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Debates of the Senate (Hansard)

Debates of the Senate (Hansard)

2nd Session, 37th Parliament,
Volume 140, Issue 88

Thursday, October 23, 2003
The Honourable Dan Hays, Speaker


Thursday, October 23, 2003

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



Foreign Affairs

Civil War in Sudan—Efforts to Bring Peace and Assistance

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, hardly noticed last month was an announcement by the Government of Sudan, reported in the New York Times of September 26, that it would withdraw most of its troops from the rebel-held south of the country and begin integrating its soldiers with those of the rebels in a unified army.

The ongoing conflict in Sudan represents one of the most horrific and least well-known tragedies in recent memory. That country has been engaged in civil war since the day it became independent in 1956. After approximately a decade of relative peace, the war started up again in 1983 and grew increasingly devastating through the 1990s. Both directly and indirectly — through famine and disease — this war has resulted in over 2 million deaths, mainly civilian, and over 4 million people being internally displaced since 1983. In addition, more than half a million people have fled to other countries as refugees, and countless others have suffered in innumerable ways.

The accord between the government and the Sudan People's Liberation Army will take years to implement, but at least it is a major step forward. The talks leading to it, moderated by Kenya and facilitated by Norway, the United Kingdom and the United States, have begun to bear fruit. As one might expect, it has not been an easy road, nor is there any guarantee that a final agreement will be reached or, once reached, that it will hold. Still, there has been more progress towards a sustainable peace during this time than at any other time in the history of this tragedy.

Throughout the years of fighting — and this brings me to my reason for raising this subject — Canada has both supported a political settlement to the conflict and provided much needed emergency relief to affected civilians. Since 1999, Canada has had a special envoy working in support of the peace process. The first person to hold this position was our colleague Senator Lois Wilson.

After her retirement, Senator Mobina Jaffer was named as successor. I am pleased to draw colleagues' attention to her active participation in the peace process and to extend to her and to all those involved in that process best wishes for success in achieving an end to this most terrible of tragedies, which sadly, most of the world prefers to neglect.

Small Business Week

Hon. Catherine S. Callbeck: Honourable senators, this week Canadians from across the country are celebrating Small Business Week. This is an excellent opportunity to acknowledge the vital role small business plays in the Canadian economy.

The theme for this year's week is, "YOU'RE THE POWER behind the Canadian economy, let's share the energy!" This theme emphasizes the power of individual entrepreneurs in developing innovative ideas and businesses.

This week is also a time to acknowledge the importance of assisting entrepreneurs, providing them with the necessary tools to develop innovative ideas and to expand businesses. This is essential, because small business is the engine that drives our economy. In 2001, small and medium-sized businesses employed close to 6.4 million people, or 65 per cent of all employees in the private sector. Self-employment in Canada has grown faster than paid employment in the last 25 years. Today, one in six workers in Canada is self-employed.

This year, I had the opportunity to celebrate the week by participating in the 2003 Women in Business Symposium in Prince Edward Island. The symposium was definitely a fitting way to celebrate this year's theme, as women entrepreneurs are really a power in small business and in the economy. Today, there are more than 821,000 women entrepreneurs in Canada, contributing in excess of $18 billion to our economy every year.

The Prime Minister's task force on women entrepreneurs has been undertaking a study of women in business. We will be releasing a report next Wednesday, October 29. It contains a number of recommendations to expand the contribution of businesses led by women and to help overcome some of the barriers women entrepreneurs face.

Literacy Action Day

Hon. Ethel Cochrane: Honourable senators, I rise in celebration of Literacy Action Day on Parliament Hill. I am sure all honourable senators agree that today's information society places far greater demands on our literacy skills than ever before. While government is only now coming to terms with these demands, many communities across this country are already engaged in literacy work. I, for one, am quite impressed by the work being done at the local level, often in total isolation, to promote literacy.


Honourable senators, I should like to take the opportunity on this occasion to pay tribute to all those individuals, particularly Senator Joyce Fairbairn, who are active in literacy work, especially on the front lines. Their work has been critical to the development of people and communities across this great land of ours. Indeed, I found many encouraging examples of this at lunch today in all the areas within

Canada and, in particular, in my province. I am especially proud of the advances made in my own community. Stephenville has led Newfoundland and Labrador in literacy programming for many decades. Back in the 1960s, for instance, it became the first to implement the federal government's Basic Training for Skills Development Program. At any given time, you could find more than 1,000 students pursuing adult basic education at the Stephenville Adult Centre. I was fortunate enough to be involved in that work and can assure senators that the program provided many benefits to both the community and the province.

The town's literacy legacy continues to grow. Just last month, I attended the launch of the adult basic education level 1 program. It marked the long overdue return of full-time level 1 training in our area.

Honourable senators, in communities right across this country, similar literacy gains are being made. Sadly, however, the absence of a national literacy strategy, together with a limited pool of resources, has gravely impeded progress. Once again, I remind all senators of the urgent need for a pan-Canadian literacy strategy and encourage everyone to support literacy activities in their own communities.

Hon. Consiglio Di Nino: Honourable senators, I, too, want to acknowledge Senator Fairbairn's contribution today and speak on Literacy Action Day. She is downstairs at a reception for the Literacy Action Day activities and doing her good work there. That is twice this week I have actually thanked and acknowledged Senator Fairbairn. Something is going on here. I had better be careful.

Honourable senators, I am certain that every senator in this chamber would agree when I say that the ability to read, write and communicate has been a fundamental part of our lives and one that has directly led to our ability to be productive members of society. Today's Literarcy Action Day on Parliament Hill reminds us, however, that not all Canadian adults have the ability to use these skills with ease. In fact, over 20 per cent of our adults have low literacy skills, which prevents them from engaging in a number of everyday things that the majority of Canadians take for granted. The ability to read and write is so fundamental to our day-to-day activities that it is all too easy to overlook the importance of literacy. High literacy skills in adults are beneficial to almost every aspect of life. Everything from income levels to the ability to correctly use prescription medication is improved by increased literacy skills. One way — and perhaps the best way — to ensure that adults are able to take advantage of all that literacy skill can provide is to create a strong foundation for them in childhood.


Honourable senators, the advantages of exposing children to reading and communication at a very early age are well documented. An activity as simple as telling a story stimulates the development of infants' brains.


Children who are read to on a regular basis do significantly better in school than those who do not have that advantage. Also, listening to a story read aloud helps children to improve their listening, vocabulary and language skills.

In a few months, on January 27, Canada will observe another day that promotes this subject matter, Family Literacy Day, which focuses on intergenerational learning in order to positively impact upon family members of all ages. When children see their parents and grandparents reading newspapers, writing letters or following recipes, they learn that these activities are valued and that the written word gains an importance they will carry through their entire lives.

I encourage all Canadians to engage in the development of their children's literacy skills not just for the advantage of their own family but for the benefit of our nation as a whole.

Honourable senators, I will share with you that during debate on my bill to eliminate the GST on reading material, I, too, learned a lot. It resulted in my creating an ever-expanding library for each one of my four grandchildren, which I hope will not only help them but will help to advance the cause of literacy.

Hon. Joyce Fairbairn: Honourable senators, I thank both of my colleagues for speaking on this cause of literacy. It is a pleasure for all of us in this chamber to welcome an army of more than 60 activists from every province and territory in this country today. Ten years of Literacy Action Day may not mean a lot for other issues, but 10 years for literacy is good. The event today seems to have been the best ever, and I thank everyone in this chamber for taking part.

The people who are with us today are fighting hard to bring to all of us and to our colleagues in the other place an understanding and sense of urgency for a vigorous and concentrated action to deal with an issue that is so large and so engrained in our society that it is blighting the lives of millions of Canadian adults, threatening opportunities for their children and pulling down the potential of Canada in an ever-changing world of competition and technology.

Honourable senators, the people who were here on the Hill today are bringing the message from the grassroots of this country. They are talking about the 40 per cent of adult citizens who have difficulty every day of their lives participating in our country due to a lack of literacy skills. If this issue is handled correctly, we will help strengthen our towns, our cities and our provinces. It goes to the very heart of the future of this country. It is not about special treatment and it is not about privilege. It is about access to learning as a right and a responsibility for every citizen in this country, regardless of where they live, how old they are or their circumstances.

At a time of transition in this Parliament and in politics, these people have come to Ottawa at the right time. The past two years have brought together more of a consensus in this country to seriously tackle this issue. They have put a challenge to us. They have said: Let us do it now.

Honourable senators, in the year and weeks ahead, we have an opportunity to answer that challenge. I think we will. We will do it with a lot of help from people on both sides of this chamber.

I am very proud of all honourable senators. I thank you for getting behind this initiative and lending a hand to these citizens who need our help so much.

National Defence

Initiatives Undermining Efficacy

Hon. J. Michael Forrestall: Honourable senators, despite the statements that we are reading in the press, Canada's army is on its way to some form of destruction — not from battle, but due to government incompetence, disinterest, direction or benign neglect. I have raised these issues time and time again. I think immediately of the mess that now surrounds the restructuring of the army reserve: The plan to remove pioneers from infantry platoons, so as to strengthen under-strength engineer units; the further direction to remove mortar platoons from infantry battalions to bulk up under-strength and obsolete artillery units. These measures alone have removed the infantry's sharpness and its ability to fight on the modern battlefield as self-contained units.


The plan is to move all but a company's worth of armoured fighting vehicles from every infantry battalion to a new experimental centre to save money on maintenance costs — and not, as is now being claimed, modernization of that army or of its equipment. This will have the impact of eliminating battalion, battle group and brigade level training for all but one unit at a time.

Now we find, as I have said before, that the Leopard main battle tank fleet is due to be scrapped in favour of the eight- wheeled 105 millimetre Stryker mobile gun — a decision that has been called morally wrong and unethical.

These measures will virtually eliminate this country's ability to continue to participate in Afghanistan, let alone ever join a shooting war much above the personal level.

It is wrong that a G8 nation that was the victor at Vimy Ridge, that led the Last Hundred Days and the clearing of the Gothic Line, or that liberated Holland, has sunk so low as to destroy with budget cuts what two world wars and Korea, not to mention 50- plus years of peacekeeping, could not break.


National Anthem Act

Bill to Amend—Report of Committee

Hon. Michael Kirby, Chair of the Standing Senate Committee on Social Affairs, Science and Technology, presented the following report:

Thursday, October 23, 2003

The Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its


Your Committee, to which was referred Bill S-3, An Act to amend the National Anthem Act to include all Canadians, has, in obedience to the Order of Reference of Tuesday, June 10, 2003, 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 Poy, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.

National Security and Defence

Budget—Report of Committee on Study of Veteran's Services and Benefits, Commemorative Activities and Charters Presented

Hon. Joseph A. Day, for Senator Kenny, Chair of the Standing Senate Committee on National Security and Defence, presented the following report:

Thursday, October 23, 2003

The Standing Senate Committee on National Security and Defence has the honour to present its


Your Committee was authorized by the Senate on Thursday, September 18, 2003 to undertake a study on:

(a) the services and benefits provided to veterans of war and peacekeeping missions in recognition of their services to Canada, in particular examining:

- access to priority beds for veterans in community hospitals;

- availability of alternative housing and enhanced home care;

- standardization of services throughout Canada;

- monitoring and accreditation of long term care facilities;

(b) the commemorative activities undertaken by the Department of Veterans Affairs to keep alive for all Canadians the memory of the veterans achievements and sacrifices; and

(c) the need for an updated Veterans Charter to outline the right to preventative care, family support, treatment and re-establishment benefits.

That the Committee report no later than June 30, 2004.

On September 29, 2003 the Committee referred this matter to its Subcommittee on Veterans Affairs.

Pursuant to Section 2:07 of the Procedural Guidelines for the Financial Operation of Senate Committees, the budget submitted to the Standing Committee on Internal Economy, Budgets and Administration and the report thereon of that Committee are appended to this report.

Respectfully submitted,

Member of the Committee

(For text of budget, see today's Journals of the Senate, Appendix, p. 1213.)

The Hon. the Speaker: When shall this report be taken into consideration?

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

Bill Respecting the Effective Date of the Representation Order of 2003

First Reading

The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-49, respecting the effective date of the representation order of 2003.

Bill read first time.

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

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


Bill to Change the Names of Certain Electoral Districts

First Reading

The Hon. the Speaker informed the Senate that a message had been received from the House of Commons with Bill C-53, to change the names of certain electoral districts.

Bill read first time.

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

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

Royal Canadian Mounted Police Act

Bill to Amend—First Reading

Hon. Pierre Claude Nolin presented Bill S-24, to amend the Royal Canadian Mounted Police Act (modernization of employment and labour relations).

Bill read first time.

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

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


Official Languages

Bilingual Status of City of Ottawa—Presentation of Petition

Hon. Jean-Robert Gauthier: Honourable senators, pursuant to rule 4(h), I have the honour to table petitions again today, signed by another 2,000 people, for a total of 12,000 people in the last two weeks, asking that Ottawa, the capital of Canada, be declared a bilingual city and therefore a reflection of the country's linguistic duality.


The petitioners pray and request that Parliament consider the following:

That the Canadian Constitution provides that English and French are the two official languages of our country and have equality of status and equal rights and privileges as to their use in all institutions of the government of Canada;

That section 16 of the Constitution Act, 1867 designates the city of Ottawa as the seat of government of Canada;


That citizens have the right in the national capital to have access to the services provided by all institutions of the government of Canada in the official language of their choice, namely English or French.

That Ottawa, the capital of Canada, has a duty to reflect the linguistic duality at the heart of our collective identity and characteristic of the very nature of our country.

Therefore, your petitioners call upon Parliament to affirm in the Constitution of Canada that Ottawa, the capital of Canada, be declared officially bilingual, under section 16 of the Constitution Acts from 1867 to 1982.



