, neither of which is, as it stands, allowed under
the Indian Act. Having an agreement in place while any other prerequisites to
reserve creation are cleared will no doubt greatly help both parties involved.
It also means that First Nations can choose lands with existing and evolving
developments instead of simply choosing land with the fewest interests to clear.
This provision also helps to achieve the first goal of the bill. Proof
positive of what we all know — that the Indian Act is largely irrelevant to, and
often an impediment to, today's relationship between Canada and First Nations —
the act does not address reserve creation and prevents the Crown from setting
aside as a reserve any lands with existing third party interests. The federal
additions to reserve policy in order to accommodate this situation requires that
any First Nation that chooses land with existing interests must first clear or
accommodate those interests in a way satisfactory to Canada, the First Nation
and the third party. By providing increased security for both parties, Bill C-37
may make the accommodation of existing interests easier and more secure for
third parties, who will thus likely be more willing to come to the table.
Honourable senators, this bill also comes with a measure of flexibility, as
did its Manitoba counterpart. First Nations may opt into the bill scheme if they
feel it will be helpful. If not, they can continue to use the older Indian Act
governed scheme. If pre-reserve designations are accepted by the minister, they
come into force if and when the land is officially set aside.
Let us put this into perspective. I mentioned that 97 per cent of the
claims-based reserve expansion commitments in Canada could be found in Alberta,
Saskatchewan and Manitoba. As of September 2001, 109 specific claims had been
settled in these provinces, 30 in Alberta, 46 in Saskatchewan, and 33 in
Manitoba. There are still 45 under review or negotiation in Alberta, 40 in
Saskatchewan and 30 in Manitoba. I am not including specific claims rejected by
the government and under review by the Indian Specific Claims Commission, which
may eventually lead to further settlements.
Let us examine one section of one of these: the land promised in Treaty Land
Entitlement, or TLE, agreements — a kind of specific claim settlement that
typically includes reserve expansion commitments — in Saskatchewan. There are 29
First Nations covered by TLE agreements in that province that are potentially
engaged in land selection and working through the prerequisites for chosen lands
to be set aside as reserves. Potential outstanding reserve expansions of these
29 bands alone amount to about 1.65 million acres. Some of these have been
selected and are undergoing evaluation and agreement negotiations. Other First
Nations have yet to select, or buy under a willing seller/willing buyer
arrangement, land to be converted to reserve status.
Under the government's additions to reserve policy, there may be hoops to be
jumped through before land can be officially set aside as a reserve. For
example, a First Nation must negotiate a services agreement with the
municipality in which it will expand its land base to ensure service provision
to that land, now the property of the federal Crown instead of the province,
thus partially governed by separate laws and regulations applying only to First
Nations. Given the complexity these agreements can often represent — and I know
how complex they can be having studied this — the difficulties of harmonizing
various bylaws and so forth, these negotiations can take years.
Therefore, this is only one of the many prerequisites for reserve expansion
or creation. Title must be cleared, the land must undergo an environmental
review and a survey. The proposal for expansion must be evaluated for
cost-effectiveness, and unless the First Nation has signed into a framework
agreement covering tax losses, the municipality must negotiate for compensation
with the provincial and/or federal Crowns to help offset lost tax revenues that
occur when an area under its jurisdiction is set apart as non- taxable reserve
land. Add to this the time already spent in claim negotiations, and the fact
that non-contiguous parcels of land must be cleared and set aside as reserves
through separate processes, literally years can pass before a claimant First
Nation is finally free to take advantage of land to which it has a right since
Canada's lawful obligation to a First Nation first arose and, likely beyond
that, from time immemorial.
Given the immense amount of land we are talking about and the number of First
Nations affected by these policies and the legislation now before us, it becomes
obvious that any enactment that can accelerate the process whereby lands become
reserve land is helpful. In Manitoba, at least two First Nations with TLE
settlements have been paying taxes on property that they bought on a willing
seller/willing buyer basis with settlement funds while they negotiate municipal
service agreements with less than eager municipalities. While this fact may
bring forth a cheer from the official opposition in the other place, this kind
of situation can be crippling for First Nations who may not have budgeted for
such an expense and may now be facing a lengthy — and expensive — stall in their
attempt to have the land set aside.
Although this proposed legislation will not have any direct effect on the
forging of municipal service agreements, the point is still relevant: the
pressure created by using Bill C-37 to come to solid agreements with third
parties in advance of reserve creation could potentially stimulate the movement
of stalled negotiations and ultimately speed up the reserve creation process.
