Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, at Finlay MacDonald's funeral service last week, the celebrant spoke
of the service as a celebration of life, and surely few would disagree that no
one could fit that purpose better than our good friend the late Finlay
Our late colleague enjoyed life to the utmost, and anyone fortunate enough to
be a friend or an acquaintance, a fellow Conservative or a political rival,
could only benefit from being associated with this remarkable individual.
Anecdotes about him are endless, and many he loved to tell himself.
Certainly, he never hid his ambition to be in the Senate or spared any effort to
court anyone who could further his goal, including the decision-maker himself.
In 1979, the list of deserving candidates was embarrassingly long, for the exile
in the political wilderness had lasted some 15 years. Finlay's name had
proceeded to the point where he received a phone call asking a number of
pertinent questions. At that time, in Nova Scotia, one's religious affiliation
was not a negligible element in coming to a final choice. When asked what his
religion was, Finlay is reputed to have replied, "Which one would you like?"
What was not to be in 1979 came about in 1984. Finlay gave a huge sigh of
relief, explaining that he had spent too much time on having the knees of his
trousers repaired so often, while Prime Minister Mulroney once confided that the
only reason he appointed Finlay was to have him stop grabbing onto his leg.
Whatever the nature of his efforts, we should all be grateful that Finlay
persisted as he did, for during his years here he served Parliament in a most
exemplary way. He was not the easiest member of caucus or chairman of a special
committee, yet all recognized in him a determination to do what he felt was
best, even if it meant ignoring the party line no matter how essential his vote.
Finlay was one of that rare breed — a long-time active and committed participant
in every aspect of his political party's activities, yet one not afraid on
occasion to march to his own drummer.
That in doing so he still retained the respect and even the affection of
those he annoyed and even angered is an extraordinary tribute to this fine man's
character and intellectual honesty. Rarely can such an appreciation be given to
anyone, and I am honoured to do so in memory of a most distinguished colleague
and good friend.
Hon. B. Alasdair Graham: Honourable senators, I join with the Leader
of the Opposition in paying tribute today to the late Senator Finlay MacDonald.
Reference has been made to Finlay's desire to be appointed to this chamber. I
recall very well the day he was appointed. The ink was hardly dry when he
arrived in my office, measuring the space by the square inch to ensure that
whatever digs he was able to occupy would be at least as large, if not larger,
than those that I occupied.
The raw humour and formidable penetrating wit of the legendary Robbie Burns
has a great following in the part of the world that some of us come from.
Gie me ae spark o' Nature's fire,
That's a' the learning I desire;
Those words of his come to mind when I think about the wonderful life and
times of our old friend Finlay MacDonald. A spark of nature's fire, yes, that
was Finlay: ageless, timeless, a charmer and an entertainer par excellence.
Beneath that convivial, fun-loving personality was a deeply committed and
informed patriot with an enormous heart for the people of Nova Scotia and,
indeed, the people of all of Canada.
A Red Tory, Finlay was always a man of independent mind who believed in what
he did, and the devil take whoever tried to dissuade him from his convictions.
Not that he was not a team player, he was, most of the time. However, he was one
of the few people I have met who could vote against his own government, sail
through the onslaught, and still be invited to 24 Sussex and any other
high-level government soirée in the nation's capital.
Finlay was always the lovable silver fox. No matter how you disagreed with
him, no matter how contentious the issue, he could always make you laugh in
spite of yourself.
I speak from long experience. Early in life, we both became broadcasters.
Finlay was much more successful than I. We dabbled in politics, budding
politicians both, and that, believe it or not, was over 40 years ago. We
probably were prime illustrations of Shaw's acerbic reference to erstwhile
practitioners of the craft. Shaw once quipped:
He knows nothing and thinks he knows everything. That points clearly to a
No matter how you look at political life, the March 31, 1958, federal
election campaign became a watershed from which neither one of us ever turned
back. That was the year of the Diefenbaker sweep. I was the Liberal standard
bearer in the great historic constituency then known as Antigonish—Guysborough.
Finlay was the fundraiser for the Progressive Conservative party in Nova Scotia.
According to legend, he arrived in Antigonish the day before the election and
brought with him a significant amount of aid for the benefit of my opponent. It
was just enough to help do me in. I lost by 931 votes. Undoubtedly, as
honourable senators opposite would hasten to point out, there were other good,
valid and perhaps compelling reasons that I was defeated.
At any rate, the day after the election, I went to Halifax to seek solace and
comfort from my friends. Who better to visit than the legendary bonhomie
himself. Finlay greeted me with long strides, arms wide open and with a wide,
wide, grin. "Well, well," he shouted, "welcome to the youngest political
has-been in Canadian history." I should have known better. It was April 1.
Honourable senators, that in a nutshell was Finlay MacDonald. He could crush
you; he could mortify you; he could make you laugh like none other.
When Finlay was Chairman of the Standing Senate Committee on Transport and
Communications in this place, he and I did a lot of puffing and blowing over the
government's intention to privatize the Truro-Sydney rail line. Many in this
chamber, including the Honourable Senator Forrestall, would remember those
discussions well. We chugged along together on opposite sides of the issue,
making our points and sometimes mischievously trying to out-manoeuvre the other,
always with what we thought was the public good uppermost in our minds.
When I think of Finlay today, I think of him with the whole panoply of Tory
greats in Tory heaven: Prime Minister John A. Macdonald would be much Finlay's
match both in terms of personal charm and certainly in the fine dapper and
rakish figure he cut. Sir John was a shrewd, wily fox, much as Finlay was. Both
were visionary patriots with a huge penchant for optimism.
Canada's first Prime Minister once said: "When fortune empties her chamber
pot on your head, smile and say, `We are going to have a summer shower."' Well,
that was the same way Finlay thought about life. He had the magician's gift of
turning chamber pots into the soft and gentle rain of happiness, of bringing joy
and laughter into the lives of all he met.
A spark of nature's fire, you were indeed, Finlay. From the pen of the same
great Scottish scribe Robbie Burns, the ultimate praise for a life to be
celebrated, not mourned:
If there's another world, he lives in bliss;
If there is none, he made the best of this.
To Lynn, Finlay Junior, Ian, his very special grandchildren, his brother Dr.
Cameron and members of his extended families: Happy memories, rejoice in his
love and his many accomplishments. Finlay was indeed a unique treasure who
enriched life for many people and this, his beloved Senate chamber.
Hon. Senators: Hear, hear!
Hon. Lowell Murray: Honourable senators, in the 1950s, Finlay offered
to hire me; in the 1960s, we worked together on Stanfield's campaigns. One day
in 1968, I coached him for a few words in French to start the countdown here on
Parliament Hill for the 1968 summer games.
In 1970, the provincial cabinet minister Gerald Doucet and I — party crashers
— were the uninvited third and fourth participants in the celebration Finlay and
his first wife, Anne, had carefully planned for their twenty-fifth wedding
anniversary in Ingonish, Cape Breton.
Later, Finlay and I were joined in Joe Clark's campaigns and then Mulroney's.
I rejoiced with his friends in his happy second marriage to Lynn Tremblay. I was
among the speakers, which included Don Jamieson, Brian Mulroney, Eddie Goodman
and Flora MacDonald, at his sixtieth birthday bash at Toronto's Albany Club in
1983, and helped him celebrate his sixty-fifth at an impromptu party in Senator
Doody's office in 1988. I was among the speakers at the party to celebrate
Finlay's arrival in the Senate in 1985 and at the dinner to mark his departure
in 1998. Fortunately, there is not, so far as I am aware, any trace on the
public record of any of these speeches.
On the day of his passing, I arranged to have a Mass said in my parish in the
certain hope of improving his immortal prospects and my own. Then I poured a
martini in his honour, gin not vodka. A while ago Finlay told me that he and his
great friend Dalton Camp had sworn off vodka "because it makes us
argumentative." Those two would be argumentative on a cup of warm tea.
For the believer, as he was and I am, all that remains is the ultimate
reunion. Needless to say, I am in no hurry to join him. However, his going ahead
heightens one's sense of anticipation.
Hon. J. Michael Forrestall: Honourable senators, what does one say
about Finlay? Dr. Edmund Morris, a long distinguished member of the other
chamber and a close friend of Finlay's, went on at great length the other day at
the conclusion of the Mass celebrating his life — indeed, would have gone on and
probably still is going on — with stories about this man's love of life, about
his sincerity, about why it should be days of enjoyment, of reaching out to
other people and of making contributions.
I recall that Senator MacDonald had invited Senator Murray to join him in
broadcasting back in the 1950s. Well, he never invited me to join him in
broadcasting. Robert Stanfield had invited me to join his crowd the day after
the then managing editor of the Halifax Chronicle-Herald had fired me for
political activity. I had one problem, however; I was married with a young
family then, and I needed medical insurance. Who came to my rescue? CJCH and
Finlay MacDonald. I was an employee of that firm for perhaps longer than most
people had worked there — not Finlay himself but most others — that was how my
wife and I had protection. It was not that my wife and I necessarily needed it,
but it was the impoverished political coffers of the day. I was the field- man
or whatever you called it in those days.
Left out of today's discussions is another distinguished Nova Scotian, R.
McD. Black. I would urge those of you who want good stories to find someone who
can tell you of the trip that R. McD. Black and Finlay MacDonald made to the
United Kingdom for Mr. Black, the editor, publisher and indeed, the owner of the
Amherst Daily News, to buy a new press for that very old newspaper.
Finlay was going, of course, to find partners in television.
The story of their trip to Europe is too long to tell here, but there are
probably nine different stories that would lend the insight to fully understand
Finlay MacDonald. One has to understand who Rod Black was and what he did during
the war. He was with the Pathfinder Squadron. I will tell one story briefly.
When the plane landed — an Air Canada flight, incidentally — in London, the
first person off the plane was Finlay MacDonald. Standing at the tarmac was Rod
Black's flight crew. They went right up to Finlay, and he said, "You must be
Flight Lieutenant Graham, and you are his good wife. He has told me so much
about you. You must be the navigator. You are the one that Rod gave his
parachute to the day you were shot down for the first time." He went through
the whole crew. Rod had gathered his bags and was coming down the ramp. There
stood four of the most skeptical looking men you have ever seen in your life.
What had Finlay MacDonald told them in Canada about us? Finlay just walked right
on and left Rod to wonder for days and days just what stories Finlay had told.
Finlay was, perhaps, the greatest practical joker that I have ever met in my
Finlay was a good man. At the gathering the other day, Finlay Jr. turned and
said, "Do not expect my dad to be high on the list for sainthood and
canonization. He was not that, but he was a good man." He brought great joy to
all those who knew him, as Lynn brought great joy to him in the final years of
his life, a smile to his face, the hope, and the great feeling he had that it is
I join with all those who extend their condolences to Lynn, Finlay Jr., Ian,
Mary, the grandchildren, Dr. MacDonald, his brother, and those who knew him so
well for 50 years in his active and enjoyable pursuit of politics. He believed
that a life in politics was honourable, and nothing in his career here hurt him
more than to have had to break his perfect attendance record.
