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Debates of the Senate (Hansard)

1st Session, 37th Parliament,
Volume 139, Issue 92

Tuesday, March 5, 2002
The Honourable Rose-Marie Losier-Cool, Speaker pro tempore


Tuesday, March 5, 2002

The Senate met at 2:00 p.m., the Speaker pro tempore in the Chair.



Canadian Foundation for Innovation

Hon. Yves Morin: Honourable senators, on January 30, 2002, the Canada Foundation for Innovation made history by awarding $779 million to 280 projects at Canadian universities. This is the largest investment in the history of Canadian government support for university research.

These investments will contribute to achieving the goal of the Government of Canada to become one of the top five countries in the world in terms of R&D spending as well as to become one of the most innovative nations in the world by 2010.


We are all aware of the importance the Prime Minister and his cabinet attach to scientific innovation as an instrument of well-being and economic development for Canadians. As well, we are all familiar with the role the Prime Minister played in the creation of the Canada Foundation for Innovation in 1997.


An R&D enterprise is based first and foremost on people. However, we cannot train the next generation of researchers in substandard facilities. We cannot attract the world's best researchers to Canada by offering them outdated laboratories.

This historic investment will provide research institutions and their researchers with the means they need to become leaders in the global knowledge-based economy.

The awards span the country, from the Atlantic Centre for Comparative Biomedical Research to a University of British Columbia project examining spinal cord regeneration.


At Laval University, this funding will create an operational genomics laboratory located at the CHUL, while in Montreal it will guarantee development of the Integrated Genomics Group for Research on Infectious Pathogens, while at the same time ensuring the expansion of genomics and proteomics infrastructure in Quebec.


The single largest award in the competition, $21.6 million, went to Dr. Janet Rossant to support her ongoing research at the Toronto Centre for Comparative Models of Human Disease, at Mount Sinai Hospital. This is an indication of the critical role that health research plays in Canada's R&D enterprise.

I know that the honourable senators will join me in congratulating CFI's President and Chief Executive Officer, Dr. David Strangway, and his adviser, Dr. Denis Gagnon, on the tremendous achievement of this award.

Racial Discrimination

Effect of Anti-Terrorism Act

Hon. Donald H. Oliver: Honourable senators, I rise to call attention to a new problem of racial profiling arising specifically from the case of Selwyn Pieters.

In May of 1999, Selwyn Pieters, a Black federal employee and part-time law student, was personally harassed and his luggage searched at customs upon his return to Canada from New York. The only ground for this search was the fact that he was Black. When Mr. Pieters complained to a senior customs officer, he was further insulted with a racial slur. He filed a formal complaint and won his case.

On January 18, 2002, Canada Customs settled out of court with Mr. Pieters to avoid a five-week Canada Human Rights Tribunal hearing. Mr. Pieters received an apology and an undisclosed amount of cash in the settlement. I believe that Canada Customs must now hire an anti-racism expert to train customs officers on such principles as equality rights, the Charter of Rights and Freedoms and matters relating to Canadian diversity.

Honourable senators, the case of Selwyn Pieters is evidence of racism in Canada that has been made worse by the events of September 11. For instance, under Bill C-36, Canada's anti-terrorism legislation, anyone who is not White can now automatically be under greater suspicion and face greater scrutiny, more questions and more searches.

Honourable senators, what concerns me is that the introduction of Bill C-36 has legitimized racial profiling. Such profiling perpetuates the harmful stereotype of African-Canadians as criminals. Of course, racial profiling existed before, but it is now worse, much worse. Customs officials can now rely upon race, ethnicity or national origin when considering who to search, to question or to detain at our borders. Criminality is now essentially categorized by what colour you are, what language you speak or where you were born, and perhaps even what you look like in the eyes of a border guard. I ask, honourable senators: What type of objective standard is that?

One condition of the settlement is that customs officers must now tell all travellers who are picked up for a secondary search, the reason for being inspected. I and others who share my concerns will be watching closely to see how Canada Customs implements the conditions of its settlement with Selwyn Pieters.

In conclusion, honourable senators, over the weekend I finished my thirteenth Black History Month speech in Edmonton. I am more convinced than ever that the study and teaching of Black history and of our cultural, scientific and economic achievements is the greatest way for us to overcome the racism in Canada, implicit in the Pieters case.

British Columbia

First Provincial Congress and First Celebration of Eid ul-Adha in Legislature

Hon. Mobina S.B. Jaffer: Honourable senators, I rise today to recognize two firsts in the history of British Columbia that I was honoured to be witness to over the past week.

The first of these ground-breaking events was the British Columbia Provincial Congress, held on Tuesday, February 26, 2002. Premier Gordon Campbell launched the provincial congress as a platform for dialogue between representatives from all levels of government, Aboriginal leaders and industry spokespeople. This congress was important because it created a forum for participants to have an open and transparent discussion. The Morris J. Wosk Centre for Dialogue at Simon Fraser University could not have been a more appropriate venue for the event.

Iona Campagnolo, the Lieutenant-Governor of British Columbia, in her presentation remarked that dialogue is not about winning arguments, but listening with empathy as a basis for agreement and understanding. In that spirit, we spoke about the diverse issues that face the people of British Columbia, such as transportation, the costs of securing our seaports and aviation facilities, and issues facing our Aboriginal communities.


The second first was the celebration of Eid-ul-Adha in the provincial legislature in Victoria on Wednesday, February 27. Eid-ul-Adha commemorates the willingness of the Prophet Ibrahim to sacrifice his son at Allah's command. This is an important time for Muslims to come together as a community.

Eid-ul-Adha was celebrated in many cities throughout the country, and for the seventh year in a row, Eid celebrations were held on Parliament Hill. The Association of Progressive Muslims of Ontario and the Ismaili Council for Ottawa organized the event, which attracted over 300 people, including 25 ambassadors, many MPs and senators. Significantly, there was representation from all five national political parties.

Building on the tradition of the Parliament Hill gathering, the first ever Eid celebrations were held in Victoria. The event brought together Premier Campbell, the majority of members of the legislative assembly, 250 members of the B.C. Muslim community, comprising the Muslim Canadian Federation, the Ismaili Council of B.C., the B.C. Muslim Association and the Shia Muslim Community.

I hope that all honourable senators will join me in thanking the organizers of these two firsts and hope that they will pave the way for similar events in our pluralistic society.


Congratulations on Receiving Employer of the Year Citation from Canadian Women in Communications

Hon. Lois M. Wilson: Honourable senators, on Monday, February 25, in Ottawa, VisionTV, Canada's only multifaith and multicultural broadcaster, received the prestigious Employer of the Year Citation from Canadian Women in Communications. This award is given to a communications industry employer that has established a strong track record and shown leadership in promoting women, particularly in non-traditional roles. The evening's proceedings were chaired by Senator Poulin.

Founded in 1987 as the world's only multifaith broadcaster, this independent, not-for-profit station provides access to a full spectrum of religious expression, ranging from Anglicans to Zoroastrians. In the beginning, VisionTV had no financial resources of its own. Five faith groups provided letters of guarantee to secure an operating line of credit. Four Christian churches and the Seventh Day Adventists formed the base and encouraged more than 20 other faith communities across Canada to support the application to the CRTC. These include the Baha'i, Buddhist, Muslim, Jewish, Sikh, Unitarian and Aboriginal Spirituality.

The workforce of VisionTV is predominantly female, with women holding approximately two thirds of positions. At the senior management level, women fill more than 70 per cent of the top jobs, including the vice-president of finance and administration and the vice-president of communications and marketing. Over the past five years, membership on the board of directors has averaged nearly 50 per cent. VisionTV has earned a reputation for placing women of many different ages and backgrounds before the camera, and has consistently sought female perspectives on current issues.

VisionTV's mandate calls for the promotion of tolerance and understanding between people of different faiths and cultural backgrounds. Five of the 10 VisionTV persons at our table, the night of the award, were visible minorities. The network has declared its intention to remain an industry leader in reflecting the country's variety of faiths and cultures.

VisionTV is committed to taking a number of measures related to the hiring and retention of visible minorities and Aboriginal peoples — from reviewing human resources policies and procedures to providing formal training on diversity issues.

The network is distributed to over 7.8 million homes in Canada and has a staff of 72, with regional offices in Victoria, B.C. and Halifax, Nova Scotia. I am proud to be associated with a relatively small but immensely significant player in the Canadian media field.


Victor Hugo

Tribute on Bicentenary of Birth

Hon. Gérald-A. Beaudoin: Honourable senators, at Besançon, France, 200 years ago, on February 26, 1802, Victor Hugo was born; that great writer, dramaturge and novelist, considered the greatest poet in the French language.

He is still a very famous figure in all francophone countries, as well as a number of others, such as our own, the United Kingdom and the United States. His works have been translated into many languages. This year is the bicentenary of his birth.

People see his dramas performed, they read his novels, including Notre-Dame de Paris and Les Misérables. Magnificent stagings of his works take place in many major cities and world capitals.

He is recognized for his genius, his great compassion and his avant-garde ideas on the death penalty in both the United States and Europe. His literary output was immense. He was elected to the Académie française in 1841.

Victor Hugo was a cult figure. Two hundred years after his birth, he is still referred to with the same admiration as Molière, Goethe, Cervantes and, of course, William Shakespeare.

Victor Hugo was made a peer of France, that is, a senator in 1845. A plaque marks his seat at the Palais Bourbon in Paris. I am very pleased to pay tribute today, in this Chamber, to the vibrant memory of Victor Hugo.



Screening Hosted by Minister of Film on Canada's Response to Events of September 11, 2001

Hon. Laurier L. LaPierre: Today, in the capital city of the United States, the Minister of Canadian Heritage, the Honourable Sheila Copps, hosts a screening of an Alliance-Atlantis remarkable documentary based on an as-remarkable book entitled A Diary Between Friends which I believe all senators have received, published by McClelland and Stewart, the Canadian publisher.

Both the documentary and the book, which were the initiatives of Ms Copps' department, tell stories of hundreds of Americans and other nationals who were stranded in our country on September 11, 2001, and, particularly, of those who welcomed them. On that day and the few days thereafter, Canadians demonstrated their traditional civility, their constant love of peace and friendship and their unrelenting understanding of the great value of cultural diversity or pluralism. The Canadians interviewed in the documentary and for the book opened their homes and their hearts to perfect strangers who became friends, and they toiled to help them and to make their passage among us secure, friendly and hospitable. On September 11, the "Canadian way" was again a beacon of light in a world endangered by the evil of terrorism.

In her remarks to the distinguished gathering at the Canadian Embassy in Washington, the minister will state clearly what this country and its citizens are all about and what our duty is after September 11, 2001:

Terrorism must not affect our fundamental values and freedoms. It is my hope that out of the great tragedy of September 11, we can reach even better understanding and appreciation of humanity's diversity, rather than letting those differences tear us apart.

Amen and long live Canada.


