The Hon. the Speaker informed the Senate that the following
communication had been received:
March 13, 2002
I have the honour to inform you that the Right Honourable Adrienne
Clarkson, Governor General of Canada, will proceed to the Senate Chamber, on
the 21st day of March 2002, at 3:00 p.m., for the purpose of giving royal
assent to certain bills of law.
Hon. Anne C. Cools: Honourable senators, pursuant to rule 43(7) of the
Rules of the Senate, I hereby give oral notice that I will rise later this
day to address a question of privilege in respect of certain actions taken and
certain words uttered during the Senate debate on Wednesday, March 13, 2002,
which actions and words are breaches of the privileges of the Senate.
Honourable senators, I will be asking the Speaker of the Senate to make a
prima facie ruling. If he does, I am prepared to make the necessary motion on
the subject matter.
Honourable senators, earlier today, pursuant to rule 43(3), I had given
written notice to the Clerk of the Senate that I had intended to raise this
question of privilege.
Hon. Yves Morin: Honourable senators, every day 12 people in Canada
learn that their kidneys have failed. More than 23,000 people are now on
dialysis or living with a kidney transplant, and the number of people requiring
such renal replacement therapy is expected to double in the next 10 years. All
told, more than two million Canadians are affected by kidney disease or related
March is Kidney Month in Canada, the month when we think of those who suffer
from kidney disease and those who are predisposed to it. People with high blood
pressure are at risk for kidney disease, as are those with diabetes, which now
affects one in every 13 Canadians. Aboriginal people with diabetes and the
elderly are at particular risk.
If we have made great progress as far as kidney disease is concerned this is
due to the work of great pioneers, such as Dr. Yves Warren, who created one of
the country's first systems for hemodialysis and kidney transplant at the
Hôtel-Dieu de Québec. He managed to gradually train an enthusiastic team of
nephrologists who were involved not only in patient care but also in teaching
and research. I would like to pay particular tribute to Dr. Warren and all the
other pioneers in the field of kidney disease to whom we owe so much.
The Kidney Foundation of Canada funds nearly half of the $10 million that is
spent each year in Canada on kidney research. Interestingly, chronic disease
such as kidney disease, cardiovascular disease and diabetes share some common
mechanisms, predisposing risk factors, treatment and prevention strategies, and
impacts on health services and systems.
The Kidney Foundation of Canada has formed a partnership with the Canadian
Institute of Health Research through its Institute of Nutrition, Metabolism and
Diabetes, under the able leadership of Dr. Diane Finegood. This partnership
funds programs for interdisciplinary research focused on the common and related
aspects of kidney disease.
This type of cooperation is what gives us the hope of being able to provide
definitive help to all Canadians with diseases of the kidney.
Hon. Lowell Murray: Honourable senators, I have the honour to present
the eleventh report of the Standing Senate Committee on National Finance, which
deals with the Supplementary Estimates (B), 2001-02.
(For text of report, see today's Journals of the Senate, Appendix
"A", p. 1297.)
The Hon. the Speaker: Honourable senators, when shall this report be
taken into consideration?
On motion of Senator Murray, report placed on the Orders of the Day for
consideration at the next sitting of the Senate.
Hon. Richard Kroft, for Hon. E. Leo Kolber, Chairman of the Standing
Senate Committee on Banking, Trade and Commerce, presented the following report:
Thursday, March 14, 2002
The Standing Senate Committee on Banking Trade and Commerce has the honour
to present its
Your Committee, to which was referred Bill S-40, An Act to amend the
Payment Clearing and Settlement Act, has, in obedience to the Order of
Reference of Tuesday, March 12, 2002, examined the said Bill and now reports
the same without amendment.
E. LEO KOLBER
The Hon. the Speaker: Honourable senators, when shall this bill be
read the third time?
On motion of Senator Kroft, bill placed on the Orders of the Day for third
reading at the next sitting of the Senate.
Hon. Marie-P. Poulin: Honourable senators, I have the honour of
tabling, in both official languages, the report of the twenty- second General
Assembly of the Canada-Japan Inter- Parliamentary Group, which was held in
Bangkok, Thailand, from September 2 to 7, 2001.
Hon. Marie-P. Poulin: Honourable senators, I have the honour of
tabling, in both official languages, the report of the Canada- Japan
Inter-Parliamentary Group on the chairman's annual visit with Diet members, in
Tokyo, from November 17 to 22, 2001.
Hon. Rose-Marie Losier-Cool: Honourable senators, pursuant to rule
23(6), I have the honour to table, in both official languages, the report of the
Canadian Branch of the Assemblée parlementaire de la Francophonie, and the
related financial report. The report deals with the meeting of the APF's
Commission de l'éducation, de la communication et des affaires culturelles,
which was held in Cairo and in Alexandria, Egypt, from February 10 to 13, 2002.
Hon. B. Alasdair Graham: Honourable senators, I give notice that on
Tuesday next, March 19, 2002, I will move:
That the Senate of Canada celebrates with all Canadians the two hundred
fiftieth anniversary of Canada's first published newspaper, the Halifax
Gazette, the publication of which, on March 23, 1752, marked the beginning
of the newspaper industry in Canada, which contributes so much to Canada's
strong and enduring democratic traditions.
Hon. Gerald J. Comeau: Honourable senators, I give notice that on
Tuesday next, March 19, 2002, I will move:
That the Standing Senate Committee on Fisheries be authorized to examine
and report upon the matters relating to oceans and fisheries;
That the papers and evidence received and taken on the subject during the
First Session of the Thirty-seventh Parliament be referred to the Committee;
That the Committee submit its final report no later than June 30, 2003; and
That the Committee be permitted, notwithstanding usual practices, to
deposit any report with the Clerk of the Senate, if the Senate is not then
sitting; and that the report be deemed to have been tabled in the Chamber.
Hon. W. David Angus: Honourable senators, I am troubled — and I think
we all should be — about what appears to be an increasingly chilled atmosphere
between Canada and our good neighbour to the south, our number one trading
partner. Whether it has to do with matters of security on our internationally
acclaimed, for so many years, unprotected border or with security in our ports,
the role of our forces in Afghanistan, or whatever, there seems to be a chilling
of relations between our two countries. We hear rumblings about our position on
the Zimbabwe general election and on what we might do with respect to Iraq. We
do not seem to be in step with our most important ally, and it has now broken
out into the open.
We read now, in the domestic and the international press, that Mr. Chrétien,
perhaps, by his acts, may be contributing to this chilling of relations.
Yesterday, we read in the press that White House officials have a nickname for
our Prime Minister that says something about these less than warm relations to
which I just referred. They call him "Dino the dinosaur." As a Canadian, I am
deeply troubled by this situation. It has now broken out into the open.
My question to the Leader of the Government in the Senate is as follows: When
will the government make a clear and unequivocal statement of support for our
best friend, neighbour and biggest trading partner?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
I wish to disassociate myself from every single thing the honourable senator has
had to say.
Some Hon. Senators: Hear, hear!
Senator Carstairs: If we want to talk about our relationship with the
United States, what could better indicate it than to learn that, at the present
moment, the Prime Minister of Canada and the President of the United States are
meeting? They are meeting on issues of mutual concern to us.
Some Hon. Senators: Hear, hear!
Senator Carstairs: What can we say about a chilling atmosphere when we
are, together with our United States neighbours, participating in a war on
terror in Afghanistan?
Some Hon. Senators: Hear, hear!
Senator Carstairs: What more can we say about that chilling atmosphere
when we signed an agreement just this week about the security of our ports and
about using joint customs officials to inspect containers within those ports in
I would say that our relationship with the United States is very positive,
one that should continue to be positive.
Some Hon. Senators: Hear, hear!
Senator Carstairs: Honourable senators, does that mean that we will
always agree with everything the United States says and does? The answer is no.
We are a sovereign nation, and we will continue to be a sovereign nation.
Some Hon. Senators: Hear, hear!
Senator Angus: I thank the Leader of the Government for that
statement, which is substantially less than unequivocal; but where is this
meeting between the Prime Minister and the President of the United States taking
place today? One senator suggested it could be in a museum where the other
dinosaurs are housed. I do not know where it is taking place, but I know it is
not taking place at the family ranch of the President of the United States where
the President of Russia, other world leaders and all the leaders of the OECD
countries are invited, but not our Prime Minister, who is regarded as a
second-class citizen these days. I am troubled — and we all should be — about
what is going on.
I was asking questions earlier this week about the report of the Standing
Senate Committee on National Security and Defence, which talks about the need to
do something. I asked the Leader of the Government, and we are told we will hear
more later. However, now there is more news on that score. The Americans will
send port agents to help with customs policing and security in the ports, but
they will be forced not to use their guns. When they do the same work in U.S.
ports, they carry firearms.
Honourable senators, when will we get into step with our friends to the south
and help on these security matters instead of hindering them? When will we have
marshals on airplanes and when will we cooperate in the international effort to
combat terrorism instead of putting a monkey wrench into the spokes all the
Senator Carstairs: I cannot tell the honourable senator the exact
place of the meeting this afternoon. However, I suspect it is in the Oval Room,
which is the Office of the President of the United States. That is exactly where
meetings should take place between two heads of two important and significant
countries in the world. They do not need to take place on Texas ranches. They do
not need to take place on shipping vessels. They need to take place where
business is conducted. I do not know where Senator Angus conducts his business,
but I conduct my business in my office, and I expect that the President of the
United States and the Prime Minister of this country conduct their business in
Some Hon. Senators: Hear, hear!
Hon. Terry Stratton: Honourable senators, I see that the Leader of the
Government in the Senate is fully primed this afternoon, and that is good to see
so that the students in the audience can appreciate her performance.
I am somewhat concerned about the sovereignty issue. All of a sudden, Canada
is giving up sovereignty. Why is that? One reads it and finds it difficult to
believe. As Senator Angus said, U.S. customs agents will take up posts in
Canadian ports. What is going on? Why can we not inspect our own ports? Why must
we have the help of U.S. customs? Where is the sovereignty in this whole issue?
Why is it suddenly a case of, "Here, come on in. Take over, guys. Run our ports
Senator Robichaud: That is what Senator Angus wanted to do.
Senator Stratton: If we are concerned about protecting our
sovereignty, we are giving it up.
Senator Carstairs: I hope all those wonderful students in the gallery
think the teacher is performing well. In fact, as an honourable member of the
teaching profession — for many years, I taught students in grade 11 and grade 12
— I want them to know that when their teachers move on to other professions,
they also perform well in those chosen professions.
I wish I could get some consistency from the other side. Senator Angus stands
up and wants us to throw out our sovereignty. We should allow our agents to be
armed in Canada as they are armed in the United States. Frankly, as someone who
fought hard to see gun control legislation passed in this country, I do not want
to see U.S. agents with the same guns in this country as they may use in the
United States. That is part of our sovereignty.
As to Senator Stratton's question, I suspect that he, like most of the rest
of us, has gone through preclearance. We have, in fact, gone through American
customs in Canada. We have done that because it is easier for Canadians who are
travelling. That is why we do it.
Regarding Senator Stratton's interest with respect to the ports, the reason
we are doing this jointly is so that a container moving from Canada to the
United States will have to be inspected only once, not twice. It is being done
for convenience of trade, something for which I am sure both Senator Stratton
and Senator Angus are strong advocates.
Senator Stratton: I would only reserve my fire on the question of
guns. The Leader of the Government in the Senate raised this question, not I.