In any case, this process — from the time of claim settlement to the setting
aside of the chosen lands — is complex and can often be quite lengthy, and First
Nations need it to be as free of obstacles as possible. Bill C-37 laudably
contributes to this removal of obstacles. Honourable senators are also aware
that bands need economic opportunities to help them to become financially more
independent. Having these opportunities will likely be a big step toward solving
at least some of the many problems faced by Aboriginal peoples on reserves
Honourable senators, all across Canada, First Nations are entering into
fruitful partnerships with industries and businesses. The Membertou Nation of
Cape Breton recently received ISO 9001 certification to indicate that their
reserve is open for — and to — business and is well equipped to form transparent
and productive working relationships. More and more businesses are realizing the
benefits of involving First Nations in their development plans. Businesses and
Aboriginal groups in Manitoba got together only a few weeks ago to demand that
the minister clarify his department's policy of taking over the financial
affairs of First Nations in the red and denying their creditors their dues, a
policy which makes securing credit for entrepreneurial projects tough for First
Nations and tightens the cycle of fiscal dependence. The members of many First
Nations are showing themselves to be shrewd business people who are fully
capable of creating and taking advantage of opportunities. We must ensure that
the law and government policy do not get in the way of these opportunities
becoming available as expeditiously as possible.
Speaking of expeditious processing, it is worth noting again, as I did in my
last address to senators, that the administrative process for the Manitoba Claim
Settlements Implementation Act is still unfinished. Specifically, the
instruments needed for the minister to accept pre-reserve designation and to set
aside land as a reserve in place of the Governor in Council are not yet in
As I mentioned earlier, this act has been in effect for 17 months now without
a way for First Nations in the province to take advantage of the leverage that
signing on to it could provide. I do understand that delays of this kind are not
unusual, but they are disappointing. DIAND officials who appeared as witnesses
assured the members of the Aboriginal Peoples Committee that the necessary
instruments will shortly be in place, and I am hopeful that this is true,
especially because similar instruments will be adopted in Alberta and
Saskatchewan when the current Bill C-37 is passed. I am glad that this means —
we hope — that the First Nations of those provinces will not have so long to
wait to take advantage of this excellent bill.
Honourable senators, let me once again congratulate the government and our
committee on a job well done and add the support of my party to the speedy
passage of Bill C-37.
Motion agreed to and bill read third time and passed.
The Senate proceeded to consideration of the fourteenth report of the
Standing Senate Committee on Legal and Constitutional Affairs, (Bill C-15A, to
amend the Criminal Code and to amend other Acts, with amendments) presented in
the Senate on February 19, 2002.
Hon. Lorna Milne moved the adoption of the report.
She said: Honourable senators, this report concerns Bill C-15A, to amend the
Criminal Code and to amend other acts. Your committee has proposed two
amendments to this proposed legislation that I will outline for you. Before
proceeding to the specific details of the amendments, I wish to first provide
background information on the bill so that we are not discussing the issues in a
Bill C-15 was originally introduced in the other place in March 2001. The
bill dealt with a wide range of criminal law matters, some more controversial
than others. As honourable senators are aware, the bill was eventually divided
into two parts. Bill C-15A that is before the Senate now deals with six areas of
criminal law: child pornography, stalking, home invasions, disarming police
officers, procedures for the wrongfully convicted, and general procedural
Honourable senators, your committee was generally supportive of all the
provisions in this bill. I believe I can safely say that there is unanimity
within the committee that these provisions substantially improve the Criminal
Code. The committee has found it necessary to clarify two parts of this bill to
ensure that the courts uphold the legislative intent of the bill.
Both amendments relate to the child pornography provisions in the Criminal
Code. Generally speaking, the bill makes it a crime to use the Internet to view
child pornography, and any person who uses the Internet to transmit child
pornography to another person is guilty of an offence. Furthermore, the court
can order an Internet service provider to remove child pornography from its
computers, should any be found there.
The first amendment addresses a flaw in the bill, as pointed out by Senator
Nolin during his second reading speech. Under the child pornography provisions
of the Criminal Code, a person is allowed to possess child pornography if the
material has either "artistic merit or an educational, scientific or medical
purpose." This defence is found in section 163.1(6) of the Criminal Code. It
exists because of the Charter and decisions of the Supreme Court of Canada,
including the case of R. v. Sharpe. As originally drafted, the new provisions in
this bill concerning child pornography on the Internet did not allow for these
constitutionally mandated defences.