United Nations

Commission on Human Rights—Process for Sponsoring Resolutions Against Violations

Hon. A. Raynell Andreychuk: Honourable senators, I wish to ask some follow-up questions to ones I have already put to the Leader of the Government in the Senate. In preparation for meetings of the United Nations Commission on Human Rights, what role does cabinet play in determining what resolutions and actions we will be seeking to put forward in the Commission on Human Rights?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I do not know the process as to how we put together the ideas that we would put forward to the UN Commission on Human Rights. I can make that inquiry on behalf of the honourable senator and bring an answer back to the Senate as quickly as possible.

Senator Andreychuk: Honourable senators, from its inception, we have played a lead role in the United Nations Commission on Human Rights. We have always attempted to be fair in assessing other countries. We have used the country-specific mechanism to note our concerns with various countries. In that regard, we have always used our own country as a yardstick. It is not saying that we are better than or above certain aspects. However, noting that we have similar problems in our country, we would then look to making representations as to what we felt were the necessary improvements in situations, as well as noting our concerns with grave situations in other countries. There has always been a broad debate in the country to involve citizens so that the views of Canadians are reflected in that process of the government.

In recent years, while there has been an NGO forum held by the minister, there does not seem to have been any alert as to what the government considers to be serious violations it believes the Commission on Human Rights should deal with. Consequently, we have lost a leadership role in that United Nations Commission.

We were often the first to bring together like-minded countries to discuss these concerns. We would often alert the country in question of our concerns, in an effort to elicit a positive response, and we would take that into account. In recent years, however, our actions have been more random, more of a follow-up of what other countries are doing in the United Nations Commission on Human Rights rather than assertive leadership from Canada.

It would be valuable for Canadians to know what types of human rights are of concern to their government, as well as how their government comes to assess what are serious violations of human rights. This knowledge would give some opportunity to influence the government before the UN Commission on Human Rights meets, which is usually in March and April.

Senator Carstairs: Honourable senators, to the best of my knowledge, there has been no change of direction or policy, nor the way in which we conduct our affairs with respect to the United Nations Commission on Human Rights.

The honourable senator asks a legitimate question when she says that Canadians should know just what that process is. I would be pleased to provide the honourable senator with that information.

Senator Andreychuk: Would Parliament also have a role to play in determining the priorities and the approaches that the Canadian government takes? In other words, beyond the ability of either the Foreign Affairs Committee here or the Foreign Affairs and International Trade Committee of the other place, is it time for the government to more formally put its position before Parliament, for a full discussion before final decisions are made at the Commission on Human Rights?

Senator Carstairs: That is an interesting suggestion, one that I shall bring forward.

Hon. Marcel Prud'homme: Honourable senators, we should encourage either the Senate Committee on Foreign Affairs or the Committee on Human Rights to look into that process. The Foreign Affairs Committee — which is currently studying the Canada-U.S. trade relationship, among other matters, and which used to be one of the most outstanding committees — should start looking into that question. If not the Foreign Affairs Committee, then the Human Rights Committee should look into the matter.

That is my suggestion, without being a specific question.

Senator Carstairs: As the honourable senator knows, because I have said many times in this chamber, I do not direct the affairs of the committees. It is up to the individual committees to decide what they will study, when they will study it and how they will study it with what funds they get, all of course approved by the Senate as a whole.

National Defence

Scrapping of Equipment as Cost-Saving Measures

Hon. J. Michael Forrestall: Honourable senators, my question is for the Leader of the Government in the Senate.

We know for a fact by way of the government's answers to Questions on the Order Paper that, when it comes to the Prime Minister's personal affairs, he can spend $100 million in one day on Challenger jets. However, for the troops in the field, it is an entirely different matter. The best they get is a worn-out Jeep or an old half-ton truck with a shotgun on the back.

Can the Leader of the Government confirm for this chamber — and she has only to go back to last spring to see that I asked these questions at that time — that the Leopard C2 main battle tank fleet, the Tribal class destroyers, the long-range C-130s, as well as a whole series of other artillery pieces, are about to be scrapped, allegedly to save money?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, as the honourable senator knows, because I have told him before in response to a similar question, all equipment is under review. New equipment purchasing is also being investigated. Of course, I completely disassociate myself with his earlier comments that we do not provide Canadian servicemen abroad with the best equipment. We certainly do.

Senator Forrestall: Much like the uniforms we all like so much.

The last minister I dealt with who talked similar to the Leader of the Government and her colleague, the Minister of National Defence, was a fellow named Paul Theodore Hellyer. We all know how destructive he was to the Canadian Armed Forces.

Can the Leader of the Government confirm that the government will scrap the entire Leopard main battle tank fleet to save money?

Senator Carstairs: Honourable senators, when and if that decision is made, there will be an announcement to that effect.

Senator Forrestall: What did she say?

Senator Lynch-Staunton: She said that Paul Martin will tell you.

Senator LeBreton: She said nothing.

Senator Forrestall: Did you say Paul Martin will tell me?

Senator Lynch-Staunton: Just about.


Senator Forrestall: I wonder whether the minister —

Senator Bryden: You might wait until the Alliance takeover of your party is completed.

Senator Lynch-Staunton: More, more! Do you think Doug Young will join us? Does he still have his card?

Senator Forrestall: Honourable senators, I can tell you, if you really want to know, just how concerned this government is about our troops in the field by reading just one little example from the menu items on the Prime Minister's new Challenger jets: filet mignon — however you want it cooked — veal, caviar, scallops, an assortment of alcoholic beverages and wines, of course. We are speaking of a flying Taj Mahal.

However, for the troops in the field, it is ration packs of beans, wieners, the latter of — which are really a favourite because they double the sweetness of the beans for dessert. As I say, they are a very popular dish.

Can the Leader of the Government confirm that it is the intention of the government to scrap all four of our Tribal class destroyers, leaving us without a task group command and control capability, not to mention the concept of command and control with air defence?

Senator Carstairs: Let me begin by assuring the honourable senator that during my time as a minister, I believe I have been on two Challengers, the last one being, of course, to go to the funeral of the late Izzy Asper. I was not offered veal, filet mignon, caviar or scallops; I had chicken.

As to the honourable senator's particular question with respect to destroyers, he knows full well that no decision has been made in that regard whatsoever.

Senator Forrestall: I wish to pose just one more question so that we might get another denial.

My question has to do with the long-range C-130 aircraft. Can the minister indicate whether the long-range C-130s used in the Arctic are about to be scrapped? In addition, could she confirm, since some time has gone by now, whether there has been any response to what is in one sense not a bad idea, and that is the search around the world for spare C-130s or even spare parts? We will take anything.

Senator Carstairs: Again, the honourable senator is well aware that no decision has been taken with respect to the C-130.

While I am on my feet, I think Senator Forrestall might be interested to know that when the Prime Minister was in Afghanistan, he rode in a civilian pattern vehicle.

Recruitment of Pilots

Hon. Norman K. Atkins: Honourable senators, my question is to the Leader of the Government in the Senate. On September 17, the government leader told us that there has been an acute shortage of pilots, particularly fighter pilots, and that the federal government has been increasingly active in its recruitment of pilots. It has been reported that air force officials admit that the aging Sea Kings and Hercules transports, which have been grounded by maintenance woes, have chased away more than a few potential candidates. Does the Leader of the Government not agree that the basic problem is the lack of planes that can actually fly?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, that is not the situation at all. The honourable senator knows that we are, in particular, missing pilots who fly fighter aircraft. We have been most challenged to find replacements for those pilots.

Privatization of Maintenance Services

Hon. Norman K. Atkins: Honourable senators, the defence minister plans to contract out maintenance of the air force's Hercules aircraft instead of relying solely on military technicians. It is expected that by doing so the military will have use of 21 of its 32 Hercules at any given time, rather than the 14 at this point. Even that is questionable. At the same time, the navy has stated that to resolve the Aurora problem, it is considering hiring private companies to conduct air patrols along Canada's East and West Coasts.

How much of the air force does the government plan to privatize? What effect would that have on overseas missions where we take maintenance crews with us?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, it is interesting to note that in the announcement by the Minister of Defence yesterday with respect to reallocation of dollars within his department, he indicated that they were looking to cancel opting out initiatives and will be looking to doing things in-house.

Senator Atkins: Honourable senators, it has been suggested that a number of military maintenance technicians who have been servicing these aircraft are now retiring from the air force and being hired by private companies to then maintain the aircraft that are being put out for maintenance privatization.

Senator Carstairs: Honourable senators, that is just one more example of the excellent training that is provided within the Armed Forces.

Foreign Affairs

Malaysia—Prime Minister's Anti-Semitic Comments—Measures of Protest

Hon. Jerahmiel S. Grafstein: Honourable senators, as the Leader of the Government is aware, the Prime Minister of Malaysia, Mr. Mahathir, has made outrageous statements of anti- Semitic rhetoric against Jews and outrageous discriminatory comments against others. We understand that the Prime Minister has chosen not to speak to him about that matter. We will obviously hear from him when he returns, and we have heard from the Leader of the Government in the Senate about the response of the Minister of Foreign Affairs saying that Mr. Mahathir's statement is unacceptable. Has the government given consideration, having in mind the knowledge and access of the government and all members of this chamber to the various fora of international human rights, to presenting a resolution at the United Nations or other international fora? On their face these words appear to be contrary to the UN Charter, contrary to the UN Declaration of Human Rights, contrary to the Helsinki accord, contrary to the Copenhagen document of 1990, and contrary to the Lisbon document of 1996, all of which explicitly breach those international treaties and accords. Has the government given consideration to putting the minister's statement to the test by using our vast multilateral relationships in these various fora to bring resolutions forward and to use these instruments as effective means to drown out the said egregious words?

Honourable senators, I have a resolution dealing with anti- Semitism that has been on the Order Paper for 11 months. As I said when I introduced it and I say now, words can kill, silence is acquiescence, acquiescence is licence and licence leads to violence. Therefore, would the government consider these active measures?

Hon. Sharon Carstairs (Leader of the Government): That is an excellent list of measures that we could take. I know that the Minister of Foreign Affairs is waiting for a response from the Malaysian government to our official protest before we decide exactly what actions we will take. I will certainly make him aware of the positive suggestions that the honourable senator has put forward.


Malaysia—Expression of Disapproval of Prime Minister's Anti-Semitic Comments

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I wish to ask the Leader of the Government in the Senate about the nature of our official protest in regard to the remarks of the Prime Minister of Malaysia.

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, as I have indicated, over and over, immediately upon the words having been spoken by the Prime Minister of Malaysia, Minister Graham was in touch with his officials in Ottawa. He ordered them to call in the Malaysian High Commissioner. The Malaysian High Commissioner was informed of our dismay and asked to take that to his government, which is the normal practice when dealing with another country. We are waiting for a response. Meanwhile, we are looking at all forms of responses that we might take, including the excellent suggestions that the Honourable Senator Grafstein has put forward.

Senator Lynch-Staunton: The Prime Minister of Australia, John Howard, has publicly commented on those comments as being indefensible and wrong. The President of France wrote a letter to the Prime Minister of Malaysia saying that these remarks can only be condemned. President Bush took the Prime Minister of Malaysia aside and told him face to face that these were comments he could not approve of. Why must we hide behind the faceless bureaucracy? Why do we not come out directly and say to the Prime Minister of Malaysia that we find his comments absolutely unacceptable?

It is incredible that, according to The Toronto Star of October 21, Prime Minister Chrétien could have availed himself of scripted "media lines on anti-Semitic remarks made by the Malaysian Prime Minister" prepared by the Department of Foreign Affairs. A response was ready for him. The first suggested press line is that the Canadian government finds the comments made by Prime Minister Mahathir offensive, inflammatory and unbefitting of his position. I believe we all agree with that. Why did the Prime Minister not say so himself publicly?

Senator Carstairs: As the honourable senator knows, because I have told him on a number of occasions, the Prime Minister allowed the Minister of Foreign Affairs to speak very clearly on this subject, and the Prime Minister indicated that his Minister of Foreign Affairs was representing the Government of Canada.

Senator Lynch-Staunton: It is interesting that the Prime Minister is willing to set up an armed camp and have students tear-gassed during the APEC conference in Vancouver to protect his friend Suharto. It is interesting that he will not say anything about these racist comments by his friend the Malaysian Prime Minister. It is also interesting that he was able to sit down in Beirut next to a well-known terrorist and shake his hand and say nothing. What is this? Is this a friend of terrorists, racists and dictators? It is incredible.

Senator Carstairs: I wish to disassociate myself, as do I hope the majority of all honourable senators in this chamber, from those comments.

Hon. Marcel Prud'homme: Honourable senators, I wish to join with the Leader of the Government in her last comment. I rarely disassociate myself from my good friend the Honourable Senator Lynch-Staunton. However, I believe the time has come for senators to study the full issue. Senator Grafstein has made a suggestion; I would like to help him out.

I suggest we go through the speech of Prime Minister Mahathir paragraph by paragraph. There are 59 paragraphs. There is a paragraph that the Honourable Senator Grafstein, the Honourable Senator Lynch-Staunton and I find totally unacceptable. However, there are other paragraphs. I am not a propagandist; I simply want people to be well-informed. Senator Grafstein tried to explain this for us. There are paragraphs which honourable senators will applaud. For example, the Prime Minister denounced those who encourage young people to blow themselves up; that is one of the 59 paragraphs. When he denounced backwardness of the Arab and Muslim communities, that was not popular, I can assure you. However, there are words that are unacceptable to Canadians and to the rest of the world.

The Honourable Senator Grafstein, with his intelligence, has made a request and suggested exactly what should be referred to the United Nations.

Mr. Mahathir spoke at the opening of the World Muslim Community, and we must be careful. The Muslim community does not mean Arabic. There were 1.3 billion people represented in the 56 countries that were present. They all stood up, including great friends of Canada, such as the King of Morocco and the King of Jordan, and so forth. What should be referred to the United Nations? I would like to work with Senator Grafstein on that.

Senator Carstairs: I have not read all of Prime Minister Mahathir's speech, but the quotes that I have read are totally unacceptable. They are quite clearly within what we define in this country as hate propaganda. They are unacceptable.

