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Debates of the Senate (Hansard)

1st Session, 37th Parliament,
Volume 139, Issue 97

Thursday, March 14, 2002
The Honourable Dan Hays, Speaker


Thursday, March 14, 2002

The Senate met at 1:30 p.m., the Speaker in the Chair.


Royal Assent


The Hon. the Speaker informed the Senate that the following communication had been received:


March 13, 2002

Mr. Speaker,

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.

Yours sincerely,

Barbara Uteck
Secretary to the Governor General

The Honourable
   The Speaker of the Senate



Question of Privilege


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.

Kidney Month

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 disorders.

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.




The Estimates, 2001-02

Report of National Finance Committee on Supplementary Estimates (B) Presented

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.


The Estimates, 2001-02

Report of National Finance Committee Presented

Hon. Lowell Murray: Honourable senators, I have the honour to present the twelfth report of the Standing Committee on National Finance on the Estimates for the financial year ending March 31, 2002.

(For text of report, see today's Journals of the Senate, Appendix "B", p. 1303.)

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.


Payment Clearing and Settlement Act

Bill to Amend—Report of Committee

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.

Respectfully submitted,



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.


Royal Assent Ceremony

Notice of Motion to Permit Television Coverage in Chamber

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I give notice that on Tuesday next, March 19, 2002, I will move:

That television cameras be authorized in the chamber to broadcast the Royal Assent ceremony scheduled for March 21, 2002, with the least possible disruption of its proceedings.

Canada-Japan Inter-Parliamentary Group

Twenty-second General Assembly—Report of Canadian Delegation Tabled

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.

Third Annual Visit of Chairman with Diet Members—Report of Canadian Delegation Tabled

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.

Assemblée parlementaire de la Francophonie

Meeting of February 10-13—Report of Canadian Branch Tabled

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.


The Halifax Gazette

Notice of Motion in Celebration of the Two Hundred Fiftieth Anniversary

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.



Notice of Motion to Authorize Committee to Study Matters relating to Oceans and Fisheries

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.



Foreign Affairs

Relations with United States

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 Canada?

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 time?

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 their offices.

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 for us"?

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 it.

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.

Some Hon. Senators: Hear, hear!

International Trade

United States—Renewal of Softwood Lumber Agreement

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 table.

Canada Customs and Revenue Agency

Training of Customs Officers

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 Canadians.

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 jobs.

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 such.

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 responsible.

National Defence

War in Afghanistan—Operation Harpoon—Request for Update

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.

Replacement of Sea King Helicopters—Vehicle Requirement Specifications on Flying by Instruments

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 activities.

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 watered down.

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.

War in Afghanistan—Operation Apollo—Replacement of Sea King Helicopter Engines

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.



Influence of Comments by Deputy Prime Minister on Dollar

Hon. Roch Bolduc: Honourable senators, I see in the Ottawa Citizen today:


"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.


Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw to your attention the presence in the gallery of the Forum for Young Canadians.


On behalf of all honourable senators, I welcome you to the Senate of Canada.

Some Hon. Senators: Hear, hear!


Delayed Answer to Oral Question

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.


Federal Court Decision—Maintenance of Established Linguistic Rights—Intention of Government

(Response to question raised by Hon. Jean-Robert Gauthier on February 19, 2002)

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.




Royal Assent Bill

Third Reading—Motion in Amendment—Debate Contined

On the Order:

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 Parliament.

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 meaningless.

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 the Senate:

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 process.

To deal with the question of public education, paragraph five of the report recommends:

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 paragraph 9:

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.

Criminal Law Amendment Bill, 2001

Third Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Pearson, seconded by the Honourable Senator Poy, for the 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 telecommunication.

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 is warranted.

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 a perpetrator.

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 Canada.

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 Britain.

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 proceed.

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 system.

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.

On motion of Senator Cools, debate adjourned

Foreign Missions and International Organizations Act

Bill to Amend—Third Reading—Debate Adjourned

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 Act.

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 Canadians.

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 Europe, OSCE.

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 answered:

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?

Hon. Senators: Agreed.

On motion of Senator Stratton, debate adjourned.



Official Languages

Seventh Report of Joint Committee—Debate Continued

On the Order:

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 dissenting reports.


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.

On motion of Senator Robichaud, debate adjourned.


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

On the Order:

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 consent.

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 accepted.

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 the time.

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 that.

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, which state:

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.

On motion of Senator Robichaud, debate adjourned.


Question of Privilege

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 the problem.

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 unjust."

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 difficulty speaking.

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 wrong.

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. Justice Pitfield.

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 provocative.

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 inoperational.

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 forthcoming.

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 travelling quickly.

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 Senate chamber.

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 question.

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 that?

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 way.

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 forward.

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 earlier.


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 another occasion.


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 patience.

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 that.

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 me.

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 three days.

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.



Leave having been granted to revert to Government Notices of Motion:

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, with leave of the Senate and notwithstanding rule 58(1)(h), I move:

That when the Senate adjourns today, it do stand adjourned until Tuesday, March 19, 2002, at 2 p.m.

The Hon. the Speaker: Is leave granted, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to.

The Senate adjourned to Tuesday, March 19, 2002, at 2 p.m.