Official Languages

Press Conference on Release of Joint Committee Report on Services Offered by Air Canada—Representation of Senate

Hon. Jean-Robert Gauthier: Honourable senators, on Monday, February 18, the Standing Joint Committee on Official Languages finished its report on services offered in both official languages by Air Canada. On Wednesday, February 20, the Co- Chair of the committee, the Honourable Mauril Bélanger, informed me that he intended to table the report in the House of Commons on Thursday, February 21.


A press conference was called by some members of the House of Commons. To my knowledge, no senators were present. A press report stated that the House of Commons committee had reported after a very lengthy study on the questions of official languages and Air Canada. The title of the report was "Air Canada: Good intentions are not enough." No mention was made of the serious and, I would say, important contributions of the Senate to this report, although we have been members of that committee since its beginning.

I do not blame the members of Parliament for calling a press conference. We received some rather good publicity — good media coverage, as we say. However, I regret, in all honesty, that the Senate was not present at that press conference because, when a committee of both Houses studies a subject matter and reports on it, it only stands to reason that both Houses should be there to explain the recommendations. Members of the House of Commons were there to do that and we were not. I regret that immensely. It is about time this house had its own committee on official languages.



The Estimates, 2001-02

Supplementary Estimates (B) Tabled

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, pursuant to rule 28(3) of the Rules of the Senate, I have the honour to table a document entitled "Supplementary Estimates (B), 2001-2002."

The Estimates, 2002-03


Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, pursuant to rule 28(3) of the Rules of the Senate, I have the honour to table a document entitled "Estimates, 2002-2003."



Royal Assent Bill

Report of Committee

Hon. Jack Austin, Chair of the Standing Committee on Rules, Procedures and the Rights of Parliament, presented the following report:

Tuesday, March 5, 2002

The Standing Committee on Rules, Procedures and the Rights of Parliament (formerly entitled the Standing Committee on Privileges, Standing Rules and Orders) has the honour to present its


Your Committee, to which was referred Bill S-34, An Act respecting royal assent to bills passed by the Houses of Parliament, in obedience to the Order of Reference of Thursday, October 4, 2001, has examined the said Bill and now reports the same with the following amendments, with observations which are appended to this report as Appendix A, and with a letter to the Chair of the Committee from the Honourable Ralph Goodale, Leader of the Government in the House of Commons and the Honourable Senator Carstairs, Leader of the Government in the Senate as Appendix B.

1. Page 1, New Preamble: Add after the long title the following:

"Whereas royal assent is the constitutional culmination of the legislative process;

Whereas the customary ceremony of royal assent, which assembles the three constituent entities of Parliament, is an important legislative tradition to be preserved;

And whereas it is desirable to facilitate the work of Parliament and the process of enactment by enabling royal assent to be signified by written declaration;".

2. Page 1, Enacting Clause: Replace line 1 of the English version with the following:

"Now, therefore, Her Majesty, by and with the advice and".

3. Page 1, Clause 2: Replace lines 9 to 14 with the following:

"(a) in Parliament assembled; or

(b) by written declaration.".

4. Page 1, Clause 3: Replace lines 15 to 17 with the following:

"3. (1) Royal assent shall be signified in Parliament assembled at least twice in each calendar year.

(2) Royal assent shall be signified in Parliament assembled in the case of the first bill of the session appropriating sums for the public service of Canada based upon main or supplementary estimates.".

Respectfully submitted,



(For text of appendices, see today's Journals of the Senate, p. 1254)

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

Survey of Major Security and Defence Issues

Report of National Security and Defence Committee Tabled

Hon. Tommy Banks: Honourable senators, I have the honour to inform the Senate that, on Friday last, the Standing Senate Committee on Defence and Security deposited with the Clerk of the Senate, according to its order of reference, its report on Canadian security and military preparedness.

I move that this report be placed on the Orders of the Day for consideration at the next sitting of the Senate.

Hon. Terry Stratton: Honourable senators, may I ask a question of Senator Banks?

The Hon. the Speaker pro tempore: Honourable senators, is leave granted for Senator Stratton to ask a question of Senator Banks?

Hon. Senators: Agreed.

Senator Stratton: Honourable senators, I have heard that this is an excellent report. The problem is that I do not believe anyone in this chamber received the report. It was released to the media, but to no one here.

Can Senator Banks explain to this chamber why that is so?

Senator Banks: Honourable senators, the order of reference required that the report be tabled on February 28. At the time that date was selected, it was anticipated that the Senate would be sitting that day. Since the Senate was not in session on that day, and in order to meet that obligation as indicated in the third paragraph of the order of reference, the report was tabled with the Clerk.

The second and third paragraphs of the committee's reference read:

That the Committee report to the Senate no later than February 28, 2002, and that the Committee retain all powers necessary to publicize the findings of the committee —

That the Committee be permitted, notwithstanding usual practices, to deposit any report with the Clerk of the Senate, if the Senate is not then sitting, and that the report be deemed to have been tabled in the chamber.

As it turned out, that became the situation. I believe that the report is now on the desks of all honourable senators.

In order for the committee to meet the deadline for reporting, the report had to be tabled last week.

Senator Stratton: Honourable senators, it is rather embarrassing to hear about a committee report in the media, especially a significant report such as this, and to have no knowledge of its contents. I suggest that when it became known that the Senate would not sit last week, something could have been done to ensure distribution the prior week.

Senator Banks: Honourable senators, the report was not ready to be tabled the week prior. It had not yet been translated.

In the Hansard of the Senate's meetings of the week before last, Senator Kenny made clear that the report would be ready in time to meet the reporting deadline set out in the terms of reference and that it would be tabled with the Clerk of the Senate. The report was not ready until some time very late Wednesday night.

Hon. Jack Austin: Honourable senators, I rise on a point of order. Presentation of Reports is not the time for question and debate. When the order is called tomorrow, if the Senate should agree —

The Hon. the Speaker pro tempore: Senator Austin, points of order cannot be raised at this time.

Hon. Marcel Prud'homme: Honourable senators, I wish to make a suggestion for future practice. The report was tabled according to our rules and the committee's Order of Reference. I received two copies immediately, but I had to request them. I believe that Senator Banks acted in accordance with the rules, although Senator Stratton is right in asking why it was done this way. I called the Clerk and was advised that the procedure followed was provided for in the Order of Reference.

To avoid such a situation in the future, perhaps immediately upon tabling with the Clerk of the Senate, all senators could be informed that the report is available in order that we can answer questions about it, as I did.

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


The Estimates, 2001-02

Notice of Motion to Authorize National Finance Committee to Study Supplementary Estimates (B)

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I give notice that tomorrow, Wednesday, March 6, 2002, I will move:

That the Standing Senate Committee on National Finance be authorized to examine and report upon the expenditures set out in the Supplementary Estimates (B) for the fiscal year ending March 31, 2002, with the exception of Parliament Vote 10b and Privy Council Vote 25b.

Notice of Motion to Refer Vote 25b of Supplementary Estimates (B) to the Standing Joint Committee on Official Languages

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I give notice that tomorrow, Wednesday, March 6, 2002, I will move:

That the Standing Joint Committee on Official Languages be authorized to examine the expenditures set out in Privy Council Vote 25b of the Supplementary Estimates (B) for the fiscal year ending March 31, 2002; and

That a message be sent to the House of Commons to acquaint that House accordingly.

The Estimates, 2002-03

Motion to Authorize National Finance Committee to Study Main Estimates

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I give notice that tomorrow, Wednesday, March 6, 2002, I will move:

That the Standing Senate Committee on National Finance be authorized to examine and report upon the expenditures set out in the Estimates for the fiscal year ending March 31, 2003, with the exception of Parliament Vote 10 and Privy Council Vote 35.

The Estimates, 2001-02

Notice of Motion to Refer Vote 10b of Supplementary Estimates (B) to the Standing Joint Committee on the Library of Parliament

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I give notice that tomorrow, Wednesday, March 6, 2002, I will move:

That the Standing Joint Committee on the Library of Parliament be authorized to examine the expenditures set out in Parliament Vote 10b of the Supplementary Estimates for the fiscal year ending March 31, 2002; and

That a message be sent to the House of Commons to acquaint that House accordingly.

The Estimates, 2002-03

Notice of Motion to Refer Vote 35 to the Standing Joint Committee on Official Languages

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I give notice that tomorrow, Wednesday, March 6, 2002, I will move:

That the Standing Joint Committee on Official Languages be authorized to examine the expenditures set out in Privy Council Vote 35 of the Estimates for the fiscal year ending March 31, 2003; and

That a message be sent to the House of Commons to acquaint that House accordingly.

Notice of Motion to Refer Vote 10 to the Standing Joint Committee on the Library of Parliament

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I give notice that tomorrow, Wednesday, March 6, 2002, I will move:

That the Standing Joint Committee on the Library of Parliament be authorized to examine the expenditures set out in Parliament Vote 10 of the Estimates for the fiscal year ending March 31, 2003; and

That a message be sent to the House of Commons to acquaint that House accordingly.


Courts Administration Service Bill

First Reading

The Hon. the Speaker pro tempore informed the Senate that a message had been received from the House of Commons with Bill C-30, to establish a body that provides administrative services to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada, to amend the Federal Court Act, the Tax Court of Canada Act and the Judges Act, and to make related and consequential amendments to other Acts.

Bill read first time.

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

On motion of Senator Bryden, bill placed on the Orders of the Day for second reading two days hence.


Nuclear Fuel Waste Bill

First Reading

The Hon. the Speaker pro tempore informed the Senate that a message had been received from the House of Commons with Bill C-27, respecting the long-term management of nuclear fuel waste.

Bill read first time.

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

On motion of Senator Gauthier, bill placed on the Orders of the Day for second reading two days hence.


Payment Clearing and Settlement Act

Bill to Amend—First Reading

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I have the honour to present Bill S-40, to amend the Payment Clearing and Settlement Act .

Bill read first time.

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

On motion of Senator Robichaud, bill placed on the Orders of the Day for second reading two days hence.

Legislative Instruments Re-enactment Bill

First Reading

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I have the honour to present Bill S-41, to re-enact legislative instruments enacted in only one official language.

Bill read first time.

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

On motion of Senator Robichaud, bill placed on the Orders of the Day for second reading two days hence.

L'Assemblée parlementaire de la Francophonie

Meeting of January 25-27, 2002—Report of Canadian Delegation Tabled

Hon. Pierre De Bané: Honourable senators, pursuant to rule 23(6), I have the honour to table, in both official languages, the report by the Canadian branch of the Assemblée parlementaire de la Francophonie and the related financial report. This report concerns the meeting of the political committee, held at Paris, France, from January 25 to 27, 2002.

Meeting of January 28-29, 2002—Report of Canadian Delegation Tabled

Hon. Pierre De Bané: Honourable senators, pursuant to rule 23(6), I have the honour to table, in both official languages, the report by the Canadian branch of the Assemblée parlementaire de la Francophonie and the related financial report. This report concerns its participation in the executive committee meeting of the APF, held at Paris, France, on February 28 and 29, 2002.