Hon. Jack Austin: Honourable senators, all of us realize that if some other ethnic group were referred to by Prime Minister Mahathir, whether it be the Québecois, the Chinese or some other group, but particularly a minority group, we would be dealing with the same level of sensitivity.

There is no question that, as Senator Carstairs has said, those remarks amount to what we call hate propaganda. They identify Jews as a group that is acting contrary to the interests of the international community. There is no such group. We all know that.

The problem that Senator Prud'homme is dealing with is moving closer to a clash of civilizations. Mr. Mahathir is encouraging that concept. That concept is not in the interests of the world community.

I give enormous credit to former Prime Minister Mulroney. When dealing with the hated apartheid policies of the South African regime, he made sure the international community expressed its opprobrium of that particular behaviour, and the Commonwealth acted to remove South Africa as a member on the initiative of Canada.

I would ask the Leader of the Government whether the government would please consider whether these actions require similar conduct by the Commonwealth at the instigation of Canada or an official apology by Malaysia to the Commonwealth and to the world community?

Senator Carstairs: Honourable senators, that is an excellent suggestion and I would be pleased to bring it forward.

It is important to put some other words on the record. I mentioned yesterday the press conference by telephone that our Minister of Foreign Affairs had. I have a transcript of that. It is important that we hear what he had to say when referring to Prime Minister Mahathir's comments. He said:

...the conspiracy theory that the Jewish people are seeking to use countries to attack Muslims and I don't think, this is not a credible theory and it is not acceptable, it's not credible and we know in Canada that our Jewish citizens participate in a lively political debate on, from all perspectives and all spectrums of society. I have been participating in interface dialogues with Jews and Muslims brought together and they might disagree on some issues but we all agree on basic needs to respect one and another.


Budget Surplus—Elimination of Goods and Services Tax on Reading Materials

Hon. Consiglio Di Nino: Honourable senators, I was very happy when I saw on television the beaming face of Minister Manley announcing a $7 billion surplus that bodes well for our country.

My question to the Leader of the Government is in regard to how this money will be distributed. As today is Literacy Action Day on Parliament Hill, I should like to remind colleagues that during extensive hearings on a bill that I introduced to eliminate GST on reading material, we were often told that we could not afford that kind of measure that was estimated to involve between $120 million to $250 million.

My question to the minister is: Since we have some extra money, is there any consideration at this time, or could an announcement even be made today, Literacy Action Day, that the Government of Canada is finally considering eliminating GST on reading materials?


Hon. Sharon Carstairs (Leader of the Government): The honourable senator knows full well that when the budget surplus is announced, there is no choice to do anything with it but to pay down the debt, since we are out of the budget year for which that surplus has been acquired.

Senator Di Nino: Obviously there are times when that is not the case. Try not to make this a political issue, because it is not. Senator Fairbairn said that some 40 per cent of Canadians actually lack proper literacy skills. The resolution of this emergency would benefit this country economically, socially, culturally — in every way possible. Over many months of hearings, we heard extensive evidence from many Canadians who supported the elimination of the GST on reading material. Would the minister please take a message back to the Prime Minister that, before he leaves office, perhaps this is one promise he can keep, to eliminate the GST on reading material?

Senator Carstairs: The honourable senator knows that fiscal year 2002-03 ended March 31, 2003, some many months ago. It is not possible in Canada's fiscal system to do anything with that $7- billion surplus for the year 2002-03 other than to pay down the debt.

Senator Di Nino: I am sorry, but that response is an attempt to hide the fact that we have a windfall. I ask that the Leader of the Government take this message to the Prime Minister so that he can consider making a recommendation. I ask him to at least keep this one promise of the many he has not kept. I think I speak even for Senator LaPierre, who I believe applauded my comment.

Senator Carstairs: Honourable senators, let me reiterate. I can bring the idea forward for a future expenditure, but I cannot and will not bring something forward that is physically impossible for a government to do.

Senator Di Nino: That is what I am asking.


The Senate

Introduction of New Pages

The Hon. the Speaker: Honourable senators, we have a few new pages and I would like to introduce them to you.

First I would like to welcome Adél Gönczi, who was born in Romania and grew up in New Brunswick. She currently attends the University of Ottawa where she studies political science. She is in her third year and her favourite courses involve international issues.


Lindsay Mossman is from Winnipeg, Manitoba, and is attending Carleton University in the Faculty of Public Affairs and Policy Management, with a major in political science. She is currently in her second year of her honours program.

Andrea McCaffrey is originally from the province of Quebec, more specifically from the very small town of Brownsburg. She is currently studying at Carleton University, with a major in political science and a concentration in Canadian politics.

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I draw to your attention the presence in our gallery of our former colleague, the Honourable Nick Taylor.

Hon. Senators: Hear, hear!

The Hon. the Speaker: I would also like to draw to your attention the presence in our gallery of a delegation of staff members of the national assemblies of the countries of the Gulf Cooperation Council. They are sponsored by the International Republican Institute.


Hon. Senators: Hear, hear!



Business of the Senate

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, in Government Business, under Bills, I propose we begin with Item No. 4, which is Bill C-41, and continue with Item No. 5, which is Bill C-37, and then Item No. 6. Then we could continue with Item No. 1 under Motions and return to Bills, with Item No. 3. Finally, we could conclude with Items Nos. 2 and 1 under Bills.

Hon. Jean-Robert Gauthier: Honourable senators, we are given an Order Paper every day and every day without fail we change the order of items. One really needs a phenomenal memory to keep track of all that. Could the order in which we are going to deal with the bills be printed? We prepare for a bill that gets put off, and we do not know when we will be able to discuss it. That would help us to plan our work better.

Senator Robichaud: Honourable senators, I do understand what Senator Gauthier is saying, but on today's Order Paper there is one item, Item No. 2, for which there will be a deferred division at 3:30 p.m., with the bells starting to ring at 3 p.m. Thus, it would be somewhat difficult to follow the proposed order when the Senate has adopted the order to hold a vote at a specific time.


Hon. Terry Stratton: I have a question for Senator Robichaud. I understood from this morning's meeting that we would be dealing with Bill C-10B as well before three o'clock.

Senator Robichaud: No, the last item.

Senator Stratton: I understood we were to follow the Order Paper, starting with Item No. 1, and then move on to the others. Is there any reason for not proceeding in that fashion?

Senator Robichaud: The only reason is that I will stand Item No. 1, Bill C-10B, so it does not matter if it is first or last.

Senator Stratton: My question is whether we will deal with it before going to the motion or after going to the motion.

Senator Robichaud: No, after.

Senator Stratton: Then my question becomes why? My understanding was we would deal with Item No. 1 first, prior to going to the motion.

Senator Robichaud: It did not appear to me that it would make any difference because no one has indicated an intention to speak. Senator Watt indicated a while ago that he wanted to speak. In consultation with him, he is not ready to do so and would prefer that it be put back. That is why I will stand Item No. 1.

Senator Stratton: Thank you.

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, Bill C-10B has been before us and has gone back and forth at least twice between the Senate and the House of Commons. The Leader of the Government put down a motion at least three weeks ago to in effect accept the House's recommendation, and then the bill stalls. How do we reconcile that fact with a bill that only came here two weeks ago and on which time allocation was imposed? It seems to me that the issue of cruelty to animals is just as important as creating the position of ethics counsellor for the Parliament of Canada. Why does Bill C-10B not move along?


I know Senator Watt has objections, as do other senators. Let us put the question and find out whether we support those objections or not. This bill has been with us now for some time.

I do not have this in front of me, but I can look it up. It has been at least a year since Bill C-10 came to the Senate, if not more, and has been allowed to languish. However, a bill that is fairly fresh, the one I call the ethics bill, is suddenly, even before second reading is given, subjected to time allocation.

How can the deputy leader explain the approach to these two bills, one of which has been here for so long a time and the other of which has just arrived?


Senator Robichaud: Honourable senators, I must point out that, with Bill C-10B, we have a message and a motion from the Leader of the Government.

Honourable senators, the items under Government Business were not adjourned in the name of any particular senator. Any senator who wishes may speak when that item is called.

Until now, each time I wanted to stay the motion on Bill C-10B, I consulted Senator Watt and he agreed. If other senators had wanted to speak, they could have done so since the item is still on the Order Paper, except that Bill C-10B will be called last instead of first. I have no objections if anyone wishes to speak on this matter.


Senator Lynch-Staunton: That is not my question. My question is, why not extend the same time courtesy to those who may want to elaborate on Bill C-34, instead of putting down a notice of time allocation after hearing only two speakers? There may be other senators who are not ready to speak this week but who would like to speak next week. They are being ignored, whereas in the case of Bill C-10B one senator has said, "I am not ready." The government is very understanding and says, "That is perfectly all right with us. When you are ready, let us know and we will carry on the debate." Why two different sets of rules for the same purpose?

Hon. Charlie Watt: Honourable senators, I think I should clarify something here. It is not a question of not being ready. I am ready. I have prepared my comments, but I was asked this morning whether I could postpone making them to another day. I agreed with our deputy leader this morning, and I did not think there was anything wrong in doing so.

On top of that, I also said that since it takes time for me to travel up to the Arctic and come back to Ottawa, I really did not feel like coming back down here on Sunday. That would mean that I would only be up North for one day and then have to fly right back again. It costs a lot of money to come back. I will not be here on Monday either. My speech can be postponed to Tuesday, which would do me a great favour.

Senator Lynch-Staunton: The plot thickens then. The government asked Senator Watt to please postpone any discussion on the bill. That is fine. I find it extraordinarily courteous. I have no problem with that, but why do those of us who have concerns with Bill C-34 not benefit from the same courtesy?

This is an important issue. Is this what they are telling us: "Deux poids, deux mesures"? "We do not want Bill C-10B, so please follow our instructions and bring it up next week when we will make sure that it does not get anywhere. However, Bill C-34 is somehow very pressing, so forget the debate and let us move along." It is a steamroller in one case and an extraordinary, to-be- welcomed courtesy in the other. That is not fair.


Senator Robichaud: I object to being told that this is not fair.

Although Senator Lynch-Staunton says that the message with Bill C-10B is not wanted, I would say that the opposite is true.

We want the message. The motion before the Senate asks that we not insist on our amendments. However, Senator Watt is the only senator who has indicated he would like to speak. No one else has.

I am always open to requests and have been in this case. If someone wants to speak today or Monday, I will not object. If more attention is paid to some bills than others, if we should not debate a time allocation motion, that will be part of the debate later on.

Senator Lynch-Staunton: Senator Watt has told us himself that he was prepared to speak, and that it was at the government's request that he postponed his comments.

He is prepared to speak; he said so himself. He is prepared to speak now.


He could probably speak right now, but he is waiting until next week at the request of the government. This is the message sponsored by the Leader of the Government, asking us to accept the House's refusal of our amendments. So it is like government legislation. On the other hand, we are told that we cannot debate Bill C-34. This is not right. Please explain why Senator Watt was asked not to speak today.


Senator Robichaud: Honourable senators, earlier I listed the items we would like to call first; Item No. 1, the message about Bill C-10B, will be called much later in the day. If I could be given the assurance that all honourable senators will still be here at 8:30 p.m., I would have no problem. At some point however, I know that some senators will want to leave because of their various travel schedules. That is fine; I often do.

I think that, as the Deputy Leader of the Government, I can call under Government Business items in whatever order we decide to call them, as we often do. I am sorry to have to take time to explain these kinds of things. I suggest we move to Government Business and start debating the bills currently before us.


Senator Lynch-Staunton: The Deputy Leader of the Government has not answered the key question. Senator Watt is ready to speak. He told us that. However, the deputy leader told us earlier that he would stand the bill. Then we found out his is standing the bill because he requested Senator Watt not to speak today. I want to know why that was done.


Senator Robichaud: Those are words. I asked Senator Watt if he could postpone his speech, and he agreed to do so. He just told us he will not be here on Monday and asked to speak on Tuesday instead. I am complying with his request. But in the meantime, if another honourable senator wishes to speak, we can hear him or her as soon as that item is reached. I have no problem with that.


Amendments and Corrections Bill, 2003

Second Reading—Speaker's Ruling

On the Order:

Second reading of Bill C-41, to amend certain Acts.—(Speaker's Ruling).

The Hon. the Speaker: Honourable senators, following my ruling on a point of order regarding Bill C-41, Senator Stratton raised another point of order respecting two other alleged problems with this bill. The first has to do with its short title; the second relates to its omnibus character.


Quoting a specific standing order of the other place, as well as some Canadian parliamentary and legal authorities, Senator Stratton claimed that the short title of Bill C-41 is irredeemably flawed. Furthermore, according to two authorities, the chief opposition whip maintained that Bill C-41, as an amending bill, should not have a short title at all. As to the content of the bill, the senator argued that it has no unifying theme. This fact makes the bill inherently offensive to the legislative process. In conclusion, Senator Stratton contended that Bill C-41 is fundamentally defective in both structure and form and should be withdrawn or simply returned to the other place.


Speaking in response to this point of order, Senator Carstairs began by stating how the rules and practices of the other place are not the proper concern of the Senate. The Government Leader then proceeded to explain that miscellaneous statute law amendment bills and technical corrections bills can encompass a wide range of statutes. The only difference between the two, as the senator noted, is that the MSLA bills do not contain any controversial amendments whereas technical corrections bills can. Both, however, are omnibus in character, with the potential to address many different and disparate Acts.


Senator Cools also participated in the discussion on this point of order. The senator raised several issues in her intervention. First, Senator Cools expressed her understanding of the nature of these omnibus amendment bills, suggesting that they did indeed have to possess a common theme. Second, the senator noted that there has been at least one case in the Senate of the Speaker ruling a bill out of order and in this connection Senator Cools cited her own experience with Bill S-11, the Homolka bill that was the object of a Speaker's ruling in 1995. The senator also made some interesting comments on the nature of precedents and practice.


I wish to thank honourable senators for their contributions to the discussion on this point of order. I am prepared to rule on it now.