How much money are we now spending on gun control? The figure is $689 million.
How many policemen have been killed or injured in the last three months in the
line of duty? Yet, the honourable leader is telling me that gun control works?
Gun control is a laughingstock, and the honourable senator knows that.
Senator Carstairs: The honourable senator and I will have to disagree.
Fortunately, I am on the side of about 80 per cent of Canadians who also think
our good legislation on gun control is a valid way for us to show our
sovereignty on issues.
Hon. Laurier L. LaPierre: My question is to the Leader of the
Government in the Senate. Is she aware that the only president of the United
States who did not have angry words with Canada was President Roosevelt toward
Prime Minister Mackenzie King? President Kennedy was libellous against Prime
Minister Diefenbaker. President Johnson almost choked Prime Minister Pearson.
Nasty things were said about Prime Minister Trudeau by the various presidents of
the time that I will not repeat because there are young people in the gallery,
and I would not wish to offend their virgin ears.
I do not know whether anything nasty was said about Mr. Mulroney, who of
course was very friendly with those who sail on Newport Beach and the rest of
Finally, I can say, in regard to Texas, that the food is lousy.
Senator Carstairs: I do not think Senator LaPierre will be surprised
that, as someone who taught Canadian history for 20 years, I am aware of all
those exchanges between American presidents and Canadian prime ministers. To me,
it is an important part of understanding who we are that we should never become
too cooperative with the United States, too much perceived to be in bed with the
United States. My vision of myself as a Canadian was certainly enhanced by the
three years I spent living in the United States, at which point I returned to
this country with deep gratitude for the sovereign country that it is.
Hon. Lowell Murray: Honourable senators, the subject of Canada-U.S.
relations reminds me to ask the Leader of the Government in the Senate a
question with regard to the softwood lumber negotiations. Does the government
expect that as part of any temporary agreement with the United States that
Canada will be required to discontinue the legal processes it has already
launched and which on every previous occasion it has won?
Hon. Sharon Carstairs (Leader of the Government): I thank the
honourable senator for that question. As he knows, softwood lumber is one of the
topics for discussion between the Prime Minister and the President this
afternoon. It is my understanding that any agreement that may be reached will
not be termed "temporary" — it will be permanent.
Senator Murray: Perhaps the wish is father to the thought.
Will the Leader of the Government in the Senate assure us that as part of any
agreement — no matter what they call it, temporary or permanent — Canada will
not be required to renounce the legal rights that it has begun to exercise on
this matter under the various trade agreements?
Senator Carstairs: The honourable senator is asking a somewhat
hypothetical question in that an agreement has not yet been reached. However, I
can assure the honourable senator that I will take his message to the cabinet
Hon. Ethel Cochrane: Honourable senators, my question is for the
Leader of the Government in the Senate. In the last few days, various media have
reported on staffing and training issues at the Canada Customs and Revenue
Agency. In particular, Canadians have been hearing that during peak periods
students are largely responsible for defending our borders.
I will admit that I have read different numbers. The Canadian Press says,
"students would make up about 25 per cent of the force when they're on the
job." The CBC's The World at Six reported last night that, during the
summer, almost half the staff working as customs officers are students. Perhaps
the Leader of the Government in the Senate can clarify these numbers for me.
Regardless of the numbers, we do know that students receive only two to three
weeks of basic training as compared to the nine- week intensive course that
officers take in Rigaud, west of Montreal, to become well versed in the 70
federal laws that they are responsible for enforcing. These students are
essentially on the job with less than half of the amount of regular training.
They are working when regular customs officers and inspectors are on holidays.
That is to say, students are working when there are significantly fewer
experienced veteran officers on hand and available to provide guidance and
support to those students with less training. The union representing Canada
Customs officers cited this as a problem.
Officially, the Canada Customs and Revenue Agency has said that the summer
replacement program has been around since the 1960s and there has been no cause
for alarm. Surely, in the post- September 11 world, this argument is, at best,
incredibly weak. To me it is disgraceful. It gives no comfort to us as
What is the government doing to ensure that all officers at our border are
trained to meet the demands of the job post 9/11?
Hon. Sharon Carstairs (Leader of the Government): I thank the
honourable senator for her question. As she, too, is a former teacher, I am sure
that she would not want her question to be construed as a means of limiting the
number of opportunities for young people working for the Government of Canada
during the summer.
As to her specific question, yes, students will continue to be hired. They
will be given a reduced training period because to give them the full-length
training period would encapsulate their entire summer work experience. However,
they are also given reduced responsibilities. They are not at work when there
are not others in charge who are fully trained as customs officers.
They have no power to enforce offences under the Criminal Code. Once they
have identified an individual as having problems related to the Criminal Code,
that individual must be turned over to a fully trained customs officer.
Senator Cochrane: Honourable senators, it is my understanding that
some of these students are on the front line. I would not be supportive of not
having our students work. I have stood up and defended our summer students many
times. I am rather disappointed that so many of them have not been able to get
It is my understanding that these students are on the front line. They should
have jobs, yes, but perhaps desk work or a similar job where they would not have
to make those decisions and where experienced officers would be present should
problems, such as terrorist threats, arise. That is not out of the question. It
could very well become a problem at our borders.
Following the September 11 attacks, the government set aside $54 million over
six years to hire 300 new officers. In order to meet these targets, the training
centre in Rigaud will be required to graduate 700 officers next year. This is a
steep increase from previous years when an average of 200 officers graduated.
This year, that number doubled to 400 graduates. It will, of course, nearly
double again next year to 700.
What changes will be made to adequately train these officers, particularly
with regard to training resources? How can we be assured, especially since last
September, that our borders are staffed not only with adequate numbers but also
with well-trained and well-equipped personnel?
Senator Carstairs: As the honourable senator knows, the budget
announced in December gave specific dollars for the kind of training development
to which she refers. That training development is evolving and is taking place
at this moment.
Hon. Michael A. Meighen: Honourable senators, my information is that
the training period for students is generally about two weeks, whereas the
training period for full-time employees is approximately eight weeks. Frankly, I
find it difficult to understand that six weeks could make the difference between
a fully trained person and a person who is seriously lacking in training, as has
often been said with respect to these students. Either the full-time people are
not sufficiently trained in six weeks, or the students at two weeks are at least
one third as well trained as the full-time employees and should be regarded as
Could not the difference of six weeks be made up over the period of a
summer's employment by students, or is it the intention to increase the period
of training for full-time employees?
Senator Carstairs: The amount of training for customs workers is under
examination, as is the initiative and training program. What the result of that
will be, only time will tell.
As the Honourable Senator Cochrane made reference to students being on the
front line, I wish to reiterate that when they put that passport, if you will,
into the computer and a problem is identified, they do not deal with the
problem. That is why they are not expected to have the same length of training.
Senator Meighen: The honourable leader might also consider when
reviewing the training program that many customs agents, having benefited from
the six weeks of training, are still required to work alone. Having unarmed
customs officers — which I agree with, incidentally — working alone at remote
posts causes those officers some disquiet, as well as those of us who have had
an opportunity to look at the situation.
Senator Carstairs: That is a very important question. As the review is
being conducted, I will take the honourable senator's message to the minister
Hon. J. Michael Forrestall: My question is for the Leader of the
Government in the Senate. Can the minister update us with regard to how the
Princess Patricia battle group is faring in Operation Harpoon?
Hon. Sharon Carstairs (Leader of the Government): To answer Senator
Forrestall's immediate question — and then I will respond to a question Senator
Forrestall asked yesterday — in terms of the operation to date, the only
knowledge I have is that things are going well. However, clearly, as I had
indicated in a preview yesterday, which I am sure the honourable senator picked
up, this is not an easy task. We have asked. They are in the midst of combat,
and we must obviously give them our best thoughts and prayers for their safety.
Yesterday, Senator Forrestall asked a question with respect to benefits. He
had asked a similar question on November 7, 2001. We answered that question on
November 22, 2001. However, I will repeat it, because it is an important
question and other honourable senators may wish to know the answer:
Order in Council P.C. 1989-583 placed all members of the CF Regular Force
and Reserve Force on active service when outside of Canada. This Order in
Council is still in effect today. Based on legal advice, it was decided to
discontinue the practice of issuing operation specific Orders in Council
because these would be redundant with the before- mentioned Order in Council.
Senator Forrestall: I appreciate that response very much, but I must
indicate to the minister that, to the best of my knowledge, I did not receive
the reply on November 22. It is important, and of course those troops and our
families have our prayers.
With regard to transparency and how much information will be available to the
public on this campaign, I would ask the minister: Is it the procedure that
every morning between 8:30 and 9:00, a senior director of communications from
the PMO holds a conference call or has some form of meeting at which the
Department of National Defence and Foreign Affairs are told what information
they are allowed to release with regard to the war on terror? Does that happen
on a fairly regular basis?
Senator Carstairs: Honourable senators, I do not know whether there is
a daily briefing of that nature. The honourable senator is even more familiar
with this file than I am. However, it should be noted that there was a general
press conference and press briefing yesterday at 12:30 convened by the
Department of National Defence. Those briefings will continue on a regular
basis, with the exception of the JTF2 elite troops. We will not, for matters of
security, release information about their specific activities.
Senator Forrestall: I want to read the minister's reply to that
question because transparency is very important. Informing families and
Canadians generally is most important at this very critical time.
Hon. J. Michael Forrestall: Honourable senators, to the Leader of the
Government, I wish to return to our favourite sparring subject. The new draft
document for the basic vehicle requirement specifications for the maritime
helicopter calls for an aircraft in ferry mode to be able to fly for only one
hour on its instruments. That means that, when flying on instruments in ferry
mode in bad weather, the new maritime helicopter would have difficulties, for
example, in flying from Saint John, New Brunswick to Shearwater. That is not
very far and somewhat useless. How long would it take to get across the country
if you were ferrying from Shearwater to Pat Bay in British Columbia?
Can the minister tell us why there is a drop in the capability for the
maritime helicopter? What would happen if they had to ferry a new maritime
helicopter, as I have said, from Shearwater out to the West Coast or if they had
to do it from shipborne areas with the NATO standing fleet?
Hon. Sharon Carstairs (Leader of the Government): The Maritime
Helicopter Project is certainly a favourite topic between the honourable senator
and me. I am somewhat surprised he did not congratulate the Sea Kings for their
marvellous performance to date in Operation Apollo. They have been enormously
successful and have been given excellent recommendations not only by Canada but
also by the United States and our other partners on their performance in various
However, as to Senator Forrestall's specific question about the Maritime
Helicopter Project — and I am sure he is delighted that it is coming to a
conclusion, as I am, in terms of putting out the final offer and making the
final decision — I wish to reinforce that the technical specifications of the
statement of operational requirements has not changed. It has in no way been
Senator Forrestall: Honourable senators, the requirement now is that
the vehicle shall not have to fly more than one hour on instruments. That is a
reduction. If it is not, I apologize. I think the minister has given me
misinformation or wrong information. I do not accuse her of dreaming up that
answer, it has been fed to her.
Hon. J. Michael Forrestall: Honourable senators, I wish to leave the
minister with this question: Can she find out for me today, and I will ask again
on Tuesday, how many engines our Sea Kings have gone through so far in Operation
Apollo? You can draw your own conclusion as to why I do not raise it every day.