Official Languages

Seventh Report of Joint Committee—Notice of Motion to Send Message to House of Commons Objecting to Unilateral Appending of a Dissenting Opinion

Hon. Jean-Robert Gauthier: I give notice that tomorrow, Wednesday, March 6, 2002, I will move:

That a message be sent to the House of Commons objecting to its decision of February 21, 2002 to append unilaterally a dissenting opinion to the seventh report on Official Languages, and thus ignore the legitimate rights of the Senate in a matter relating to a Joint Committee.

National Security and Defence

Notice of Motion to Authorize Committee to Study Need for National Security Policy

Hon. Jane Cordy: Honourable senators, I give notice that, on Wednesday next, I will move:

That the Standing Senate Committee on National Security and Defence be authorized to examine and report on the need for a national security policy for Canada. In particular, the Committee shall be authorized to examine:

a. the capability of the Department of National Defence to defend and protect the interests, people and territory of Canada and its ability to respond to or prevent a national emergency or attack;

b. the working relationships between the various agencies involved in intelligence gathering, and how they collect, coordinate, analyze and disseminate information and how these functions might be enhanced;

c. the mechanisms to review the performance and activities of the various agencies involved in intelligence gathering; and

d. the security of our borders.

That the Committee report to the Senate no later than June 30, 2003, and that the Committee retain all powers necessary to publicize the findings of the Committee until July 30, 2003; and

That the Committee be permitted, notwithstanding usual practices, to deposit any report with the Clerk of the Senate, if the Senate is not then sitting; and that the report be deemed to have been tabled in the Chamber.


Rules, Procedures and the Rights of Parliament

Order of Reference to Establish Committee on Official Languages—Notice of Motion Instructing Committee to Report

Hon. Jean-Robert Gauthier: Honourable senators, I give notice that on Wednesday, March 6, 2002, I will move:

That the Standing Committee on the Rules, Procedures and Rights of Parliament, which is currently examining the order of reference from the Senate relating to the creation of a standing Senate committee on official languages adopted on February 20, 2001, report to the Chamber on the said order of reference by May 15, 2002.


Response of Newfoundland Communities Following Events of September 11, 2001

Notice of Inquiry

Hon. Joan Cook: Honourable senators, pursuant to rule 57(2), I give notice that on Thursday next, March 7, 2002, I will call the attention of the Senate to the response of Newfoundland communities following the tragedy of September 11, 2001.


Fisheries and Oceans

Canso, Nova Scotia—Transfer of Redfish Quota—Effect on Local Plant

Hon. Donald H. Oliver: Honourable senators, my question is for the Leader of the Government in the Senate. It relates to a crisis in the fishery in the town of Canso, in Nova Scotia. A local fish plant there needs more quota. Last month, Seafreez, the town's major employer, closed the processing plant and boarded up the windows, and management told the union representing more than 300 workers that, without quota changes, there would be only limited work for a few people.

On February 5, the Chronicle-Herald reported that the federal Minister of Fisheries, Mr. Thibault, had made the fisheries portfolio and stock conservation his top priority, but that he refuses to transfer redfish quota in order to keep that plant open. He is also quoted as saying that he does not feel there should be any kind of band-aid solution to the problem. It is a desperate situation for the community.

Could the Leader of the Government in the Senate please indicate when the government will make public the national strategy on which it is working that will be timely enough to save the town of Canso from economic collapse?


Hon. Sharon Carstairs (Leader of the Government): I thank the honourable senator for his question, and he has given part of the answer himself. He knows of the development of the strategy. I cannot give him a date when the strategy will be ready. When the government is prepared to make an announcement, it will do so.

Senator Oliver: Can the minister state whether or not the government is prepared to consider a transfer of the redfish quota for the plant in order to keep the plant open and people employed while the government considers the long-term policy?

Senator Carstairs: It is my understanding that the transfer of quota is not under consideration at this particular time. Transfer of quota is not simple, because you take from one to give to another. The economic viability of all fish plants must be the major consideration.


Budget for Aboriginal Care—Possibility of Presentation on Issue to Health Care Commission

Hon. David Tkachuk: Honourable senators, today, in the Aboriginal Peoples committee meeting, we heard from officials of the Department of Health about Aboriginal health care. We were told that the budget for the health care of the 700,000 First Nations people in Canada is $1.3 billion in direct health benefits.

I asked the witnesses if the federal government or the Department of Indian Affairs would be involved in the Health Care Commission led by Mr. Roy Romanow, and whether the government had any intention of making a presentation, since this budget is clearly larger than the budgets of many of the provinces.

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, it is interesting that the honourable senator has raised that particular question. I recently learned that the Department of Health services delivered to our Aboriginal people constitute the fourth largest expenditure on health in the nation. He is correct when he says that it is larger than the health budgets of most provinces in this nation. As to participation in the Health Care Commission, there will not be a formal presentation. However, since the mandate of Mr. Romanow was set out by the Prime Minister and the Minister of Health, discussions will be taking place between the Minister of Health and Mr. Romanow.

Senator Tkachuk: Honourable senators, I am hoping that the Leader of the Government will ask, perhaps in her position as a member of the Privy Council in cabinet, that such a presentation be made.

There was an interesting comment by the officials of the department with regard to health. For the benefit of all honourable senators, the $1.3 billion is not only for insurable health care. It also includes non-insurable health care, which would be prescription drugs, dental benefits, medical equipment, transportation, vision care, payments of all provincial health care premiums, and short term crisis and mental health counselling. Those benefits are included also. We were told that it is a matter of government policy to pay non-insurable health benefits on the basis of need. I asked the official, if it is on the basis of need, is anybody denied? He said, "No." In other words, no economic analysis is done regarding who should be eligible for the extra benefits. Everyone gets them.

Can the leader find out what the policy is? Is it a universal health care policy for all non-insurable health benefits? If it is, as the bureaucrats stated, one based on need, how is that need assessed?

Senator Carstairs: Honourable senators, it is an interesting question that the senator poses. Who makes the determination as to what is a non-insurable health service? That is made by individual provinces, and I am sure that the honourable senator is well aware of the fact that what is insurable in one province is not insurable in another province.

What also must be considered here is our treaty obligations with regard to Aboriginal people, and one of those treaty obligations is specifically in the field of health. The benefits paid by the federal government to our Aboriginal peoples are not simply based on policy, but also on our fiduciary relationship with our Aboriginal people.

Finally, I must say, I was shocked when I learned that 75 per cent of all of the health care costs in the territory of Nunavut went to transportation, in order to get those Inuit people to places where they could avail themselves of services. That is one of the reasons why the costs are so high.

It is also distressing to all of us that the health care of Aboriginals, as evidenced by the infant mortality rate and the age at which they die, still does not equal those of the rest of Canada.

Senator Tkachuk: Honourable senators, I am more confused. We have insurable health benefits and we have non-insurable health benefits, which the minister says are based on treaty obligations. However, the officials said that non-insurable health benefits are based on government policy. The confusion as to what is the principle of government policy is at the root of the matter.

I think it is important that the federal government be involved in the Romanow discussion because we have here a perfect socialist, communist health care system. It pays for everything. The committee was told that this perfect health care system is not working well. There are tremendous problems. We have much to learn about what is being done here and what the federal government is thinking about. If the officials and the minister here are not on the same page as far as government policy is concerned, I would like to know why.

What is the government policy? The minister is saying one thing and the officials are saying another. If the minister is right they should know that. I hate to use the reverse, but the minister knows what I am getting at.

I strongly urge that the department make a presentation to the commission. They have as big an interest in managing health care costs as anybody else in the country. This concerns all of the taxpayers and it should be public.

Hon. Nicholas W. Taylor: A very clear question.

Senator Carstairs: I thank the honourable senator for his question. What is not clear is his use of the term "non-insurable." That is what I was trying to provide some clarity on in my previous answer.

The services provided to our Aboriginal people are insurable and paid for by the federal government. They may be non- insurable in other provincial jurisdictions but that does not make them non-insurable in Aboriginal health care delivery.

As to why the health minister would not make this presentation, as the honourable senator can well imagine, it is a unique situation. The Minister of Health, through her predecessor, has appointed Mr. Romanow. It would be strange for her, then, to appear before him.


Delayed Answer to Oral Question

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I have the honour to table, in this House, a delayed answer to a question raised in the Senate on February 5, 2002, by the Honourable Senator Gauthier, regarding the costs to comply with the Official Languages Act in implementing the Contraventions Act.


Federal Court Decision—Maintenance of Established Linguistic Rights—Costs to Government

(Response to question raised by Hon. Jean-Robert Gauthier on February 5, 2002)

The costs to comply with the Official Languages Act are unknown since there several elements linked to the inner workings of a provincial system. In Ontario, for example, provincial regulations made pursuant to the Provincial Offences Act provide for bilingual tickets, including parking tickets issued at the Pearson Airport, that allow a defendant to indicate on the ticket their choice for the language of the trial.

If in a region of the province the process is different, service shall respect part IV of the Official Languages Act. The Government of Canada is working in cooperation with the province of Ontario to identify solutions and potential costs.

The Contraventions Act is an act designed to simplify and facilitate the prosecution of federal offences found in federal laws and regulations. The purpose of the agreements signed pursuant to the Contraventions Act is the implementation of the Act and not the enforcement of federal laws and regulations.

It is not the intent of the federal government to compromise the language rights of contravenors. Should Ontario refuse to sign an agreement respecting the Federal Court's decision, the Contraventions Act in Ontario would be suspended which would result in a return to the summary conviction process of the Criminal Code.

With respect to federal parking contraventions in Ontario, we are confident that we can sign agreements with Ottawa and Mississauga that comply with the court's decision.

While the Federal Court decision applies only to the agreement with Ontario, all other agreements will be reviewed in light of the decision. The Government of Canada is working with the province of Ontario towards the conclusion of an agreement that meets the requirements of the judgement.



Criminal Law Amendment Bill, 2001

Third Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Pearson, seconded by the Honourable Senator Poy, for the second reading of Bill C-15A, to amend the Criminal Code and to amend other Acts, as amended.

Hon. Serge Joyal: Honourable senators, Bill C-15A, which we are debating at third reading today, is a bill that contains, at Part XXI.I, clause 696.1(1), on page 37, an element that is extremely important for the credibility of Canada's justice system. This chapter of the bill deals with what is commonly referred to as "miscarriages of justice."


This part of the bill deals with what we usually call "miscarriage of justice." We are all familiar with the names of people who have been wrongly convicted. May I remind you of some of them: David Milgaard, Guy Paul Morin, Thomas Sophonow and, last week in Newfoundland, Greg Parsons. I have in mind the difficult situation in which a wrongly convicted citizen finds himself, or herself, in order to re-establish his innocence once a court has found him guilty and has sentenced him to prison.