The committee has recommended that clause 5 of the bill be amended to add the
defences of "artistic merit or educational, scientific or medical purpose" to
the child pornography provisions in the bill. I note that this amendment was
supported by former Minister of Justice Anne McLellan when she testified before
The second amendment deals specifically with the way that Internet service
providers are treated under the child pornography provisions of the Criminal
Code. There was some concern raised during the course of the committee's
hearings that Internet service providers could be found guilty of an offence
under this act even though they did not know that their systems were being used
to transmit child pornography from one person to another. The Canadian
Association of Internet Providers was particularly concerned about this point.
They argued that, as written, the provisions could allow for an Internet service
provider to be guilty of an offence without even knowing that child pornography
was on their system.
Honourable senators, the amendment passed by your committee attempts to
address that concern by adding a subsection to the child pornography provisions
of the code. This second amendment also amends clause 5 of the bill by adding
two subsections to section 163.1 of the Criminal Code. The substantive portion
of the amendment states:
(3.1) A custodian of a computer system who merely provides the means or
facilities of telecommunication used by another person to commit an offence
under subsection 163.1(3) does not commit an offence.
As there were errors in the English translation that went before your
committee, honourable senators, the vote was based entirely on the French text
that was provided to us, with the clear understanding that the English text
would be corrected to agree with the French version. As such, the amendment
passed on division.
As for the other five elements of the bill, the committee did have
significant discussions on the merits of the new provisions for clearing the
names of the wrongfully accused and the procedures for pre-trial conferences. In
the end, no amendments were proposed to any of these elements of the bill,
although some senators abstained from voting on some of the clauses that were
the subject of the debate.
Hon. Tommy Banks: Honourable senators, I wish to ask Senator Milne a question
in respect of an amendment to which she has just referred, that being 163.1(6).
It is my understanding that the provider of an Internet service cannot be
convicted of child pornography if he or she merely provides the service. Is that
Senator Milne: That is correct.
Senator Banks: My difficulty is with regard to the intent, which I
understood to be to ensure that an Internet provider who unknowingly transmitted
child pornography ought not to be charged. The amendment, however, makes no
reference to the question of the existence of knowledge on the part of the
Internet provider. It says, if I understand it correctly, "merely provide."
To use a specific example, if I were an Internet provider, as anyone can be,
and the honourable senator were, forgive me, a pornographer — I know that she is
not a pornographer because I know that she does not have even a pornograph — and
we agreed that she would produce the pornography and I, as an Internet provider,
would provide the means by which she can distribute her pornography, I have
merely distributed her pornography, but I have done so knowingly. It seems to me
that the question of the knowledge of the Internet provider of whether he or she
is distributing child pornography ought to be the cogent part of section
163.1(6) rather than the word "mere."
Am I reading correctly the intent of the amendment and have I understood
correctly the wording of it?
Senator Milne: Honourable senators, I wish to thank Senator Banks for
Hon. Pierre Claude Nolin: May I answer the question?
Senator Milne: I would be delighted to have Senator Nolin answer the
question, as he moved the amendment in committee. However, I will attempt to
present fairly the arguments in the committee. In fact, "knowingly" is included
in other sections of the Criminal Code and I believe that Senator Banks'
interpretation of this amendment, standing alone with no context surrounding it,
is probably correct. This was the subject of a great deal of discussion within
the committee and was one of the reasons this amendment was not passed
unanimously by the committee.
I will leave it at that. When we come to the third reading debate, others in
this chamber may want to expand on that.
Senator Nolin: I wish to comment on the question raised by Senator
Banks. The amended paragraph 3.1 of section 163.1 says that a custodian of a
computer system who merely provides the means or facilities of telecommunication
used by another person to commit an offence under subsection 163.1(3) does not
commit an offence.
In his question to Senator Milne, Senator Banks asked about the intent. The
intent was to ensure that the commercial business of Internet service provider
only provides the conduit. The service provider is not subject to the infraction
of transmitting. The way the new infraction is written, to transmit is an
infraction without any reference to the criminal intent to transmit child
That was the problem encountered by the committee. We decided to ensure that
the Internet service provider would not be caught in "the transmitting of"
without knowledge of what they were transmitting.
Senator Banks: I thank Senator Nolin for that explanation. I believe I
understand what he said and I agree that an unknowing Internet provider ought
not be subject to charge. However, to look at the worst possible side of it, any
of us could tomorrow invest some money and become an Internet provider. We can,
thereafter, knowingly transmit the Encyclopedia Britannica, e-mail for
other people and pornography.
It seems to me that the revision in the law ought to provide protection for
Internet service providers. However, the aspect of "knowledge" ought to be
included. We should be careful to permit the charging of Internet service
providers who knowingly transmit child pornography, which, in the example I just
gave, absurd as it was, could happen. I could in fact set up an Internet service
specifically for the purpose of transmitting child pornography. Under the
amendment before us, if I knowingly set up an Internet service specifically for
the purpose of transmitting child pornography, I would not be subject to charge,
and I think that is wrong.