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
it is a shame that Senator Forrestall does not raise the subject every day
because it would be a tribute to the Armed Forces who have, under very difficult
circumstances, flown planes that we know, and we have always admitted, need to
be replaced. There is no question about that. That is why we are going through
this whole process. Just as important as those who are in the flight crews are
those in the maintenance crews, who have been maintaining these aircraft at such
a heightened ability that they are able to perform so well in operations.
As to the specific request of Senator Forrestall, I do not know if that
information is available. However, I shall make an inquiry on his behalf.
Senator Forrestall: Honourable senators, it appears on the Web site.
If the leader would bother to take a look at it or have someone on her staff
look at it, perhaps she could respond to the question.
Hon. Roch Bolduc: Honourable senators, I see in the Ottawa Citizen
"Manley talks and the dollar drops."
Does this worry the Leader of the Government?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators,
the Deputy Prime Minister indicated exactly the reason Canada, through its
government, has adopted an innovation strategy. It is very clear that we have
concerns about our long- term productivity, even though the news out today is
quite reassuring. The new labour productivity stats show that it has increased
by 2 per cent. However, we still have a long way to go. Yesterday, the currency
of Canada did fluctuate, as did every other currency on the international
exchange, with the exception of the American dollar.
Senator Bolduc: After eight years in power, the government has just
said that there will be a new innovation strategy. Minister Manley was Minister
of Industry. Why did he not implement it then if it was so important?
Senator Carstairs: Quite frankly, the Honourable Allan Rock and the
Honourable Brian Tobin both have had the luxury of being able to make such
announcements, the plans for which were laid by the Honourable John Manley.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable
senators, I am pleased to table an answer to a question raised in the Senate on
February 19, 2002, by Senator Gauthier, regarding linguistic rights.
(Response to question raised by Hon. Jean-Robert Gauthier on February 19,
In spite of the Department of Justice's efforts, it will not be possible to
amend in time and in accordance with the requirements set in the judgement,
the agreement between the federal government and Ontario and the transfer
agreements between the province and its municipalities.
The deadline originally set by the Court did not take into account the
administrative difficulties arising out of the transfer to municipalities of
the responsibility for the prosecution of federal and provincial offences.
In a letter to the Deputy Minister of Justice, the Deputy Attorney General
of Ontario officially stated Ontario's commitment to continue its efforts to
conclude these agreements. Thus, the Department of Justice will present to the
Federal Court a motion for an extension of the period that was set by the
Court to complete the task.
The Commissioner of Official Languages and the Association des juristes
d'expression française de l'Ontario that were parties to the case were
informed of the motion.
The agreements between the Department of Justice and the cities of Ottawa
and Mississauga concerning the processing of parking contraventions in Ontario
were amended to comply with the judgement and they are most likely to be
signed before March 23, 2002.
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
And on the motion in amendment of the Honourable Senator Grafstein,
seconded by the Honourable Senator Ferretti Barth that the Bill be not now
read a third time but that it be amended in clause 3 by adding the following
after subsection 2:
3(3) The signification of royal assent by written declaration may be
witnessed by more than one member from each House of Parliament.
Hon. Jerahmiel S. Grafstein: Honourable senators, the origins of Bill
S-34 have a very curious trajectory. Royal assent, as honourable senators know,
has been a discussion for over two decades, and in 1991 a bill was introduced by
Senator Lynch- Staunton, Leader of the Opposition in the Senate, with the
support of the government. A wide consensus for his proposal was not obtained on
both sides. Nevertheless, the government saw fit to reintroduce it as Bill S-34
in October 2001. Bill S-34 was introduced on first reading essentially in the
same form, ignoring the concerns voiced on both sides of the Senate.
Bill S-34 underwent a thorough review by the Standing Senate Committee on
Rules, Procedures and the Rights of Parliament. The committee benefitted from
the views of all committee members, as well as the views of Mr. John Aimers of
the Monarchist League of Canada and Professor David Smith of the University of
Saskatchewan. I tabled a number of draft amendments to provoke a full debate to
illustrate this ceremony, the royal assent, lays at the core of our Constitution
— the "holy trilogy" of the Crown, the Commons and the Senate coming together
transforms our words into law.
However, in his response to the bill as amended by the committee, replete
with innovation and stage directions, Senator Lynch-Staunton said:
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
Obviously, a review of Professor Smith's remarkable evidence before the
committee, echoing the great constitutional scholar of Professor W. P. M.
Kennedy, that the royal assent is the conclusion of the building-up of law to
various rulings and detailed discussions in the committee is necessary briefly
to inform all senators about the origins and the background of royal assent.
Professor Smith testified: "The Crown is not an ornament, but the core of
Canada's parliamentary democracy. In and through Parliament, it embodies the
values that unite Canadians."
Concerning royal assent, "it is the time when the Queen in Parliament makes
law." He continued to explain the real sense that encapsulates the
representative of the Crown, which, he said: "...personifies the nation, the
Senate, which embodies the federal principle, and the Commons, which represents
the people through their representatives."
Professor Smith laid out the distinct constitutional differences that the
Crown plays in Canada compared to Britain or Australia. He said:
Canada is a federation composed of provinces but possessing two official
languages, official multicultural and the Aboriginal dimension. Parliament
functioning in all its parts (the Queen in Canada) representing sovereignty of
the nation and the Commons representing the people, and the Senate
representing the regions, reminds Canadians of the fundamental structure of
the Constitution. To renovate the Royal Assent ceremony, as originally
proposed by the Government in Bill S-34, would "submerge both the Governor
General and the Senate."
Honourable senators, I draw your attention to two important recommendations
in the committee report that were unanimously adopted by both the committee and
Your committee is of the opinion that the presence of both the Governor
General and the Prime Minister for Royal Assent on those occasions where a
customary ceremony is held in the Senate Chamber are elements in demonstrating
to the Canadian public the paramount purpose of Parliament in these law-making
functions and the public expression of the Constitution in Canada, wherein the
participation of the Queen and the two Houses of Parliament are conditions
precedent to the making of the laws of Canada.
The committee also stated that it believes that members of the Senate should
recognize the importance of their presence in enhancing the Crown in Parliament
as well as their role as representatives of Canadians in the legislative
To deal with the question of public education, paragraph five of the report
To further enhance Royal Assent, your committee believes that customary
ceremony of the Royal Assent should be televised and made available to be
broadcast on television and the Internet.
Honourable senators, the report concludes with this recommendation from
Since the granting of Royal Assent is designed in part to give the public
notice of a new law passed by Parliament, initiatives are essential to enhance
public knowledge of the significance and substance of the bills being assented
to by developing public education and communication strategies in order to
educate the public. The Senate should ensure that the broadcast production of
Royal Assent ceremonies include appropriate educational and informational
segments about the bills being assented to.
Appended to the report, honourable senators, is an important letter to the
chairman of the committee by the House Leader of the Commons, the Honourable
Ralph Goodale, and the Leader of the Government in the Senate, the Honourable
Senator Carstairs. I draw your attention to two paragraphs from that letter:
The government shares the committee's views that the Royal Assent ceremony
is an important tradition of Parliament and that measures should be taken to
ensure that it remains a key part of the legislative process.
The letter goes on to state:
The government would also support any decision by the Senate to televise
scheduled Royal Assent ceremonies. Such a decision would serve to improve
public awareness of both the processes and the institutions of Parliament.
The government agrees with the very interesting and innovative stage
directions approved by your committee and by the Senate.
Honourable senators, after extensive deliberation by your committee, we have
a renovated royal assent bill that will provide a royal assent process that is
new and improved, with at least two full public ceremonies each year that would
be televised. This will give members of Parliament in the Commons and the Senate
a unique opportunity to explain their work and the essence of the legislation
they have passed. Royal Assent will be television friendly. That will serve to
enhance the understanding of the public, not only about the role of the Queen in
Parliament or the Crown in Parliament, the Commons and the Senate, but also
about the essence and substance of important matters of legislation that are
rarely reported or fully explained otherwise in the media. These agreed stage
directions will enhance public education about Parliament, especially the Senate
and its essential law-making function.
Honourable senators, my modest amendment would ensure that the non-ceremonial
royal assent would have a permissive modicum of parliamentary approbation by
attendance of members of Parliament at any non-ceremonial assents.
We should thank Honourable Senator Lynch-Staunton for his efforts to bring
royal assent and the need for its renovation to the attention of the Senate.
Obviously, I disagree with him that royal assent is "meaningless." Honourable
senators, it is not "meaningless" if Her Excellency and both Houses of
Parliament, exercise the essence of sovereignty, which lies at the heart of
democracy and the adherence to the rule of law under our unique Constitution,
which is both measured and meaningful. Hence, a proactive educational process
surrounding royal assent will match symbolism with reality.
Honourable senators, ignorance of the law is no defence. This is a principle
— a canon — of our law. Public royal assent proclaims that canon. Practice and
principles march best when they march together. The Senate will emerge to be
seen in its vital yet unheralded role under the Constitution.
Honourable senators, I urge your support for my modest amendment.
On motion of Senator Pépin, for Senator Joyal, debate adjourned.
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.
Hon. A. Raynell Andreychuk: Honourable senators, I rise to speak to
Bill C-15A. The Standing Senate Committee on Legal and Constitutional Affairs
dealt with the issues in Bill C-15A and I wish to address three of those issues.
The Honourable Anne McLellan, former Minister of Justice, appeared before the
committee. She indicated that clause 5(3), dealing with the distribution of
child pornography, would be most helpful in our fight against child pornography.
In this case, I agree with the minister that we must stop any action that is
taken by any individual in Canada to promote, sell, make available or export in
any way child pornography, and that we must take this issue seriously.
However, I wish to support the amendment that indicates that while this
clause was certainly put in to attract the attention of and to stop those who
distribute child pornography, there is a reasonable inference that it could
adversely affect those who are custodians of the computer system. In other
words, it could be applied to those who provide the means and facilities of
The minister indicated that it was never the intention to trap these people
in the definition of "transmission." I want to put on the record that I do not
believe that it is good policy or good law to take a minister's intention as
something that could override clearly generic words in this subclause. "Transmit" or
"provide" each have a meaning of their own. Ministerial intent
may be of some value, but it is not helpful without a clarification such as the
amendment that was proposed and accepted by the majority of the Standing Senate
Committee on Legal and Constitutional Affairs.
The Criminal Code will stand alone when it is applied. It is not just a
question of the minister's intent. Once the bill is passed, something as
volatile as child pornography will lead prosecutors, police, informed citizens
and action groups to look at every means to prosecute and get at child
pornographers, as they should. The proposed subsection of the Criminal Code
reads, "Every person who transmits, makes available..." We will not be dealing
with police, judges, prosecutors or anyone in the justice field who will be as
current with the telecommunications concepts as perhaps they should be or they
will be in the future.
Honourable senators, many of us in this room do not understand fully the
telecommunications systems, nor the responsibility of a provider who simply
provides the hardware and who thus must not be held liable for the content. This
proposed subsection, which the minister put in the bill without the clarifying
amendment, could lead the justice system to come to the conclusion that those
who provide the hardware could be held accountable.