The principle that is paramount in our system is not only that justice be done but also that justice appear to be done. In fact, the Supreme Court of Canada in many of its judgments has insisted on the importance that justice appear to be done. What is the reaction of an average citizen when he or she learns through the media that one of his fellow citizens has been wrongly convicted?

Let me quote from the Ottawa Citizen of last Saturday as it relates to the consequence of such wrongful conviction:

I can't imagine anything worse, than somebody who's innocent to spend time in prison. It's the ultimate injustice.

That quotation is from the famous lawyer Lawrence Greenspon, who is commenting on the murder of D'Arcy McGee.

The issue of the murder of D'Arcy McGee is still open in the minds of many historians, that the person who was found guilty might not have been the author of the crime. I advise honourable senators to go back to that excellent article.

Over the weekend, newspapers were reporting another wrongful conviction of a gentleman in Newfoundland, Greg Parsons. Wrongful convictions seem to be recurring, and those issues address fundamentally the confidence Canadians have in their justice system.

More often than not, we find out that the people involved are Aboriginal people. Why is that so? They fit a pattern. I quote from the same article:

In too many cases, people who are different or fit a stereotype become the victims of a wrongful conviction, Mr. Greenspon says. They become "the perfect target," he says. "Guy Paul Morin was too old to live with his parents. Alfred Dreyfus was a Jew. Whelan was suspected of being a Fenian sympathizer. Donald Marshall was an aboriginal. David Milgaard was a drifter. In every case, the suspect fits a profile, or they were believed to be in the area.

Why is that, honourable senators? It is because when there is a despicable murder without explanation, public opinion is aroused and the public tries to find a guilty person. More often than not, attention is concentrated on groups of people who are more vulnerable socially.

In the Western world, our justice system has a reputation for being fair because it is based on sound principles. Those principles are impartiality, competence, objectivity and independence. It is essential that those principles be maintained all through the process of re-evaluation where a wrongful conviction is alleged after a conviction and sentence.

What this bill achieves is, to me, an important step forward. It amends section 690 of the Criminal Code to give the Minister of Justice authority to reopen a case. Part XXI of Bill C-15A establishes a process that we do not have in our legal system in Canada, a process that has been requested by at least two investigations in previous cases of wrongful conviction, namely the Thomas Sophonow and David Milgaard cases. Retired Justice Peter C. Cory, in his recommendations to the Canadian public and to the government, said that we need a system that will maintain the principle of independence in the re-evaluation of a wrongful conviction. I quote Mr. Justice Cory, from his report wherein he states:

— in the future, there should be a completely independent entity established which can effectively, efficiently and quickly review cases in which wrongful conviction is alleged...I hope that steps are taken to consider the establishment of a similar institution in Canada.

Honourable senators, Bill C-15A provides a new mechanism. It provides for the Minister of Justice to appoint a commissioner. According to proposed section 696.2, this commissioner is appointed by the Minister of Justice, who "may delegate in writing to any individual the powers of the Minister to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence and otherwise conduct an investigation under subsection (2)." In other words, the minister will now be called to appoint an individual to do the investigation in a legal framework — that is, to subpoena witnesses, to compel evidence and to take the ordinary steps that are taken in a court of justice when one wants to come to a fair and balanced conclusion.

The problem that was raised in our committee's work, on both sides of the committee — and Senator Pearson, who was sponsoring the bill, raised it as well — is that nothing in this proposed section provides for the qualifications of that person. Again, the section reads that the minister may appoint any individual.


In French the section states:

— le ministre de la Justice peut déléguer par écrit à quiconque —


There is no experience, independence, objectivity and impartiality, the essential characteristics of a legal process.

Many committee members, when we were hearing witnesses at the committee stage, thought that there would be an opportunity to give an indication of the kind of person that the Minister of Justice should be appointing in writing. In referring to past appointments, there appeared a precedent, where the minister had appointed retired justices. Perhaps retired justices should be a category of people among whom the minister can choose.


It was properly pointed out during the committee discussion that retired justices are not the only persons who maintain the experience, objectivity and knowledge of the legal system needed in such a specific and extraordinary circumstance as an investigation into a wrongful conviction. It was suggested that members in good standing of the bar of any province might be a reservoir of people from which the minister could identify the proper person to fill the role of commissioner.

In the context of wrongful conviction cases, it has been proposed that there could be other groups of people with knowledge of the legal system generally who, although not lawyers or retired justices, might be able to fulfil such a responsibility. That is why it made sense that such a person with a similar background or comparable experience could be someone who should be considered by the Minister of Justice.

In other words, the consensus was to try to maintain the principles of independence, objectivity and impartiality that such a person, in the role of commissioner, might provide not only to the people who are directly concerned with the wrongdoing but also to the Canadian public generally. The fundamental principle is that it is just as important that justice be done as that it appear to be done. Justice appeared to be done when the commissioner who is charged with the responsibility to reinvestigate a case offers the proper credibility that justices normally offer when they sit on the bench with the protection that they enjoy under our Constitution.

The Supreme Court of Canada has established that principle of independence in many instances. I want to quote from one case in 1985, where the Supreme Court said the following about the principle of independence:


The word "independent" reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.


What does it mean? It means that when a person has the capacity to make a recommendation, in fact that will lead the minister to the decision of whether or not to reopen a case. This whole process of re-evaluating the proof, having to hear witnesses, compelling witnesses to answer, compelling the production of documents that might not have been under consideration at the trial level — reopening the case generally, with its implications in relation to the proof — is a very important legal initiative. It is important that the person who presides over that initiative offers to the Canadian public that element of independence from the executive that the court mentioned in its 1985 judgment.

Honourable senators, that is the context. In the past few months, we in this chamber have had to address another important situation when the trust and confidence of the Canadian public in another essential element of the rule of law was discussed in this chamber. You will remember that this was on the occasion of debate on the anti-gang legislation. We wanted to ensure that, in the course of an investigation, when the police forces are authorized to commit an act that would otherwise be deemed a criminal offence, there be control over the police activities in such circumstances in line with the specific principle that not only must justice be done, it must also appear to be done.

There is no more difficult situation for any Canadian than listening to a report in the media that someone who has been wrongly convicted, having spent 12 or 17 years in prisons, has finally been released but that his or her life has been broken. Could you imagine yourself spending that many years in prison and trying to fight to establish your innocence? Where would you put your trust? Where would you put your hope, if not in a process that seems to be fair and that operates on fair ground?

That is why I want to commend the minister and the members of the committee who have studied that question for their work, because this is a very important step towards maintaining the sound principles of our legal system. When the Minister of Justice of Canada, who is responsible for the integrity and functioning of the legal system of Canada, has to establish and choose a commissioner to reinvestigate a trial, it is recommended that that person offer the same qualities that we expect in any jurisdiction in Canada.

Motion in Amendment

Hon. Serge Joyal: It is with those elements in mind, honourable senators, that I move that Bill C-15A be amended in clause 71, on page 37, by replacing line 28 with the following:

writing to any member in good standing of the bar of a province, retired judge or any other individual who, in the opinion of the Minister, has similar background or experience the powers of the

I would like to propose that amendment with the support of Senator Moore.

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

Hon. Anne C. Cools: Is the question before us now? I want to speak to the amendment and I also want to ask Senator Joyal a question.

The Hon. the Speaker pro tempore: The amendment is before us, Senator Cools.

Senator Cools: I wish to speak to the amendment. I would like to move the adjournment of the debate.

The Hon. the Speaker pro tempore: Have you moved the adjournment?

Senator Cools: My understanding of the rules is that I can put a question to Senator Joyal, and after that I can announce my intention to speak on the amendment, and then take the adjournment. That is my understanding of the rule.

The Hon. the Speaker pro tempore: Senator Joyal, will you take questions from Senator Cools?

Senator Joyal: Yes, Your Honour.

Hon. Gérald-A. Beaudoin: On a point of order, do I understand that no other senator may ask a question of Senator Joyal?

The Hon. the Speaker pro tempore: No.

Senator Beaudoin: I would like to ask a question.

Senator Cools: Any senator can ask a question. That is the point that I was making; namely, that we have the right to put questions to Senator Joyal. I thought that Her Honour was about to put the question.

The Hon. the Speaker pro tempore: Honourable Senator Cools, you want to ask Senator Joyal a question. You have the right.

Senator Cools: When I am finished with my questions, and other senators have asked their questions, I want to take the adjournment.


Perhaps the honourable senator would clarify.The powers in Bill C-15A that are being given are not judicial powers to make a finding but rather inquisitorial powers to make an investigation. It is not, therefore, totally accurate to talk about justice being done in the absolute sense of judges adjudicating a case, with or without a jury, and making a decision about guilt or innocence. I wonder if the honourable senator could clarify before this chamber that the powers for commissioner so being appointed are inquisitorial and not judicial.

Senator Joyal: Honourable Senator Cools has raised an important point. The commissioner is appointed under the Inquiries Act of Canada. The person has the same powers and privileges as any person appointed to lead an investigation under the Inquiries Act.

It is important to remind honourable senators that the court has ruled in the past on the professional behaviour of such a person appointed under the Inquiries Act. In other words, what are the obligations put on the shoulders of a person who is appointed a commissioner under the Inquiries Act?

The Supreme Court of Canada ruled on a case last year, 2001, and I refer to the case between Judge Richard Therrien and the Minister of Justice of Quebec. Honourable senators will remember that in that case Judge Therrien was under investigation by the Judicial Counsel.


Judge Therrien was placed under investigation because his prior professional conduct was deemed incompatible with the judicial role. The appeals court upheld the ruling of the Conseil de la magistrature, which concluded that Judge Therrien was not capable of carrying out the responsibilities that are a part of the judicial role. I would like to quote from the ruling. The court, in its ruling, stated clearly that: Since Nicholson v. Haldimand- Norfolk Regional Board of Commissioners of Police, —

... compliance with the rules of natural justice, which was required of courts, has been extended to all administrative bodies acting under statutory authority, where they are expressed as the rules of procedural fairness ("duty to act fairly"). The fact that a decision is administrative and affects "the rights, privileges or interests of an individual" is sufficient to trigger the application of the duty of fairness.


In other words, when a person finds himself in the role of a commissioner, he is dealing with the rights and freedoms of a citizen and, as such, he is submitted to the same obligations as anyone who exercises the adjudicating function.

Senator Cools: Honourable senators, Senator Joyal did not quite hit the substance or the essence of my question.

My question was whether or not the "individual" within this bill — not a case like Judge Therrien before the Supreme Court — as appointed by this minister under Her Majesty's powers to do the tasks assigned in this bill, will have a judicial powers position or an inquisitorial one. My understanding of those powers is that they are inquisitorial and not judicial.

That is my question. The honourable senator can answer it now, or he can pass on it and I can go on to another question.