The Hon. the Speaker: Honourable senators, I should clarify where we
are procedurally. I have taken Senator Nolin's comments as an intervention on
the report, not as a comment on Senator Milne's speech. Were it so, the allotted
time would have expired and I would not have been correct in allowing Senator
Banks to put a question to Senator Nolin. I have interpreted the proceedings
such that Senator Nolin was making an intervention, not making a comment on
Senator Milne's time.
Senator Nolin: The honourable senator may not have before him the
exact wording of the new infraction, but an individual who puts in place a
service for the purpose of distributing child pornography would be captured
under section 163.1.
Senator Banks: Thank you.
Senator Nolin: I personally had to decide whether I should introduce
an amendment to add the word "knowingly" to the amendment proposed to the
Criminal Code by the government in section 163.1(3) or whether I should
introduce an amendment to explain that in the normal course of their business
that group of individuals is only there to provide a conduit. I decided on the
The honourable senator and I can argue about which one should include the
word "knowingly." That is open for debate. The new crime created by section
163.1(3) is clear. If you have the intent to transmit child pornography, you are
caught, regardless of where you are in the process. The amendment is to ensure
that commercial organizations that exist merely as a conduit are not charged,
because they are not doing so knowingly. The committee had a long discussion on
Hon. Anne C. Cools: Honourable senators, I wish to intervene briefly
on the particular question now at the committee report stage. I appreciate and
understand that Senator Nolin feels a degree of pride that his amendment has
carried in committee.
In her speech presenting the report for our consideration, Senator Milne made
mention of the fact that the committee was far from unanimous and that the vote
was quite divided. I thought that I would register that fact as clearly as I can
here. I would suspect that when we vote today on this report, the exact thing
that happened at committee will happen here and there will be a clear division.
I wanted to crystallize the point that we did not all support Senator Nolin's
amendment, although I understand the sense of satisfaction he has that it
Hon. John G. Bryden: I have a question for Honourable Senator Nolin.
I am relying on the honourable senator having given full disclosure on how we
created the offence.
The Hon. the Speaker: Is the Honourable Senator Bryden asking a
question of Senator Nolin?
Senator Bryden: Yes.
An Hon. Senator: Out of order.
Senator Cools: Senator Bryden can put a question to me but he cannot
put a question to Senator Nolin, though he can speak to the report.
The Hon. the Speaker: Let us clarify whether the Honourable Senator
Cools was making a comment or asking a question of Senator Nolin. Was Senator
Cools making an intervention?
Senator Cools: I did not ask a question. I was speaking on the report.
If I interrupted questions, I would have been happy to wait so that the
questions to Senator Nolin could have been put. I was making an intervention on
the report itself, which is where we are in the proceeding. I am sure it is not
a big issue and that we could all agree easily to let Senator Bryden put a
question to Senator Nolin.
The Hon. the Speaker: I thank the Honourable Senator Cools. As she
regarded her interruption as an intervention, I take it that it is an
intervention and, accordingly, leave will be required to give Senator Bryden an
opportunity to ask Senator Nolin a question.
Honourable senators, is leave granted?
Hon. Senators: Agreed.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, I would agree to grant leave for one question.
Hon. Eymard G. Corbin: Honourable senators may have noticed that I
rose earlier in order to put a question to the honourable senator who made the
report. That honourable senator has now left. Since my question concerned an
amendment presented by Senator Nolin, my intention is to rise again and put the
question directly to him. I say that so Senator Robichaud will know that the
debate going on right now is important.
Senator Robichaud: Honourable senators, I will allow two questions.
Senator Bryden: Honourable senators, I have a point of order. Since
Senator Corbin rose first, does he ask the first question?
The Hon. the Speaker: I have recognized Senator Bryden, so he should
go first. I have noted Senator Corbin's desire to rise after Senator Bryden puts
Senator Bryden: Thank you, honourable senators.
Will Senator Nolin accept a question?
Senator Nolin: Even two!
Senator Bryden: The offence, as I understand it, is hinged, as are all
offences in the Criminal Code, on the person having knowledge — mens rea
— when he or she commits the offence.
If the issue is whether people do things knowingly or unknowingly, I suggest
it would be appropriate that, instead of the amendment reading "who merely
provides the means," it read "a custodian of a computer system who unknowingly
provides the means of facilitating telecommunications used by another person to
commit ..." There would then be consistency in relation to the mens rea,
the knowledge that is required by the offence, and it is not an offence if
someone does it unknowingly. There is one caveat on that. I do not know that
"merely" is a well-understood or accepted term in law and in the statute
interpretations, whereas "knowingly" and "unknowingly" are very well understood.