Therefore, the amendment is very much needed. It is not good law to simply
say that the telecommunications industry knows what it is about. It would not be
fair to put the telecommunications industry in the position of having to defend
itself. Nor do I think that it is good law to put judges, prosecutors and police
at all levels of government across Canada, in small communities and large
centres, in the position where they have to make that subtle distinction and
where they have to maintain the necessary understanding, which in time will grow
as it has in our telephone companies. Therefore, the amendment was warranted and
In no way does the amendment that we made allow any transmitter of
pornography to get off if they are perpetrating child pornography. If they are
well aware of the content inside the equipment or if they are outright
perpetrators, they will be trapped under the proposed subsection that addresses
knowingly transmitting pornographic material. The added amendment simply ensures
that by virtue of providing merely the hardware a person would not be classed as
Honourable senators, this is a highly volatile field. I believe that an
incident of child pornography and the outrage that accompanies it could drive
people to seek that charges be laid as quickly as possible. Therefore, the
clarification is warranted and the amendment is warranted.
I wish to turn to another area of concern. That is the area of whether there
should be an independent commission or whether the amendments within the bill
are sufficient to address those who are wrongfully convicted.
We have had ministerial discretion in our system for some time to allow,
after all appeals have been exhausted, an appeal to the minister to examine a
situation and to determine whether someone, despite the law being applied to
that person, is nonetheless innocent after being found guilty according to the
law. The minister was well aware when she came before the committee that there
have been many cases of wrongful conviction despite the system doing its best.
We know that we are in a system that is evolving and consequently errors can
occur. Despite the best efforts of the people in the system, these errors have
led to convictions of people who are innocent.
The minister would not yield to having an independent commission such as the
one the British have put in place. Many experts are heralding the British system
as the way to go after much study. I believe many of those experts are in
I wish to refer to the two witnesses who were the best in my opinion of those
who appeared before the committee. Mr. Melvyn Green is a board member of the
Association in Defence of the Wrongly Convicted, and Ms Dianne Martin is a
professor with the Innocence Project of Osgoode Hall Law School.
Both of these witnesses have conducted projects that have looked at countless
cases of the wrongfully convicted. Their assessment was that we should hold off
for the time being because there are some independent inquiries underway that
could yield good information for us as to how to structure this bill. The
minister did not seem to wish to wait.
Second, these two witnesses very much support an independent commission. The
minister did not. I wish to refer to Ms Dianne Martin's testimony. She said
before the committee:
The assumption that the convictions of murder cases are always sound, correct
and remedied, when errors occur, at an appeal level is simply false.
The more troubling assumption that was offered with great sincerity by the
minister today, namely, that her ministry catches the rest, is the worst
fallacy. This has been studied more than once in Canada. I participated in a
review of more than 100 cases on wrongful conviction and analyzed them for the
Kaufman Inquiry. We identified common causes and common errors that police
officers make. We are the same as England. Noble cause, corruption, the ends
justify the means, as we rush to judgment to resolve a terrible crime, which is
a recipe for wrongful conviction, occur identically here, as they do in Great
Our system, under section 690, has also been studied. A graduate student that
I am working with at Simon Fraser University has analyzed the section 690 record
for the last 90 years. It is an appalling record because it is not catching the
cases of true injustice. It is a record of trying to throw them out.
Ms Martin continues:
From that perspective, you would not at all be surprised that the kind of
conclusions that royal commissions have come to in Canada, the commissions of
inquiry have come to in the United Kingdom, that a variety of institutions in
the United States have come to, and similar bodies in Australia have come to,
is that we do not get it right all the time. It is not because of errors of
law; it is because we do not get it right.
You cannot start in an adversarial stance. That is one of my three points
of great disagreement with the proposition that by tinkering —
— that was her assessment of what we are doing with the amendments, tinkering
— with the appearance of section 690 by making it available to offences
with the maximum imprisonment of six months —
Ms Martin continues:
You do not fix this problem with window dressing and procedural
technicalities such as "Now we make the form public."
You fix it by removing it from someone whose job it is to enforce the law.
I want a Minister of Justice who stands up for our system of justice; it is a
wonderful system — no better than the other countries where we get it wrong,
but far better than many in the world. I want her to stand up for our system
of justice, but I do not want her to pretend to turn herself inside out and
take the position of doing justice rather than mercy.
You heard the minister. She views the task of remedying the conviction of
an innocent person as an act of mercy. It is surely not an act of mercy; it is
an act and a need of fundamental justice. Justice must always be fair,
objective and neutral. It must start at neutral.
Therefore, the standpoint is the fatal flaw.
Honourable senators, as the person who has probably spent more time looking
at wrongful convictions than anyone else in Canada, Professor Martin's position
is that the minister cannot be part of the system in which she judges herself
and that justice system. Justice has to be seen to be done and it deserves a
neutral reassessment. Therefore, an independent commission is the way to
My submission, honourable senators, is that we pass this bill with our
technical amendments, including that of Senator Joyal, who believes it would be
helpful to have retired judges assisting the minister. I do not believe that
this is good enough. I believe that it should be not only judges, retired
lawyers and those in the justice field who assist the minister, but also the
public at large, whose common sense and intelligence should also prevail.
However, even that addition falls short of the test of being totally neutral.
Until such time as we in Canada have an independent commission, we will not
have a fair and just system for those who have been wrongfully convicted.
Honourable senators need only look at the cases of Marshall and Milgaard. I do
not believe that the justice system failed, per se, because we do have one of
the best systems. However, we are dealing with human beings in this system and,
therefore, the only way to ensure that fundamental justice is done is to have a
neutral system with an independent commission.
I am most disappointed that we have not seen in the previous minister, or in
the new minister, a willingness to proceed as far as the British and Australian
systems. Until that happens, we have cause for concern that there will be more
Milgaards and Marshalls in our system, bringing further disrepute to our justice
I rise to speak today because the justice system, particularly in
Saskatchewan, has come under increased scrutiny by the citizens at large and
particularly by the Aboriginal community. I very much defend and support the
Saskatchewan system because it works fairly. However, it is necessary for that
system to improve and overcome its difficulties. It can only do so if there are
independent inquiries and commissions.
Until we begin to look at independent scrutiny of the justice system, and the
system can withstand that kind of scrutiny, we will have detractors of the
system, rather than supporters.
I wanted my comments on the record. I would appeal to the government and the
new minister to rethink the premise that Bill C-15A is only the start of a
process. Our justice system will continue to be fundamentally flawed until such
time as we truly consider an independent review process.
Hon. B. Alasdair Graham moved the third reading of Bill C-35, to amend
the Foreign Missions and International Organizations Act.
He said: Honourable senators, I am pleased to address the Senate today on
Bill C-35, which amends the Foreign Missions and International Organizations
The Standing Senate Committee on Foreign Affairs has completed a thorough
review of this initiative and adopted the bill without amendment. The Foreign
Missions and International Organizations Act, first enacted by Parliament in
1991, provides for the special legal status in Canada of representatives of
foreign states and international organizations. It implements the Vienna
Conventions on Diplomatic and Consular Relations and the Convention on the
Privileges and Immunities of the United Nations in Canada.
These are the international conventions intended to advance bilateral and
multilateral discourse between countries by providing for a regime of privileges
and immunities that enable state representatives to defend and protect their
countries' interests without fear of retribution or persecution.
During its examination of Bill C-35, the Foreign Affairs Committee had the
opportunity to discuss the proposals with the Minister of Foreign Affairs, who
emphasized the importance of modernizing this legislation at the present time
when it is imperative that our nation demonstrate leadership in the
international arena on issues that are of major importance both to Canada and
I agree with the minister that Canada has been and must continue to be a
leader in the process to develop solutions to endemic world problems.
Multilateralism remains the key to addressing many of these global phenomena,
whether it is poverty, terrorism and transnational crime, environmental
degradation or human and international security.
The main proposals in this bill permit Canada to play a leading role in
international, multilateral diplomacy, to fulfil its obligations in hosting the
upcoming G8 summit, and to continue to present Canada as a prime location for
the establishment of head offices of international governmental organizations.
Honourable senators, in the present legislation, the legislative definition
of an "international organization" has been interpreted to permit orders to be
made under the act only for international organizations created by treaty, such
as the United Nations. This bill ensures that we can treat important meetings
such as the G8 in the same manner as we treat international organizations such
as the United Nations and the International Civil Aviation Organization, ICAO.
This amendment to the definition of international organizations is necessary
because, in modern diplomatic practice, important governmental, international
and multilateral matters are increasingly dealt with at international
conferences by international organizations which are not necessarily created by
treaty, such as the G8 or the Organization for Security and Cooperation in
Another proposal of the bill provides a statutory base for the secure
functioning of international governmental conferences held in Canada. The
proposal will provide the police with clear statutory authority to provide the
necessary security measures at the upcoming G8 summit in Kananaskis, Alberta.
As well, by granting the required immunity to international inspectors who
come to ensure that Canada is respecting its commitments in relation to chemical
weapons or nuclear test bans, the government is enabling Canada to comply with
the Chemical Weapons Convention and the agreement with the Preparatory
Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization.
In a further proposal, the bill recognizes permanent missions accredited to
international organizations in Canada by granting them tax privileges
corresponding to their status. It is worth noting that more than 40 missions are
accredited with the International Civil Aviation Organization without having
access to the privileges they should have. Bill C-35 corrects this anomaly.
Finally, Bill C-35 will clarify that the Order in Council for an
international organization or meeting excludes the obligation to issue a
minister's permit to allow entry to Canada of a person who falls within the
inadmissible classes under the Immigration Act.
I assure all honourable senators that this amendment does not eliminate the
careful screening process put in place by the Departments of Foreign Affairs,
Citizenship and Immigration, the RCMP and CSIS for foreign delegations attending
international conferences in Canada. An Order in Council for international
organizations and their meetings provides for immunity from immigration
restrictions, not from immigration formalities.
However, this change means that when a foreign leader such as Nelson Mandela,
for example, comes to Canada for an international conference covered by an order
under this act, he will no longer require a minister's permit to enter into
Canada although he is technically inadmissible due to his criminal record.
Honourable senators, the Foreign Affairs Committee has benefited in its
deliberations from the arguments put forward by witnesses representing Amnesty
International. The representatives of Amnesty are concerned that granting
immunity to non-treaty-based international organizations and their meetings will
create a climate of impunity for state leaders alleged to have committed war
crimes or crimes against humanity.
Parliament has clearly provided, through its enactment of the Crimes against
Humanity and War Crimes Act, that no one may claim immunity from arrest or
extradition in Canada if they are subject to a request for surrender by the
International Criminal Court or a tribunal treated by a United Nations Security
Council resolution named in the schedule to the Extradition Act, currently the
international criminal tribunals for the former Yugoslavia and Rwanda.
To this end, section 48 of the War Crimes and Crimes Against Humanity Act
overrides an order made under the Foreign Missions and International
Organizations Act. Section 48 states:
Despite any other Act or law, no person who is the subject of a request for
surrender by the International Criminal Court or by any international criminal
tribunal that is established by resolution of the Security Council of the United
Nations and whose name appears in the schedule, may claim immunity under common
law or by statute from arrest or extradition under this Act.
I wholeheartedly agree with the position of the Amnesty International
witnesses who insist that Canada maintain its vigilance in respecting the human
rights standards that we set for ourselves and for the international community.
Canada makes a vital contribution to the development of international human
rights standards — standards that we strive conscientiously to adhere to at home
— and on the world stage.
The passage of this bill clearly advances this goal by creating the
appropriate mechanisms for the proper functioning of non- treaty-based
international organizations. It further contemplates the possibility that
occasions may arise when, in the interests of promoting justice and peace in the
international arena, it is necessary for Canada to dialogue with representatives
of regimes alleged to have behaved in a manner inconsistent with international
human rights norms.