The honourable senator spoke about independence. There are many kinds of independence. I suspect that anyone who is being considered for any significant task within the public service is expected to have a degree of independence. However, when you talk about judicial independence, you are moving into an entirely different area of principles. The words sound the same, but they are remarkably different. The principle of judicial independence applies to judges in their adjudicative function of declaring innocence or guilt and making findings after due process. One cannot say that, in this instance, this commissioner must exercise judicial independence; however, it is quite accurate to say that they should exercise objectivity, impartiality, ethics, independence and so on. Those qualities, noble as they are, are not judicial independence.

I submit to Senator Joyal that there are large numbers of people who have those characteristics of impartiality, independence, objectivity and so on and who cannot be found within the class of persons that Senator Joyal's amendment addresses. To the extent that the amendment limits the minister's discretion and limits Her Majesty's prerogative to make the appointments, I wonder if the Honourable Senator Joyal would tell us why he thinks such an amendment is even necessary. It seems to me that Bill C-15A as currently written gives the minister all the powers to appoint the right person — the most qualified person, the most judicious person, the best person that the minister can possibly consider. It seems to me that the bill as currently written is adequate and that this particular amendment constitutes a fair amount of caprice.

Senator Joyal: I would remind honourable senators that we are dealing with the case of someone who has been convicted and sentenced. That person is seeking redress. There is a process to obtain proper and fair redress. That process is similar to any process whereby the rights and freedoms of citizens are being decided upon. Our system of justice is equitable. It is based on respect of the rights of the individual, respect of due process, and respect of a system that guarantees the petitioner every opportunity to be heard and to make his or her case. I am of the conviction, according to the report of the retired justices who dealt with previous cases of miscarriage of justice, that this amendment corresponds to the qualities that a person who has the immense responsibility of reviewing a miscarriage of justice should offer to maintain trust and confidence in our system.


Senator Beaudoin: Honourable senators, there is no doubt whatsoever that in Canada, judicial independence is solidly entrenched in the Constitution. There have been several Supreme Court judgments on this.

Am I to understand that the reason for your amendment is that you want to leave the door open to the constitutional question? In other words, if someone claims there is a judicial error, it is not sufficient, as stated in R. v. Sussex Justices:


It is not good enough that justice be done. Justice must be seen to be done, in which case we are at the same level of independence as the judiciary. If a case is reopened in our country, in view of the liberal interpretation given to our Charter of Rights and Freedoms, I am quite sure that justice must be seen to be done.


Is that what the honourable senator had in mind when he said that this amendment is due? The word in French is "quiconque" and in English it is "individual." Should I understand that, in the honourable senator's opinion, that is not good enough, that it is not precise enough to respond to the principle of justice in Canada?


Senator Joyal: Honourable senators, Senator Beaudoin prompts me to make reference to the report on the investigation led by former Supreme Court Justice Peter Cory into the Sophonow case, as well as the report on the Milgaard affair. The two former judges who examined these cases recommended that the government, the Minister of Justice to be specific, review the process for deciding on an application for the reopening of a case.

Section 690 of the Criminal Code, which honourable senators may have in mind, is extremely vague. This section merely states that the Minister of Justice may decide whether or not to reopen a case. There is no process set out in the present Criminal Code. Given the increasing number of judicial errors, those who investigated the case at great length, Justice Cory in particular, reached the conclusion that there ought to be a process independent from the minister himself, since the minister is responsible for protecting the integrity of the justice system and is also, in many cases, the Attorney General. Fulfilling these two functions, he is in a number of cases the petitioner against an individual.

Based on this same principle, that we cannot confuse the position of judge and that of accuser, the process that must lead to the review of a wrongful conviction must be removed somewhat from the minister. This is what Bill C-15A proposes. It does not propose a system comparable to that in Great Britain.

In Great Britain, there is a commission made up of 11 persons, independent from the minister of justice, that reviews the requests. The proposal studied by the committee does not go that far.

The bill proposes appointing a commissioner under the Inquiries Act. The decision whether or not to accept or not accept the recommendation of the commissioner of inquiry remains with the minister. The purpose of my amendment is to appoint a commissioner of inquiry to ensure a certain level of objectivity, one with the professional skills and independence necessary to maintain the system's credibility so that, when it must reconsider, it protects its essential characteristics.

This is the objective approach that was proposed by the Minister of Justice and that we generally accepted in committee.

However, as the Honourable Senator Beaudoin mentioned, it is imperative that, when we establish such a system, it be subject to due process and to the test of the rule of law, because some day it may be challenged before the courts now that it is defined.

Honourable senators are no doubt aware of cases before the courts that have called into question the relevance of rulings. In such cases, independence was not sufficiently respected in the decision. Impartiality and public confidence in the system were not adequately protected in the decisions that were rendered. Later, the decisions made in these cases were overturned by the highest court in the land.

Senator Beaudoin: That answers my question very well.


Hon. John G. Bryden: Honourable senators, a question arises in relation to the fact that what occurs under the present bill without the amendment is that the minister will appoint an individual who conducts an investigation under the Inquiries Act and is a commissioner under the Inquiries Act. Senator Joyal's amendment clarifies the type or category of the individual who would be appointed. With all due respect, I wonder if what the honourable senator is attempting to do accomplishes that or whether it is overly restrictive?

Senator Joyal has stated that the person is entitled to due process, and that this is someone who has been sentenced and has been in jail for 12 years or for 17 years. As I read the amendment, the people who are most apt to be appointed as the investigators come from the same group of people who put the individual there in the first place; that is, the people who convicted him the first time around were lawyers and judges, officers of the court. If that is the case, the amendment is too restrictive. There are people, other than individuals such as you or I who have some training in the law, who may be good commissioners.

As I read this amendment, I am trying to think who, other than a lawyer or former lawyer, would meet this requirement in almost any situation. The amendment says, "any member in good standing of the bar of a province, retired judge," who would once have been and probably still is a member in good standing of the bar. It goes on to say, "or any other individual who, in the opinion of the Minister, has similar background." Does that mean law school training? Would that be the correct interpretation, or would it refer to experience, meaning legal practice experience or judicial experience? If that is the proper interpretation, I believe it is far too restrictive. There may well be instances where a retired parliamentarian could be a commissioner in a situation such as this. There could be a situation where a former ombudsman, who never went to law school, would be qualified to be a commissioner. Perhaps that could be said to be judicial experience.

My point is that this amendment may be too restrictive. Might a change be made to indicate similar background or comparable experience? The reason for making that suggestion is because if I were interpreting this amendment, I would assume that the first qualification would be to have a law degree and be a member of the bar in good standing, or to be a member of the judiciary who is retired or supernumerary, or any individual who has a similar background.

I do not know if anyone ever applies a version of the ejusdem generis rule. However, any judge or any person looking at this amendment would say, "Okay, if I am looking for a person to match this qualification, I will start with what has been specified." Those who have been specified are lawyers, ex-judges and then similar individuals. Perhaps Senator Joyal has a list of examples of people who would fit the similar background or experience category. If he does, it would be helpful if he would give such an indication. Perhaps something can be done that would encompass that group of citizens.

I return to my point, honourable senators. One of the reasons this person is looking for a second kick at some justice is that the system, of which Senator Joyal and I are a part as officers of the court, is the one that did the person in, in the first place.


Senator Joyal: Honourable senators, we have again put ourselves in the position of someone who is convinced that he or she has been wrongly convicted. Such a person feels that they will be fairly treated in an investigation of their case.

As the honourable senator has said, there are parliamentarians who have had lengthy experience in hearing and questioning witnesses and who have the daily responsibility of reviewing legislation. That is our first job, which is why we are here this afternoon. We are familiar with the legal system.

I will make a comparable analogy: If you feel sick, you go to see someone who is experienced, in one way or another, with the provision of medical services, or you consult a pharmacist or someone who has a great deal of experience in the proper domain. If you are wrongly convicted and are fighting to have your innocence recognized, there is no doubt that you will expect to have your case reviewed by someone who has some experience in listening to the pros and cons, in studying documents, in reading the proofs and the transcript of the trial and being sensible to the interpretation of the legislation. In other words, this person will generally have the capacity to understand the entire legal process. This person will make a recommendation to the minister, and the minister will act upon the recommendation.

There is more involved than just being able to read; there is also the capacity to appreciate. When we read the overall category proposed, "member of the bar" means someone who, in one way or another, has had some experience with the legal system, either in the practice of law or in teaching or giving legal advice. If the person is a retired justice, then that is a person who has some detachment from the system because the person is no longer on the bench. There is no longer the obligation of collegiality that an acting justice would have with a group of justices. The person is retired. There is an element of distance from the system, something which is fairly important, as the honourable senator has said, for someone who wishes to have their case reviewed. He does not wish to find himself before the same group of people by whom he was condemned. He wishes to have someone with a certain degree of objectivity.

The amendment proposes that the minister appoint people with similar background or experience. In my opinion, it is obvious that this means anyone who has been responsible in the past for pondering pros and cons and weighing different arguments. The honourable senator has suggested an ombudsman. What would this ombudsman do? He also suggested a retired commissioner of a provincial human rights commission, someone who may not be a lawyer but who has the ability to view and balance the pros and cons. That person understands when the rights of people are at stake and how the system must operate to protect those rights. Essentially, the amendment says "in the opinion of the minister" this person appreciates who has a similar background or experience. In other words, it does not need to be a formal lawyer, as a justice normally is. It could be someone who has practised in an administrative body because the person might not be -


The Hon. the Speaker pro tempore: Honourable senators, I am sorry, but Senator Joyal's allotted time has expired.

On motion of Senator Cools, debate adjourned.


National Anthem Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Poy, seconded by the Honourable Senator Banks, for the second reading of Bill S-39, to amend the National Anthem Act to include all Canadians.—(Honourable Senator Banks)

Hon. Tommy Banks: Honourable senators, I rise today to speak in support of Senator Poy's bill, which surprises me more than anyone. When I first heard about the proposal to change the words of the National Anthem of Canada, I was vehemently opposed. I suppose that may stem from the fact that, even then, I was a traditionalist. In fact, some people think of me as a curmudgeon.

The first time I heard this exact proposal to change the phrase from "in all thy sons command" to "in all of us command" was in 1993. It was made by a man to whom Senator Poy referred in her speech on this bill. His name is Stuart Lindop, and I have known him for some time through his son. As Senator Poy told us, he is a war hero, wounded and decorated, who, in 1993, recognized the fact that, while he was one of those "sons" in whom we commanded loyalty and who had done that in Holland in 1943 or 1944, there were many daughters there at the same time doing things which he thought deserved attention. He brought this thought to fruition in a proposal in 1993, which was reflected in a private member's bill sponsored by the Honourable David Kilgour. However, I believe it disappeared in the lottery system of the other place.