God bless you, Finlay. Keep the home fires burning because we will all be
Hon. Gérald-A. Beaudoin: Honourable senators, I too wish to pay
tribute to Finlay MacDonald, an esteemed colleague. He was a man who took his
work as a senator very seriously. He was involved in a number of committees,
Transport and Communications in particular, which he chaired. Senator MacDonald
distinguished himself through his committee work and in the business of the
Senate. A man of great joie de vivre, he was a most agreeable colleague.
The Senate has not been quite the same since he left it, today more than
I extend my most sincere condolences to his wife Lynn and their children.
Hon. Marcel Prud'homme: Honourable senators, I would like to offer our
warmest thanks to one of our Senate colleagues.
Honourable senators may have seen the University of Ottawa Heart Institute
telethon on the weekend. It is not too late to contribute. That is the lifeblood
of the Honourable Senator Keon, who achieved one of the highest amounts ever
raised for an immensely important cause. They raised over $3.4 million in the
region. I am sure that all honourable senators will join me in thanking the
honourable senator for his devotion to this cause and in congratulating him, the
organizers and those who contributed to the success of this event.
Hon. Wilbert J. Keon: Honourable senators, I have a question for the
Leader of the Government in the Senate. The minister will recall that last fall
I asked a question, drawing attention to the concern surrounding the legislation
for reproductive biology. My concern was that this legislation was not moving
quickly enough in view of the commission report eight years ago and in view of
the fact that scientific progress was moving at an accelerated pace and that
rules, regulations and guidelines were being developed in the scientific
community before the legislation was introduced. We now find ourselves in a
situation where rules and regulations from the scientific community have arisen
in the absence of legislation, which is causing real consternation in the
community at large and in the eyes of the public.
Is there any possibility that the process for moving this legislation forward
through the other place and into the Senate could be accelerated to alleviate
some of the pressures confronting scientists in this field at the present time?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
Honourable Senator Keon raises an extremely important issue. We now have the
report from the House of Commons Committee on Health, which has outlined certain
provisions that it would like to see in any bill which is introduced. It is my
understanding that the new Minister of Health will be introducing the bill on
reproductive biology quite soon.
Obviously, there are a number of concerns out there, particularly since the
CHRC guidelines came out over a week ago. Quite frankly, I believe those were
absolutely necessary in order to provide a framework for cell research in Canada
at this point, particularly since we have no legislation in place. However, I am
informed that proposed legislation will be before us shortly.
Hon. J. Michael Forrestall: Honourable senators, I have a couple of
brief questions for the Leader of the Government in the Senate.
The minister will know that one of our search and rescue Labrador
helicopters, stationed at Greenwood, Nova Scotia, had an unfortunate incident
yesterday during preparation for take-off when its rotors went through the frame
of the aircraft. I understand from press reports that this may have been the
result of the vagary of the wind.
In any event, would the minister tell us what she knows about this incident?
In particular, would she address the present status of the helicopter fleet?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
the incident that took place in Greenwood, Nova Scotia, fortunately for all
concerned, caused no injuries. However, as a result of the incident, a team of
flight safety officers is currently in Greenwood investigating the cause of the
damage to the Labrador helicopter. Since it is not equipped to fly at this
point, the helicopter has been withdrawn from service, and a Sea King will be
covering the search and rescue responsibilities of that Labrador aircraft.
Senator Forrestall: Honourable senators, I am thankful that no one was
injured and I appreciate the minister's response.
This brings me to the concern that many of us share. As the minister will
know, the Sea King is the primary alternate for the Labrador fleet in search and
rescue operations. The Sea King fleet and its crews are now stretched to the
limit by Operation Apollo. Can the minister tell us what the current status of
the "heli- borne"search and rescue operations is on the East Coast, as well as
in the rest of Canada? What steps is the government taking to ease the impact of
search and rescue duties on the Sea King community, which is already stretched
to the limit?
Senator Carstairs: As the honourable senator knows, there has been an
intensive use of the Sea Kings in Operation Apollo. A number of our ships are
home to the Sea Kings in the war against terror. There is, as the honourable
senator has indicated, serious pressure on the whole search and rescue
The good news is that, although the normal review processes caused a delay in
the delivery of the Cormorant helicopter, four out of the five have now reached
Comox, British Columbia. The fifth left Italy today and will be ready for its
snow trials in Gander before going on to Comox. The expectation is that the
whole fleet will be operational by the spring of 2003.
Hon. Gerry St. Germain: Honourable senators, my question is for the
Leader of the Government in the Senate.
I find it confusing — and perhaps the minister can explain — that the Prime
Minister took the position he did regarding the suspension of Zimbabwe from the
Commonwealth, given the track record of Robert Mugabe and the way he has treated
the white people, as well as his own people, in that country.
Senator Furey: The "Whiteys."
Senator St. Germain: Does the minister have an explanation for that?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I believe the Prime Minister took the position he did because Zimbabwe was in
the middle of an election campaign, the results of which we will soon receive,
as the vote counting begins today.
As I am sure the honourable senator is aware, there have been numerous
reports of voting irregularities and vote stoppages. The Prime Minister's
position was that we should allow this process to be completed, and if it could
be clearly shown that the process was unfair and inequitable to the vast
majority of the citizens of Zimbabwe, at that point we should act as a member of
Hon. Gerry St. Germain: I have a supplementary question, honourable
senators. It should be no surprise that there were vote stoppages and an
intervention in the electoral process. However, it seems that we have different
standards on the world scene. My colleague who sits behind me is a strong
supporter of the UN. For some odd reason it seems that when things happen in
Africa the world stands back as mass genocide takes place, as it did in Rwanda
and Zaire and other places, yet we are prepared to send troops into Serbia on a
moment's notice because it possibly serves a president in a dilemma or an
economic need. Is there a double or a triple standard here?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
the simple answer to the honourable senator's question is no, there is not a
double standard. The situation was such that Mr. Mugabe called elections. He
indicated that they would be fair and equitable. The Government of Canada
indicated that it would send observers in to ensure that the election was fair
and equitable, and that we would make a decision following that electoral
Senator St. Germain: Honourable senators, the minister still has not
answered my question. I understand that the minister is focusing on Zimbabwe. My
supplementary was the following: There appear to be different standards for
different countries, or different continents. If we are to take a leadership
role in delaying something, such as the expulsion of Zimbabwe from the
Commonwealth, I believe that we should take a leadership role in this country
with regard to equal treatment for all, whether black, white, yellow, pink,
beige, or whatever. Does the minister not agree?
Senator Carstairs: Honourable senators, I obviously do agree because I
indicated there was not a double standard at play here. Every incident, however,
must be judged on its own set of facts, and the facts between two incidents are
Hon. W. David Angus: Honourable senators, last week the Honourable
Senator Cochrane and I asked the Honourable Leader of the Government in the
Senate about the government's intentions respecting the outstanding report of
the Committee on Defence and Security. We were advised that the government
needed time to take cognizance of and to consider the report.
It seems clear that the national media, and many others in this country, have
had plenty of time to take cognizance of and consider this report. For example,
in an editorial in the Montreal Gazette this past Saturday, March 9, the
The alarming findings Senator Kenny and his colleagues turned up now become
the business of the federal cabinet. Ports involve various ministers,
combining as they do transport, world trade, Customs, drug issues and more.
Ministers should move promptly to use the Inquiries Act, because we have seen
that the current security situation has loopholes you could — literally —
drive a tractor-trailer through.
Honourable senators, my question is again to the Leader of the Government in
the Senate: When will the government do justice to this excellent Senate
committee report and implement the recommendations set forth therein?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I wish to thank the honourable senator for his question. I do not think it will
surprise Senator Angus if I explain to him that I specifically asked, this
morning, the Minister of National Defence whether the minister and his
department would be carefully studying and analysing this report. He assured me
that that is exactly what he would be doing. Clearly, the work of our Senate
committee will not go unrewarded in that respect.
In terms of the committee's comments with respect to Canadian ports, the
honourable senator knows that basic security functions at the ports fall under
the local law enforcement in the communities in which those ports exist. There
is now an agreement that the United States and Canada will be working into place
on inspections in those ports, whereby both Canadian and American customs agents
will be working side by side to ensure that containers are inspected to a
greater degree than they have been in the past.
Senator Angus: I wish to thank the minister for that rewarding answer.
I should like to ask a supplementary question following from the editorial I
cited from the Gazette on Saturday, March 9, 2002:
Finally and most important, they proposed a full-scale investigation of
organized crime in our ports. This would be carried out under the Inquiries
Act, which gives investigators subpoena power and other tools needed to get
right to the bottom of a situation.
I refer the minister to page 129, Recommendation No. 8 of the report, with
reference to national security:
The committee recommends that a public inquiry under the Inquiries Act into
significant ports be established as soon as possible, with a mandate that
would include —
Six specific items are then listed.
As I asked last week, my question is again: Will the government convene an
inquiry of this nature under the Inquiries Act?
Senator Carstairs: Honourable senators, no decision has been made at
this point whether such a public inquiry will be undertaken. However, I shall
certainly inform the Government of the desire of Senator Angus for such a public
Hon. Douglas Roche: Honourable senators, my question is for the Leader
of the Government in the Senate.
Reaction around the world to the news reports of the United States' nuclear
posture review, which projects the role of nuclear weapons to fight future wars
and has led to contingency plans to target seven countries, has been
overwhelmingly negative. The New York Times today called for President
Bush to send the document back to its authors and asked for a new version less
menacing to the security of the world.
Will Canada join other nations in raising its voice to protest the U.S.
policy which projects the deployment of nuclear weapons into the future instead
of abiding by international law and entering into a process of negotiation
toward the elimination of nuclear weapons?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
the Honourable Senator Roche raises an important issue. The Canadian position
has been clear for some decades now and remains exactly the same; there has been
no change. It is also important that we listen carefully to what the Vice
President of the United States said yesterday. Vice President Cheney said that
there had been no change in their position either.
Hon. Douglas Roche: Honourable senators, I wish to thank the minister
for that answer. However, the Canadian people need the reassurance of a formal
statement that their government will uphold international law and not succumb to
a war mentality that, unfortunately, drives much of the U.S. nuclear posture
I would ask the minister if she would convey these thoughts to the Minister
of Foreign Affairs and perhaps obtain a delayed answer to this question: Will
Canada use the occasion of the non- proliferation treaty meeting, starting April
8, 2002, at the UN, to call on the U.S. and other nuclear weapon states to
fulfil their commitment made in the year 2000 to the unequivocal undertaking to
eliminate nuclear weapons through demonstrable progress on the 13 steps to which
the international community agreed in 2000?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
Canada's firm position on non-proliferation as well as its attendance at the
meeting is proof of the position that Canada will take at that particular
I shall also inform the minister of the desire of Senator Roche for a formal
statement to that effect.
Hon. Marcel Prud'homme: Honourable senators, the slaughter that is
going on before our very eyes in the Middle East, with these unbridled attacks
by the state against individuals, leads me to wonder whether the government
intends to recall to Canada its ambassador to Israel for consultations, and to
initiate actions either within the United Nations or with our friends and
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
on behalf of the government, there is no plan to recall its ambassador to
Israel. As the honourable senator will know, consultations take place between
ambassadors and officials at Foreign Affairs on a regular basis. They take place
through other means of communication, not necessarily physically in one-on- one
Hon. Ethel Cochrane: Honourable senators, my question is for the
Leader of the Government in the Senate. Testimony by police and customs officers
before the Standing Senate Committee on National Security and Defence confirms
that Canada has no effective system to scrutinize foreign vessels landing
outside major ports. Yesterday, an article appeared in The Guardian, in
Prince Edward Island, in regard to security of small Canadian commercial ports
and harbours. According to the article, Senator Kenny said:
— in many small ports, authorities rely on harbour masters or volunteer
harbour watch groups to inform customs and other authorities about the
arrivals of foreign ships.