Honourable senators, the Foreign Affairs Committee paid close attention to
the concerns of Mr. Borovoy from the Canadian Civil Liberties Association. He
raised concerns about the scope of police powers provided for in the bill in
order to ensure the secure functioning of international governmental conferences
held in Canada.
I am pleased with the response provided by the government on this issue. The
responses that we have received show that this proposal clarifies in statute the
responsibility of the police to enable the proper functioning of international
meetings. They also show that it has been carefully drafted in light of the
common law and statutory duties conferred on the police to keep the peace, to
protect persons, including internationally protected persons, from harm and to
protect persons engaged in lawful demonstration from unlawful interference.
Indeed, this proposal does not alter the fact that any security measures
taken by the police will be subject to Charter scrutiny and must be justified as
reasonable in the circumstances. In other words, any police measure that limits
a Charter right, for example, the freedom of expression or the freedom of
assembly, must be justifiable in a free and democratic society. The right to
peaceful protest is a vital part of the functioning of Canadian democracy. The
proposal is designed to protect that right while ensuring that Canada can
continue to successfully host these important international events.
I conclude my remarks, honourable senators, by emphasizing that the clear
purpose of Bill C-35 is to modernize the Foreign Missions and International
Organizations Act. It has been proposed in order to ensure Canada's success in
hosting important international conferences.
This bill recognizes international organizations such as the Organization for
Security and Co-operation in Europe, the G8, the G20 and other international
organizations that are not treaty- based and, as a result, are not currently
covered by the Foreign Missions and International Organizations Act.
This bill also proposes to create a safe environment for the functioning of
the diplomatic process within international meetings and organizations.
Certainly this is a timely and important bill, given the fact that Canada is
hosting the G8 summit in Alberta in just a few months, and it is vital to have
this bill in place in order to provide just that kind of safety and security.
I thank all honourable senators who participated in the discussions on this
bill and who will continue to participate in the debate, and most especially I
wish to thank the witnesses who appeared before the Standing Senate Committee on
Foreign Affairs to express their views.
Hon. Eymard G. Corbin: Honourable senators, Bill C-35, to amend the
Foreign Missions and International Organizations Act, proposes additions to the
privileges and immunities regime of the existing legislation. It also grants
extraordinarily unlimited policing powers that aim to ensure greater security
when international organizations hold high-level meetings in Canada.
Clause 5, which grants these powers, is a big problem. In these times of
mourning, but also of hysterical overreaction that is not seeming to wane, it
effectively sets the stage for drastically containing the public's democratic
right to protest.
Before I proceed, let me be clear: I am unequivocally opposed to any kind of
violent protest. When I refer in my remarks to the right of protest, I am
implying that that protest is peaceful. Given the potential granted by this bill
for discretionary encroachment on the right of protest that will result in
unfettered police discretion, I am of the opinion that this separate concern
should have been the subject of an altogether distinct bill with an in-depth
examination of its implications. But no: hurry, push, rush. Who cares?
This additional instance of new police powers signifies to me that the time
has come for a consolidation bill spelling out the various powers that
Parliament is prepared to recognize for the federal police force and those
associated with them in given circumstances.
Clause 5 authorizes the RCMP to take "appropriate measures to the extent and
in a manner that is reasonable under the circumstances" to ensure security at
international get-togethers. This kind of unfettered discretion in the hands of
police can potentially sin against the democratic right of peaceful protest for
two reasons. First, there is an inherent conflict of interest in allowing police
to improvise their own enforcement initiatives. Remember Vancouver. Second, and
more important, the right to protest is jeopardized. Intimidation and hyper
behaviour by police must not be tolerated when it tends to want to deter protest
even before it begins.
The role of police is to enforce orders, not to make them up. The government,
on the advice and approval of Parliament, is ultimately responsible for
implementing policy and for deciding what is reasonable, not the police, and
certainly not the courts after the fact. It is, in my opinion, extremely risky
to delegate powers that are tantamount to police creating policy in an ad hoc
manner under pressure to suit their assessment of events, of individuals, of
groups, of actions based on their subjective evaluation. "Repress now, explain
later" is not reassuring in any context.
Honourable senators, the right to protest is paramount. It is a measure of
the health of our democracy. Clause 5 of the bill quietly validates the crazy
notion that all protest is unworthy, suspicious and potentially dangerous. The
Charter guarantees the freedoms of expression, peaceful assembly and
association, subject to such reasonable — there is that word again,
"reasonable" — limits prescribed by law that can be demonstrably justified in
a free and democratic society.
What good are these guarantees if, when they are put to the test, they are
bound to fail because of the excessive use of intimidation and force? There is
supposed to be a balance between these freedoms and what is necessary,
reasonable and proportionate in the circumstances. How can a balance be achieved
if the subjective assessment of what is necessary, reasonable and proportionate
in any given circumstance is completely entrusted to police, who have a
competing interest vis-à-vis the protesters? The police must be restrained in
the exercise of the kind of discretion they are given. The bill, as it now
reads, does not do that.
Alex Neve, the Secretary-General of the Canadian Section for Amnesty
International, concurs. In answer to a question I put to him in committee, he
Although we have focused on the sections dealing with immunity, the section
dealing with the security of intergovernmental conferences did not escape our
notice. We are an organization that does demonstrate. We are an organization
that is committed to peaceful protest. We would never allow or encourage our
own members to engage in any non-peaceful protest and speak out, criticize and
condemn acts of violence by others in any form of protest.
At the same time, we also have over the years, in connection with a number
of protests associated with conferences of this sort —
— the sort that the bill deals with —
— made recommendations to government, police forces and security agencies
about the importance of adopting policing responses to the demonstrations that
take place at these conferences, which are wholly consistent with
international human rights standards and which do adequately protect the right
to peaceful protest. This right is protected both in the sense of protecting
peaceful protest from the non- peaceful protest because there can be that
concern but also ensuring that the peaceful protesters are not unduly limited
in their right to protest by police forces.
This section clearly gives a wide power to the RCMP, in particular, to take
any "appropriate measures, including controlling, limiting or prohibiting
access to any area to the extent and in a manner that is reasonable —
— there is that word again —
— in the circumstances."
That is a provision that we will watch closely as it is applied in
connection with international conferences here in Canada. If I were to make a
recommendation, it would be for some language to be included in that provision
which makes it clear that international human rights standards must be part of
understanding what is reasonable in the circumstances.
Honourable senators, the right to protest is as fragile as it is fundamental.
In this age of political opportunism, protest is often dismissed or even mocked
as an activity for fanatics or weirdos. In reality, protest is the most
important and sometimes the ultimate opportunity for ordinary but caring people
to express their dissent. The quality and consistency of our democracy is
imperilled when protest is intimidated or suffocated. For these reasons clause 5
of Bill C-35 leaves me wondering and unsatisfied, but I have spoken my mind.
Honourable senators, I predict that we will revisit these issues. I would add
that the new and controversial initiatives taken by the government under this
bill are highly problematic. They pose grave moral challenges for well-thinking
people who spend all their lives working toward greater justice for all. The
bill may be high diplomacy for some, but it does not gather my support.
Hon. Terry Stratton: Honourable senators, I should like to adjourn the
debate in my name, recognizing that while I agreed to have Senator Corbin speak
and recognizing that the second speaker normally is given 45 minutes, the
opposition reserves the right, with the agreement of honourable senators, to
speak for 45 minutes on this issue, should it choose to do so.
The Hon. the Speaker: Is it agreed, honourable senators?
Resuming debate on the motion of the Honourable Senator Gauthier, seconded
by the Honourable Senator Callbeck, for the adoption of the Seventh Report of
the Standing Joint Committee on Official Languages entitled: Good intentions
are not enough, tabled in the Senate on February 21, 2002.
Hon. Shirley Maheu: Honourable senators, I am proud to rise today to
speak to the tabling of the seventh report of the Standing Joint Committee on
Official Languages on the services offered by Air Canada, entitled Good
intentions are not enough.
I was part of the Canadian delegation to a NATO meeting and, unfortunately, I
was unable to table this report on February 21. Fortunately, Senator Gauthier
was happy to table it on my behalf.
During the 10 months that preceded the tabling of this report, the Standing
Joint Committee on Official Languages carried out an exhaustive study of Air
Canada's case. As is mentioned in the report, many Official Languages
Commissioners have already noted that Air Canada faces major obstacles to full
compliance with the Official Languages Act.
Following its 1998 privatization, it is evident that Air Canada and its
subsidiaries have not performed well in the area of official languages. I would
go so far as to say that the non-compliance of Air Canada dates back even
further, when the Canadian government was not overly exacting or demanding on
this issue. Even after a major review of the legislation, as well as a review of
the small percentage of francophone staff members and of the relatively high
number of complaints, the situation did not improve over the years.
The committee concluded that Air Canada needs to make greater efforts to
respect both official languages of our country. To that end, its report included
sections on a presentation of the organization, historical background,
linguistic obligations, evidence, observations and recommendations. Our
committee made 16 such recommendations. Then there were questions for the
government, and several appendices where we had the possibility of including
I would like to add that the pursued objective of the joint committee was to
improve Air Canada's client satisfaction. Therefore, our mandate was to help Air
Canada improve their service delivery by asking the government to clarify
certain laws applicable to Air Canada and its subsidiaries.
Meanwhile, Air Canada's President and CEO, Mr. Robert Milton, seems very
concerned about the company's current situation, and I am confident that he will
take this occasion to improve the linguistic problem and, hopefully, ensure that
Air Canada's services are provided in French and English at all times.
Finally, I would like to address one of the concerns Senator Gauthier
addressed in his speech of March 7 of this year. Senator Gauthier suggested:
The normal, logical process that should be followed when a committee of the
Senate or a joint committee of the House and Senate makes a report is that we
should receive a comprehensive answer from the government as to what it thinks
about the proposals given to it.
I understand Senator Gauthier's statement that we should have this kind of
procedure. In fact, the Standing Joint Committee on Official Languages has
asked, on page 53, that a government response be given to this report.
Resuming debate on the motion by Senator Gauthier, seconded by the
Honourable Senator Lapointe,
That a Message be sent to the House of Commons objecting to its decision of
February 21, 2002 to append unilaterally a dissenting opinion to the Seventh
Report on Official Languages, and thus ignore the legitimate rights of the
Senate in a matter relating to a Joint Committee.
Hon. Shirley Maheu: Honourable senators, in response to the motion by
Senator Jean-Robert Gauthier that a message be sent to the House of Commons
objecting to its decision of February 21, 2002 to append unilaterally a
dissenting opinion to the seventh report of the Standing Joint Committee on
Official Languages, and thus ignore the legitimate rights of the Senate in a
matter relating to a joint committee, I wish to make a few clarifications.
Obviously Senator Gauthier is raising a basic problem affecting the rules
relating to joint Senate and House of Commons committees. The House of Commons
has rule 108(1)(a). The Senate has nothing similar authorizing the said chamber
to accept a dissenting report. A number of senators have already discussed this
problem. For example, Senators MacEachen and Gauthier, in November 1994, pointed
out this breach of our rules and procedures.
As you can see in Document No. 1 that I have distributed to you, rule 90 of
the Rules of the Senate of Canada does not make any reference to
dissenting opinions. This suggests that it is perfectly possible to also include
reports to the Senate. In other words, it implies that if something is not
prohibited by the rules and procedures of the Senate, we can make use of it.