As I noted in my earlier ruling on Bill C-41, this bill has come to the Senate from the House of Commons. It did not originate in the Senate. Whatever process of consideration might have been followed in the other place with respect to Bill C-41 is not a matter that can properly be raised in the Senate. As to the matter of this amending bill having a short title, this feature, even if it may be unusual, cannot, in my view, be regarded as fatal. The presence of a short title to this bill does not and cannot constitute a valid ground for me as Speaker to rule it out of order.

I acknowledge that Bill C-41 is an omnibus bill that seeks to amend or correct a number of statutes. I am unaware of any requirement that such a bill must possess a common theme, and no authority has been cited to substantiate such a claim. To the contrary, I am aware of numerous miscellaneous statute law amendment bills and some technical corrections bills in the past that have addressed many different acts within the same bill. This is nothing new and Bill C-41 is no different in this respect.

Accordingly, I rule that there is no valid point of order in this case and that second reading of Bill C-41 can now continue.

Point of Order

Hon. Norman K. Atkins: Honourable senators, I wish to rise on a point of order regarding the content of Bill C-41, which anticipates what this chamber may or may not do with another piece of legislation before us. Honourable senators, let us be clear: Bill C-41 is not a bill that is simple and straightforward. It is not a bill that can be said, on its face, to be completely non- controversial. It is complicated. There are amendments in this bill relating to the coming into force of parts of Bill C-25, the Public Service Modernization Act, which I note is still at third reading in this chamber. Both the government house leader in the other place and the bill itself referred to these amendments as coordinating amendments.

The government, in introducing Bill C-41, appears to have been operating on the basis of a presumption that the Senate of Canada will not make amendments to Bill C-25, other than what Bill C-41 anticipates. Indeed, a government official, on September 29, 2003, said: "We pick up all the changes that we need at the end of the day if you read the two acts together."

Section 30 of Bill C-41 deals with the coming into force of Bill C-25 and the coming into force of Bill C-41. Section 30 ensures that the French version of "Deputy Commissioner" referred to in the Canada Customs and Revenue Agency will be replaced by "commissaire délégué." This contains within it an underlying assumption that the Senate will continue to use the words "commissaire délégué" and not some other term. If Bill C-41 passes with Bill C-25, the term "commissaire délégué" will be used instead of "commissaire adjoint."

An amendment of this nature could and should properly have been brought into Bill C-25 by the government, either in the House of Commons or here in the Senate. Bill C-25 was debated at report stage in the House of Commons on May 27. It was debated at third reading on May 28, June 2 and June 3. Bill C-41 was introduced in the House of Commons on June 4, 2003, just one day after the passage of Bill C-25. It was referred to committee on September 26, considered clause by clause on October 1 and reported to the House on October 2. It passed the House of Commons on October 3, on a motion of the Government House Leader. This motion said:

That, notwithstanding any Standing Order or usual practice, all questions necessary to dispose of amendments at the report stage, concurrence at report stage and third reading and passage of Bill C-41, the technical corrections bill, be now deemed to have been put and carried.

It was given what can best be described as a cursory examination in the other place during these stages. Bill C-41 makes amendments to change the title of the Executive Director of the National Round Table on the Environment and the Economy to president. These amendments are fairly clear on pages 12 and 13 of the bill. It should be noted that, in this part of the bill, the language used to describe the bureaucracy of Canada is "the Public Service of Canada," which is the current legal term. If unamended by the Senate, Bill C-25 will change the terminology of "the Public Service of Canada" to "the Federal Public Administration." However, on pages 17 and 18, Bill C-41 provides for the coming into force of Bill C-25 and Bill C-41. If Bill C-25 is passed without any amendments dealing with the terminology, Bill C-41 enables an amendment to the National Round Table on the Environment and the Economy Act to replace the words "Public Service of Canada" with "the Federal Public Administration" while ensuring the new title of president is not lost in the interaction between the coming-into-force provisions.

Honourable senators, this sounds complicated. In effect, the government has brought in amendments to change titles in the Canada Customs and Revenue Agency Act and the National Round Table on the Environment and the Economy Act on the presumption that, whichever bill is passed first, further amendments to the terminology "federal public administration" or "commissaire délégué" will not be made by this chamber.

With Bill C-41, the government has acted prematurely in anticipation of the expectation that the Senate would neither amend Bill C-25 to replace the words "federal public administration" nor replace "commissaire délégué" with something else.

It is my view that Bill C-41 should not be allowed to proceed — certainly not before the chamber has completed its examination of Bill C-25. The government has assumed that the Senate will pass Bill C-25. It is assumed that the Senate will not make changes to Bill C-25 in terms of terminology used in the bill.

The government chose not to bring forward amendments to Bill C-25 to correct the French language issue. It could have done so easily; indeed, this chamber might well make any necessary amendments during the course of its consideration of Bill C-25.

Business of the Senate

The Hon. the Speaker: I am sorry to interrupt Senator Atkins, but I am obliged to do so, under order of the house, so that the bells may ring for the vote, which we have agreed to take at 3:30 p.m.

Call in the senators.


Public Service Modernization Bill

Third Reading—Motion in Amendment Negatived

On the Order:

Resuming debate on the motion of the Honourable Senator Day, seconded by the Honourable Senator Harb, for the third reading of Bill C-25, to modernize employment and labour relations in the public service and to amend the Financial Administration Act and the Canadian Centre for Management Development Act and to make consequential amendments to other Acts.

On the motion in amendment of the Honourable Senator Beaudoin, seconded by the Honourable Senator Comeau, that the Bill be not now read a third time but that it be amended in clause 12, on page 126, by replacing lines 8 to 12 with the following:

"30. (1) Appointments by the Commission to or from within the public service shall be free from political influence and shall be made on the basis of merit by competition or by such other process of personnel selection designed to establish the relative merit of candidates as the Commission considers is in the best interests of the public service.

(1.1) Despite subsection (1), an appointment may be made on the basis of individual merit in the circumstances prescribed by the regulations of the Commission.

(2) An appointment is made on the basis of individual".

Motion negatived on the following division:


Andreychuk Gustafson
Atkins LeBreton
Beaudoin Lynch-Staunton
Cochrane Nolin
Di Nino Prud'homme
Doody Robertson
Eyton Stratton
Forrestall Tkachuk—16


Adams LaPierre
Austin Lavigne
Bacon Léger
Banks Maheu
Biron Mahovlich
Bryden Massicotte
Callbeck Merchant
Carstairs Milne
Chalifoux Moore
Christensen Pearson
Cook Pépin
Corbin Phalen
Cordy Pitfield
Day Plamondon
De Bané Poulin
Downe Poy
Fairbairn Ringuette
Ferretti Barth Robichaud
Finnerty Rompkey
Fraser Smith
Gauthier Sparrow
Gill Stollery
Grafstein Trenholme Counsell
Hervieux-Payette Watt
Hubley Wiebe—51



Amendments and Corrections Bill, 2003

Second Reading—Point of Order

On the Order:

Second reading of Bill C-41, to amend certain Acts.

Hon. Norman K. Atkins: Honourable senators, citation 512(2) of Beauchesne's 6th Edition, dealing with the rule of anticipation, states:

The rule against anticipation is that a matter must not be anticipated if it is contained in a more effective form of proceeding than the proceeding by which it is sought to be anticipated, but it may be anticipated if it is contained in an equally or less effective form.

In this instance, there is a more effective mechanism than the proposal contained in Bill C-41. That mechanism is simply to amend Bill C-25 itself. This would have the clear advantage of maintaining all of the relevant material within the same bill.

Your Honour, it is my submission that Bill C-41 is out of order because it infringes upon the rule of anticipation.

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, it will come as no surprise that I do not agree with the other side's point of order. We have now had three points of order on this bill. Two of them have been declared not in order and I think we should add this one as well.

Bill C-41 includes two coordinating amendments with respect to Bill C-25. There is no question about it; they are in the bill. As honourable senators know, the purpose of coordinating amendments is to resolve possible conflicts between successive amendments to the same provision and to avoid having one bill undo the work of another. In this way, coordinating amendments respect the rights of Parliament, as they ensure that the statutes of Canada fully respect the laws passed by Parliament.

The coordinating amendments in Bill C-41 do not imply that there are mistakes in Bill C-25. The coordinating amendments do not amend Bill C-25; rather, they amend provisions of acts that are affected by both Bill C-25 and Bill C-41. If Bill C-25 becomes law and Bill C-41 does not, the coordinating amendments would not be needed at all. Similarly, if Bill C-41 becomes law and Bill C-25 does not, the coordinating amendments would not be necessary. However, if both Bill C-25 and Bill C-41 become law, the coordinating amendments are needed to ensure that the provisions of both bills are reflected in the statutes affected by Bills C-41 and C-25. Therefore, honourable senators, I would argue that what we have done here is entirely in order.

The Hon. the Speaker: Honourable senators, I will take the matter under consideration and report back as soon as possible with a ruling.



Parliament of Canada Act

Motion for Time Allocation Adopted

Hon. Fernand Robichaud (Deputy Leader of the Government), pursuant to notice of October 22, moved:

That, pursuant to rule 39, not more than a further six hours of debate be allocated for the consideration for second reading of Bill C-34, An Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence;

That when debate comes to an end or when the time provided for the debate has expired, the Speaker shall interrupt, if required, any proceedings then before the Senate and put forthwith and successively every question necessary to dispose of the second reading of the said bill; and

That any recorded vote or votes on the said question be taken in accordance with rule 39(4).

He said: Honourable senators, if adopted by the Senate, this motion would have the effect of allocating six hours of debate at second reading stage of Bill C-34. After second reading, as is our custom, the bill would normally be sent to committee. The committee will be instructed to study the bill and report back to the Senate. I point this out to ensure that the honourable senators understand clearly that this is not the end of the debate, but simply six hours of debate at second reading.

On October 23, 2002, a draft bill and a draft code of ethics were tabled in the Senate. That was exactly one year ago today. These proposals were presented for the consideration of the honourable senators.

On October 24, the Leader of the Government in the Senate, Senator Carstairs, moved to refer these two documents to the Standing Committee on Rules, Procedures and the Rights of Parliament. At that time, it was simply a motion to refer the documents to the committee for study. It was not a motion to adopt the documents now before us.

Three and one-half months, or 21 sitting days, later, the motion to refer the two documents in question was passed. I recall that honourable senators were invited on a number of occasions to express their views on these documents so that there would be a written record of their opinions and suggestions, and the changes they would like to see made.

The committee met for the first time on February 11. It met another 23 times, hearing 24 witnesses, including the Senate Law Clerk and parliamentary counsel. In all there were 41 hours of deliberations.

On April 10, 2003, the Standing Committee on Rules, Procedures and the Rights of Parliament tabled its interim report with the Clerk of the Senate, and then continued its deliberations. Its most recent meeting was on September 24, 2003.

Debate on the report began on April 30, 2003. There were 39 sitting days when this matter could have been debated. On numerous occasions, in caucus and elsewhere, I encouraged the honourable senators to express their views on the committee's report.

On April 30, 2003, the government introduced Bill C-34 in the other place. This bill incorporated some of the amendments suggested by the committee of this house which had studied the documents.

Honourable senators, consideration of the Senate report was deferred for 33 sitting days, counting today. There was opportunity to express our views at the study stage of this report, which is still on the Order Paper. I repeat, honourable senators were invited on numerous occasions to express their views.

Bill C-34 was passed in the other place on October 1. The Senate received it on that same day, October 1. The Leader of the Government, Senator Carstairs, moved second reading on October 7, 2003. Today is the seventh sitting day on which people had an opportunity to speak.

After the speech by the Honourable Leader of the Government in the Senate, normally the second speech is reserved for the person responsible for speaking on behalf of the opposition. That honourable senator happened not to be prepared to speak, but on several occasions I invited the honourable senators to speak, without affecting the position of the honourable opposition senator, who would have 45 minutes at his disposal, being the second speaker.

There could have been agreement to maintain the allotted time of 45 minutes. That way, the honourable senators could have spoken on Bill C-34. One can hardly say that there was no opportunity to speak on this bill.

Bill C-34 before us could have been debated, either at second reading or during consideration of the committee's report, for some time.

Honourable senators, I want to say again that the effect of this motion is to allot six hours of debate on Bill C-34 at second reading stage only.

If this motion is adopted, the debate will continue, the bill will be referred to committee, which will consider it, make its report, and send it back to the Senate for third reading. I am certain that, when debate resumes, the bill will be hotly debated by all senators.


Hon. Terry Stratton: Honourable senators, would the Honourable Senator Robichaud take a question?

Senator Robichaud: I certainly will, honourable senators.

Senator Stratton: The honourable senator referred to the document from the Standing Committee on Rules, Procedures and the Rights of Parliament as a "report."

Can the honourable senator tell the house from where his reference comes? My understanding is that it was not a report. In fact, at that stage, it was not called a report but a commentary. We members of the Rules Committee deliberately did not call it a report, for a particular reason. This was at a time when we were studying the merits of the bill. It was at an interim stage and the study was incomplete. Time after time in the committee we said that our study was incomplete.


The implication that the honourable senator gave was that it is a report upon which we had completed our work. On the other hand, it was stated quite clearly, again and again, that the report, or so-called report, was actually a commentary, implying that we had much work left to do.

From that, at that time, how could the honourable senator expect senators to be prepared to speak when we had not completed our work or the full depth of exploration had not been carried out?


Senator Robichaud: Honourable senators, whether it is an interim report or a final report, the honourable senators have had the opportunity to express their views. I have here the Order Paper and Notice Paper and, on page 5, under the heading "Reports of Committees," Item No. 2 is entitled "Resuming debate on the consideration of the Eighth Report (Interim) of the Standing Committee on Rules, Procedures and the Rights of Parliament..."


The Hon. the Speaker: As honourable senators know, we are operating under a special rule. Speakers have 10 minutes, except for the leaders, who have 30, and your 10 minutes have expired, Senator Robichaud.


Senator Robichaud: Instead of asking for leave to extend this question period, I would rather hear the comments of the honourable senators.