Honourable senators, we have today for consideration a bill which I still opposed when it first came before us because I am a traditionalist. I do not like change. I was ready to accept the idea that from that long ago it was a generic thing, and it was meant to include everyone. Then I started to look at some of the history of this anthem. I am a songwriter, and spent part of my misspent youth doing just that.

I have always found that the first notion is usually the best one. I almost always go back to it. The fact is that the English words of O Canada have been changed dozens and dozens of times since we first heard the song. Our francophone colleagues have the great advantage in that the French language lyric to our national anthem, as I understand it to be, is fundamentally, and for all intents and purposes, the same as it was in 1880. It has not substantially changed. In respect of the English lanaguage lyrics for what was for a long time a national song, there have been approximately 23 versions that I have been able to find thus far.


Honourable senators have heard an argument that the question of the lyrics of a national anthem are not properly the business of Parliament. I do not think that is possible because, in the first place, the fact that it is our national anthem is the result of an act of Parliament passed in 1967. As well, I believe it was in 1981 that Parliament amended the English lyrics of O Canada with the addition of a nice line that said, "God keep our land," which I am sure honourable senators will recall. We also thought there were too many repetitions of "we stand on guard for thee" and so we substituted for one or two of them.

In 1981, we had what we thought to be propriety and changed the lyrics of O Canada as they then existed. They became an anthem to English Canadians, only in 1967 by virtue of an act of Parliament. It had been, for all intents and purposes, an anthem. One could reasonably say it was a national anthem in French Canada since its introduction. The English lyrics, however, have changed. There have been at least 23 different versions of the anthem in that time.

I still held to the idea initially that we should not change the anthem because it has been that way since its use became common, even as a national song, not just as a national anthem. Then, I found that that was not true. Senator Poy mentioned this last week, and it is the case. This is a version that was printed in 1908, as far as can be determined, and there are copies of these in various libraries. This 1908 version contains the word "us" on exactly the same syllable and on exactly the same note that the word "sons" appears in the version to which we have all become accustomed.

As far as I can see, that version was first introduced in about 1913 or 1914. Honourable senators, I suppose that might have been because of the Boer War, and so on, and we were talking about sending young men off to battle, for the most part. Even then, it was not true that we only sent young men off to battles.

Being the traditionalist that I am, and believing as I do that the first taste is always the best, I support this bill because, in 1908, this national song said the word "us" on the exact same beat of the exact same measure on the exact same note on which we have only recently taken to singing "sons." I commend honourable senators' attention to those facts and to the fact that the only lyrics that could be said to be truly traditional in the sense of the timing of the beginning of this song are the French lyrics. That is not true of the English lyrics. They are more appropriate and more traditional if we make the change that is proposed in the amendment of Senator Poy.

If other honourable senators do not wish to speak to this issue now, I would move adjournment of the debate in the name of Senator Johnson.

Hon. Laurier L. LaPierre: Will the honourable senator accept a question?

Senator Banks: Yes.

Senator LaPierre: I would ask the honourable senator whether he thinks that, because the original version is the only real version and the traditional and sacred version, everyone in this country should sing only the French version?

Senator Banks: I thank the Honourable Senator LaPierre for his question. However, if he heard my Churchillian French accent, he would change his mind in respect of the question.

Hon. Anne C. Cools: Would the Honourable Senator Banks accept another question?

Senator Banks: Yes.

Senator Cools: Senator Banks has told honourable senators that the words of 1908, which, by the way, were not the national anthem at the time, are the true words and that the other words "in thy sons command" were written in or around 1913. Would the honourable senator tell us who wrote those words and why?

Senator Banks: I thank the Honourable Senator Cools for the question. By "those words" I presume you mean the words to which I referred as being written in 1908.

Senator Cools: That is correct.

Senator Banks: I did not say, Senator Cools, that they were the correct words or that they were the right words. I said that all of the English lyrics about which we speak are, each on their own, one of about 23 different versions.

His Honour Mr. Justice Weir of Montreal, who, I believe, may also have been the author of the 1913 version, wrote the lyrics of the version to which I refer. At the least he was the copyright holder, although I do not know if he was the author of the lyrics of that version.

Senator Cools: Would the honourable senator clarify the fact that it was Mr. Justice Weir who wrote the words "in thy sons command"? The honourable senator continues to compare the 1913 version to the 1908 version. However, the family and friends of Mr. Justice Weir are absolutely certain — and the records show — that Mr. Justice Weir wrote those words "in thy sons command."

Furthermore, it is that particular version with the words, "in thy sons command" that became increasingly popular. That later popularity was able to cause Parliament to adopt it as the national anthem.

I would ask the honourable senator this: If the words "in all thy sons command" were the actual words that commanded popular appeal and support, are they not worthy of our support even now? They continue to command popular support now.

Senator Banks: Senator Cools, at the moment I sing them as loudly as anyone sings them when the occasion arises.

I have, unlike the honourable senator, no certainty as to the relative popularity of the words that were extant in 1908, on the one hand, and those for which the copyright was issued in 1913, on the other hand. I have the temerity to suggest that, despite the great age of everyone in this chamber, none of us knows the answer to that question.

In respect of my preference of the two lyrics, I will rest my argument on the case that, as a songwriter, I find that I always return to the first words that came to my mind rather than the subsequent ones. The first words always seem to me to be the best. I have no hesitation in ascribing to Mr. Justice Weir that same good taste.

On motion of Senator Banks, for Senator Johnson, debate adjourned.


Study on Role of Government in Financing Deferred Maintenance Costs in Post-secondary Institutions

Report of National Finance Committee—Debate Continued

On the Order:

Resuming debate on consideration of the ninth report of the Standing Senate Committee on National Finance (study on the role of the government in the financing of deferred maintenance costs in Canada's post-secondary institutions), tabled in the Senate on October 30, 2001.—(Honourable Senator Callbeck)

Hon. Catherine S. Callbeck: Honourable senators, I am pleased today to speak to the Standing Senate Committee on National Finance report on accumulated deferred maintenance in Canadian universities. Along with other honourable senators, during Senator Moore's inquiry I have already spoken about the problem of rising maintenance costs. At this time, I should like to make a few comments now that the National Finance Committee has tabled its report on the matter.

Deferred maintenance at our universities is a very serious problem. As the National Finance Committee's report identifies, a number of factors explain the high degree of deferred maintenance in our universities. These include aging physical plants, decreased funding, demands for new space, as well as lack of profile as interest is attracted to projects concerning construction of new buildings and not the maintenance of older ones. As a result, Canadian universities have accumulated over $3 billion in repair and maintenance costs.

The consequences of deferred maintenance costs are severe, as they have an impact on both the health and safety of our university students and staff. For example, in one instance noted in the report, a ceiling tile fell on a student's head in the middle of a lecture.

However, it is important to note that the consequences of deferred maintenance go beyond health and safety. In many cases, the deterioration of universities has compromised teaching and research. For example, the report details one case where a respected biologist left a Canadian university for an American university because the ventilation system in her lab was in such a state that it could not keep the constant temperature that her research required.

Situations such as this do not foster an environment that is conducive to learning and one that attracts potential faculty and students. It is clear that something must be done. The federal government must play a role in assisting post-secondary institutions.

The question now is: What can be done? The National Finance Committee outlined several proposals in its report that we should consider. One option put forth by the Canadian Association of University Business Officers and the Association of Universities and Colleges of Canada would see a cost-sharing arrangement among the provincial and federal governments and the universities.

Other proposals advocate such things as using the Canada Infrastructure Program to directly fund the accumulated deferred maintenance costs or developing various trust funds such as the Medical Equipment Trust Fund, which was developed to help hospitals acquire necessary equipment.

Another suggestion is to establish a program that offers a significant tax incentive to those who donate money to the universities. Such a program would protect the capital gains on donations made for the purpose of assisting universities in dealing with the problem of accumulated deferred maintenance.

Our post-secondary institutions will require more help if they are to continue to provide students with the best and safest possible educational environment. While the federal government has taken measures in recent years to increase funds to faculty and students in the form of various granting councils, research chairs and scholarships, it is also necessary that the federal government take into consideration the importance of funds dedicated to maintenance. Having government involvement in providing a solution to this problem is vital, not only in ensuring the safety of university staff and students but also in maintaining the historical buildings on campuses across Canada. As noted in the committee's report, private funding is much more likely to be directed toward endowments and new facilities rather than addressing the concerns associated with accumulated deferred maintenance.

The various options put forth in the report of the National Finance Committee report should be studied. I hope that the government will address this problem in the near future, as we must deal with accumulated deferred maintenance in order to meet our commitment to make Canada an innovative and knowledge-based society.

Hon. Nicholas W. Taylor: I wish to thank the honourable senator for a mercifully short and to-the-point intervention. I should also like to ask her a question.

The Hon. the Speaker pro tempore: Will the Honourable Senator Callbeck accept a question?

Senator Callbeck: I will gladly accept a question.

Senator Taylor: The honourable senator appears to have looked at financing from the government's side and tax side. Has anyone looked at the idea of granting students an education mortgage? Someone can obtain a mortgage to buy a house or a mortgage for many things. People talk about education loans to students, but I am thinking about a long-term mortgage to get a degree, with the principle and interest to be paid from the student's income following graduation. That way, if a Michelangelo graduates and does not make any money for 200 years, he will still be able to get an education. The problem with student loans is that they go to faculties such as engineering and geology, but students of the arts get short shrift. Did anyone look at students being able to mortgage to whatever degree they choose, be it in the finest of the arts or in the most money-grabbing of vocations?

The mortgage would flow through to the university but would still be the private responsibility of the student. It would be based on the income the student earns, not on a set period of payback. Perhaps such a system would allow us to develop a few Michelangelos or Shakespeares or Victor Hugos during the time they would be paying back the mortgage.

Senator Callbeck: I wish to thank the honourable senator for the question.

What I am speaking about here is deferred maintenance. The universities together have over $3 billion in deferred maintenance. They must get the money somewhere.

The honourable senator is speaking about a mortgage for students to pay their tuition. Is he suggesting that we increase tuition? Right now, students are paying their tuition, but that is not enough to cover this deferred maintenance problem. We have to deal with this major problem.


Whether we do it in one of the various ways reported in this committee, there are the several options that I have noted. I am saying it is a matter with which the government must come to grips. It is important, and we must get on with it.

Senator Taylor: In response to a question that the honourable senator rightfully shot back at me, it would involve increasing tuition. However, that would be more than compensated for by the so-called "education mortgage" about which I am speaking that would flow through to the university for whatever purpose it wanted to use it, such as fellowships or repairs — repairs, probably. If the person benefiting from the education makes a great deal of money down the road, it would be paid back, as there would be a surcharge on his or her income. If the person does not make any money, no harm is done.

We use that system as well when we give tax dodges to seniors or to people who have made money, to give to the university. We would be doing the same thing, only feeding it from the bottom instead of from the top.