Again, I refer you to specific examples where dissenting reports were accepted
in the Senate. In Document No. 9, I mentioned four reports. I stress the term
"reports," because while an opinion is expressed in a few paragraphs, a report
has several pages.
As far as I am concerned, this is not a new problem and, unfortunately, it
has never been totally resolved.
Senator Gauthier added in his speech that this dissenting report was neither
discussed by the Standing Joint Committee on Official Languages nor included in
the Official Languages report by Mr. Bélanger in the House of Commons or by
himself in the Senate. The possibility of accepting a dissenting opinion was
indeed discussed and accepted by the committee on February 18, 2002.
In the Minutes of Proceedings, the committee included:
Pursuant to Standing Order 108(1)(a), the Committee authorizes the printing
of the dissenting or supplementary opinions by Committee members as an
appendix to this report immediately after the signature of the Co-Chairs, that
the dissenting or supplementary opinions be sent to the Co- Clerk of the House
of Commons, in both official languages, on/or before Tuesday, February 19,
2002 at 5:00 p.m.
I would like to point out that Mr. Reid's dissident report was presented and
then accepted for tabling in the House of Commons. The word "annexed" was
never used. Consequently, the report, as submitted by MP Bélanger and Senator
Gauthier, included only one dissenting opinion, that being from MP Godin.
The Table officers or the Journals department, for some reason, decided to
append or, in French, "annexer" Mr. Reid's report. The Speaker of the House is
now looking at this issue to see how the word "annexer" or "append" came to
be used rather than "table" or "present."
When Mr. Reid talked about his dissenting opinion, he advised that the
airplane he was sitting in had an electrical fire. Consequently, his flight was
delayed and that is the reason he could not submit his dissenting report on
time. I feel this is an extenuating circumstance.
While it is true that the Official Languages Committee did not authorize the
dissenting report on February 21, the House of Commons, which is the master of
its own decisions, decided to accept it unanimously. I suppose Scott Reid did
not know that, before even attempting this, he should have come to the Senate.
In any event, when he tried to present his report it was noted that it was
not translated. Since translations are absolutely necessary, he had to wait
until February 21, when both were done.
Senator Gauthier says that the House of Commons exceeded its authority by
unilaterally agreeing to append Mr. Reid's dissenting opinion. I say that the
House of Commons, like the Senate, can do whatever it wants, with unanimous
In light of all these allegations, I can affirm with certainty that the
Standing Joint Committee on Official Languages has neither the authority nor the
legitimacy to change the rules and procedures of the House of Commons or of the
Senate. The existing rules are not perfect, but they are what they are.
In my opinion, sending a message to the House of Commons would appear
inappropriate, for the reasons that I have just enumerated. I strongly suggest
that we do not send such a message.
I thank honourable senators for their attention.
The Hon. the Speaker: Will the Honourable Senator Maheu respond to a
question from the Honourable Senator Gauthier?
Senator Maheu: Yes.
Hon. Jean-Robert Gauthier: Honourable senators, I do not want to
pursue this debate indefinitely. However, I think that certain points should be
answered. Mr. Reid, a member of the other House, is not the lone member of the
Alliance Party. If he was unable to be in attendance in the House of Commons on
February 18, when the report was accepted, and he himself admitted that he had
been delayed, surely, then, another member of his party could have acted for
him. He even read into the record the date and the hour, which was February 19
at 5 p.m., at which time neither a report nor a dissenting opinion would be
Is the honourable senator aware that Mr. Reid read that into the record and
that, indeed, he was wrong? That he was delayed does not enter into any
consideration. The report was not tabled at the appropriate time. However, let
us leave that matter aside.
Senator Maheu said that what is not within the rules should be acceptable. I
beg to differ. If it is not in the rules, then it cannot be done. I would quote
from Beauchesne's Parliamentary Rules and Forms, which states:
If a member disagrees with certain paragraphs in the report, or with the
entire report, this disapproval may be recorded by dividing the committee
against those paragraphs to which objection is taken, or against the entire
report, as the circumstances of the case require.
Honourable senators will find the same rule in the Companion to the Rules of
the Senate of Canada. There is a big difference between a minority report and a
dissenting opinion. There is no such thing in the Senate. I know the procedure
in the other place; I was there for 20-some-odd years. They can do that there.
They can table dissenting opinions to a report. I agree with that.
We do not have such a procedure in the Senate. My point to the senator is
that the House of Commons unanimously accepted to append, which is written in
the Journals of that day, and it is on the record.
The Journals of the House of Commons indicate that the dissenting
opinion was appended to the seventh report of the Standing Joint Committee on
Official Languages. That is a fact. What I do not like is that the serious work
done by the Senate on this matter has not been recognized. It is unacceptable
that the entire procedure prohibits someone from appending a dissenting opinion
to a report tabled by a joint committee, or having someone else do so.
Can the honourable senator tell me who signed the report? She was not here
today. I presented the report, but I did not sign it.
Senator Maheu: Honourable senators, in answer to the last question of
Senator Gauthier, I have not seen the report since it was deposited. The
honourable senator said that other members of the Alliance Party could have
deposited the report. The member was sitting on a plane on the morning of
February 19. The plane caught fire. He could not get out of the airport.
Therefore, he could not give his report to anyone else. If he could have left
the airport, he would have had that report in by 5 p.m. on February 19.
In reference to the rules, I have so often heard about what we "cannot" and "should not" do. Honourable senators, we can do anything we want to in this
house by unanimous consent, whether it is written or not written. We do it all
Senator Gauthier: No, we do not.
Senator Maheu: I shall not argue with the honourable senator.
Senator Gauthier spoke about the Journals having annexed the dissenting
opinion. The House was asked: May I present a report? The Speaker asked if Mr.
Reid could "table" a report, and all of a sudden it was annexed. You can table
a report or present it. Does that mean it is to be "annexed"? The word "annexed" was never used. I am not quite sure how Table officers deal with
I would read from the February 18 Minutes of the Proceedings of the Standing
Joint Committee of the Senate and the House of Commons on Official Languages,
Pursuant to Standing Order 108(1)(a) the Committee authorize the printing
of the dissenting or supplementary opinions by Committee members as an
appendix to this report immediately after the signature of the Co-Chairs, that
the dissenting or supplementary opinions be sent to the Co-Clerk of the House
of Commons, in both official languages, on/or before Tuesday, February 19,
2002, at 5:00 p.m.
I agree that Mr. Reid was wrong. He did not have it available in both
official languages. The man was stuck on a plane that was on fire. We, in the
Senate, I am quite sure, would have given unanimous consent as well.
Senator Gauthier: Who signed that report? Did the Honourable Senator
Maheu sign that report?
Senator Maheu: I have not even seen the report. It was presented on my
behalf and I have not seen it.
The Hon. the Speaker: Honourable senators, we have reached the end of
the Order Paper. It is now appropriate for Senator Cools to take the floor on
her question of privilege.
Hon. Anne C. Cools: Honourable senators, I rise to speak to this
question of privilege. I shall be asking His Honour to make a ruling, a finding
of prima facie breach of privilege. Accordingly, if His Honour makes such a
finding, I am prepared to move a motion that I believe will remedy and correct
I should like to say, at the outset, that our Senate rules inform us that a
senator's first duty is to defend our privileges. Rule 43(1) states:
The preservation of the privileges of the Senate is the duty of every
Senator. A violation of the privileges of any one Senator affects those of all
Senators and the ability of the Senate to carry out its functions outlined in
the Constitution Act, 1867. Action to ensure such protection takes priority
over every other matter before the Senate...
I should also like to remind honourable senators that the role of the Speaker
of the Senate in the consideration of a question of privilege, prima facie, is
confined not to deciding the question, but to deciding whether or not the motion
should have priority over other issues, but not the substance of the question.
It is deemed in our system and process that the question of privilege is
actually decided by the entire chamber.
In addition, I should like to say to honourable senators that order and
decorum are necessary characteristics of Parliament, a sine qua non. The
literature on parliamentary and unparliamentary behaviour and parliamentary and
unparliamentary language is profound. As parliamentarians, we share in the
mighty phenomenon called the privileges of Parliament, the mightiest of which is
the freedom of speech during proceedings in Parliament. This privilege was
acquired by the bloodshed of successive generations. I hold these privileges, as
does the Senate, jealously. That is the tradition.
Honourable senators, I am saddened by certain events that have occurred
recently in this chamber. It is most unfortunate that the level of debate in
this place has degenerated into immature outbursts that contribute nothing to
the subject, a subject that is probably the most important one to my mind that
has been placed before us: the subject, the meaning of and the law of marriage.
Marriage, as we know, is fundamental to the social fabric of our community.
Honourable senators, I have listened to the debate on Bill S-9 in this
chamber. What I have heard, in my judgment, has been blasphemous against the
Catholic Church and against the Senate.
On Wednesday, March 6, 2002, in Senate debate, Senator LaPierre told us:
— every conceivable church and religion we believe in...have all been
established by men wearing skirts. The Taliban, who also wear skirts, were
only following the dictates of tradition.
Senator LaPierre continued to tell us that, after all, the church had
executed a "campaign that coincided, oddly enough, with what became the
compelling obsession of most religions: anti- Semitism." He continued to attack
the Senate about my bill, saying:
— the Senate would become a co-conspirator in the denial of a right to a
particular segment of society while according it to others.
Senator LaPierre concluded that Bill S-9 was "unnecessary, discriminatory and
Honourable senators, I am working my way to my question of privilege. I have
been troubled that the Senate seems to have been overtaken by self-indulgent,
egocentric rants and outbursts which seem to have replaced sound and reasoned
argument, as juvenile histrionics, puerile theatrics and other antics seem to
have overtaken logic, rational formulation and reasonableness. Such activity, I
would submit, does a disservice to the debate, to the Senate, to senators, to
homosexual persons, to all just persons and to all Canadians. It is not
becoming. It is not worthy. It is also unparliamentary.
Honourable senators, the first duty of any member, senator or minister in our
system of government is to uphold and defend the law. This Parliament, in the
year 2000, passed Bill C-23, the Modernization of Benefits and Obligations Act,
which at section 1.1 states:
For greater certainty, the amendments made by this Act do not affect the
meaning of the word "marriage," that is, the lawful union of one man and one
woman to the exclusion of all others.
Similarly, less than one year ago in this very session, we passed Bill S-4,
the Federal Law-Civil Law Harmonization Act, No. 1. Section 5 states:
Marriage requires the free and enlightened consent of a man and a woman to
be the spouse of the other.
Bill S-9 supports the Senate position, the position adopted by the
government, the position the Attorney General has adopted in the three Charter
challenges across the country, as well as the position adopted in the British
Columbia Supreme Court by Mr. Justice Ian H. Pitfield.
I should like to add, honourable senators, that Beauchesne's Parliamentary
Rules & Forms, sixth edition, at paragraph 479, states the following:
A Member may not speak against or reflect upon any determination of the
House, unless intending to conclude with a motion for rescinding it.
Senator LaPierre has reflected on the Senate, its votes and its judgments,
and has declined to use the proper procedure to persuade this chamber to adopt
or accept an opposite or contrary proposition.