In some ports, vessels arriving from foreign destinations are expected to
contact customs themselves once they reach dockside.
The story also quotes Senator Kenny as saying, and I am sure we can all
appreciate the truth in the statement:
Honour systems work with honourable people but they are useless when dealing
with terrorists —
My question is for the Leader of the Government in the Senate: What is the
government's solution to the security risks posed by foreign vessels at our
smaller ports? What steps have been taken to reduce the risks?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I thank the honourable senator for her question. The honourable senator referred
to small ports. One would clearly have to know what is meant by a "small
port." If we consider only ports such as Halifax and Vancouver as big ports,
are we talking about very small ports or midsize ports? There are different
standards and different abilities to take ships into those ports.
As to whether we are putting into place additional security in those small
ports against potential terrorist attacks, I cannot give the honourable senator
that answer. However, I shall try to obtain any information that is available.
Senator Cochrane: Honourable senators, I refer to ports other than the
larger ports such as Halifax, Montreal and Vancouver.
As the honourable senator and I both know, if foreign vessels come into any
ports other than the major ports, they will not report to Customs or anyone else
that they are coming; they will just come. They could come overnight, and heaven
only knows what they will drop off. These are the ports to which I refer today.
Senator Carstairs: Honourable senators, with the greatest respect,
some of those vessels cannot go into our smaller ports because the smaller ports
do not have the capacity to receive them.
In terms of whether they will not report, the honour system obviously must be
in place to some degree. I do not refute Senator Kenny's statement that when
dealing with terrorists there is probably not a great deal of honour. On the
other hand, we have had no incidents of terrorists trying to use small ports as
a mode of entry into the country.
Senator Cochrane has asked specifically whether there will be any stepping up
of surveillance of small ports, and I will try to get an answer.
Hon. Nicholas W. Taylor: Honourable senators, as a sport sailor, I
have had occasion to enter many ports in the United States where I have had to
report in by dialing a 1-800 number and stating who I am. Likewise, probably
thousands of sailors from the U.S. check into West Coast and East Coast ports in
that same manner.
The issue is as much a tourist problem as it is one of security. When the
honourable minister is talking to the government about terrorism, would she
advise that small tourist boats far exceed the number of big boats that enter
this country? The same is true for the number of Canadian boats entering
Senator Carstairs: Honourable senators, I thank Senator Taylor for his
question. He has alluded to the number of small ports that exist in Canada. In
addition to the East Coast and the West Coast, we have our northern coast. The
United States has a huge number of small ports as well.
I am not sure whether it is possible to implement a defined system of
security at every port in our two countries. However, I will be glad to share
with the minister the additional information that Senator Taylor has put on the
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, I have the delayed answers to two questions. The first one was raised
in the Senate on February 19, 2002, by Senator Comeau, regarding the Federal
Court ruling granting veterans status to a citizen on Prince Edward Island, and
the second one was raised in the Senate on February 7, 2002, by Senator
Robertson, regarding the European Free Trade Agreement.
(Response to question raised by Hon. Gerald J. Comeau on February 19, 2002)
After consultation between the Attorney General of Canada and the
Department of Veterans Affairs, a decision has been made not to appeal the
Federal Court decision on this matter.
The issue has been referred back to the Veterans Review and Appeal Board,
an independent tribunal separate from Veterans Affairs Canada, for their
reconsideration on the basis of the Federal Court decision.
(Response to question raised by Hon. Brenda M. Robertson on February 7,
It is important to note that Norway has already removed its direct 9 per
cent subsidy for new build ships as of December 31, 2000. In order to benefit
from the subsidy, ships contracted before the cutoff date had to be delivered
to the original purchaser within three years. These subsidized ships will be
out of Norwegian production by December 31, 2003. It is also worth noting that
the subsidy is contract related and if the ship is not built, the subsidy is
lost. The subsidy is also forfeited if any of the parties pull out of the
There are no other direct or indirect government subsidies that are
directed at the Norwegian shipbuilding sector. There are, however, other
support mechanisms such as the Norwegian Regional and Industrial Development
Fund and the Norwegian Research Council but these are not specific to
shipyards and are available to all Norwegian industries. However, it is
important to note that Canada offers similar support through the Export
Development Canada (EDC) and the new Structured Financing Facility (SFF) that
is available under the new Policy Framework on Shipbuilding and Industrial
Marine Industries announced last June.
In the unlikely event that Norway elects, at some point in the future, to
reintroduce a subsidy, and Canada is in the process of reducing the existing
tariff on ships and industrial marine products, under the terms of the
proposed Agreement, Canada would be allowed to reimpose the original
most-favoured-nation rate of duty.
The Government of Canada has provided additional support to the Canadian
shipbuilding industry, through the establishment of the aforementioned Policy
Framework on Shipbuilding and Industrial Marine Industries. An industry-
labour team offered recommendations to the Government on policies to
revitalize the sector. This project provided another opportunity for the
Government to further understand the issues facing the industry. The
Government discussed the recommendations at length and subsequently introduced
the new shipbuilding and industrial marine policy to address the
competitiveness problems of the marine construction industry as well as
creating the new funding program to help finance new work for Canadian
In its response to the specific industry-labour recommendation that this
sector be carved out of future free trade agreements, however, it was made
clear that Canada would not consider this step.
Canada's economic prosperity relies very heavily on trade: Canada's trade
represents 48 percent of our gross domestic product and creates one out of
every three new jobs. Indeed, of all G-7 countries, Canada is by far the most
reliant on trade for its prosperity — three times more reliant than the United
States and four times more reliant than Japan. It is, therefore, very much in
Canada's interest to promote trade liberalization and a rules-based trading
That being said, the Government nevertheless recognizes that the challenges
faced by all industries are not the same. It was for this reason that the
Policy Framework on Shipbuilding and Industrial Marine Industries was
established. It is also why negotiators are developing special provisions for
the shipbuilding and industrial marine sector in any eventual FTA with EFTA,
and in similar agreements with Singapore.
In particular, the FTA would provide for a long transition period for the
removal of the tariff, perhaps as long as ten years. It would also be our
intention to allow the maximum period for the new Shipbuilding Policy to have
effect, by ensuring a long pre-transition period during which the tariff would
remain fully in effect. This approach would go a long way to ensure that all
Norwegian ship construction which has benefited from direct subsidy is fully
completed and the playing field is levelled.
Negotiators are also considering other approaches that might be undertaken
within the structure of the agreement to mitigate the impact of open
competition and to assist the transition of the Canadian industry to a more
Before launching negotiations with EFTA in 1998, extensive consultations
with Canadians were undertaken — both with industry and stakeholder
organizations and with representatives of the shipbuilding and industrial
marine industry. The Government has worked closely with these same groups
throughout the process and will continue to do so. Many discussions have
already taken place since the Policy Framework was announced in June, 2001.
The Hon. the Speaker pro tempore: Honourable senators, before
moving to the Orders of the Day, I would like to introduce to you two pages from
the 2001-02 page exchange program with the House of Commons.
On my right is Anne-Marie Christofferson-Deb of Montreal, Quebec. She is
pursuing her studies in the Faculty of Social Sciences at the University of
Ottawa. Her major is political science.
On my left is Laura Gill, who is studying in the Faculty of Administration at
the University of Ottawa. Laura is from Edmonton, Alberta.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, under Government Business, we would like to proceed first with Item
No. 1, is third reading of Bill S-34, and then move on to Item No. 5, second
reading of Bill S-40, before reverting to the Orders of the Day as proposed in
the Order Paper.
Resuming debate on the motion of the Honourable Senator Carstairs, P.C.,
seconded by the Honourable Senator Rompkey, P.C., for the third reading of
Bill S-34, respecting royal assent to bills passed by the Houses of
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, having more than a passing interest in this bill, I am naturally
pleased that it has finally reached this stage. However, that being said, I am
somewhat distressed that it has taken so long to reach the stage it is at today.
As Senator Carstairs explained on Thursday, the idea started some 20 years ago
and the implementation began through a bill over 10 years ago. I am distressed
because it is as though through this bill we are making a substantial change in
our proceedings when, in effect, it is nothing more than adding to a ceremony
that will be unchanged. We are merely providing an alternative.
I am astounded by the number of witnesses and the number of colleagues who
resisted so strenuously this very modest addition to an existing ceremony which,
by itself, with all due respect to the constitutional obligation, is
Royal assent, in effect, although perhaps not in law, is meaningless. It is
simply the recognition by the Crown, through a symbolic nodding in this chamber,
that legislation passed democratically by both Houses can now become law and be
proclaimed. What Governor General or representative will ever dare refuse a nod?
If ever that happened, he or she would not last long in the position.
Here we were for over 10 years discussing not a change to the existing
ceremony but a mild alternative to it. It has taken 12 years to get to where we
now are through legislation. I am a little concerned about how this bill will be
treated in the House of Commons when it gets there.
I am stating my mixed views on this bill because this does not augur well for
substantial reform to Parliament. If we bog down on something so trivial — in
fact, if not in law — as an addition to the existing royal assent ceremony, what
will we do when it comes to Senate reform, greater participation by
parliamentarians in the process of the purse, talking about limitations on terms
of office and substantial issues such as bringing the members of the House of
Commons closer to the activities of the House and closer to being active
Over the last 20 to 25 years, the responsibilities of members of the House of
Commons have been eroded, partly by their own doing, partly by their negligence
and partly by their assent. It has reached the point that we now read
practically every day that Parliament has become irrelevant. When the government
imposes closure on a bill, the opposition quite rightly says that this power,
which should be used only as an exception rather than a rule, is now an everyday
occurrence. The opposition wonders about the point of being in Parliament if the
executive can override the need for debate on such important matters as budget
implementation bills and other important proposed legislation.
It is not only the opposition that is complaining about irrelevance. There is
the same complaint on the government side, as there has been in other government
caucuses. The only change is that the situation is getting continually worse. As
much as we talk about parliamentary reform, I am becoming afraid that if the way
we have stalled this bill and its predecessors is an indication of the way
Parliament sees its future, we will be stuck for far too long with the status
quo and the word "irrelevancy" will be the word that will categorize future
On motion of Senator Joyal, for Senator Grafstein, debate adjourned.
Resuming debate on the motion of the Honourable Senator Furey, seconded by
the Honourable Senator Fraser, for the second reading of Bill S-40, to amend
the Payment Clearing and Settlement Act.
Hon. W. David Angus: Honourable senators, it is my pleasure today to
enter into the second reading debate of Bill S-40. The bill is very technical by
nature, and I understand it is non- controversial. I have been unable to
identify any opposition whatsoever to the proposed legislation. On the contrary,
I am aware that it is important to both the integrity and efficiency of Canada's
financial system and would be warmly welcomed by all relevant stakeholders.