I could definitely conclude my answer to the Honourable Senator Stratton by saying that the report is before us, and there have been a number of opportunities for the honourable senators to speak to it. However, it is wrong to say that we did not get a chance to speak and that all of a sudden the debate is being curtailed. It is true, however, that debate is being limited to a maximum of six hours at second reading stage only.


Hon. John Lynch-Staunton: The Deputy Leader of the Government would have made a very fine lawyer with a very weak case. However, it is still a very weak case. To suggest that because we have had reports on the subject matter before us we should hasten study of a bill flowing from those reports is stretching the argument that time allocation is justified. We might as well say that since we received the Milliken-Oliver report years ago on the same subject, we should move even faster, because we have been discussing the question of ethics for all that time. That is not an argument that should be even entertained.

What I fail to understand is, again, what is so pressing that this bill must be subjected to time allocation at this stage? We have been faulted because our official spokesman, Senator Oliver, did not speak until October 21. First reading of this bill was given on October 2, a Thursday, second reading was on October 7 and October 8, and then there was a lull until October 21, when Senator Oliver spoke.

Honourable senators, we all know two things: First, Senator Oliver was on official business; second, Senator Oliver knows as much about this subject as anyone in this room, having co-chaired the Milliken-Oliver committee and having made strong recommendations, which were the subject years later of a committee study contributing to this bill. It was obvious to all that he should be our main spokesman but, unfortunately, official business kept him away. Senator Oliver did not know the Senate would be meeting on the Monday, and hence was not prepared to speak on that day, but on the Tuesday he was ready and spoke eloquently and forcefully on the bill. I told Senator Oliver — and I want to put it on the public record — that his knowledge on the subject was evident in the exchange of views with senators subsequent to his speech.

Honourable senators, I am putting this on the record to reject any suggestion that we have deliberately blocked the progress of this bill. I do not want anyone to suggest that the opposition here in the Senate has obstructed the bill. We are not obstructing the bill. However, we should like to know why the government side has a self-imposed deadline and one that, regardless of what we on this side say, must be met?

We are still operating under the assumption — some might say an over-optimistic assumption — that we are here until a few days before Christmas and that the proposed legislation before us can be dealt with quite easily by then, one way or the other. We have absolutely no intention of delaying any legislation that the government wants for a vote before Christmas. Suddenly, however, this bill has become an item that must be dealt with within a very short period.

Honourable senators, contrast that with the government's attitude on Bill C-17, which is the second phase of the government's anti-terrorism strategy. The first phase of that strategy was Bill C-36. Bill C-17 came before us for second reading this past Monday, October 21, at which time the Leader of the Government spoke to it. Senator Cools asked a question of the government leader, related to the fact that the bill requires careful study because it is complicated and amends many acts, and the government leader replied, at page 2171 of the Debates of the Senate of October 21 as follows:

The honourable senator has certainly identified a huge challenge. This is, indeed, a very large bill.

In that regard, I remind honourable senators of a process we now have but which we did not have just a few years ago. It is one that allows the House of Commons to resurrect a bill. If we were unable to finish with this bill prior to the prorogation that some people seem to think will take place, then it could be resurrected in the other place and sent back to us for us to complete our work on it.

Honourable senators, we have done that before; why not do it again? Why should the end of a session be cause for a bill to start back at square one in the next session, rather than be continued from where it left off in the previous session?

To me, Bill C-17 is much more important for Canadians than Bill C-34. Bill C-17 contains proposed measures requested by our neighbours, the United States. They want those measures in place as soon as possible, which we support, regarding certain information on manifests. Bill C-17 also contains measures that, if legislated, will increase our ability to face a terrorist threat better than we can now. It is a bill that affects all Canadians, all visitors; its effects will be felt beyond our borders. Bill C-17 is the bill that should be given the highest of priorities. Instead, we are told that it is a large and complex bill, and that, if necessary, we will continue debating it later on, or early next year, whatever.

On the other hand, honourable senators, the bill before us only affects a handful of people. It is not a high- priority matter, and its implementation will take a year, if not two years, before it is done. First you have to find the officer and commissioner. You have to set up the office. You have to develop codes of conduct. This is not a priority bill as far as Canadians are concerned. Yet, the government relegates one bill that affects us all to a secondary position and this particular bill, which is not, I would think, one that Canadians are desperate to see, as other bills are, is given this kind of priority. The government's approach here displays a contradiction that is blatant.


I would like to remind honourable senators what time allocation is all about. By my definition, time allocation forces limited debate on proposed legislation without which a minority's strategy of delaying strictly for obstruction purposes can be pursued indefinitely.

The opposition is not engaging in the kind of obstruction that would justify time allocation. What is happening is that the government is imposing time allocation on its own members. It is unheard of. The government has among its members some who are justly — and as Senator Joyal has brought out and as I am sure others will — concerned about certain aspects of this bill, and rightly so. They now understand that their own leadership will limit their participation in the debate. I can tell you right now, if we have time allocation at this stage, sure enough, there will be some form of time allocation imposed in committee and there will be time allocation when the bill comes out of committee and there will be time allocation in order to meet what deadline? Is it November 7? Is that the deadline? Tell us. If you do not tell us, allow us to continue to believe that we are here until mid- December. That is the calendar on which we are working. That is the calendar that your colleagues should be working on.

We have this extraordinary tool of the majority being used against the majority. There is no one in the opposition who wants to speak to this bill at this stage except for Senator Beaudoin, who is ready to go today. Other than him, are there others opposite who wish to speak at this stage? I do not know. We are told, "But you are allowed six hours to find out." Once there is time allocation, the game is over. The government has indicated that this bill will be rammed through no matter what the arguments are, that amendments will not be entertained, that arguments will not be listened to. The six hours available will simply allow senators to put on the record things that will have no effect on those who introduced the bill.

We are also told, "Well, there was this gap of 10 days when no one spoke." How did the House of Commons handle this bill, this bill that is being given such a high priority? It was given first reading in the House of Commons on April 30, 2003, and it came out on October 1. It took the members of the House five months. This high priority, so essential, a key bill that still took five months to get through the House, and they expect us to do it all in two weeks. Is this what is expected from the chamber of sober second thought?

I have spoken on this before. I will try not to repeat myself except that I find it extraordinary, again, that all of us are working under the handicap of not knowing exactly what the government's intentions are regarding the future of this session and even the future of this Parliament. This is a major fault of our parliamentary process and argues again for fixed terms so that no prime minister or leader of the government, can, for self-serving and party advantage, decide that Parliament should be called and prorogued at will and that an election should be called when it is favourable. Those days should be over with.

Soon after Premier Campbell's party took over the Province of British Columbia, they passed a bill to do exactly that, to fix set dates for elections. Mr. Grimes announced in Newfoundland that he intended to do the same. That is good; it allows every parliamentarian to know exactly the time within which he and she are given to accomplish whatever they intend to accomplish and also at what time they must answer for their acts to the public.

All that the law provides here is that the government is elected for up to five years. Any time within those five years, an election can be called. If an election is called next spring, that means we will have had three elections in nine years, I think. Why? Who needs an election now? I will get back to this when Bill C-49 comes before us. There is another bill that is only intended to accommodate the next leader of the Liberal Party. It has nothing to do with the need for additional ridings in Ontario, British Columbia and Alberta, nothing at all. Those seats are confirmed anyway. The proclamation of those seats was done last August. They come into effect August 26 this year, but the government feels they should put them in earlier so that when they go for an election they can tell their friends in Ontario and out West, "See we got you your new seats."

They want to amend the Electoral Boundaries Act to suit partisan purposes. It has nothing to do with the need to have more equity in our electoral process, but I will get back to that when we come to Bill C-49.

For what it is worth, I urge that we do not adopt Senator Robichaud's motion, that we continue this debate, that we take the time needed to study it in committee on the understanding that any objection to this bill or any other bill will not hinder the resolution to any legislation by the time we adjourn for the Christmas holidays.

Hon. Consiglio Di Nino: Will the Honourable Senator Lynch- Staunton take a question?

The Hon. the Speaker: Do you agree to accept a question, Senator Lynch-Staunton?

Senator Lynch-Staunton: Certainly.

Senator Di Nino: Over the past number of years, we have had political parties, the media and some of our colleagues question why we are here. One defence we have always given, and I think it is a good one, is that we are here to review legislation and issues of importance to Canadians in a calm, rational, non-partisan manner to ensure that the decisions that we reach and the legislation that is passed in the Parliament of Canada is truly for the benefit of Canada and Canadians. I have often said, particularly when speaking at schools, that one of the important elements of the Senate is that we can deal with issues without the pressure and influence of the electors.

We do not have to be elected. We have been appointed. What that does for us is that I do not have to worry about my next door neighbour saying to me, "The next time, I'm not going to vote for you unless you are more in line with my thinking than you have been."


I tell the children when I speak at schools that we have a body of talented and wise people — and I really believe that — that goes about its business in the Senate of Canada in a manner which is not influenced by others but with that very important responsibility of looking after the interests of Canadians.

Too often, particularly in the past 10 or so years, this place has been dictated to by the other place. Yes, it happened before. It is not just this particular government. The previous government was not quite as bad, but it did the same thing. Those of us who have been around for a few years now — and I have talked to some of you on a one-to-one basis — feel embarrassed by this. We should be looking at, dealing with and debating the issues without the influence of the other place. As my leader has said, if we are only a revolving door for government legislation, then let us shut this place down. Truly, these kinds of actions embarrass me and should embarrass us all. We should not be denied the time to debate. We should not be denied the ability to fully, in good time, analyze the issues.

I have not often spoken on this issue, but frankly, I cannot defend it. I cannot defend this to my colleagues, to my friends, to the people I address from time to time, particularly, as I said, when I go to schools. I talked to a young lady this morning who was doing a Ph.D. thesis on the Senate, the government, and particularly the role of women in Parliament. Frankly, I said to her that I am not proud of some of the things we do in the chamber when we have to kowtow or bow to the wishes of the Prime Minister's Office or the cabinet. I made sure she understood that I was referring to both the previous government when my party was in power and this government. I think it does harm to our institution and is not the way we should be behaving.

I do not believe that the government side should put up with unnecessary delays, but this is silly. We have hardly had this piece of legislation. When I came here, I recall that the Unemployment Insurance bill was held up for nine months. I could understand it in that situation, and I think there would be some justification. This is about doing our job, and frankly, I think we should all feel embarrassed.

Hon. Jerahmiel S. Grafstein: I have a question for Senator Lynch-Staunton, if he would allow. I tried to look at the precedents upon which the rule that we have been asked by the government to examine today was based. I noticed that the honourable senator referred to the rationale for the rule, and it is, to my mind, a fair explication of the rationale for the rule. The heart of it is obstruction.

On the other hand, the rule is applied here in a very unique circumstance, second reading, on a subject matter affecting the privileges of Parliament. I have been in this place for close to two decades. I could find nothing. I tried to go back beyond that time to find out if closure at second reading was applied to questions affecting the constitution of the chamber and the privileges of parliamentarians on this side and the other side. Some senators on the other side have had longer service in Parliament than I, but I have been an observer of Parliament since 1961. I recall as a youngster reading about the debates in 1957 and the question of the independence of Parliament separate and distinct from the executive. The executive could not impose itself on the House or on the Senate, with which we are all familiar. Frankly, that fact is reflected in the committee report. I have not been able to discover one single precedent where closure, or as my colleague Senator Joyal says, guillotine, has been adopted on a matter affecting privileges of this chamber or Parliament. Perhaps Senator Lynch- Staunton's research is more coherent than mine, but that is the best I have been able to do.

Senator Lynch-Staunton: The research that we have been able to do has not shown any time allocation at this stage of a bill's progress, and certainly none on an item which would affect parliamentary privilege, the chamber itself and Parliament as a whole.

I sat in Senator Robichaud's chair for quite a while. I introduced a time allocation motion on more than one occasion, but the situation then was different. Our numbers were not as one-sided as they are now, and there was deliberate obstruction by our Liberal friends. Some senators opposite were there at the time. That was part of a strategy. I did not object to that strategy, but there came a time when the obstruction became so blatant that we imposed time allocation.

I looked up two incidents, and there are others which I think are just as reliable, where the explanation given was a little more solid than the one given by Senator Robichaud, who said, in effect, "We have had two speakers; no one has spoken in six days, so here comes the guillotine." In the cases in which I was involved, and some senators will remember, debate had gone on for weeks. In one case, the bill contained a deadline that had to be met, a deadline which was known. It was a provision to do with family allowances, and the notices had to go out by a certain date. The opposition side knew this, and the date had been known for months, but the opposition was deliberately delaying the bill so the government could not meet the deadline and would be embarrassed. There was justification to impose time allocation. The opposition side, at least unofficially, agreed that "Yes, we are trying to embarrass you." That is fine. On the other hand, the government has a tool to use in extreme cases. This is not an extreme case; far from it. It is a unique case where the guillotine is put down even before the debate has gone further than one or two speakers.

To come back to Senator Grafstein's question, no, I have not found any example where an action has been taken in this chamber similar to the one today.

Senator Grafstein: I have the so-called report that Senator Stratton referred to as not being a report, and it says, as Senator Robichaud says, that it is an interim report. When one examines the interim report, it is clear that it is not a conventional report in any sense of the word as it applies to legislation. It deals with principles.

We have heard that the committee met 23 times. I know Senator Lynch-Staunton was there on a number of occasions. I am a member of the committee, and I was there on the bulk of those occasions. My colleague Senator Joyal was there for practically all of those meetings. Again, drawing on my honourable friend's experience, what is this report? It is, as I see it, a document of exchanging viewpoints, but not one that opines on specific matters related to a specific piece of legislation at the time. Essentially, it is a general document of principles.

Has the honourable senator ever seen such a report as our colleague Senator Robichaud is using as a rationale for moving quickly or guillotining our ability to examine the subject matter of this particular bill on second reading? I ask Senator Lynch- Staunton to give us his experience in that regard.