Senator Callbeck: That could perhaps be looked at. My view is that we have a massive problem right now with which the government must deal. It must be dealt with up front, whether through a cost-sharing agreement with the federal government, the provinces and the university, as was one suggestion, or through an infrastructure program or a trust fund such as was done with medical equipment.

There needs to be a real shot of money to address this problem. That is needed right now. The figure is over $3 billion. If honourable senators read the report, they will see how serious the situation is. It is affecting our students and professors. The time is now to address this matter. I would favour one of the proposals outlined in this report.

Senator Taylor: My other question related to financing of universities. I understand that a great deal of research goes on in our universities. Somehow or another, universities do not benefit from the research. In other words, they do not get shares of the corporations or companies set up to use the research within the university. It seems to be siphoned off to researchers, who set up a company. Sometimes it is siphoned off to the research council or to the federal or provincial governments, which have set up units to do this.

Are the universities getting a fair shake out of the research that they are sponsoring? Does anything come back to them through ownership in the invention or idea that is developed?

Senator Callbeck: Honourable senators, I am certainly not an expert on research. However, all of us benefit through the research dollars spent. The universities certainly benefit from research dollars. We have had many research dollars go into universities from the federal government in the last two or three years. I really cannot answer the honourable senator's question specifically.

On motion of Senator Morin, for Senator Cordy, debate adjourned.

Intellectual Property Rights Over Patented Medicines


On the Order:

Resuming debate on the inquiry of the Honourable Senator Finestone, P.C., calling the attention of the Senate to three diseases which are sweeping the developing world and which draw many to ask whether intellectual property rights over patented medicines haven't taken precedence over the protection of human life.—(Honourable Senator Morin)

Hon. Yves Morin: Honourable senators, I am pleased to rise today to compliment the Government of Canada on the commitment it has shown to combatting the gravest of international problems.

As the Minister of Finance noted in his speech last December, Canada is one of the best countries in the world in which to live. Canada has a special responsibility toward the less fortunate peoples of the world.


This responsibility is not simply similar to that of a parent towards a child. It is not only a manifestation of paternalism. It is in fact an aspect of our own development. Increasing international development assistance enables a greater number of countries to partake in the benefits of globalization while tipping the balance in favour of peace and human security throughout the world, including inside our own borders.


In its most recent budget last December, the government served notice of its intention to establish a $500 million fund to enable it to work in partnership with the African countries, as well as with other donor countries and the international development institutions, to promote sustainable development in Africa.

The government has also made a commitment that development in Africa will be one of the main themes of the next G8 summit meeting happening in just three months, in June of this year, in Kananaskis, Alberta. Just last month, at the progressive Stockholm summit, world leaders supported Prime Minister Chrétien's suggestion to make Africa the focus of the summit.


This political will will be shared by all developed countries who contribute to progress on a continent where, to quote the Prime Minister of Great Britain, Tony Blair, "Famine, disease or conflicts are causing the death of one child every three minutes."

I find it heartening that former U.S. President Bill Clinton has agreed to head a mission to Africa with the mandate to define the measures the international community and African governments must take to deal with the many problems the African continent is facing.


Honourable senators, until the sickly continent that is Africa today becomes a healthy continent and until all developing countries achieve a basic standard of health, spreading the benefits of globalization will mean relatively little.


It is often said that when people enjoy financial security and education, they will be healthy. They learn how to avoid behaviour and habits that are bad for their health, and they can afford health care if they become sick. However, strong economic growth is impossible when a large segment of the population is suffering from malnutrition and serious diseases.


In fact, a recent report by the Commission on Macroeconomics and Health, created for the World Health Organization under the leadership of noted economist Jeffrey Sachs, turns conventional wisdom on its head and substitutes common sense. The report says that sick people cannot be productive workers. It says that when children die young, women will continue to have more children rather than joining the workforce. It says that people who do not enjoy the benefits of health do not have the energy to seek out the benefits of education or employment. In other words, to lift developing countries out of the mire of poverty, we first need to pay attention to the health of their citizens.

Honourable senators, the Government of Canada recognizes that, in Canada, health research is critical for better health for Canadians and a better and stronger health care system. That is why it has invested in the Canadian Institute of Health Research. That is why it increased the CIHR's annual budget in its most recent budget. This is why the government is investing in research infrastructure through the Canada Foundation for Innovation, and in research excellence through the Canada Research Chairs.


What is true for Canada is no less true for developing countries. The road to better health travels directly through a strong global health research enterprise. Unfortunately, that road is not yet well-paved.

In 2000, the Global Forum for Health Research issued a report saying that, of the $73.5 billion that was invested in health research worldwide, only 10 per cent was allocated to 90 per cent of the world's health problems, most of which are concentrated in poor countries. They called it the 10/90 gap.


Take the case of AIDS, for example, a veritable scourge in developing countries. We have all heard talk of the high percentage of Africans with AIDS. Of the 35 million people in the world living with AIDS, 28 million, or 80 per cent, live in Africa; 20 per cent of South Africans, more than 4 million people, have the AIDS virus. And just so people do not think that the problem is restricted to Africa, I would remind this house that, after South Africa, India has the highest rate of people living with AIDS in the world.


Recently, we made a step forward when pharmaceutical companies reached agreement with African countries to slash prices on AIDS anti-retroviral drugs by 85 per cent, on average. This is an important step forward. We know that these drugs have significant impacts on the health of those infected with AIDS.

However, we know more than that, thanks to two studies unveiled early in December at the regional AIDS conference in Burkina Faso. We know that the drugs are effective, despite critics who say that African countries are ill-equipped to administer them properly.

Taking health research into developing countries does not mean relaxing our western standards of excellence. This kind of evidence is needed to ensure that the interventions we do make are the most effective possible. That is why, for instance, The Lancet recently called for a rigorous systematic process of expert, peer review for proposals to the Global Fund to fight AIDS, tuberculosis and malaria. This public-private partnership, which has been championed by UN Secretary-General Kofi Annan, is bringing together more than 40 countries with UN agencies, the World Bank, private groups and non-governmental organizations. It is taking country-wide approaches to projects that focus on measurable outcomes and that build on national plans already in place in these countries.

Earlier this year, four government organizations in Canada entered into a first-ever collaborative effort. The Canadian Institutes of Health Research joined together with the Canadian International Development Agency, CIDA, the International Development Research Centre and Health Canada to form the Canadian Global Health Research Initiative. This marks the first time in Canadian history that Canada's overseas development agencies, Health Canada and the major federal health research funding agencies have pooled their knowledge, experience and resources to address the 10/90 gap that I spoke of earlier.


Thanks to this initiative, partners will implement new world health research programs and strategies. They will be able to benefit from each other's expertise. For example, the Canadian Institutes of Health Research conduct excellent health research thanks to their peer assessment process. They will ensure that health research in developing countries respects international standards of excellence while meeting the specific health research needs of these countries.

Honourable senators, as the Government of Canada follows on its commitment to international assistance through the fund for Africa, I urge it to focus on the health of Africans and on the important role that research plays in promoting it.


Hon. Nicholas W. Taylor: Would the honourable senator accept a question?

Senator Morin: Yes, I will.

Senator Taylor: I was in Burkina Faso and toured some medical facilities with Dr. Martin of the Alliance Party. If anyone is ever picking that carcass over, the Liberals would be wise to go after that bone because he is a very intelligent and interesting individual.

Dr. Martin pointed out, and I have done some research since then, that a great deal of the research and money spent by the drug companies now is on drugs that are sold to the western world, or to those of us who are getting grey hair and trying to buy a little bit of eternity. I think Viagra is a good example of that. Our society is not interested in experimenting with drugs that treat African or tropical diseases. That is not where the wealthy of the world live.

Consequently, do you have any recommendations on how to get the large drug companies of the world to start turning out suitable drugs? Not AIDS drugs, because AIDS is something that we can equate with on this side, but dengue fever and other types of fevers that are unique to tropical climates. Also, because of the typical diet of the poor people we looked at, perhaps there should be some research into changing their diets so that they can live a healthier life.

Senator Morin: Senator Taylor is perfectly right. The drug companies have not and will not invest funds in diseases that are located in poor countries. That is not where the profits are. Their aim, of course, is to make profits. However, more and more initiatives are being financed by governments, non-profit organizations and private foundations to support research and development. I am thinking in particular of the Gates Foundation, which has invested nearly $1 billion dollars into vaccines for the Third World.

Governments are now taking action. Especially, I might say, the Canadian government. In the last budget it has allocated $500 million to the African situation. Perhaps my plea was not clear enough: Part of that money should be allocated to health. If the health problem is not solved, the rest does not follow. Within the health agenda, I made a plea for research. A research policy is, as the honourable senator said, by far the strongest basis for any solution in this regard.

The recent initiative of four federal organizations, CIHR, CIDA, the International Development Research Centre and Health Canada, to join together and form an initiative to support research in the Third World, and especially in Africa, is excellent. Unfortunately, it is not very clear how much money will be given to that initiative. I do hope part of the $500 million that has been allocated in the last budget will be going to this Global Health Research Initiative.


The Hon. the Speaker pro tempore: If no other senator wishes to speak, this inquiry is considered debated.

Status of Legal Aid Program

Inquiry—Debate Continued

On the Order:

Resuming debate on the inquiry of the Honourable Senator Callbeck calling the attention of the Senate to the status of legal aid in Canada and the difficulties experienced by many low-income Canadians in acquiring adequate legal assistance, for both criminal and civil matters.—(Honourable Senator Milne)

Hon. Lorna Milne: Honourable senators, I am pleased to rise this afternoon to seize this opportunity provided by Senator Callbeck's inquiry into Canada's legal aid programs to discuss some very serious problems facing Canada's justice system.

Our Constitution is founded on the rule of law. We have a right to expect the even application of the law to all Canadians, rich or poor. Over the years, Canada's laws have become increasingly complex and specialized. There is little doubt that professional legal advice is extremely beneficial, if not absolutely essential, for even the most basic of legal disputes.

As Senator Callbeck has pointed out, thousands of Canadians are denied access to legal advice under current legal aid programs. As a result, they are denied access to the rule of law upon which our Constitution is founded.

I wish to contribute to this inquiry by providing honourable senators with feedback from a slightly different perspective on the problems that reduced legal aid funding is creating in our country, the perspective from grassroots lawyers in Canada.

This past summer, I took some time to reach out to lawyers across the country. I asked them to provide me with their thoughts on what issues they considered to be most important to them. As I chair the Standing Senate Committee on Legal and Constitutional Affairs, although I am not a lawyer myself, I thought the exercise might help broaden my perspective on legal issues and help me in my role as chair.

The message that these lawyers sent to me was unexpectedly powerful. Although the lawyers I wrote to were given absolutely no guidance on what issues to talk about, fully 75 per cent of the respondents to my inquiries specifically pointed to the lack of resources in Canada's legal system as problematic. In particular, the lack of legal aid funding is a major concern of Canada's legal community.