Would you comment on that?
Senator Nolin: Honourable senators, first, let me tell you that I
introduced the amendment in French and the French version of the amendment is
much more precise — at least, in my understanding of it. What honourable
senators have in front of them is a translation that was agreed upon by the
committee. Basically, I introduced it in French.
I cannot agree to the first part of the question. I cannot agree that all the
offences or crimes listed in the code need mens rea. I would like to say "yes"
to that, but the way the code has developed over the centuries, there are some
offences where mens rea is not needed. In some areas it is written that way; it
is specifically written "knowingly" and so on. In other areas, it is not written
Therefore, we have those three zones. I know some decisions interpret the
code to mean that the criminal intent should be part of the construction of the
My amendment was to ensure that we were not catching an honest commercial
organization providing a service. That was the intent of my amendment.
Concerning the English translation, when I tabled the English version of the
amendment in the committee, there were questions about it. I relied on the
French version of my amendment and I can totally defend it. With regard to the
English version of the amendment, I am willing to wait to ensure agreement in
both official languages.
Does that answer the honourable senator's question?
Senator Corbin: Honourable senators, when Senator Milne presented the
committee's report, she alluded to the amendment on material that has either
artistic merit or an educational, scientific or medical purpose, in the context
of child pornography.
My problem is the following: I am a serious amateur photographer. I often
consult Web sites that show all kinds of photographs, including still life,
architecture, nudes, et cetera. Whenever a Web site shows nudes, a warning is
displayed, particularly on American sites. If you are 16 or under, you cannot go
to these sites. I go nevertheless. As a legislator, I want to know what we are
dealing with when we review this kind of legislation.
These sites offer up as art what is frankly outright and shocking
pornography. I do not see how, by invoking artistic merit, you are going to
avoid situations where what you are dealing with is just plain child
Have you defined artistic merit? Where are the standards, the safeguards? I
am not so inclined to support your amendment.
Senator Nolin: Honourable senators, so as to be sure that everyone can
follow our discussion, take the Journals of the Senate for February 19. Open
them at page 1218 and you will understand what we are talking about.
Senator Corbin is referring to the second amendment. I referred to it in my
speech at second reading. I alerted the chamber to an omission in the bill.
The Criminal Code already contains a defence. Subsection 163.1(6) reads as
Where the accused is charged with an offence under subsection (2), (3) or
(4), the court shall find the accused not guilty if the representation or
written material that is alleged to constitute child pornography has artistic
merit or an educational, scientific or medical purpose.
In Sharpe, the Supreme Court upheld the legality of this defence. My
purpose is not to question the fairness of the Supreme Court decision. In
Sharpe, it recognized the validity of this defence.
During my speech at second reading, I pointed out to the Chamber that we
should include in subsections (6) and (7) of section 163.1 of the Criminal Code
a new paragraph (4)1), describing the new offence created by Bill C-15A. I do
not wish to question this line of defence. It exists. The Supreme Court has
recognized it; it has upheld this defence. It is fair and reasonable that this
defence be extended to the new offence created in Bill C-15A. Does this answer
the honourable senator's question?
Senator Corbin: Honourable senators, I will take part in the debate at
Senator Nolin: Honourable senators, there will be an interesting
debate on the whole issue of miscarriages of justice. A number of members of the
committee have decided to abstain from voting on all articles of the bill
dealing with such miscarriages in order to allow a debate to take place at third
reading. It is on this issue that we, as senators, must maintain a broad opinion
on such a sensitive subject. We are talking about individual freedoms. This is
what we must discuss at third reading.
The Hon. the Speaker: It was moved by the Honourable Senator Milne,
seconded by the Honourable Senator Bryden that this report be adopted now.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
Senator Robichaud: On division.
Senator Joyal: On division.
Motion agreed to and report adopted, on division.
The Hon. the Speaker: When shall this bill, as amended, be read the
On motion of Senator Pearson, bill placed on the Orders of the Day for third
reading at the next sitting of the Senate.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, today is Wednesday, a day on which committees sit at 3:30 p.m. With
leave of the Senate, I move that the Senate do now adjourn and that all items on
the Order Paper that have not been reached stand in their place.
The Hon. the Speaker: Honourable senators, is leave granted?
Hon. Senators: Agreed.
The Senate adjourned until Thursday, February 21, 2002, at 1:30 p.m.