Senator Lynch-Staunton: My experience is not as long as that of Senator Grafstein.

This is a precedent also. In addition, that particular report is still before us. It is still on our Orders of the Day. We have yet to dispose of it. No decision has been taken on it. Yet the government says, "You have not taken a decision on the report that you have before you, but you have had it long enough that we will move ahead anyway, no matter what you may think about the report." It just does not add up.


Senator Grafstein: I have a final question on this — I will call it an interim document just to be safe.

Again, Senator Robichaud said we have to incorporate amendments from that interim document. Can the honourable senator give me some insight as to what would be meant by that? I did not follow that argument and I obviously did not have an opportunity to respond to Senator Robichaud's comments.

What is meant by "incorporating amendments?" He said, "Many amendments were incorporated from the interim report." I am confused. Perhaps the honourable senator can alleviate my confusion.

Senator Lynch-Staunton: No, I am as confused as the honourable senator. I hope we can give leave for Senator Robichaud to answer directly. I, too, would like to know what amendments from the so-called interim report can be found in Bill C-34. Perhaps we could give leave and he can tell us.


Hon. Gérald-A. Beaudoin: Honourable senators, it is true that Bill C-34 has been before us for some time. However, I am somewhat surprised to see the privileges of the Senate, a matter as important and delicate in connection with the operation of the Canadian Charter of Rights and Freedoms, made subject to a time limit.

We seldom have the chance to have such a fine debate on constitutional law. Why impose time allocation at second reading? Does the Charter of Rights and Freedoms apply to the privileges of the Senate? We are the Senate! These are our privileges!

The Canadian Charter of Rights and Freedoms belongs to all Canadians. Can the Canadian Charter of Rights and Freedoms limit my privileges? Note that there are few Supreme Court decisions on this matter.

Senator Oliver made quite a remarkable speech. He covered the four or five main decisions. He concluded that we should take all the time we need to examine the issue. This is very important.

I was appointed to the Senate 15 years ago. I have seen hours and hours spent on debates that were not nearly as important as what we are discussing today. Yet, we talked for hours. When we have a very important, fundamental question of law, we have to take as much time as necessary to consider it. We are at a stage provided for under our rules and we are being told that time will be limited. I am really surprised. This is the first time I have seen this. That is why I have agreed to speak about it.

I understand both sides of the argument, but I think this is going too far. People from both sides want to speak. Those who really have something to say should say it. However, the speeches do not always go much below the surface. Given the importance of the subject, we must devote a few hours to it. This affects us; these are our rights being discussed.

I read Senator Oliver's speech, which I found extremely important and interesting. It is our reason for being here in the Senate. We have to take as much time as necessary.

There are almost no legal decisions, almost no legal experts who have addressed our parliamentary privileges. We must express our views on the following principle: Yes or no, does the Canadian Charter of Rights and Freedoms limit or apply to our parliamentary privileges? This is a vital question! I do not see why the time allotted to this stage would be limited. We have many debates in our committees; that is good. We have debates in this Chamber; that too is good. The current subject sparks great interest among our colleagues from both sides. Now is not the time to limit a fine discussion for the sake of moving things along.

As I said, it is not every day that a subject sparks such interest. I have read the Supreme Court rulings and it is true that the Canadian Charter of Rights and Freedoms applies. It is true that if we have a statutory system for the ethics commissioner, the Canadian Charter of Rights and Freedoms applies. This is something we need to discuss. I think that the time allotted to the debate should not be limited.


Senator Grafstein: I have a question for Senator Beaudoin. The rationale for this closure motion, this guillotine measure, at second reading, is based on time taken for what was essentially a pre-study. That is an abnormal procedure in the Senate — a pre- study.

Senator Beaudoin has been here much longer than I have. Again I want to draw on his knowledge to tell me whether, in the circumstances, it was inappropriate — as some of us felt — to embark upon a pre-study of moving targets. The targets included a paper done by Milliken-Oliver, and then a draft bill, and then changes to a draft bill, and now a final bill that took five months for the other place to address. We were supposedly "studying" it during this period. There were 23 meetings held, according to Senator Robichaud; I have no reason to dispute that number.

I ask the honourable senator whether this is normal process. Have we followed the proper processes of this chamber of second sober thought by doing a pre-study on this moving target matter that goes to the privileges of the Senate? Has this procedure been normal? I ask the Honourable Senator Beaudoin that because he has been here for a decade longer than I.


Senator Beaudoin: Honourable senators, I studied the procedure of the House of Commons many years ago, when I was an assistant parliamentary counsel, but I do not pretend to be an expert in the field of the technicalities and the question of privilege and procedure.

My argumentation is not based on the question of procedure. My intention is to say that, when a subject is fundamental in its nature — and the application of the Charter of Rights is, and will always be, of that nature — and when it deals with parliamentary privileges of a legislative house, we should discuss. Is there anything more important for a legislative house than its privilege and its powers? I do not know if we will win the vote or not. However, the subject is so important and so difficult that we should take the time to think about it and to discuss it here.

I have worked more in the Legal Committee than in this chamber, but there is no reason why we should not work in this chamber as much, if not more. If there is such an interest in Bill C- 34, there must be a reason. The reason is that it is fundamental. It is law in the making. Five or six decisions of the Supreme Court will not settle this. It will take years and years, but we will reach a solution on this.

I regret not to be able to answer the honourable senator's procedural question. I am not an expert and I have tried all my life not to speak about matters that are not in my domain.

Hon. A. Raynell Andreychuk: Honourable senators, I am pleased that Senator Grafstein raised the point that we are invoking closure before third reading, which would be the normal stage to put forward closure if there was a necessity. We in this place put a great emphasis on the individuality of individual senators.

Each one of us has come here with certain skills, and we look at our jobs from different perspectives. Perhaps we share certain values, but we also have differences. A code of conduct and principles have to bring some consensus to the attitude and behaviour here. This is not just an isolated bill. It is not the first time we have looked at the code of conduct and ethics. We have had rules in this Senate from the time it was created. This subject has been an ongoing debate.

Why do I raise this point? It is for two reasons. First, the government signalled in its Red Book that it would create a code of conduct, that it would attack the issue of ethics. In 1993, I eagerly awaited that initiative by the Prime Minister as one of his first promises. Nothing came in any concrete way. We have sat for nine years waiting for a code of conduct. Where is the urgency? Where is the obstruction from the opposition? We have asked, time and time again, about these promises. I remember senators on this side asking when the Red Book promises would be fulfilled. There has been no obstruction on our side. It was quite the opposite. We have eagerly awaited this legislation, and I think many have given up on it.

We on this side form the minority. We have difficulty manning our committees and doing our constituency work. Some of us have difficulty travelling here. You can appreciate that, while I, in my private time, think about my behaviour and conduct, I do not take it to be part of my legislative duties here until the government's business signals it to be so. I can only encourage. Perhaps we from this side should have brought a code of conduct, but we had the Milliken-Oliver report that was to be the guideline. We lived by that. We did not have specific pieces of legislation. The Milliken-Oliver report, as someone said, was deep-sixed. We did not even look at it in great detail because there did not seem to be an appetite for it on the part of the government.

Early this spring, the talk of the code of conduct and behaviour came to the fore again and the Rules Committee, quite rightly, started to study the matter. While I feel that pre-study is a good option in many cases, I do not believe it is a good option on ethics and behaviour because it is difficult to determine where to start with jurisprudence and ethical behaviour. There are classes in university to identify the words of "ethics" as opposed to "behaviour," "practices" and "conventions."

As vice-chair, I was not enamoured with dealing with ethics in a rather general way because I could not see how it could crystallize into anything meaningful. However, the Liberal majority insisted that we go into pre-study. We agreed. We did not stop the process or disagree with it. We started, quite rightly and with great patience from Senator Milne, to study the concepts. We heard from witnesses. The committee was only in the process of identifying some of the issues when we were told that legislation was coming and if we wanted to have input we better get on with a report, so an interim report came through.

Those who sit on the Rules Committee will remember that I said that we on this side could not commit to that interim report because it was unfair to something so fundamental as our ethics and behaviour to simply respond to possible legislation. Bring the legislation forward. Again, we were overruled. We noted our objections but we did not stop the report from going ahead. We noted on record our difficulty with this so-called interim report and that it was limiting options for a real debate. Those are the words I used in the committee and those are the words I say now: limiting options for a real debate. Why do I say that? Because what I predicted and what I argued against is happening now. We have had little snippets of debate and now we are being told, "That is enough." We have never had a comprehensive debate. Why should we have that? Because it is peer evaluation, in the end, that will drive a code of conduct. We better know what it will mean to all of us, and the debate should not be in the Rules Committee; it should be on the floor of this chamber.

I appreciate why no one rose to speak to it, because we keep hearing these rumours about November 7 and that we have pieces of legislation we have to get through before November 7. Everyone is preoccupied with their committees. We have not been able to hold a real debate, or a real exchange to arrive at a real compromise. There was no consensus in the Rules Committee. There was broad consensus on principles, but that is not good enough. We have to see the legislation to focus the attention of this chamber as to what it will mean in long-term consequences to each and every one of us.

I think it is a disservice to this house and certainly to this opposition to cut off debate when we are being told that we have to rush through other pieces of legislation. If we had been approached and told honestly that November 7 was to be the cut- off date, then on this side we would have allocated the kind of time to this issue that it deserves. However, we are constantly told there is nothing to the November 7 rumours, that we are here until the end of December and will then return in February.


Why the rush? Why cut off debate? Perhaps the answer lies in the legislation itself, to which I intended to speak, but I wanted to hear from other senators, not those on the Rules Committee. I want to hear what this chamber really intends to do regarding ethics. I would like to hear more detail from the government on this legislation. Where is the code of conduct in the legislation? It is a framework piece of legislation, but it will trap us into ways of dealing with our code and our behaviour that I think are not correct.

Further, where has there been public debate? We talk about the public demanding this code of conduct. Have we put the legislation together with the code? It was promised at the start that we would see the legislation and the code and we could marry the two to be sure that this was the correct direction to go.

Honourable senators, we end up with a piece of legislation that is only one piece of the puzzle. We still have more work to do. We will end up with machinery that may or may not fit what we believe are the correct rules by which we should be bound.

Therefore, I ask Senator Carstairs and Senator Robichaud, why this urgency? Why not create a real debate among all senators? This bill is fundamental to how we function.

I recall the debate on attendance. To me, attendance relates to code of conduct and behaviour as much as anything else — whether we are obliged to be in the chamber, whether we can exempt ourselves and for what reasons. It is just a very small part of the puzzle.

Of course, one committee can deal with the matter, but we will wake up one day and say, "But this is affecting me." The integrity of the Senate's work will also be affected if we do not involve the public.

By closing debate now, we have not received an undertaking that the committee can have a real, full, comprehensive look at this legislation together with the code and that it will hear witnesses and get public reaction before we move forward. Will we be allowed to call witnesses? Will we have full hearings, or will we be cut off again? At each stage, we will be told that something was done.

It takes a while to get the machinery going. Twenty-three committee meetings do not comprise a long period of time when one looks at how we sit. We sit on Tuesday mornings and have had other issues to study. We have started with one or two witnesses and then often we repeat on the next day because we have changing membership, both on our side and on the government side. We have not had the comprehensiveness that I think this legislation deserves.


Hon. Pierre Claude Nolin: Honourable senators, I have only 10 years experience in the Senate and I did not look deeply into precedent any further back than that. I would like to tell Senator Robichaud and Senator Carstairs that they are doing a great disservice to our institution.

We are in the midst of a debate on the principle of a bill which raises fundamental questions as to the very existence, the very continuation, of our institution or any other parliamentary institution. You need to realize, honourable senators, that decisions reached in one chamber of a Parliament are going to apply to another chamber in the same type of Parliament. The effect on other legislatures is obvious.

I have listened with a great deal of attention to what Senator Oliver has had to say, and particularly to Senator Joyal yesterday. I did not hear Senator Fraser except when she told us "This is but a preliminary step. We will get our ethics officer and then it will be up to us, within the privacy of our own committees and their decision-making process, to decide what he will do and within what framework he will do it."

That is one position. I would like to see other senators address each of the arguments raised by Senator Oliver and Senator Joyal. I would like to see someone from the other side tell me how the 1689 Bill of Rights is not affected by the decision we are about to take.

Senators Robichaud and Carstairs are doing us a very great disservice. They are certainly acting under instructions, and not of their own free wills. They are bowing to instructions and unfortunately are doing our institution a very great disservice by so doing. I am sure that there are senators here who have never heard of the 1689 Bill of Rights. I am convinced of it.

They surely heard certain honourable senators speak about parliamentary privileges and understood yesterday, in listening to Senator Joyal, that these well-known privileges date back to a peaceful agreement reached after a very lengthy civil war and debate between the British monarchy and the British Parliament. In 1689, this gave rise to a document that today is important to all parliaments modelled on the Parliament of Westminster.

I would like a debate that would certainly not be time-limited. As Senator Lynch-Staunton said, when we know that time is allotted, that means the government has decided to get out its guillotine and send a signal to everyone that enough is enough, that the debate has gone on long enough, and that it has to end just when we are starting to explore these famous privileges.

Senator Joyal is urging us to hold that kind of debate and all that Senator Robichaud, the sponsor of this unfortunate motion, can think to say — and he says it with the blessing of Senator Carstairs — is that this is not important. End of debate. Moreover, as Senator Lynch-Staunton pointed out, we have a report that has been on the Order Paper for I do not know how long, and I do not know who is blocking this debate. Since I do not know the answer, I will not accuse anyone, but I hope it is not someone from the government side; that would be too much. Who is blocking it? If no one is, then you have no interest in having us vote or continue the debate on this very important report.

Senator Robichaud: Why did you not start the debate?

Senator Nolin: Honourable senators, as a lawyer I make it a rule never to ask a question to which I do not already know the answer. I do not know who is blocking this debate, but I do know that you have not put this report on the Orders of the Day. For us, it is still on the Order Paper and that does not seem to be important. But suddenly it has become important.