The amendments in Bill S-40 are designed to provide clearing houses for
Canadian securities and structured products, such as derivatives and options,
with the legal protection they need in the event one of the trading parties
becomes insolvent or bankrupt.
By definition, clearing houses must be able to clear transactions in a timely
manner, but under existing law in Canada, they cannot clear transactions when
either the buyer or the seller becomes insolvent. This is a problem that the
deals in question would abort. Bill S-40 would obviate this problem.
Clearing houses require their members to post collateral and to "net" their
payment and delivery obligations with the clearing house in question. Current
Canadian bankruptcy and insolvency laws do not protect collateral on deposit
with the clearing houses as is done with other countries.
Honourable senators, I understand that this is of great concern to the four
exchanges in Canada that trade in securities and structured products such as
derivatives and options — the Toronto Stock Exchange, the Bourse de Montréal,
the Canadian Venture Exchange in Calgary, and the Winnipeg Commodity Exchange,
as well as the three clearing houses that clear those trades, namely, the
Canadian Derivatives Clearing Corporation, the Canadian Depository for
Securities and the WCE Clearing Corporation.
The amendments in Bill S-40 will expand the scope of Canada's Payment
Clearing and Settlement Act by providing protection for the netting agreements
of our securities and derivatives clearing houses. It will also provide
protection for the collateral posted by the parties.
Strong and competitive Canadian financial markets are key to the overall
growth and prosperity of our nation. The amendments in this bill will enhance
our competitive position by enabling clearing houses to lower their costs in
bringing our legislation into line with that of the U.S. and our other G7
trading partners. I am informed that currently some trades that could and should
occur in Canada, particularly in derivatives, are being handled in the United
States because of the risk issues on the Canadian exchanges and the lack of
protection in our bankruptcy and insolvency legislation. In particular, the
Bourse de Montréal, Canada's major derivatives exchange, is at a marked
disadvantage compared to exchanges such as the Chicago Board of Exchange.
Honourable senators, the various Canadian laws that currently govern
bankruptcy and insolvency, namely, the Bankruptcy and Insolvency Act, the
Companies' Creditors Arrangement Act and the Winding-up and Restructuring Act,
do not offer the same protection to Canadian clearing houses as do the laws of
the other G7 countries.
The amendments to Bill S-40 will ensure that the Canadian market enjoys the
same protection that is provided in the other G7 countries.
In November 2001, the Bank for International Settlements and the
International Organization of Securities Commissions made recommendations on
The amendments to Bill S-40 are consistent with these recommendations.
Honourable senators, it therefore appears that the effect of Bill S-40 will
be to allow our financial markets and institutions to grow their business in
Canada and reclaim certain specialized financial business that has moved to
foreign markets. It may also attract new investors from the United States and
other foreign countries.
The globalization of financial markets in recent years has permitted
investors to move their investments rapidly, in effect in the wink of an eye,
away from riskier markets to others where the legislative framework is
friendlier and less risky. As Senator Furey pointed out in his speech last week,
the securities and derivatives industry is very significant for our Canadian
economy. Should Canada fail to adapt its financial legislation to international
norms, there is a clear danger that a significant number of Canadian businesses
will move to foreign markets. Our highly skilled and specialized financial
workforce should be encouraged to remain in Canada.
Honourable senators, Bill S-40 appears to deserve swift passage through the
parliamentary process. I trust this will be verified by the honourable senators
of the Standing Senate Committee on Banking, Trade and Commerce when they study
the bill and hear government and industry witnesses next week.
However, honourable senators, I should like to add one further comment.
Whilst, for the reasons I have mentioned, I support the amendments proposed in
Bill S-40, there are a number of other significant measures that this government
should be taking to assist capital markets in Canada to become more competitive
and to curtail the worrisome brain drain of our well-educated, young financial
experts to places like New York, London, Tokyo and elsewhere. For example, I
believe the government needs to further reduce taxes on capital gains,
continuing the encouraging start made just over a year ago. This government
needs to do all it can to establish an environment whereby the Canadian
financial industry can realize upon its true potential.
Honourable senators, the amendments in Bill S-40 are a positive step in the
Hon. Nicholas W. Taylor: Honourable senators, may I ask a question of
Senator Angus: Yes.
Senator Taylor: Noting the honourable senator's familiarity with
financial markets and the financial sector in general, I wonder if he could
offer an opinion as to whether this bill moves closer to that area that we all
like to see, the area of better coordination of securities commissions amongst
the provinces. As honourable senators know, there are 10 or 11 different
securities commissions giving different messages to the investor. Will this bill
help in that direction? Does that move us in the right direction, is it neutral,
or does it move us backward?
Senator Angus: Honourable senators, I can see that the good
Californian air has had a salutary effect on Honourable Senator Taylor's
Indeed, when I was being briefed the other day, trying to find out what this
bill means, by the current President of the Bourse de Montréal, I asked that
question. I asked whether this was not a provincial matter. I said that we are
wrestling with this issue of uniformity amongst our securities regulators in
Canada. He agreed. Of course, several years ago we had a restructuring of our
capital exchanges in Canada. This was by agreement. This was through goodwill
among different jurisdictions in the country, and it was more of a crossing over
of constitutional barriers. Vancouver and Calgary became the CDNX type of
exchange for small cap stocks, the Toronto Stock Exchange for bigger capital
markets, and the Montreal exchange for derivative products and other structured
That came about through long and enlightened negotiations between the
parties. As honourable senators know from my question earlier, I did read the
weekend newspapers. I read that both B.C. and Quebec Securities Commission
chiefs said no in response to a speech by Ms Stymiest three weeks ago,
suggesting a national securities commission.
To return to the question of whether this bill is part of a movement toward
harmonization, I would say it is, for the following reason. I understand that
the parties directly affected — namely, exchanges such as the Bourse de Montréal
— had to come forward as provincial bodies to bring this situation to the
attention of Governor Dodge of the Bank of Canada and to the federal Minister of
Finance, saying that although this matter is provincial, it is federal in terms
of insolvency and bankruptcy where we need to amend a federal act. There was
reasonable dialogue amongst reasonable individuals, and they have come to this
regional piece of legislation. My answer is yes. I thank the honourable senator
for asking the question.
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?
Resuming debate on the motion of the Honourable Senator Pearson, seconded
by the Honourable Senator Poy, for the third reading of Bill C-15A, to amend
the Criminal Code and to amend other Acts, as amended;
And on the motion in amendment of the Honourable Senator Joyal, P.C.,
seconded by the Honourable Senator Moore, that the bill be not now read a
third time, but that it be amended in 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."
Hon. Pierre Claude Nolin: Honourable senators, I thank Senator Cools,
who authorized me to speak today, because she had asked for debate to be
adjourned in her name. In order to be sure that you can all usefully follow the
debate raised by Senator Joyal, allow me to say that it concerns an amendment to
the Criminal Code provided for in Bill C-15A, and more specifically the
amendments having to do with the review process for applications for review made
to the Minister of Justice concerning miscarriages of justice.
It is important to understand that since 1982, Canada has evolved within a
constitutional democratic system. The advent and enshrinement of our Canadian
Charter of Rights and Freedoms in the Constitution led to the evolution of our
Parliament from the Parliamentary democratic system we had until 1982 to a
constitutional democracy. I have no intention, on this, the twentieth
anniversary of our Charter, of re-opening the debate that took place at the time
of its adoption. Our Charter of Rights and Freedoms contains the list of certain
fundamental rights. The process that Senator Joyal is inviting us to take part
in is one that respects these fundamental rights, in particular, the right to
freedom and security, which is protected under section 7 of the Charter.
Miscarriages of justice shake the confidence that is required of Canadians in
the effectiveness and impartiality of our system of justice. All of our system's
strength lies in this confidence in one of the pillars of our democratic
Last year, Chief Justice McLachlin, in a case that was no doubt dear to
Senator Joyal, The United States v. Burns and Rafay, mentioned, and I
The recent and continuing disclosures of wrongful convictions for murder in
Canada, the United States and the United Kingdom provide tragic testimony to
the fallibility of the legal system, despite its elaborate safeguards for the
protection of the innocent.
Bill C-15A calls on us to amend section 690 of the Criminal Code, as it is
vague and imprecise. This section outlines the use of the power of mercy by the
Minister of Justice, allowing the minister to uphold a decision to release a
detainee for reasons which are consistent with the minister's decision and which
need not be explained, since the power is absolute.
Many other jurisdictions have changed or regulated the exercise of this type
of power, more specifically, the United Kingdom. Significant changes were made
to the process to eliminate this power and entrust the assessment of
applications and decisions to ensure that detainees' rights are respected to an
organization which is independent of the executive branch. These detainees will
claim to have been judged unfairly.
The British process provides for an independent eleven-member commission, one
third of whom must have practiced law for at least 10 years. They are appointed
by the head of state. Commissioners have powers of investigation similar to
those conferred upon the Minister of Justice under our Bill C-15A. Theirs is the
final decision to refer a request to an appeal court for review or non-review of
a conviction, and not to a minister of the Crown. This is an important point
because, last October, the report of the Royal Commission of Inquiry into the
conviction of Thomas Sophonow, written by former Supreme Court Justice Cory,
recommended that the federal government look seriously into the creation of an
independent commission like the one in the U.K. You can see, then, that this is
not the only such instance in Canada, just the latest.
Some of the witnesses before the committee explained to us, with some
bitterness, how the exercise of our legal system could, unfortunately, lead to
The former Minister of Justice made a choice that was confirmed by the new
one. We invited the new Minister of Justice, and he provided us with a written
response relating to maintaining the prerogative to which I have just referred.
That choice extends as well to allowing full latitude to the Minister of Justice
to define by regulation the mechanisms for the review process. While this is an
improvement over the present process, I deem it insufficient and I will explain
why. Still, it is a marked improvement over the present process.
It must be acknowledged that the process as proposed by the Minister of
Justice borrows a number of its characteristics from the operation of the
British commission, such as the application process, the definition of powers of
investigation, the criteria guiding the minister's examination of the
application, the regulations defining the application examination procedure.
These are all to be found in the procedures for the British commission.
I am of the opinion that the process offered to us is neither independent nor
impartial and is contrary to the fundamental rights recognized by the Charter of
Rights and Freedoms, and more specifically its section 7.
The amendments proposed in Bill C-15A do not guarantee the independence and
impartiality that must be found in the process to review cases of miscarriage of
justice. These two elements, independence and impartiality, are there to ensure
the respect of the principles of fundamental justice. Section 7 of our Charter
reads as follows:
Everyone has the right to life, liberty and security of the person and the
right not to be deprived thereof, except in accordance with the principles of
There is no doubt that a person who is incarcerated and who claims to be
wrongly incarcerated is included in or covered by the wording of section 7. The
Federal Court ruled that the decision of the Minister of Justice under section
690 was of a quasi-judicial nature.
Indeed, in 1992, in the Henry v. Canada (1992) case, the Federal Court
ruled that the decisions made by the Minister of Justice under section 690 are
subject to judicial monitoring to ensure their compatibility with the Canadian
Charter of Rights and Freedoms.