Honourable senators, the first duty of a senator is to uphold the
constitution of the Senate. The constitution of the Senate informs that a
contrary or opposite proposition to the one adopted last April cannot be adopted
by the Senate in the same session. This senator seems not to grasp that any or
all judgments of the Senate on the subject of marriage binds and includes him.
It includes all of us.
My Bill S-9, to remove certain doubts regarding the meaning of marriage,
simply restates and tidies the process and the existing law.
Honourable senators, I assert that my privileges as a senator have been
violated in the following ways. In particular, I wish to refer to yesterday's
Debates of the Senate.
Yesterday, during debate on Bill S-9, as I was attempting to ask some
questions of our colleague Honourable Senator Lois Wilson, who had spoken on
Bill S-9, I found myself in an amazing position: I found myself actually having
Honourable senators, I do not wish to repeat the exchange between Senator
LaPierre and myself. However, I should like to say that some of it is actually
recorded in the Debates of the Senate of yesterday. To be exact, there
were two statements where Senator LaPierre had been, to my mind, sitting behind
me, goading me. I offered him the floor. What captured my attention about his
goading was that it included particular and peculiar statements about a
particular justice, Mr. Justice Ian Pitfield.
Honourable senators, if you look at the record of yesterday, you will see
that I said:
Honourable senators, perhaps I could defer and let my friend Senator
LaPierre speak. He seems to want to say something.
The record shows Honourable Senator LaPierre saying:
Honourable senators, I was just telling Senator Cools that judges can be
This is what the record shows here, but that is not what Senator LaPierre had
been saying behind me. Behind me, his remarks were specifically about Mr.
His Honour seems to have kept right on. At that point, Senator LaPierre
proceeded to continue to goad me in a very aggressive way, hollering, "Sit
down, sit down." At that point, some of the exchange shows up on the record
again. The Hansard record of yesterday shows me saying:
Out of order. I want an apology from this man.
I thought, at the time, that I should have had an apology. The matter would
have been settled had Senator LaPierre sprung to his feet and made an apology.
The debate continued. For the most part, the record does not reflect the
remarks of Senator LaPierre.
Honourable senators, I should like to say that, in my view, my privileges as
a senator have been violated. I shall describe how in three different ways. The
first is what I would describe as the disabling and destabilizing of a senator's
right, mine in that case, to speak in a Senate proceeding. On my rising
yesterday to speak during debate on Bill S-9, behind me Senator LaPierre yelled
and shouted ill-natured, unpleasant and disrespectful utterances at me.
I believe that the express purpose of the utterances was to insult,
embarrass, sideline and silence. All shouted unpleasant utterances do not offend
Parliament's privileges, so I do not want senators to think I am thin-skinned.
These particular utterances do, because these loud, repetitive, continuous
utterances were heightened by what I viewed as an insult to a superior court
justice, and that is why, honourable senators, I am bringing this matter
forward. I am pretty thick-skinned, but we must remember that no superior court
justice sits in this chamber. He cannot rise and he cannot answer. This
coupling, this linkage is clearly intended at silencing. Upon rising to speak
during a debate, I do not expect, nor should any other senator expect to be
visited by this kind of parliamentary injury, this sort of haranguing, these
sort of rude, distracting, offensive shouts — aggressive shouts. It is
My most important point, honourable senators, I come to now. As we know, as I
said yesterday, there have been three court challenges proceeding in this
country on the question of the meaning of marriage. Those challenges have been
proceeding in British Columbia, Ontario and Quebec. As I said yesterday, the
first ruling came down in British Columbia, and the grounds on which those
challenges were proceeding were the claims certain same-sex couples were making,
that the law of marriage discriminates against them. They were relying on the
Charter, asking the judge to declare the law of marriage invalid and
Honourable senators, Mr. Justice Ian Pitfield, of the Supreme Court of
British Columbia, made his ruling last October 2001. That is now a part of the
law of this country. As I said a few minutes ago, the first duty of a senator is
to uphold the law and the Constitution of the Senate, the law of Parliament, the
lex parliamenti. The superior courts of this land, along with Parliament
and the cabinet, are coordinate institutions of the Constitution. Constitution
comity and the balance of the Constitution are important principles, and they
are part of the lex parliamenti. This is particularly important when in
debate a senator engages a justice of the superior courts in his adjudicative
and judicial role and judicial function. It is my parliamentary privilege that
if and when I raise a justice of the court in debate, in his adjudicative
function, so as to cite that judgment, that senators here should treat that
justice respectfully and with sufficient and adequate decorum.
There is a tradition around this, honourable senators. In Beauchesne's
Parliamentary Rules & Forms, sixth edition, paragraph 493 (1) tells us:
All references to judges and courts of justice of the nature of personal
attack and censure have always been considered unparliamentary —
Senator LaPierre's unfortunate outburst against Mr. Justice Pitfield included
in his indecorous behaviour and haranguing directed at me; the two together are
a violation of the privileges of this great chamber.
Honourable senators should understand that by the Constitution Act, 1867, the
Parliament of Canada is endowed with the superintendence of section 96 judges.
In the justice's adjudicative role, Parliament has a duty to protect the judges.
Parliament owes them protection in their judicial roles, which is a very
important point. They are owed that protection in that particular role, though
not in other roles. It is the judicial function that is the pivotal role.
Honourable senators, that is the role in which I had raised the name of Mr.
Justice Pitfield yesterday. Senator LaPierre's statements about Mr. Justice
Pitfield were supercilious and were odious, very odious. The Senate and all
senators are owed the truth, the law and the facts. They are so owed because
they are the High Court of Parliament.
Honourable senators, when I spoke to lead this debate on June 13, 2001, Mr.
Justice Pitfield had not ruled in the case of EGALE Canada Inc. et al. v. the
Attorney General of Canada et al. In fact, my Bill S-9 predates these court
challenges. Had Mr. Justice Pitfield ruled at the time I spoke last June, I
would have included that in my speech, and I would have disclosed that judgment
and that information from that first Charter challenge. When Senator LaPierre
spoke on March 6, 2002, he had a duty then to disclose Justice Pitfield's ruling
and to inform the Senate thereof. To do otherwise is to be insufficiently
Honourable senators, I must be honest. Yesterday, I was shocked by Senator
LaPierre's treatment of Mr. Justice Pitfield. I was shocked that someone sat
behind me making those statements, because there is a proper way to handle these
matters. Mr. Justice Pitfield deserves a formal apology for being dishonoured
here in the Senate chamber yesterday. It is my intention to propose one as part
of this speech today.
Honourable senators, my privileges were further breached by the phenomenon of
maligning. Not content to disagree, the same senator has maligned my
initiatives, accusing my Bill S-9 and the Senate itself of discrimination.
Senator LaPierre has even preposterously linked my bill and the Senate itself to
anti- Semitism, to the Taliban and a range of atrocities. I object strenuously.
A basic principle of freedom of speech in Parliament holds that claims must be
substantiated, assertions must be supported and allegations must be proven.
Parliamentary privileges include our exclusive right to give and to receive such
evidence. The Senate's privileges have been breached because the senator in
question has provided no evidence whatsoever to this chamber that my Bill S-9 is
discriminatory. I ask him to prove his claim and to provide evidence of his
claim. I further insist that until he has furnished such proof, he should
content himself simply to disagree with me and avoid maligning me or past
judgments, past opinions and decisions of this chamber. It is okay to disagree,
but disagreement does not compel maligning, in my view.
Honourable senators, in coming to a conclusion, I just want to be quite clear
what it was that I was raising yesterday about Mr. Justice Pitfield, which
prompted this situation and which I have found a bit distressing. Mr. Justice
Pitfield, in his judgment in that British Columbia case upholding a marriage as
between a man and a woman, said in paragraph 212:
In my opinion, the issue before the court has nothing to do with the worth
of any individual whether his or her preference is for a same-sex or
opposite-sex relationship. The only issue is whether marriage must be made
something it is not in order to embrace other relationships.
Again, in paragraph 200, Mr. Justice Pitfield also said:
I do not understand the law to be that the Charter can be used to alter the
head of power under s. 91(26) so as to make marriage something it was not when
the various fields of legislative authority were divided between Parliament
and the provinces.
Honourable senators, in conclusion, I move towards what I view as my
resolution of the situation.
Honourable senators, I am mindful that Senator LaPierre is very new to this
place. I am also very mindful of the fact that he feels passionately about
certain things. I would propose, honourable senators, that the problem can be
solved by a motion which, in essence and in summary, does nothing other than
apologize to Mr. Justice Pitfield. I would ask for a ruling from the Speaker to
allow such a motion to be moved.
I should also like to be clear that I have not asked and I am not asking the
Speaker to adjudicate in relation to Senator LaPierre in any form or fashion. As
I said before, had he not mentioned in his remarks the "wrongness" of Mr.
Justice Pitfield, I would have let the incident pass as just a bad day. However,
to the extent that the justice was brought into it, it seems to me that the
Senate had to and ought to take note of it, because I have no doubt that the
honourable justice will have heard about this, because news has a way of
Honourable senators, I would make the point again: I understand that Senator
LaPierre is new to this place. I accept that. I am not asking His Honour to pass
any judgment on him personally, but I would ask His Honour, prima facie, to
allow this motion to be put before the chamber. Perhaps I should let the chamber
know the text and the substance of this motion. I would propose to move:
That the Senate of Canada agrees that the unhappy remarks of an individual
senator about Superior Court Justice, the Honourable Mr. Justice Ian Pitfield,
were undesirable, unfounded and unparliamentary, and that such remarks do not
reflect the opinion of the Senate of Canada; and also that the Senate agrees
to express its regrets to the honourable justice in the following words:
The Senate of Canada expresses its deep apologies to the Honourable Mr.
Justice Ian H. Pitfield of the Supreme Court of British Columbia for any
slight, insult or injury, either actual or perceived, that may have been
occasioned to the honourable justice's high judicial function by the
ill-considered and thoughtless remarks of an individual senator in the
And further, that the Senate orders that this apology be communicated to
the Honourable Mr. Justice Pitfield by letter under the hand and signature of
the Clerk of the Parliaments, the Clerk of the Senate, Mr. Paul Bélisle.
Honourable senators, I hope that I have made it clear. Rule 44(1), which is
one of the rules around this question of privilege, states:
When a prima facie case of privilege has been established, the Senator who
raised the matter may move a motion calling upon the Senate either to take
action on the matter or to refer the matter to the Standing Committee on
Rules, Procedures and the Rights of Parliament for investigation and report.
I am not proposing the alternate route of sending the matter to a committee.
I am proposing, honourable senators, that the Senate chamber be allowed to
debate this particular motion which contemplates an apology to the honourable
justice. At that point, the issue would become a debatable question because,
honourable senators, there is considerable confusion in this place about the
role of the Speaker in prima facie questions of privilege because, in actual
fact, the real debate should take place on the motion that is proposed.
Honourable senators, to my mind, this seemed to be an adequate parliamentary
way of resolving a particular problem in that the judgment of the Senate could
be made on the substance of the motion itself.
I thank you, honourable senators.
Hon. Lowell Murray: Honourable senators, I hope that I would be among
the first to insist on upholding the rule and the healthy tradition that members
of Parliament or of the Senate ought not to speak disrespectfully of judges — or
anyone else for that matter — but in particular of judges, who are under severe
constraints as to the extent to which they can defend themselves. That being
said, if Senator LaPierre spoke disrespectfully, as Senator Cools states, of a
particular justice, it is not on the public record. I think she has acknowledged
that. I did not read it in his earlier speech.