Senator Robichaud: Honourable senators, this report has been called every day, each time we get to Reports of Committees under Other Business.


Senator Nolin: I do not know if the report was called each day. Clearly, it is a committee report, and no one ever asked to vote on this committee report. Perhaps the House is not interested. What is the purpose of this point of order?

Senator Robichaud: Honourable senators, I should have said that it was a point of information and not a point of order. It is a bit different. I simply wanted to provide the correct information.

Senator Nolin: That does not excuse the unfortunate error. This does a terrible disservice to this institution. I almost feel like challenging Senator Robichaud to respond to Senator Joyal. Has he considered the importance of the arguments raised?

I understand that there are no longer civil wars in Canada, and that it would be difficult for the Senate and the House of Commons to build an army to defend our privileges. Those familiar with British history know that an army was created to defend these privileges. With what result? The king lost. He did not just lose the civil war, he lost his head.

A 60-year civil war ended in 1689. Today, we are being asked to set this aside. We are being told that all we are doing is providing for the appointment of an ethics officer and that we will not be the ones to appoint him but that we will supervise his work. A terrible disservice is being done to an institution that is losing its raison d'être and questioning its effectiveness. This motion is unfortunate.

Hon. Jean-Robert Gauthier: Honourable senators, I want to be honest. I am not happy to see time allocation imposed on such an important bill. I would even say that this breaches my parliamentary privileges. What is parliamentary privilege? In my opinion, it is simply the right to speak.

I recognize that the government has the right to see its bills adopted. I recall a quotation by Stephen Knowles, in Marleau and Montpetit, House of Commons Procedure and Practice, which reads as follows:

The whole study of parliamentary procedure over the years, indeed over the decades, has been an endeavour to find a balance between the right to speak at as much length as seems desirable, and the right of parliament to make decisions.

For the time being, we are considering Motion No. 1, by the Honourable Deputy Leader of the Government in the Senate. If we refer to rule 40(1)(b), it states the following:

40. (1) When an Order of the Day for a motion to allocate time for the consideration of any item of government business is called:

(b) the Speaker shall interrupt any proceeding then before the Senate and put every question necessary to dispose of the motion not later than two and one half hours after the order is called.

We are one hour and ten minutes into the scheduled two and one half hour period. If all the honourable senators speak in the debate, the House will have recessed before we are done. This irks me, and I will tell you why. I have business standing in my name on the Order Paper. I attend the Senate regularly, follow debate closely and wait my turn to speak.

I consider that my right to speak is essential to put forward my ideas and advance projects and, perhaps, make a bit of a difference. Speaking time is sacred when we do what is right, as parliamentarians, to try and improve the quality of life of our fellow citizens.

I am terribly shocked every day, by the time we adjourn, to see that we have not even reached private bills. The debate deals with legal issues, or what is called closure in this place. But it is not closure at all. It is time allocation, pure and simple. How can only six hours be allocated to the consideration of a bill as important as Bill C-34?

I remember when, in the House of Commons, vicious allegations had been made about certain parliamentarians. It was even rumoured by the police that 14 parliamentarians were suspected and under investigation. That shocked me deeply. It was as if all parliamentarians were being tarred with the same brush.

I summoned both the Commissioner of the Royal Canadian Mounted Police and Jim Hawkes, who was the government whip. We asked the Commissioner to put an end to the absolutely unfounded allegations. He said this was a mistake, that he was sorry and should not have done that.

How many times are parliamentarians accused without any basis? I find upsetting this procedure whereby the government debates an issue and makes a decision. But I am utterly disgusted that the government would impose time allocation on an issue as fundamental as the ethics of parliamentarians.

I was a member of the Milliken-Oliver committee. There was prorogation and there was a change. It has been years since we have discussed this idea of having a code of ethics, here in the Parliament of Canada, that would be overseen by both Houses independently of one another, but that is not what Bill C-34 is about.

The French version of the bill uses terminology that I do not understand. For years we have been using an "agent du Parlement," "haut fonctionnaire parlementaire" and all sorts of other terms. I do not accept the term "conseiller en éthique." I find it to be inaccurate and I would like to discuss it.

With respect to the principle of the bill, I have a few things to say, but I will stick to the rule and say that limiting debate on such a fundamental bill is absolutely unacceptable.

There are bills that interest me, such as Bill C-25, which deserve to be debated, but every time this item is called, debate is deferred. I am ready to speak to Bill C-25. I would like to do so, but ultimately we never manage to address important issues.

Let us proceed with the vote. The time has come to act!



Hon. J. Michael Forrestall: Honourable senators, I hesitate to jump into this debate, but I do wish that I had time to ask Senator Joyal and some of my colleagues on this side some questions on this important issue. I have concerns about the autonomy of our chamber and the rights of members to adjudicate or rule upon their own procedures and processes.

If I understood Senator Joyal's remarks yesterday, I would conclude that we are about to, unwittingly, give up our autonomy to a major degree. We are about to build into our walls a door through which, at will, the members of the other place can enter for its own purposes, and against which we have no defence, other than to amend this bill that would protect that autonomy.

If we go to the extent of concluding that we should protect that autonomy, then I would be afraid that the public would look at that and say that we want control for a purpose that is other than respectful and healthy.

Honourable senators, had we had the type of debate suggested by Senator Gauthier and others, there would have been an opportunity to explore some of the avenues that are of major concern. I must question the capacity of any body such as this, to consider, in a day or two days — since closure amounts to six hours of debate — the work of a committee that spent part, if not all, of 23 days examining this bill and preparing a report. Those senators who sat on the committee can easily grasp the intent of the verbiage of that report, interim or whatever it may be, but how can the rest of us who did not participate in committee understand what it means? If we cannot understand, how can we contribute? How can we protect ourselves?

I cannot, of course, say to my leader, "You make the decision." That would not be fair to him, and it certainly would not be fair to me. Do I say to the learned minds in the chamber, whom I have had the privilege of listening to very carefully for 10 or 15 years now, that they should guide me if there were enough time? Honourable senators, it is not closure that is being discussed. Our participation is not wanted. Good law is not wanted.

Perhaps the Prime Minister wants this bill to be passed for a particular purpose. I am not about to attribute motives to anyone, let alone that gentleman, who entered these parliamentary precincts a few months ahead of me. That was a long time ago. However, I do want to know whether our autonomy is no longer important and whether our times have so changed that we do not have to worry about absolute control of our affairs. That may be the case, but I want to debate the issue and I want someone to tell me whether that is so. I do not think it is.

Honourable senators, we have the dilemma. I have a lengthy prepared speech, and were I to read it, my remarks would flow together. They would not be nearly as disconnected as these random thoughts, which I am sharing with you all now. However, I offer those too for your consideration.

How do we protect our autonomy? That is important. As Sir John A. said — as did the man from Halifax who uttered similar words — "What is the value of the chamber unless we have that unfettered right to question, to put forward views?" What is the value of the chamber?

It has been my experience that the best legislation in which I participated was the most hotly debated, not that in which the debate was curtailed. The debate was expanded. It came to include the country, the universities, and the segments of society most directly affected. Strong legislation is legislation that can withstand attack and prove to be correct.

I am being asked to consider an alternative that would allow someone to say, "There goes a crook. Look what he is has done. He has built an ironclad cage around himself so that he is not answerable." I am answerable to many people, but I am not happy to be answerable for bad law. I have always considered that good law is simply explained. That is law that people will want to obey and will want to protect them. Bad law is law that people instinctively will not obey. Pray God we do not have very much bad law. In the absence of closure and in the openness of debate, we have those freedoms that were granted from the time of Sir John A. and that were carried on through the history of our Prime Ministers. Most of them found strength in their legislative programs that had been subject to wide and open debate across the land. When people naturally want to obey, a law is good.

Honourable senators, I have no right to reject anything, but I am not pleased about what is happening. My friend from Happy Valley was questioning whether this had ever happened in the years I have spent in the chamber. I do not remember closure on an internal matter dealing with parliamentary precedent. I do not remember that ever happening. It could have, but I do not remember it. I would be very sad to remember something like that happening.


Hon. Herbert O. Sparrow: Honourable senators, I have three questions of why closure should not take place: The first question is why, the second question is why, and the third question is why. I do not have the answers to those questions.

In all the years that I have been in this place, and as has been stated by other senators today, I have not known any time when closure was put on actions affecting the Senate and the Rules of the Senate of Canada.

Not long ago we went through the GST debate. Prior to that time, and shortly thereafter, there were no rules affecting the length of speeches in the Senate. Senators could speak as long as they wanted, only once each, but there was no time limit on speeches. We are at the point now of restricting speeches to a limited amount of time, 15 minutes, and now to 10 minutes.

For well over 100 years, the Senate served this country well on the basis that senators were free to speak as long as they wanted. They were never faced with closure, either on government legislation or on rules affecting the Senate. This proposed legislation sees the government putting its nose into the business of the Senate. That is one of the main issues here.

Speaking on this issue yesterday, a senator stated that she had heard some senators suggest that we do not need to act in this field immediately because there is no problem. She said that we do not have an ethics problem in the Senate and therefore there is no need to act. She stated:

I think that is true. We do not have an ethics problem in the Senate. I am proud to serve with colleagues in this chamber, as I know we all are. However, I would suggest that there is no better time to act than precisely when there is no problem...

Honourable senators, we are invoking closure on whether we want an ethics officer for the Senate. As has been stated before, we have not delved deeply into the discussion, whether or not this is important.

Why would we appoint an ethics commissioner for the Senate when we have set no rules or guidelines? The suggestion is to put someone in the position and then decide what we might do to put them to work. That is a very bad process. Do we require ethics rules, or are we already covered by the Rules of the Senate of Canada and the Constitution and the Parliament of Canada Act? If not, what are we missing? How are we to assure Canadians that we require an ethics commissioner? No, let us establish the commissioner and then decide what the job will be. Are we to set up what we call a department within the Senate and spend the thousands and thousands of dollars without knowing what the job is all about?

In all the time I have been in the Senate, when there has been a question in any senator's mind that there may be an ethical problem, we could always go to the law clerk or the table officers to get advice. That system has served us well. We are now superimposing another system because for some reason the government is pushing us to do so. They are pushing us so hard that we are bringing closure to a certain type of debate, which has never happened before.

Gosh darn it, I think there is something wrong with that. It is wrong that we would do this after all of the years that the parliamentary system has served the country so well. Perhaps the government and its ministers are in trouble and are trying to solve matters by sweeping us into a big bag of ethical problems that do not exist in the Senate. If those problems have existed in the past, we have dealt with them. We have looked after them. We are now saying that we are not qualified and not capable of doing that. We are not even capable of having a wide-ranging discussion on this issue.

For over 100 years we have dealt with these issues. This bill has been in the house for two weeks — two weeks — and we are not considering anything that has gone on in history.

I will tell honourable senators this: If you think it is interesting to talk to someone with no memory, it is not. We have to rely on our memories to know what has served us well, and we are not well-served by introducing closure at this time, on this subject matter.

Senator Grafstein: Would Senator Sparrow allow a question or two?

Senator Sparrow: Indeed.

Senator Grafstein: The honourable senator has not answered any of the "whys." We were waiting breathlessly for the romantic ending to the first, second or third "why." Perhaps someone will answer the "whys," because I have exactly the same questions. I think I know the answer, but I do not like the answer, so I am in a position of repelling it from my memory. We feel uncomfortable when we see an ugly issue come up and we try to suppress it. I am trying to suppress the answers to the rhetorical questions that the honourable senator has raised.

I wish to ask a question that goes to the process of this particular measure. The honourable senator was appointed to the Senate before I arrived; he is the Dean of the Senate. When I first arrived here, our leader was the Honourable Allan MacEachen. The first thing he said after several months of assessing the geography of the Senate was that if we wanted to be a credible institution, we had to return to the principles of the Constitution which was that the Senate should be a chamber of sober second thought. He felt that pre-study was anathema to the concept of a chamber of sober second thought. The Senate was not to rush to judgment, was not to influence government when they were doing their business; we were to wait until they had concluded their business and then attack the measure in a careful and calculated way to determine whether or not it was consistent, persistent and adequate.

Senator Andreychuk has raised that issue more recently. My colleagues will know that since I have come here, after trying to understand that issue, I came to the conclusion that I was a true believer in no pre-study.

In Bill C-34, we have a bill, as Senator Andreychuk points out, that has been sort of pre-studied, but is not quite a bill, a paper or legislation; yet, we have been told that we have had more than adequate time to explore a measure that was done on the other side some six months ago.


My question to you is: Were we wrong, as I believe we were, to enter into pre-study of this area? It was not a bill. We now find ourselves in the conundrum of again hearing from the government, "You have to hurry up." Give us some wisdom about the matter of pre-study that was adopted here and whether it was appropriate in the circumstances, or is it the cause of the confusion that we are confronting today?

Senator Sparrow: The honourable senator mentioned "wisdom." I think of him as being the wise man who is asking these questions. We need some more wisdom in this discussion and on this whole issue.

I was here when pre-studies were done on almost every bill that was introduced. It was a mistake. Let me tell you why it was a mistake. The committee system does not get a lot of publicity. When a bill was finally referred to committee, the members had already examined it so the bill was reported rapidly to the Senate, whereupon the Senate would pass it. In those instances, we got the feeling that we were rubberstamping. This is what, presumably, was to happen here. We were to conduct a pre-study without seeing the final bill and without knowing what issues might arise. I was not a member of committee, but I went to most of the hearings. The committee went through a broad scope of subject matter to try to determine what may be coming forward.

The question is whether we were correct to do that pre-study. I think we were not. Now we have the actual bill before us, so now is the time to do that study, not to try to impose closure on the debate on the bill.

Not all senators can attend all committee hearings. Essentially, all bills that are referred to committee are examined by seven senators who are on the government side of the house. They control the legislation. They report back to the Senate, and we tend to rubberstamp it. Who makes the decision? We do not discuss the issues.