In 1996, in the Thatcher v. Canada (1996) case, the Federal Court
An adverse decision by the Minister in exercising his discretion under
section 690 can result in the continuation of a lengthy, if not lifetime,
incarceration of a convicted person. This deprivation of liberty engages the
applicant's rights under Charter, section 7 and requires that the Minister act
fairly in exercising his discretion.
I would like to stress the reference made by Federal Court Justice Rothstein,
when he uses the word "lifetime" For those who are not familiar with the
parole process, a person who is incarcerated can only have access to the parole
process if he admits that he is at fault. A person who is convinced of his
innocence will never admit that he is at fault, because that fault does not
exist. Some of you may remember Roméo Fillion, who was accused and found guilty
of murder, here in Ottawa, more than 27 years ago. Recently, a little over a
year ago, some evidence that was missing at the time suddenly surfaced and
showed that Mr. Fillion was not in Ottawa when the crime was committed, but in
Kingston, which is a two-hour drive from Ottawa. This evidence surfaced by
chance. Mr. Fillion never admitted that he was at fault, and was therefore not
eligible for parole. You see why the Federal Court used the term "lifetime,"
which means possibly until the person dies. A person cannot rot in a Canadian
prison because he is convinced of his innocence.
The Federal Court stated on two occasions that it is a quasi- judicial
decision. The minister's decision is subject to the review of the courts. The
most recent one, Thatcher v. Canada, specifies that this review must be
conducted in light of the rights of detainees as set out in section 7 of the
Charter and requires that the minister act fairly in exercising his
discretionary power. There is no question that section 7 varies based on the
specific circumstances of each case. I mentioned the case of Mr. Fillion, I am
sure that you are all aware of it. Senator Joyal listed several cases in his
speech, each story as unbelievable as the next, but each story unfortunately has
a common thread running through it whereby the detainees — to be politically
correct — are not treated in the same way as the majority in the environment
where these miscarriages of justice took place.
Thus, there is a requirement to respect the principles of independence and
impartiality. I respectfully submit that Bill C- 15A does not respect these
requirements. Let us not forget that the Minister of Justice is also the
Attorney General of Canada. In other words, when charges are laid, they are
usually laid by the Attorneys General of the provinces — that is the reality of
our federal system — on behalf of the Attorney General of Canada. The minister
remains responsible for studying the applications for review of miscarriages of
justice under the current system. According to Bill C-15A, the detainee, like
Mr. Fillion, must appeal, and ask the Minister of Justice to review his file.
The Hon. the Speaker pro tempore: Honourable senators, Senator
Nolin's time is up.
Senator Nolin: Honourable senators, I seek leave to continue for five
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to grant Senator Nolin leave to continue?
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, I will certainly give the senator the time to finish his remarks.
Hon. Senators: Agreed.
Senator Nolin: Already, you can see glimmers of the absence of
impartiality in this, or at least the public perception that the process does
not enjoy the independence and impartiality to which the courts refer. I have a
special problem with this. Senator Joyal has dealt with this in his motion in
amendment regarding the power of delegation.
Under Bill C-15A, the minister now inherits an unqualified power of
delegation, in that he is being given the powers of an investigator under the
Inquiries Act. The minister may, but is not required to — that is another
problem — turn around and decide to delegate an inquiry to another person, whose
qualifications are not defined, hence Senator Joyal's amendment. This delegation
is total. The minister may delegate this power without restriction. This appears
to me to be contrary to the rules. I support Senator Joyal's amendment. I feel
that, at the very least, we must ask for limits on the minister's delegation.
I read with interest the comments made by the honourable senators who
questioned Senator Joyal. I have no problem broadening the definition proposed
by Senator Joyal. It is important that the delegation Parliament is authorizing
the Minister of Justice to make be limited, defined. The minister, who is given
delegation under the act, must delegate further in a very specific way. Why?
René Dussault, at the time professor of law at Université Laval, said, in
...if the power delegated is not purely administrative in nature or
ministerial, if it is more judicial or quasi-judicial, i.e., likely to be
detrimental to the rights of the parties, or if it is of a discretionary
nature which is clear evidence of the trust placed by the legislator in the
ability and judgment of the agent, then the principle of delegatus non
potest delegare receives, in the absence of express provisions in the act
a much more rigorous application.
At the very least, we must place limits on the delegation we are authorizing
the Minister of Justice to make. It is for this reason that I support Senator
The debate is not over. We will certainly hear other recommendations from
commissioners who will say that the Canadian system is definitely not
I would have liked to have seen the duration of these appointments specified.
Are commissioners appointed for a sufficient period of time to give them a
degree of independence from the person who appoints them? Will they have
authority over the administrative unit within the Department of Justice? Will
they have management authority, as the courts have over their officials?
The courts, when examining the independence of the bench, have sometimes
raised the issue of the removability or irremovability of these commissioners or
investigators, and their conditions of work.
The courts have affirmed that Parliament had to provide a proper framework
for judges' independence. If Parliament avoids doing so, it goes against these
rulings and against the principles of the Charter of Rights and Freedoms, which
requires our legal system to be free, impartial and independent, and it destroys
the perception that the public must have of an impartial and independent justice
The former minister made a choice that was maintained by the new Minister of
Justice. The government made its bed on a specific process. I hope that this is
just the beginning of a desired and desirable reform of the process for the
review of miscarriages of justice. Senator Joyal is asking us to amend a bill
that begins this reform. His proposed amendment is necessary, and I urge
honourable senators to support it.
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
Motion in amendment agreed to, on division.
The Hon. the Speaker pro tempore: We will now resume debate on
the motion for the third reading of Bill C-15A as amended.
Senator Nolin: Honourable senators, I rise to speak today at third
reading stage of Bill C-15A, to amend the Criminal Code and to amend other Acts.
I would like to comment on the two amendments made to the bill by the
Standing Committee on Legal and Constitutional Affairs, and agreed to at report
I must begin by thanking the former Minister of Justice, the Honourable Anne
McLellan, Honourable Senator Pearson, and the other members of the Legal and
Constitutional Affairs Committee for having accepted the amendments I proposed
to the new offence set out in Bill C-15A, which makes it a criminal offence to
knowingly access child pornography.
These amendments will guarantee the constitutionality of this new offence,
while bringing its application in line with the principles set out by the
Supreme Court in R. v. Sharpe, 2001. I would remind honourable senators
that the amendment as proposed by the committee calls for the application of two
lines of defence as set out in subsections 6 and 7 of section 163.1 of the
Criminal Code to this new offence.
That said, the purpose of my speech is to clarify the reasons for which I
proposed an amendment concerning the protection of Internet providers, one which
I would remind honourable senators was agreed to at report stage.
Honourable senators, paragraph 1 of clause 5 of Bill C-15A brings up to date
the provisions of the Criminal Code that relate to the distribution of child
pornography in order to include those who use the Internet to commit this
offence. The amendments proposed by the former Minister of Justice will ensure
that in future anyone who transmits or makes available this type of material
with a view to transmitting, making available, selling or exporting it, will be
guilty of a criminal offence.
During consideration of the bill in committee, representatives of the
Canadian Association of Internet Providers and of the Canadian Cable Television
Association told us that Internet service providers could be found guilty of an
offence for having unknowingly transmitted child pornography or making it
The current wording of this offence might have serious consequences on the
activities of these businesses, as well as their reputation, because it contains
no provision for criminal intent — mens rea — and thus leaves open the
possibility that no recourse to this intention will be necessary for guilt to be
established. The amendment agreed to is intended to eliminate this unclear
Since I proposed this amendment, three objections have been raised by some of
our colleagues to contest its legitimacy and usefulness. I would like to take a
moment to refute each of these arguments.
The first of these objections stipulates that the amendment is pointless,
since clause 5(1) is a mens rea offence. I am not in agreement, because a
careful reading of the nebulous wording of this provision demonstrates beyond a
shadow of a doubt that any offence proposed by the legislator is not one of
transmitting child pornography for the purpose of transmitting it, but rather
simply transmitting this type of material. If this interpretation is correct, it
could have negative consequences on the presumption of innocence guaranteed to
Internet service providers, a presumption that is entrenched in subsection 11(d)
of the Canadian Charter of Rights and Freedoms.
The lack of clarity in clause 5(1) with regard to mens rea is
exacerbated by the presence of the verb "transmettre" in French. Le Petit
Robert dictionary, defines the verb "transmettre" as follows:
To transfer words or text from one person to another. To transfer or send
from one place to another with a purpose in mind.
In the case of an individual who is transmitting child pornography via the
Internet, it might be easy to prove that an act prohibited by the Criminal Code
was committed, the actus reus, and that it was accompanied by criminal
intent, the mens rea. However, what of the Internet service provider?
If we take into consideration this definition of the verb "transmettre,"
the latter could easily be found guilty of transmitting child pornography. In
this type of case, the actus reus can be demonstrated with alarming ease.
However, the existence of any criminal intent could be quite difficult to prove.
Just like phone, postal or courier services, businesses specializing in
providing Internet telecommunications equipment are solely responsible for the
equipment they provide, but not for how it is used by subscribers.
In this connection, the Supreme Court of Canada handed down a ruling in 1892
regarding the responsibility of a supplier of telephone services with respect to
the content transmitted over its system. In Electric Dispatch Company and Bell
Telephone Company, the court interpreted the notion of "transmission" as
encompassing the person sending the message and the person receiving it, but not
the intermediary providing the technical wherewithal for the communication.
Honourable senators, this reasoning can be applied to Internet service
providers. They are merely intermediaries between two or more persons if all
they do is provide the means for storing or transmitting digital data for a
third party. In practice, such an undertaking does not possess the human and
technical resources necessary to oversee the huge volume of information
transmitted over its network or briefly stored in its servers.
In such a context, one cannot hold a provider responsible for transmitting
child pornography unless it was aware of its existence or had criminal intent to
allow such an action. The amendment I put forward is designed to correct this
situation. It makes it possible to distinguish the container from the content.
Even though the former Minister of Justice and Senator Pearson both stated very
clearly that the provisions of clause 5 of Bill C- 15A are not aimed at Internet
service providers, my amendment further clarifies the legislator's intention by
sending a clear message to the courts that the sender of this type of material
is not the provider, but the user.
Honourable senators, I would to draw to your attention the fact that at this
time there are other federal statutes that contain provisions similar to those
adopted at the report stage. I refer here to section 13 of the Canadian Human
Rights Act and section 2.4 of the Copyright Act. Even if these legislative texts
apply to a context that differs greatly from the criminal law context, let us
not forget that, along with hundreds of thousands of Canadians, the courts are
barely beginning to demystify the complexity of the Internet. For example, it
would not occur to a judge to accuse a delivery service or telephone company in
a trial of transmitting child pornography, yet in the case of the Internet that
same judge could seriously question the fact that a company operating in this
field unwittingly housed child pornography on its servers.
Why should Internet providers be deprived of the mens rea, which is
required for offences requiring more traditional means of communication? In this
context, I strongly believe that my amendment will clarify interpretation of
clause 5(1) of Bill C-15A.