That being the case, I do not see how, first, His Honour can be seized of
allegedly disrespectful comments when they are not on the public record, much
less how the Senate can be called upon to apologize for them to the judge in
Second, I do make the point that, however objectionable Senator LaPierre's
earlier intervention or, indeed, his interruptions may have been in the mind of
Senator Cools, she has to reconcile her objections, it seems to me, with her
earlier, quite eloquent statements about the need to protect freedom of speech
in this place.
Finally, as to what would constitute an offensive statement against judges, I
draw her attention to a statement made by the late former Prime Minister of
Canada, the Right Honourable Pierre Elliott Trudeau, in which he denounced the
majority of the Supreme Court of Canada in one of the landmark decisions of our
era, namely the Patriation Reference case in the early 1980s. He made a
statement, and I believe I am quoting him almost word- for-word, that the
majority of judges in the Supreme Court of Canada had taken a certain position
in order to give their conclusion "a fig leaf of legality." How do you like
Senator Cools: I thank Senator Murray for his very thoughtful remarks.
That particular speech is one I know quite well, and it was made at the opening
of the Bora Laskin Law Library in Toronto.
I must say that the phrase that Senator Murray has just quoted is one of the
more gentle statements Mr. Trudeau made.
Senator Murray: Did the honourable senator object?
Senator Cools: Did I object? I quote those statements. I do not
object. I agree with what he said. The fact of the matter is that one can make
statements about judges and one can express condemnation of judges, one can do
all manner of things, but one must proceed in a way that is consistent with our
constitutional history and our constitutional practices. All I am saying, is
that, yes, the same remarks made by Senator LaPierre could have been made on
another occasion, but they would have to have been said in a different sort of
I think Senator Murray's second point on the freedom of speech question and
the question of the public record are very valid points. The fact of the matter
is that the public record here shows that, when called upon to repeat what he
was saying under his breath or to me, to my back, the senator did not repeat
exactly the same words. He was saying that that particular judge was wrong but,
when he actually rose he said, "Honourable senators, I was just telling Senator
Cools that judges can be wrong." I think we all know judges can be wrong and,
in point of fact, judges are frequently wrong. I would say, oftentimes they are
wrong. My objection —
Some Hon. Senators: Oh, oh!
Senator Cools: We heard Senator Raynell Andreychuk a few minutes ago,
in a very important speech, cite a very famous lawyer in Toronto, Dianne Martin,
about the record of wrongful convictions that that particular lawyer had
researched. I am saying to honourable senators, at the end of the day, that all
things considered, yes. What I was driving at was the time- honoured tradition
we have that when we make critical statements about judges, they are supposed to
fall within a certain kind of procedural framework. They are not supposed to be
made as asides during another debate.
The final point that I make about freedom of speech is the following: I want
honourable senators here to be assured that I am a great believer in freedom of
speech. As a matter of fact, many honourable senators here know that when
Senator LaPierre came to this chamber, he found himself in difficulty with
particular senators in the first several days and I sprung to his defence to
shield him from attack. Freedom of speech is very important.
The essential point is that I brought forth this question because it was more
than a usual goading. A good heckle is a fun thing; it is clever and
intellectually stimulating. However, what we had here was a combination of what
I thought was aggression expressed from one member to the other with a bit of
bullying in it. It just so happened that a particular statement about a
particular judge was couched inside of that. The reason I brought it forward is
to make sure that the two things, if they can be uncoupled, are uncoupled so
that the matter can be dealt with in a proper way; that is, it will go forward
for debate in the chamber. If it does not go forward then it does not go
However, at the same time, I think honourable senators know that I am free to
make the same motion at any given moment under notice. I just thought that it
would be nice if we could begin to apologize to Mr. Justice Pitfield before he
began to hear too much about this or perhaps was reading it in the newspapers.
That was my thinking.
The Hon. the Speaker: Honourable senators, before I call on Senator
LaPierre, I have Senator Lapointe also wishing to speak and I should like to
call on all other senators who wish to comment. I will then give Senator Cools
an opportunity to respond. It is Senator LaPierre, after all, who is the subject
of the matter raised by Senator Cools. I am sorry that I did not recognize him
Hon. Laurier L. LaPierre: Honourable senators, first, I wish to
apologize for causing a problem without really knowing why. Second, I would like
to know whether I am now on trial because, if so, I will need a few lawyers. My
colleague, Senator Day, who defends me constantly, is not here right now. If I
am on trial, perhaps Senator Stratton could protect and defend me.
Honourable senators, I wish to make a few remarks, which might perhaps
explain what Senator Cools is saying. I will not speak —
— on my points regarding the marriage bill.
Right now, I think that Senator Cools has tried the patience of honourable
senators by reinventing her arguments in favour of Bill S-9. I would not want to
place myself in that position, because I will have an opportunity to do so on
An Hon. Senator: Honourable senators —
Senator LaPierre: I am sorry, but I am on my feet. The Senate has
various rules and regulations that I could quote in that respect. There are
about 17 of them. I will quote them if honourable senators wish, but I will not
take your time by doing that.
Second, I should like to say that when I said "wrong" yesterday, it was
essentially because, out of her memory, she was quoting Mr. Justice Pitfield. I
had before me the statement of Mr. Justice Pitfield, and I came to the
conclusion that there were parts being left out — no doubt it was my error,
because I do not understand English very well — and consequently I said "wrong." When I rose, I said what everyone else says to the effect that judges
can be wrong.
The other thing I said to Senator Cools was to sit down because she has
taught me, since the beginning, two things. She has taught me that people can
say whatever they like, whenever they like. However, she was standing up while
His Honour was on his feet. I know her to be very cognizant of the rules and,
above all, having a tremendous appreciation of them. Consequently, I wanted to
remind her of rule 18(5) to the effect that when His Honour is on his or her
feet, we ought to sit down. Therefore, I asked her to "sit down" so that she
would not be breaking the rules she loves so much.
This is what happened, honourable senators. As far as I am concerned, this
matter is over. I do not intend to apologize to God or to anyone else for that
matter — unless His Honour orders me, and then I would obey him to do that.
Second, I do not intend to participate in this discussion, which I do not find
humiliating, but which I find somewhat fascinating.
Hon. Jean Lapointe: Honourable senators, Senator Cools made a remark
to the effect that the Senate should apologize for the comments made by Senator
LaPierre regarding the Honourable Justice Pitfield. I do not think that is the
case. If anyone should apologize, if there is cause for apology, then I think it
should be Senator LaPierre.
Honourable senators, you know my chronic impatience when it comes to wasting
time in the Senate. Quite honestly, I have to say that I am starting to lose my
Senator Cools knows the Rules of the Senate better than anyone else
here and has an intelligence that is above average. However, it seems to me that
questions regarding the rules are the greatest source of wasted time in the
Senate, at least since I have been here.
Honourable senators, while I am in no position to give advice to anyone, I
would suggest that Senators Cools and LaPierre go out and have a drink and
settle their differences, thereby sparing the Senate from their completely
pointless squabbles that the chamber can well do without.
Because of these discussions, we are putting off a good number of bills and
motions every day. I think that fewer would be skipped if certain senators spent
less of the Senate's time demonstrating their knowledge and learning. Having
said this, I think that there is more important business in the Senate than
bickering between senators.
Perhaps I am wrong to speak my mind. It is true that I do not often speak,
but when I do speak, I like to say things that I believe to be important. It was
time that someone rose to say that they had had enough of these wastes of time.
The Hon. the Speaker: Before I call on Senator Cools, I am wondering
if there are any other senators who wish to intervene.
Hon. Terry Stratton: Just very briefly, because I should at least
explain what took place between myself and Senator LaPierre. There is a problem
in this chamber with regard to this rule, and it gets worse and worse as time
progresses until His Honour stands up and says, "Ladies and gentlemen,
senators, please be seated when I am standing." He does not enforce this rule
enough. This happens all the time. When the Speaker stands and honourable
senators are debating an issue, they are supposed to sit. That is quite clear in
the Rules of the Senate.
I simply motioned that someone should sit. Senator Cools consistently, at
least in my observation, does not do that; she continues to stand. I went over
to Senator LaPierre and suggested that perhaps the senator could remind Senator
Cools of rule 18(5) on page 18, which states:
When the Speaker rises, all other Senators shall remain seated or shall
resume their seats.
I tried to politely remind her to be seated when the Speaker was speaking.
That is it, fundamentally. Senator LaPierre, to my understanding, did exactly
The Hon. the Speaker: Senator Cools now has concluding remarks.
Senator Cools: Honourable senators, I have a couple of comments. I
appreciate Senator Stratton's attempt at levity.
On the question of the judgment by Mr. Justice Pitfield, I have no doubt
about the comments I made in the chamber yesterday. I had Justice Pitfield's
judgment in my hand at the time and I have it even now in my hand. I have
absolutely no doubt whatsoever about the content of that judgment because I have
read it quite exhaustively and thoroughly.
About the other matter, I had hoped that Senator LaPierre would apologize and
close the matter. He has declined to do that. I have no doubt that we will be
hearing and receiving letters about this situation. We will simply cross those
bridges when we get to them.
Honourable senators, it is sad, in a way, that Senator Lapointe finds some of
this debate and some of these issues tiresome, boring and uninteresting. I would
like to invite him to examine his position, perhaps, to look at the important
constitutional principles that are at stake in this issue. That is especially
true in respect of the important constitutional question of the balance in the
Constitution and the relationship between Parliament and the judiciary, and the
important roles that were imposed upon the Parliament of Canada in what we call
the safeguarding of judges.
Finally, on the substantive matter again, because, coming back to Lapointe's
Senator Lapointe: Senator Lapointe.
Senator Cools: That is what I said. I said, "— coming back to Senator
Lapointe." Perhaps I missed it. What did you say?
Senator Lapointe: You called me "Lapointe."
Senator Cools: Okay — coming back to Senator Lapointe.
Senator Lapointe: Thank you.
Senator Cools: Coming back to the honourable senator, I would like to
encourage him to learn something about the important principles that I was
bringing forward today, and especially in the field of what we call
"constitutional comity." I would invite the honourable senator to push himself
a little bit and endure a little bit of the boredom to be able to attend to some
of these questions.
In any event, I have pretty much said what I had to say. I do not accept for
a moment the explanation that has been provided by Senator Stratton. In fact, I
know what was being said to me yesterday; I know the attitudes that were being
communicated; and I know the amount of force and aggression that was being
expressed. I have absolutely no doubt.
However, as I said before, the sad thing is not that Senator LaPierre was
attacking me, because I was already on my feet when it was all happening. As a
matter of fact, I sat down to give him the floor to speak. Therefore, Senator
Stratton's comment is totally inapplicable because I was standing when this was
happening. I looked over and I said, "Senator LaPierre seems to want to say
something. I will sit down and let him speak." Perhaps we should just note
that. The explanation that Senator Stratton has given is totally unacceptable to
I understand exactly how some of these things work. Having said that,
honourable senators, I believe there is a prima facie breach. If His Honour
finds that there is not, then there is not a problem at all. Every senator at
any given moment is entitled to put any motion on notice. The only difference
between prima facie and doing it on notice, quite frankly, is a matter of two or
The Hon. the Speaker: Honourable senators, we have developed a very
lengthy record and I would like to review it before making a ruling, which I
will do so at the first opportunity.