If honourable senators read Madam Justice Louise Arbour's comments in The Globe and Mail yesterday, you would see that she warned that if legal aid programs are left to fall apart, there will be serious consequences for the development of the law in Canada. This concern extends throughout the legal community across the land and at all levels. Lawyers are starting to speak out about it.

Practitioners of civil law, criminal law and human rights law are all concerned that ordinary Canadians are being let down because they are not wealthy enough to use Canada's courts. This is particularly evident in civil disputes where the most dramatic cuts to legal aid funding have taken place. As a result, and as pointed out by Senator Callbeck in her speech, those who are accused of committing crimes are given the resources to properly defend themselves, while the victims of crime and other kinds of damage are left to fend for themselves without any legal assistance.

Dean Peter Hogg of Osgoode Hall Law School listed as the primary challenge facing Canada's justice system the high cost of legal services and consequent restrictions on access by the poor and even the middle class.

Dean Bruce Feldthusen of the University of Ottawa Faculty of Law also pointed to the lack of public support for broader social needs. In his view, it is simply too expensive and time consuming for most people to bring cases to court. In most provinces, legal aid plans do not cover civil suits. As such, the "victims," so-called, of non-criminal activity of other citizens are left without any recourse if they cannot afford themselves to access the court system.

The question that should then be asked is: Why should legal aid be only for those accused of criminal offences? Proper financing of civil actions is key to maintaining a society governed by the rule of law. Shannon O'Byrne of the University of Alberta Faculty of Law noted: "The civil justice system is fundamental to the peaceable resolution of disputes arising in Canadian society. Divorce and family issues, consumer claims ranging from house purchases to car leases, professional service complaints, concerns relating to government services or public entitlements, and the enforcement of rights such as the rights to equality and to privacy are but a few of the many reasons to invoke the civil justice system." We simply cannot assume that these disputes and concerns are of less importance to Canadians and, therefore, are deserving of less support from the federal government.

The legal rights that a person has arising out of a breached contract or the negligence of another person are no less important than is prosecuting criminal activity. One of the fundamental roles of the government is to provide a forum for rational, thoughtful and non-violent resolution of disputes amongst its citizens. In a modern society, this means giving those involved in civil law disputes access to quality legal representation whether or not they can afford it. This simply is not happening in Canada today.

One area where the lack of legal aid has significant repercussions is in human rights cases. Legal aid is not available because under the Canadian Human Rights Code, a person with a human rights complaint does not have the right to start an action on her own. The same is true for most provincial human rights regimes.

Only a human rights tribunal can start an action after investigating a complaint made by an alleged victim. Once a complaint is lodged, the victim has no control over the process, even though the victim may eventually be entitled to compensation for the activity of others. For example, she may be entitled to damages because her employer did not promote her, but only the human rights tribunal can dictate the progress of the complaint. The victim has no legal right to make decisions in the process or independently sue for human rights violations.

This creates a huge barrier to justice. At present, under the Canadian Human Rights Act, the tribunal is woefully underfunded. Recent reports in The Globe and Mail and the Ottawa Citizen have pointed to widespread resignations and poor morale at the tribunal. It has also been criticized for spending too much time concentrating on international human rights issues and too little time resolving complaints that have been made by Canadians about actions right here at home.

Due to the high turnover of staff at the tribunal and the heavy caseload, it often takes five years or more for a case to be resolved, if the tribunal even decides that the issue is important enough to pursue in the first place. This has led to many calls for changes to human rights legislation that would allow victims to pursue complaints on their own through the courts.

If the government wants to maintain this model that it has set up, it must commit to properly funding its human rights tribunals so that disputes can be heard in an expeditious fashion. If public financial support for Canada's justice system is allowed to further deteriorate, citizens could become more likely to take the law into their own hands, and the government has a responsibility to maintain order.

A civil or human rights dispute arising between two people is no less important than a criminal case. Those citizens are also entitled to the benefit of the courts. As such, governments must start to broadly fund legal aid so that honest people can have a proper way to resolve their disputes through civil action. Any less of a commitment is evidence that governments are shirking their responsibility to maintain order and justice in our society.


Hon. John G. Bryden: As Senator Milne was making her speech in relation to legal aid and legal services being provided to all Canadians, I could not help but think back to the time when medical services were not equally available to all Canadians — in the 1940s — and when a very similar speech would have been made in relation to all Canadians needing a universal medicare system where everyone is treated equally and has the same rights.

The logical progression of Senator Milne's speech, in my opinion, is that we would have a universal legal care system in Canada. With all due respect, if the honourable senator thinks medicare is expensive, and if she thinks that throwing more money at medicare will fix the problem — and I know she does not — then just let the lawyers into universal legal care.

My point is this: Some of the lawyers will say, "If we just had more money to pay me 75 per cent of the standard tariff" — which is what legal aid pays — "then we could solve all these problems." The medicare problem is not as simple to solve. It is absolutely true that, taking as an example a small town in New Brunswick, if one lawyer sets up an office, he cannot make a living. However, if two lawyers set up an office, they make a wonderful living.

Prior to accepting the premise of extending the funding to civil litigation and to all of these other things, a thorough analysis would have to be done to discover whether it would improve the situation at all — other than to improve the bottom level of lawyers who tend to depend on that as their principal source of income.

Senator Milne: In response to Senator Bryden, I quite agree with what he has said. I do not want this to lead us to a more litigious society than we already have. However, I believe that the people at the bottom levels of society in which we live, and there are increasing numbers of them as the gap between rich and poor broadens in this country, should be able to access legal aid for a just and fair case.

On motion of Senator Stratton, for Senator Spivak, debate adjourned.


Role of Culture in Canada

Inquiry—Debate Continued

On the Order:

Resuming debate on the inquiry of the Honourable Senator Gauthier calling the attention of the Senate to the important role of culture in Canada and the image that we project abroad.—(Honourable Senator Gauthier)

Hon. Jean-Robert Gauthier: Honourable senators, the definition of Canadian culture is hard to interpret, I admit, because we are a people with roots in a multitude of cultures. We speak of multiculturalism as the Canadian reality and the reflection of what we are. We have a national multiculturalism policy. It is even entrenched in our Constitution, in section 27, where it is stated that multiculturalism is part of our Canadian heritage.

The object of my inquiry is to interest honourable senators in addressing culture, which is not discussed in the other place. In the Senate, it should be, because this is an important subject.

In 1994, when I was an MP and the chair of the Foreign Affairs Committee, I was invited by the Prime Minister to co-chair a fact- finding committee on Canada's foreign policy, along with the Honourable Allan MacEachen, a senator at that time. This was an interesting and worthwhile exercise. The committee was mandated to examine the changes going on in the world and their impact on Canada, and to suggest the principles and priorities which ought to direct Canada's foreign policy. The committee report, "Canada's Foreign Policy: Principles and Priorities for the Future," was tabled on November 15, 1994. When I announced my inquiry, it was with the intention of drawing attention to the report's seventh anniversary. I wanted to focus on the importance for Canadians of the cultural phenomenon. We tend to forget it, and do not bring it to the attention of the public often enough.

Everyone acknowledges how international forces shape everyone's lives and prospects for the future. The committee consulted Canadians. We met hundreds of groups. We published 10,000 pages of evidence. It was very interesting.

All six recommendations of the report are just as pertinent in 2002 as they were in 1994. Things have not changed much in the meantime. We wanted a foreign policy based on values. We wanted Canada's actions to be a better reflection of its global vision. We are interested in the globalization of trade, investment and finances. For several years, the Department of Foreign Affairs has been giving the issue some thought. It has put forward several proposals for action. Occasionally, we hear about the concerns some have about culture and the important role it plays in foreign policy.

It is in this context that I am making my comments. For the first time, in 1994, Parliament carried out a study, through the Foreign Affairs Committee, including a whole chapter on Canadian culture. It was a first. This was one of the conditions co-chair MacEachen and myself had set, namely, to be allowed by the government to include in our report a chapter on culture. We wanted to know what influence we had abroad and how we were perceived beyond our borders.

I have been to Europe a few times. Some of you have been there more often than I. Financial or economic issues do not receive much coverage in European newspapers. In Paris and London, you hear about Céline Dion and other Canadian artists who have put on a show, published a book, and so on.

Even Jean Lapointe will be mentioned in Paris as having put on a good show. Newspapers rarely talk about the economy. They will write about culture before they even report that Canada has signed a free trade agreement with the United States and Mexico. This is of no interest to Europeans. However, they will go to see Gilles Vigneault and they will buy Canadian paintings.


This is the real way to get to promote ourselves. Literary or recording artists should accompany ministers who travel abroad. It would not cost any more. Why not bring the Toronto or Montreal Symphony Orchestra with them?

The planes are normally filled with bureaucrats. Why not bring Canadian artists along to showcase our rich culture?

I would like to draw the attention of honourable senators to the economic spin-off from the cultural sector. In 1996-97, there was $22 billion in direct economic impact, or 3.1 per cent of the GDP. In 2000, exports of Canadian cultural goods reached $2.35 billion, an increase of 47 per cent since 1996. Exports of Canadian cultural services reached $2.12 billion, an increase of 30 per cent.

In 1994, the Standing Committee on Foreign Affairs invited John Ralston Saul, author and husband of the Governor General, to write an essay, which he did. I would invite all honourable senators to read it; it is excellent. We even based our work on the work of Senator Serge Joyal who, at that time, was working as a consultant in the field of foreign affairs.

The report dealt with international cultural policy in the 1990s, the issues and the means of renewal. The two documents by John Ralston Saul and Serge Joyal contained some worthwhile proposals that specifically addressed the cultural industry.

Senator Joyal had identified three approaches: the fundamental mission, reorganization and increased staffing in the Arts Promotion Division, and regional cultural centres.

I would encourage you to read these documents, which are not only interesting but also important for Canadians. There needs to be a debate on the influence of Canadian culture on the Canadian economy and on how we project the image of Canada beyond our borders.

Canada has a personality that is very much all its own. Few countries, in fact, have two official languages and a multicultural policy that is even stated in its constitution. These are resources that must be exploited, and it would be good if there were more media coverage.

In conclusion, I will say that it is desirable for attention to be drawn to the importance of culture in developing and maintaining our own national identity, in a world so characterized by open markets and such a variety of means of communication. It is important for Canada to be part of this.

The role the state must play in the protection and development of Canadian cultural identity is crucial. Japan spends more than Canada does to make its culture known throughout the world. Canada spends three dollars per capita to tell the world we are an example of culture and multiculturalism. The Americans do not do this because they do not have any definition of culture. To them, it is entertainment.


We do not talk about culture to the Americans; we say we have entertainment. We sell Coca-Cola in our films. We sell our cigarettes that way. We sell our products through our cultural instruments: film, music and magazines. We must take our place and invest in this subject of culture.

On motion of Senator LaPierre, debate adjourned.

The Senate adjourned until Wednesday, March 6, 2002, at 1:30 p.m.