This brings me to some comments on the second objection, that a supplier can
be exonerated of all criminal responsibility even if he knowingly harbours child
pornography on his server or is directly involved in a network distributing this
type of material. My response to this objection is merely that, should one or
the other of these two situations occur, the company would no longer be acting
as a mere intermediary in the transmission — as is stated in the amendment — so
the protection it confers would not apply. I therefore maintain that the wording
of the amendment is very clear on this.
Now, moving to the third and final objection, that the amendment will have
negative effects on the criminal intent referred to in other infractions of the
Criminal Code, I personally believe that this is a pointless argument, in that a
number of other provisions in Canadian criminal law contain means of defence
similar to those given in the introduction to my speech, which stipulate mens
rea is required in order to avoid innocent people being unjustly found
Honourable senators, for all these reasons, the amendment will protect
Internet services providers and promote the principle of the presumption of
innocence without, however, compromising the implementation of the provisions
designed to curb the distribution of child pornography over the Internet.
The committee gave very serious consideration to the other provisions of Bill
C-15A. Among other things, these provisions increase the maximum penalty for
criminal harassment, something Senator Oliver suggested during a previous
Parliament. So, the bill increases this penalty. In my opinion, it is not so
much the length of the penalty, but the wording of the offence that poses a
problem. We will certainly have to re- examine that wording.
Bill C-15 proposed a series of amendments to the criminal procedure,
particularly as regards preliminary investigations. In committee, we discussed
the pros and the cons of these amendments and we came to the conclusion that
this is an acceptable change and that we should follow in the footsteps of other
jurisdictions regarding this important procedure in our criminal law system,
namely, the preliminary investigation.
Honourable senators, Bill C-15A is a valid measure. It is the result of the
splitting of two major components in the original Bill C-15, which was
introduced in the other place during the current session of this Parliament. We
are discussing fundamental issues regarding respect of the rights of detainees.
Earlier, I referred to the amendments to the process for reviewing
miscarriages of justice under section 690 and the following sections of the
Criminal Code. Reference was also made to new offences involving child
pornography. Today, amendments to the criminal procedure have been mentioned
almost only in passing. Yet, the witnesses who appeared before our committee
abundantly questioned the appropriateness of these amendments to the criminal
The Senate and Parliament inherited Bill C-15A and Bill C-15B. The latter
will soon be before us. We will then be in a position to understand why the
government, in its great wisdom, decided to split Bill C-15 into two important
Honourable senators, I recommend that this bill, as amended, be passed.
On motion of Senator Stratton, for Senator Beaudoin, debate adjourned.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, Senators Beaudoin and Gauthier, who were to speak to Bills C-30 and
C-27 respectively, are now sitting in the Joint Committee on Official Languages.
A message in this regard has been sent to them.
The reason I am taking the time to explain this situation to honourable
senators and to all those listening is so that people will understand that there
are complications and that we must govern ourselves accordingly in order to move
forward the business of the chamber while also allowing senators to accomplish
their work in committees.
The work done by committees is recognized by all members of the public and by
all honourable senators present today.
Normally, committees do not sit at the same time as the Senate, but joint
committees, which are made up of senators as well as members of the other
chamber, are exempt from this requirement.
I hope, Madam Speaker, before you call me to order, that the message was sent
to Senator Gauthier. I am told that this was done by our very honourable whip
and that Senator Gauthier is now heading for the chamber to speak to Bill C-27.
I know that all honourable senators here are waiting impatiently for Senator
Gauthier to open the debate on this bill, which deals with the long-term
management of nuclear fuel waste. Naturally, once Senator Gauthier has opened
debate at second reading, opposition and other senators will be able to speak.
Hon. Jean-Robert Gauthier moved the second reading of Bill C- 27,
respecting the long-term management of nuclear fuel waste.
He said: Honourable senators, it brings me great pleasure to introduce Bill
C-27 at second reading today, a bill that is timely and that is considered very
important for all Canadians, because it has to do with the long-term management
of nuclear fuel waste.
Canada is fortunate to be able to rely on a broad range of energy sources.
One of these is nuclear energy, which has allowed Canadians, and particularly
the residents of Ontario, to produce clean and reliable electricity since the
Regardless of the role that nuclear energy will play in the coming years,
this source of energy clearly has its advantages, but it also produces waste
that we have the responsibility to manage properly.
Waste is currently stored safely on site at reactors, until a long- term
management strategy is implemented. Bill C-27 establishes this strategy; it is
the result of 25 years of research, environmental assessments and broad
consultations among various stakeholders, including waste owners, the provinces
in particular, the general public and aboriginal groups.
Honourable senators, how has the public reacted to Bill C-27? This new piece
of legislation builds on the 1998 Government of Canada response to the Nuclear
Fuel Waste and Disposal Environmental Assessment Panel. The chairman of that
committee was Mr. Blair Seaborn.
The Seaborn panel carried out a decade-long public review of nuclear fuel
waste disposal, including Canada-wide public consultations. Its recommendations
were largely adopted by the government. Subsequently, there has been general
support for new legislation but concerns were raised in the other place on a few
aspects of this bill.
Principally, the government could not adopt the Seaborn recommendation to
create a Crown corporation for carrying out the long-term management of waste.
Indeed, the single most frequently raised concern was that the waste management
organization, or WMO, to be created by waste owners, is not entirely independent
from the nuclear industry.
A basic principle of the bill is that the waste owners are primarily
responsible for carrying out and financing waste management activities under
federal oversight. The government's role is clearly one of general oversight, of
control over the business affairs of the industry. This approach provides for an
effective way forward and allows for a clear separation between those who carry
out operations and those who regulate them, thereby increasing efficiencies and
avoiding conflicts of interest.
More and more, Canadians want to participate directly in the important
decisions affecting their lives and those of their children. Key among the
requirements of the bill are those ensuring the effective participation of the
public in decision- making processes. The reasons for the requirements are to
ensure transparency in planning for and implementation of long-term waste
management activities. Further, they are to allow for easy and prompt access to
information and effective public consultations.
Honourable senators, one may well ask: how did the companies and provinces
affected by this measure react to Bill C-27?
The owners of the waste are glad of the regulatory certainty provided by Bill
C-27, as it clearly sets out the framework within which they must fulfil their
obligations without imposition of an undue financial burden. Small businesses
indicated that the management body ought to be in a position to provide them
with services at a reasonable price.
Throughout the drafting process of the bill, the government consulted the
provinces affected, that is Ontario, Quebec and New Brunswick. Many meetings
were held and almost all their concerns were dealt with. It took as conciliatory
an approach as possible, without compromising the objectives of the policy as
far as federal monitoring is concerned.
The provinces acknowledge federal jurisdiction over this, and all subscribe
to the principles that underlie Bill C-27.
The standing committee of the other place addressed the matter of the
efficacy of the organizational frameworks and the transparency of the process.
It adopted four motions, one aimed at including aboriginal traditional knowledge
in the expertise of the board.
Honourable senators, one more question: What will happen when Bill C-27 comes
into effect, if Parliament agrees to enact it?
The major owners of waste, again, the provinces, to the tune of 98 per cent
or 99 per cent, would kick off the trust fund, while the waste management
organization would begin preparing its study. Its report would be submitted
within three years after the bill is passed. The study would include a
comparison of the risks and benefits of each option. The waste management
organization would examine those options explicitly outlined in Bill C-27, but
would not be limited to those options and could propose others.
A number of stakeholders doubted whether three years would be enough time for
the waste management organization to carry out its study. In light of research
that has already been done in Canada and elsewhere, and considering that the
Seaborn panel had recommended a two-year period and that public utilities have
already undertaken work to that end, a three-year period seems to me to be
Honourable senators, let me conclude my remarks on Bill C-27. This new piece
of legislation will allow the government to move effectively towards the
implementation of a solution for the long- term management of nuclear fuel
Some stakeholders have asked: Why move now, what is the hurry? The waste is
already stored safely. First, existing storage facilities may be, as some of the
experts say, safe, but they are not designed for a permanent solution. Second,
there is international consensus that technology already exists to manage
nuclear fuel waste properly over the long-term. Third, the nuclear industry is
ready to meet all of its long-term waste management responsibilities, including
funding and corresponding activities, thereby increasing confidence that
taxpayers will not shoulder these responsibilities. Fourth, local communities
near existing reactor sites want to know what will be the fate of the nuclear
fuel waste currently located within their boundaries.
Considering the long lead time before a solution can be implemented, and
there are no longer any good excuses for further delay, embarking now on a
legislative process is the only responsible route for pursuing a thoughtful
course of action. This legislation, which is the culmination of many years of
work, was not established in a contextual vacuum. Policy developments were
guided by extensive consultations with all stakeholders, experience already
gained in our countries, modern regulatory practices, social justice concepts,
and, of course, by the invaluable work of the Seaborn panel.
The challenge for the government was to develop a policy that would be fair
to stakeholders and that would effectively reconcile all the elements, in the
public interest. I firmly believe that we can say mission accomplished with Bill
C-27. With a sound administrative framework, Canada will be in a position to
implement a long-term nuclear waste management strategy, which has been
technologically impeccable to this day, but which also fully integrates the
social and ethical values of Canadians.
You may wonder what Senator Gauthier is doing in the nuclear area. I will
surprise you. I have some knowledge of this area. In the past, I visited nuclear
facilities in Argentina, when we sold them a CANDU reactor. I travelled there
with Mr. Seaborn, who conducted this 10-year study. He is a competent man who
wrote a report that deserves to be read. In this house, we have the honour and
privilege of having one of the participants in that public consultation, Senator
Lois Wilson, who is one of those who signed this report entitled:
"A nuclear waste management and disposal concept." I think this is worth
our time and our efforts.
Leave having been given to revert to Item No. 4 on the Orders of the Day:
On the Order:
Resuming debate on the motion of the Honourable Senator Bryden, seconded by
the Honourable Senator Pearson, for the second reading of Bill C-30, An Act 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.
Hon. Gérald-A. Beaudoin: Honourable senators, Bill C-30, the Courts
Administration Service Act, has three main goals: to establish a single
administrative structure for the Federal Court, the Court Martial Appeal Court
and the Tax Court; to split the Federal Court of Canada into two divisions: the
Federal Court of Appeal and the Federal Court; and to change the status of the
Tax Court of Canada to that of a superior court.
This is a technical bill which also amends 44 other federal statutes with the
purpose of changing their wording to reflect changes brought about by the new
legal structure resulting from Bill C-30.
The Federal Court was known until 1970 as the Court of Exchequer. Created in
1875 by the federal Parliament, the Court of Exchequer was not completely
separate from the Supreme Court until 1887. In 1970, the Court of Exchequer
became known as the Federal Court of Canada.
The Federal Court is a specialized court. Its jurisdiction extends inter
alia to cases or claims made by, or against, Her Majesty the Queen in Right
of Canada, to cases of expropriation for federal purposes, et cetera. In certain
cases, it has jurisdiction concurrent with certain provincial courts.
This court has jurisdiction in other areas where the Parliament of Canada has
exclusive jurisdiction, such as copyright, patents, trademarks and industrial
Its jurisdiction extends to all of Canada. Although its headquarters is
located in Ottawa, it is an itinerant court; the judges travel to all regions of
Canada to hear cases. Finally, let us remember that this court also sits as an
As Senator Bryden said last Thursday, Bill C-30 does not affect the principle
of judicial independence. On the contrary, the bill reinforces it.
To a certain extent, judicial independence in Canada is ensured by the
provisions of constitutional statutes. It is also ensured by the constitutional
conventions and a long tradition, by the decisions of the Supreme Court of
Canada, by documents which form part of our constitutional law through the
preamble to the Constitution Act, 1867, such as the Act of Settlement of 1701.
The Canadian Charter of Rights and Freedoms contains certain principles which
help to guarantee the independence of the courts.
Section 99 of the Constitution Act, 1867, enshrines the independence of the
judges of the superior courts. This section is fundamental in law. Superior
court judges shall hold office during good behaviour, but may be relieved of
their office on serious grounds by the Governor General on address of the two
Since the Act of Settlement of 1701, address of both chambers has been
required to remove judges of the highest courts in England. If the supremacy of
Parliament was established by the British Revolution of 1688 and the Bill of
Rights of 1689, it was the Act of Settlement which enshrines the independence of
As Lord Denning pointed out in 1951, the judicial branch in England has been
separated from the other two for at least 250 years, and this ensures the
application of the rule of law.
Superior court justices retire when they reach the age of 75. Since 1982,
paragraph 11(d) of the Canadian Charter of Rights and Freedoms must be added to
section 99. However, this paragraph has a limited scope in that it only applies
to criminal matters.
Since the Supreme Court did not exist in 1867, the independence of that court
is protected by an ordinary act, while that of superior court justices is
expressly enshrined in the written Constitution, even though in the Addy
case, the Trial Division of the Federal Court concluded that Supreme Court and
Federal Court justices are superior court justices within the meaning of section
99(2) of the Constitution Act, 1867.
It is in the Valente case that the criteria determining the scope of
judicial independence were first established. Judicial independence is
characterized by: first, security of tenure; second, financial security; and
third, complete independence of administration of matters relating to the
judicial function (institutional independence). These criteria are examined from
the point of view of the "reasonable person." It is the third element that is
of particular interest to us in relation to Bill C-30.
In Tobiass, 1997, the Supreme Court addressed the individual aspect of
institutional independence, stating:
The essence of judicial independence is freedom from outside interference.
I would remind you, honourable senators, that respect of this principle is
based on one objective criterion, the reasonable and informed observer.
In creating a Courts Administration Service, Bill C-30 enhances judiciary
independence, by clearly confirming the role of chief justices and justices in
the administration of these courts.
I would also point out that there is a legislative protection as far as the
representation of Quebec is concerned. Four of the judges of the Federal Court
of Appeal and six of the judges of the Federal Court must be persons who have
been judges of the Court of Appeal or the Superior Court of the Province of
Quebec, or members of the bar of that province. As for the Tax Court of Canada,
the Chief Judge or the Associate Chief Judge must come from Quebec.
Honourable senators, Bill C-30 puts in place a courts administration service
under the supervision of a chief administrator, appointed by the Governor in
Council after consultation with the chief justices for a renewable five year
Senator Bryden has explained the scope of this bill very well. It is not
controversial. I am therefore in favour of Bill C-30.
The Hon. the Speaker pro tempore: It was moved by the
Honourable Senator Bryden, seconded by the Honourable Senator Pearson, that this
bill be read the second time. Is it your pleasure, honourable senators, to adopt
Resuming debate on the inquiry of the Honourable Senator De Bané, P.C.,
calling the attention of the Senate to his recommendation for ending the
atrocious cycle of violence raging now in the Middle East.—(Honourable
Hon. Nicholas W. Taylor: Honourable senators, I rise to say a few
words on the situation in Middle East, although I will not be as eloquent as
Honourable Senator Prud'homme. The coflict between the Palestinians and the
Israelis is in the news every night. Although I do not have a solution to the
problem, I do have some experience in the area, and I should like to share my
thoughts with members of this house.
This problem reminds me of Winston Churchill's words when speaking on Russia
during the Cold War. He said, "It is a riddle wrapped in a mystery inside an
enigma." That comment would apply to the problem that we have now in the West
My experience comes from both business and Parliament. In my business
experience, I worked in the Middle East for 20 years between 1965 and 1985. I
had offices in Cairo, Tel Aviv and Tehran. Most of my work was in Cairo and Tel
Aviv. We had to take a plane from Cairo to Rome, then fly to Tel Aviv because
Egypt and Israel had severed diplomatic relations. After the Egyptians made a
few moves, they decided to resume direct communications. Living in that part of
the world was one of the more interesting experiences of my life. Once again
there were flights between Cairo and Tel Aviv. At the airport in Cairo, planes
operated by American Airlines, Transworld, Scandinavian Airlines and others were
painted in pretty colours, but the plane scheduled to fly between Cairo and Tel
Aviv was painted in a drab colour and had no markings of any sort. They did not
want the flight from Cairo to Tel Aviv to attract attention. Yet, it was the
only plane that had no markings.
Be that as it may, I found working with the Semitic people, both those of the
Jewish faith and those of the Moslem faith, to be most interesting. They are
very warm and friendly people.
One has to understand the history of the area. The area is smaller than the
area between here and Montreal. In that small area are people of the Jewish
religion, the Moslem religion, Christians and even people of the Baha'i
religion. The man who started the Baha'i religion is buried just outside of
Haifa. Perhaps the desert landscape leaves time for people to contemplate
religion. Buddhists and a few others are, somehow, missing from the list.
However, those religions I mentioned influence the basic thought processes of
most of the Western world. I am referring to the Judaic Christian heritage
cross-pollinated with a certain amount of Moslem.
In addition to that experience of 20 years of travelling in that part of the
world, I was hired by the Israeli government to help them to get around the
embargo. I negotiated a deal with Mexico at the time.
Since I became a senator, although I still have some business in the Middle
East, very little compared to what it was in the past, I have been involved in
the Interparliamentary Union. Two years ago I was asked to be the Canadian
representative at the meeting of that body in Jordan. Canada was represented
with another six countries, which included Iran, Israel and Iraq. Being
Canadian, I ended up as chairman of the committee on the Palestinian refugee
problem. I have worked in the Interparliamentary Union on that issue for the
last few years.
Just last September, I again attended a meeting of the Interparliamentary
Union, this time in Burkina Faso. September 11 was the third day of our
committee meeting. That, of course, put an end to the meeting. The Israeli
contingent was withdrawn by their government, and Iranians withdrew too because
there was quite a concern as to what this bombing might mean.
Honourable senators, I say all that as a background. Perhaps, as is true in
many instances: The more you associate with a problem, the less you know.
Certainly, I do not know the whole answer to the problem, but I do think that
there are some areas that people should note and consider.
Terrorism is not unique to that part of the world. Whether it is in Egypt,
Iran or Turkey, terrorism is quite often practised by those out of power with
very little sense of being able to get out of their situation in any shape or
form. In fact, the Jewish state was largely created due to terrorism.
I had one friend who was killed. He was in the British army in 1948. A parcel
bomb was sent to his house from the underground Jewish movement. At that time
they were trying to get the British to let go of the controls so that they could
establish a country. Another man with whom I was acquainted had his hand blown
off with a letter bomb.
It is not unusual that terrorism is used for a political end, but it is
certainly not acceptable. It is wrong, but it is a way to an end.
Honourable senators, there are a number of issues that you must address when
looking at the Palestinian problem. First, vengeance must be thrown out. The
idea of getting even because something was done to you 2,000 or 500 years ago
must be thrown out. Perhaps we are the last people who should be lecturing
anybody on that. Although we reject the concept of vengeance, we do use
apologies. There is always someone introducing a bill in either this house or
the other place saying that we have to apologize for something done in the past.
Apology is just a modern, fancy way of rehashing the past. I have always been
very much against it in Canada because I have always felt that one of the
unspoken rules of Canadian citizenship is that you leave your battles behind
when you immigrate to this country and you should not legislate to encourage
people to apologize. You must forget about the past and decide how you will
behave in the future. What is the future?
From my experience with the Interparliamentary Union, once as chair and once
as vice-chair of the committee on the Palestinian liberation problem, I know
that some problems will always come through, although Iranians and Israelis were
sitting at the same table.
I do not want to insult your intelligence, honourable senators, but perhaps
we should clear up a few definitions. A Jewish person could be an Arab, although
there are few, or he could be an agnostic. Although they talk about being the
only democracy in the Middle East, some people might question that because it is
hard to get the concurrence of the rabbinical council to become a citizen if you
are not of the Jewish faith. That is one of the few democracies where definition
of faith dictates whether you are allowed to have citizenship, but it does
An Arab and a Moslem are two different things. Iranians are not Arabs. They
are quite insulted if you try to tell them that they are. There is an
Arab-Moslem problem. We recognize that we are talking about same-race people,
Semitic. Even the languages are similar. The two different religions may be
farther apart than the Northern Irish and southern Irish who have been
practising terrorism on each other for some years. Nevertheless, we understand
Honourable senators, there are a few basic points you must recognize. One is
that it must be recognized that Israel has the right to stay there and to be a
country. Another point is that the recent move towards peace by Saudi Arabia is
a step in the right direction. Egypt and Jordan have recognized Israel. It would
help if we could get the other countries around the area to accept that Israel
has a right to be there and have no thought of pushing them out.
Israel also has a right to protection. The "green line" runs down the
middle of Israel. Israel is only, at the most, 100 miles wide, and quite often
65 miles wide. You can understand why the Israelis would not want an independent
Palestinian state with its own army overlooking Tel Aviv. If you ever get a
chance to visit the old country, you will see how closely the two settlements
The second thing that must be considered is a free and independent
Palestinian state, but one that is not so independent that it can have its own
army. It must be independent enough that it can have its own police force. As
well, there must be a sovereignty component — my francophone friends would
understand — within that set-up. At the rate that immigration is occurring and
given the native birth rate, the Israelis recognize that they will soon be
outnumbered in the area. They have pretty well plucked the world dry of people
of Jewish faith who want to come back and settle there. There are some, but
there are not enough to hold the same percentage that they enjoy today.
The thinking people over there have a concept of an independent Israel. The
Israelis themselves have extremists within their own ranks. As a matter of fact,
most Israelis come from North America and move out to the settlements of the
West Bank. They are as dedicated to driving the Arabs out of the West Bank as
many Arab extremists are dedicated to driving the Jews into the ocean.
As an aside, I think that the Israelis have a problem. Many people in this
country say that we should have a right to proportional representation. For the
100-member Jewish Knesset, "proportional representation" would mean that a
person would only need about 1 per cent of the population to vote for him or
her. Consequently, you can have an extremist sitting in your legislative
chamber, much more than you do here. That is hard for us to understand. In
Canada, a real nut case has a hard time becoming elected. In Israel, however, it
is not an uncommon occurrence. By that, I mean there may be five or 10 of them
sitting in their chamber, which is enough to have influence in a tight house and
it leads to certain problems.
Honourable senators must recognize that the Jews have a right to be there.
Furthermore, we cannot solve their problems. I do not know of any solution, even
close to one. I think a partial solution is in place already with the Golan
Heights being patrolled by both Canadian and United Nations troops and by Syria
on the other side. I do not think anyone in his right mind wands to put Syria
back into the Golan Heights. If you have ever been to the Golan Heights, it is
like having someone on the top of the Peace Tower constantly surveying the
street across the road. It would be enough to give you the heebie-jeebies, even
if they were friends sitting up there overlooking the area. There is no doubt
that the Golan Heights must stay. That problem is solved now with the UN
intervention, perhaps in perpetuity. Who knows? Perhaps the Syrians will come
around, but they do not have to guarantee Israeli integrity, as long as most of
the other countries do.
We must recognize the Palestinian state, allowing them to arm as far as the
police are concerned. There is also the issue of the withdrawal from the
settlements. You may not be able to withdraw from all the settlements, but you
should be able to do some sort of land swap with the PLO.
The Hon. the Speaker pro tempore: Honourable Senator Taylor, I
am sorry to interrupt, but your allocated time has expired.
Senator Taylor: May I have leave for five or three minutes more?
Senator Stratton: Try for two!
The Hon. the Speaker pro tempore: Is leave granted for three
Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: Please proceed.
Senator Taylor: In committee, I found the idea of Jerusalem being the
capital for the Palestinians not that unusual. Throughout the centuries,
different Christian groups would occupy Palestine at different times, and the
Jews and the Arabs had little to say about it after the Crusades. They would
argue about splitting Jerusalem. The Orthodox, Catholic and, later, Protestant
religions all wanted to call Jerusalem home for their religion. It is not
unusual that the Palestinians would want to call it their capital. There are
areas in the world and precedents in the past where a city has been the capital
of more than one nation or group. Many of the new settlements that have come
into the West Bank have been placed there in an effort to surround East
Jerusalem, which is where most of the Palestinians live. That is a problem.
However, giving them more land and leaving a few of the settlements there while
withdrawing from some of the other settlements could be an acceptable
compromise. We must look at that.
The last area of concern is compensation. The Israelis have not made any
attempt to compensate the Arabs who have been moved out of their area. This is
where Canadians and the UN can do something instead of just moving our lips and
saying, "We wish we could. It would be nice not to have fighting." Perhaps we
could put up a lot of the funds not only to compensate the Palestinians but also
to aid them to rebuild their country, either with roads or with hospitals and
schools, bit by bit. That aid would be tied to them keeping the peace. That is
to say, the Western world would continue to spend money to build up the West
Bank as long as the Palestinians did not try to start terrorism or try to do
something on the other side. Likewise, we would be asking the Israelis to keep
their tanks at home. With the decent police force that the Palestinians would
have, they could arrest anyone who was breaking the law by crossing the fence
and going over into the Israeli area.
Honourable senators, this conflict will not stop overnight There is nothing
to be gained. One cannot stop terrorism. Terrorism ruins Israel's tourism
industry and people's sense of peace. At the same time, the PLO is not advancing
educationally and is not building a society of its own. There is no future in
I will have to drop my last idea, namely, that of an apology. I do not think
The Hon. the Speaker pro tempore: If no other honourable
senator wishes to speak, this inquiry is considered debated.
Hon. Lowell Murray rose pursuant to notice of March 7, 2002:
That he will call the attention of the Senate to certain issues related to
the redistribution of seats in the House of Commons subsequent to the
decennial census of the year 2001.
He said: Honourable senators, today begins the process of redistributing
seats in the House of Commons based on the decennial census of the year 2001.
The operative statute is the Electoral Boundaries Readjustment Act. Today, the
Chief Statistician of Canada presents the census return for the year 2001 to the
Chief Electoral Officer. Tomorrow, the Chief Electoral Officer will apply the
representation formula; determine the number of seats in the House of Commons
per province; establish the quotient per seat for each province, which is done
by dividing the number of seats assigned to that province into the population of
the province; and publish this in the Canada Gazette.
I am happy to see the rapt attention of two of the most experienced electoral
campaigners in this place — our colleagues Senator Moore from Nova Scotia and
Senator Fitzpatrick from British Columbia, who, I am sure, have come into the
chamber only to hear what I might have to say on this vital subject. I
recognize, of course, quite a number of others, including Senator Bryden of New
Brunswick, with whom I have debated on this general subject in the past.
The redistribution commissions in each province are to be appointed by law
within 60 days. However, I am informed, and perhaps my friends from Nova Scotia
and British Columbia can confirm this, that the members of these commissions
have already been recruited. Their names are to be announced today or tomorrow
and, in fact, only an Order in Council is required to make it official. As we
know, that should take no more than one or two days.
There is a document that honourable senators, I believe, received some time
ago called "Federal Representation 2004" that has a calendar of events with
the dates by which the various steps are supposed to be achieved. I will
telescope that considerably by telling honourable senators that the commissions
have one year from this month to prepare their proposals, hold public hearings
on those proposals and complete their reports. At that stage, the involvement of
our friends in the other place begins.
The Speaker of the House of Commons will receive the reports through the
Chief Electoral Officer; the Commons will strike a committee of its members to
consider them; MPs will file their objections; and the objections will be
reported, through the Chief Electoral Officer, to each of the provincial
commissions. Thirty days later, the final maps are to be proclaimed. That would
take us, supposedly, to the end of June 2003. Then one full year intervenes. The
bottom line in this calendar of events is that any election called after June
2004 will be on the new boundaries.
Honourable senators, needless to say, the calendar of events can be upset.
The act provides for the possibility of extensions of time at several steps in
the process. First, any provincial commission can ask for up to six months of
additional time to complete its work, although none has asked for such an
extension in the past.
Second — and this will, as they say, "bear watching" — the House of Commons
process may be extended by request of the committee for up to 30 days.
I should note at this point, however, that it is also possible to save time
in the process. In this respect, I would say that we are off to quite a good
start. The government and the Chief Electoral Officer, to their credit, are
ready now, as I suggested, to appoint the commissions, a process for which a
period of 60 days is actually provided.
A more serious threat to the process occurs when, inevitably, pressure arises
from caucus in the other place, especially the government caucus, to find a way
to postpone the redrawing of the boundaries. We all know that MPs of all parties
take a very proprietary attitude to "their" constituencies. Generally, MPs do
not like the disruption that occurs when they lose and/or gain one or more
blocks of constituents from a neighbouring riding. Of course, it has happened
that whole ridings have been wiped out in a redistribution. Famously, in British
Columbia, a redistribution back in the 1970s or 1980s wiped out the constituency
of MP Ian Waddell, a member of the NDP. He took his case to court — at least to
the British Columbia Court of Appeal — on a question of principle, of course.
It was pressure from Liberal backbenchers after the 1991 census that led to
the introduction of Bill C-18 and its passage through the House of Commons in
the spring of 1994. This bill would have wiped out the whole process after
preliminary maps had been published by the commissions. The bill did not pass
The commissions went ahead, held public hearings and produced considerably
revised maps for consideration by the House of Commons. At that point, 90 days
from the time that the whole process would have been completed, the government
introduced Bill C-69, which would have scrapped the process on the pretense of
making changes in the election law. The process would have had to start all over
again. Bill C-69 did not pass the Senate.
Honourable senators, we must be on the alert to delays that would cause this
timetable to be overtaken by events and that would have the effect of fighting
the next election, let us say in 2004, essentially on the boundaries established
as a result of the 1991 census.
The best guess is that obviously there will be additional seats in the House
of Commons as a result of the 2001 census. I do not believe that there will be
as many additional seats as we had expected — that is to say, 10 or 11
additional seats — because the population increase, which was announced today by
Statistics Canada, does not appear to have been as great as had been expected
just a few years ago. However, we will know tomorrow when the Chief Electoral
Officer files his representation formula in the Canada Gazette. Again,
the winners will be Ontario, British Columbia and Alberta. There will be no
losers, and I will come to that in a minute or two.
If the redistribution process is not completed on schedule, British Columbia,
Alberta and Ontario will be deprived of the additional representation to which
they are entitled and, after an election, we will have a Parliament sitting
probably until the year 2008, the composition of which will be based on a census
conducted 17 years in the past. This is something we do not want to permit, if
we can prevent it.
I will flag two issues for honourable senators before I sit down. I have
spoken of the first issue before. The law permits the provincial commissions, in
drawing boundaries, to allow, in any given riding, a 25 per cent variance from
the provincial quotient, and even this variance can be exceeded in exceptional
circumstances. I acknowledge immediately that the 25 per cent variance has been
upheld, albeit in a provincial case, by the Supreme Court of Canada. I still say
that it is too high and ought to be brought down to at least 15 per cent, as
suggested by the Lortie Commission in 1991.
When a provincial commission starts out by allowing a variance at or near the
20 or 25 per cent level, that situation is aggravated over a period of five or
10 years because of population changes. Obviously, we cannot change this by law
to take effect during the current process. However, I would urge the provincial
commissions in seven provinces to look carefully at what the commissions did
last time in Manitoba, Saskatchewan and Alberta. In those provinces, they drew
the boundaries very tightly and very close, in the case of each riding, to the
provincial quotient. It can be done. I looked at the historical experience in
some of those provinces, notably Manitoba, where past commissions started out
with quite a wide variance.
In the redistribution based on the 1991 census, I found that Manitoba,
Saskatchewan and Alberta drew their boundaries very tightly and very close to
the provincial quotient; whereas, to various degrees, British Columbia,
Newfoundland, Quebec and Ontario indulged the variants quite widely.
This, of course, disadvantages voters in urban and faster growing areas. If,
for example, they had been governed by a 15 per cent variance last time, I think
the overall result would have been more respectful of the principle of relative
equality of voting power. I said, "relative equality of voting power," because
we all know that we have never had pure "rep by pop" in this country. As
various learned justices of the courts have pointed out, we have recognized
various historical, social and cultural factors in drawing the boundaries.
In 1867, the so-called "Senate floor" was established, by virtue of which
no province can have fewer members in the House of Commons than it has members
in this chamber. That Senate floor now protects two provinces — Prince Edward
Island and New Brunswick — which have higher representation than they would
otherwise have in the House of Commons.
A new wrinkle was added by our friends in the other place in 1985 when they
added the provision to the law that no province could end up, as a result of
that redistribution, with fewer seats than it had after the redistribution of
the 1970s. In other words, all provinces were effectively grandfathered at the
level of representation they enjoyed in 1985.
I cite as my authority for that Professor John Courtney of the University of
Saskatchewan who has written an excellent book on the subject, entitled
Commissioned Ridings, published by McGill- Queen's, which came out last year.
As a result of this grandfathering wrinkle, together with the Senate floor,
seven provinces have a total of 20 seats more than they would otherwise be
entitled to have. If there are questions about that, I could find the provinces
and the extent to which they are overrepresented.
This, too, needs to be changed. The Lortie Commission suggested that we do
away with that provision and that we ease the pain somewhat by providing that,
in subsequent redistributions, no province could lose more than one seat with
every decennial census. That might be one way of approaching the problem.
Leaving it as it is will exacerbate this inequality of representation as among
As of now, in only three provinces is the representation based on population,
those being British Columbia, Alberta and Ontario. The others are all protected
in various ways, either by the Senate floor or the 1985 grandfather clause.
I just wanted to flag those issues, honourable senators, as they begin this
important process of redistributing seats in the other place.
On motion of Senator Stratton, debate adjourned.
The Senate adjourned until Wednesday, March 13, 2001 at 1:30 p.m.