This bill deals with an issue that will affect the future of this institution. We are being told that the matter has been dealt with by the committee, and that broad discussion in the Senate of this issue will not be allowed. That, too, is a mistake.

It was a mistake to pre-study the bill. We should not do that in the future. Now, just because we did that pre-study, we are being told that the bill has been with us for a long time, but in actual fact, we have only dealt with the bill for two weeks. That is the crucial aspect of this debate.

Senator Andreychuk: I should like to ask a question.

The Hon. the Speaker: I regret to advise that Senator Sparrow's 10 minutes have expired.

Senator Stratton: Honourable senators, it is always interesting to deal with questions of ethics, because each of us believes that we have a reasonable set of values. Then we find out that, in many instances and in certain circumstances, perhaps we do not. Then because of that realization, we decide to change. That is exactly what has transpired here.

The government, in particular the Prime Minister, will wave a magic wand, create a code of ethics, and suddenly we will all be holier than thou. We know that will not happen. We will still make mistakes. There will still be bad guys. We recognize that, inevitably, we will run against that. This magic wand will not produce the magic that we would all like to envision, because we are human beings and we will make mistakes.

When you think of the premise of being human and, as such, making mistakes, deliberately or otherwise, creating a code of ethics to make us holier than thou and better than anything, is really a lot of rubbish. We cannot, by creating a code of ethics, be perfect. It is impossible. Our values come from our life experiences, including and how we were raised. It primarily emanates from within.

Honourable senators, we have rules that allow a committee to proceed to a pre-study of a bill. We held 23 meetings during the course of that pre-study, during the course of which we discovered it was not a simple thing to do. We found, as we were going through it, that we were virtually dealing with a moving target. We constantly ebbed and flowed from one position to another. As we heard from different experts, our opinions varied like flowing water. You could sense the changes.

It was suggested by the government that the committee should submit an interim report. If we wanted to have any input into the bill itself, we had to lay our hand on the table; and we did that. The Leader of the Government in the Senate congratulated us and said that all our recommendations were accepted and incorporated into the bill. However, there was a fundamental disagreement as to the manner of the appointment of an ethics commissioner. There were varying opinions on that issue. As a matter of fact, at committee, had a vote been called on this issue, I am sure the side that wanted the Senate itself to appoint the commissioner would have won the day.

The point is that there is still a lot of room for in committee and in this chamber, as to who should appoint that ethics commissioner. I fundamentally believe that individual should be appointed by this chamber, because, when someone is imposed on you by someone else, and you then give that person a set of rules that you develop, then I think that is wrong. Once the government imposes the position, then the courts can march right in. I am fundamentally opposed to that and will continue to be so, as I think are many of us in this chamber.

To return to the question of whether it is appropriate to impose closure at second reading, I should like to know how many times closure has been imposed on the debate on second reading of a bill in this chamber. How often has that happened at the second reading stage of a bill which deals with an issue such as this that is fundamental to the moral values of everyone in this chamber?

The argument has been made that we had all kinds of time to react in this chamber. Honourable senators, I disagree. We had all kinds of time to react in committee and while we were doing that, our opinions changed because of the evidence that was presented. It was a moving target, it is still a moving target, and it will continue to be such. We do not know where we are going with this. How can closure be imposed at second reading when we were not even halfway there at the pre-study in committee?

It is fundamentally wrong to impose closure at this stage. If you had the experience of going through this in committee, watching that ebb and flow, you would not agree with this at all. It is wrong because there is so much work yet to be done in committee with respect to Bill C-34. There is so much work yet to be done.


It is fundamentally wrong to impose closure on a second reading. It is wrong, wrong, wrong, which is "why, why, why" Senator Sparrow and I are opposed to this.

As a result, I would ask honourable senators to give serious consideration to defeating this motion. After the government pats itself on the back for pushing Bill C-34 through, it is inevitable that a member of Parliament — from this chamber or the other place — will get nailed. What then? A hole will be found in the rules somewhere. There will be a wiggle here and a wiggle there. We know that will happen. The media and the public will then say, "We thought you had a set of rules established, a code of ethics established, but, lo and behold, you missed this. What good was all that work?"

All that will occur because we decided arbitrarily to close debate on the bill, to move it forward despite hell or high water. I think that is wrong, wrong, wrong, again.

Honourable senators, in concluding my rant, I would ask you to seriously consider defeating this motion.

Senator Sparrow: Honourable senators, I have a question for Senator Stratton.

In his discussion, he talked about the committee work. Was much consideration, or any, in fact, given to the code of conduct, or did the committee only engage in discussions related to the basic issue of a commissioner? Has the honourable senator come to a conclusion in his mind as to whether the Senate even needs an ethics commissioner?

Senator Stratton: That is part of the whole problem. We are not there by any stretch of the imagination. As Senator Sparrow said previously, we already have rules. There is the Criminal Code, as well as other codes that apply to us in this chamber. We have not concluded the debate as to why we need a code of ethics or an ethics commissioner. We are still involved in those discussions. How much longer do we need? We do not know. To presume that we know the definitive answer to that question is premature. We need more time for debate on this issue. We desperately need that time because, we find out gradually, over the fullness of time, where to go. It is way too early to know these things.

The Hon. the Speaker: I regret to advise that Senator Stratton's 10 minutes have expired.

Senator Grafstein: Honourable senators, first, I beg the indulgence of the newly appointed senators. Some of our older colleagues — older in time spent here, not older in age — have heard me on this subject before. I am delighted to see so many new senators interested in this matter because it does directly affect their future careers here in the Senate. It affects their privileges and the way they conduct their private and public business. I am delighted that they have stayed here to spend the time to listen to the debate.

I have learned in my time here that I learn far more from the debates here in this chamber than I do in committee, because the committees are limited to very narrow issues. When an issue receives full debate in the Senate, there is a better opportunity to assess which of the various viewpoints to accept or reject.

I will start by giving you my insight into this process, and where we have arrived because of this process. I start with the old common law principle that principles and practices march best when they march together. When principles and practices work together, you will find you come to a satisfactory result. Unfortunately, here, our practices and principles have diverged. I point that out to honourable senators based on the deputy leader's comments. There is a huge divergence of opinion, not only on the other side but also on this side.

Let us start with pre-study. As Senator Sparrow and Senator Andreychuk pointed out, there was a practice some time ago that the Senate would pre-study a bill when it was in the other place, in order for us to "whisper" and influence the decisions in the other place. Then the government said that, by the way, if you do not do this quickly and speedily and effectively, you would be ruled out, because the big whip would be on this side and, in effect, you would not be able to have your word. So if you really wanted to influence controversial legislation, like the terrorist bill, you had better pre-study it.

I objected to that. I felt the House of Commons should do its work on their side, as the Constitution provided, and we here in the Senate should do our work, and come to a studied conclusion. Now we find that the terrorism legislation is not very good because we had to rush.

The first principle I learned here I learned from the great Senator Sinclair. His advice was, first, to read a bill and, second, not to rush to judgment on it. He said: "Listen carefully to what they say on the other side, and then listen to your colleagues. Attend committee meetings follow the procedures and read the committee reports."

We did not follow procedures here. We leaped to the government's appetite to get this thing done quickly. Now we have a mess on our hands because it is not clear as to what we are dealing with here.

We started with a little mess, and it is confusing. Now, let us look at how much more confusing is the divergence of principles from practices. We have a carefully reasoned study, done by Milliken and Oliver, that looked at this question for, lo, many months and came to some very clear-cut conclusions.

The first bill that came out, that we were supposed to study, did not even look at Milliken-Oliver in any coherent way. The government took the name and said they were looking at it, but they hollowed it out and did not follow Milliken-Oliver.

We heard yesterday from Senator Oliver that his advice was not followed. We have been told by the government, based on the interim report, a Senate report, which was to consider the Milliken-Oliver report, and heard, just recently, from the deputy leader, that recommendations on the Milliken-Oliver report were adopted, but the key recommendations were not adopted.

I urge honourable senators to do the second thing that Senator Sinclair advised, that is, read the interim report. We are told that the report's recommendations have been incorporated. However, the chairman of the committee and Senator Ringuette and Senator Rompkey and other senators know the work of the committee was never completed. It was an interim report. It says so in the report. I will read it to you, but I urge you to read the whole report. This is not a long or complicated report. It states:

While considerable work remains to be done, the members of your Committee believe —

This is a report that the deputy leader says has been completed. This is an interim report. The major paragraph on the first page of the report says, "While considerable work remains to be done..."

This issue has not been brought to a vote because it was an interim measure, done on the fly.

Let us look at just one recommendation then, from the heart of the report:

3(d) A Senate ethics officer shall be appointed after agreement of the leadership of the recognized parties in the Senate, followed by a confirming vote in the Senate.

That is not so in the bill. Leadership is to be consulted. As Senator Oliver and Senator Joyal said, it is consultation but it is not agreement. The heart of the report on which we are being asked to hurry up and finish has not been followed. It has been hollowed out. It is not fair and it is not accurate.


Now, whenever we have rushed to judgment in this chamber, we have always been wrong. I will not give examples. Senator Prud'homme will tell us about the terrorism bill. We said, "Go slow. Let us have a review. Let us have a sunset clause. Let us be fair." Now there are big holes in that bill. We all know it. Senators know how strongly I feel about terrorism measures. By the same token, there was a law. We were not allowed to participate at committee because we objected to certain provisions of the bill. We had to attend as independent senators, as Senator Prud'homme and Senator Joyal did. I obviously was not appointed to that committee but I asked to be on it. At the end of the day, when we rush to judgment, here we are. As senators on the other side have said, this is a major issue where civil rights are in jeopardy. Where are we? It is not even a priority. Yet, we are told that this measure is a priority when the committee says that there is still a lot of work to be done.

Let me go on to the report that we are asked to rubber stamp. I would like Senator Milne and Senator Fraser to participate because they were there. Let me read section 22, page 9 of the interim report of the Rules Committee, which states:

In considering how this system should be structured, we have been mindful of the separate constitutional roles and functions of the Senate and senators, and the fundamental importance of Canadian democratic institutions... These are our primary concerns....

So Milliken, Oliver and Joyal say, following the Milliken-Oliver framework, that we should be the master of our rules and we should not try to separate and not be conjunctive with the courts in order to preserve the autonomy and the dignity and independence of the Senate. Yet, we are asked to have an officer appointed, named by the government, to opine on our conduct, which allows no sensitivity for the separation of powers between the executive, or the House of Commons, or the Senate. By the way, we have one officer, or a separate officer, appointed by the government after consultation, which will allow the courts to play their games in an exculpatory clause. Every lawyer in this chamber knows — Senator Day and Senator Joyal knows this; I apologize to those of you who are not lawyers — that when you add an exculpatory clause and say that the courts shall not intervene, what do they do? They intervene. It is an invitation for them to find their way into the heart of legislation. These courts, because of the Charter, not only intervene, but they ramp themselves up to intervene.

Honourable senators, this is a dangerous precedent that goes to the heart of the constitutional framework. Even though it goes to the heart of the way this institution operates, the heart of the independence of the institution and the heart of the separation of powers between the courts and the legislature, we are told, "guillotine." "Do not think about it. Do not ever let the new members of the Senate fully understand the ramifications." Well, they have not had a chance to do that because they were not on the committee. I am delighted that they are here. I know the pressure on them.

To think that we have our guillotine and a whip on a matter that is not the subject of paramount government policy is, as the Dean of the Senate says, almost beyond belief. Why so? For what purpose? Do we want to stall this legislation? I do not want to stall it. I want amendments. The government says: Show us your amendments. Senator Joyal provided amendments. Let us study them, but let us do it in an appropriate way. We must all understand what we are doing here because it affects the activities — and I will say it again — it affects the activities of each and every senator. No one can take an early plane home and say, "By the way, this bill does not affect me." It will affect each and every senator in how we conduct our private and public lives.

I am proud of every member of this Senate. When we have had a problem with an individual senator, we have dealt with it appropriately and we will again.

I conclude with the comment of my great colleague Senator Sparrow, who says, "Imagine this: We are going to set up an ethics officer." Senator Joyal has said it is an officer. Is it an officer? Is it a jurisconsult? What does it mean?

There is a warning in the committee's interim report at page 3, paragraph 3(j), which states:

For greater certainty, the Committee intends to give further consideration to the relevance of the Privacy Act, the Access to Information Act, and the Federal Court Act to the activities of the Senate ethics officer...

We have not started our work on those acts, and now we have a bill. My view is this: Please give us the time to debate this bill at second reading. Do not impose a six-hour rush to judgment.

The Hon. the Speaker: I am sorry to interrupt, but I must advise that the honourable senator's time has expired.

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I have listened carefully to the —

Senator Corbin: If she speaks —

The Hon. the Speaker: I think Senator Corbin is worried about having time to speak. Senator Carstairs has half an hour and there is about half an hour's time left. In theory, we could go to the end of the two and one-half hours with the next speech, but I do not know that we will.

Senator Carstairs: Senator Corbin and Senator Mahovlich have indicated that they would like to speak. If they wish to do so, I will defer, but I do want some time to put my comments on the record.

Hon. Eymard G. Corbin: I thank the honourable leader. I think she ought to yield to the backbench because she is taking time away from debate. I think that would be the honourable thing to do, in my humble opinion. I will not speak very long. I usually do not.


Honourable senators, at the risk of repeating myself and becoming boring, I would like to say that I have seen disturbing changes in both Houses of Parliament since 1968. What bothers me most is this new practice of imposing time limits and bringing in closure in Senate debates.

I believe that not only is this practice worrisome now, but we should be more worried about the future. We know to what extent precedents are becoming important in parliamentary practice and we know to what extent the executive branch does not hesitate to use them against us.

This Chamber is supposed to be a place of sober second thought. I must admit that frankly, as we speak, I am not able to speak knowledgeably and intelligently on the essence of this bill. We have set in motion a chain of events that will force us to make a decision at second reading, when the principle of the bill has not even been properly debated, in my opinion.

I have one more problem. I would truly have liked to be here the other day to hear Senator Carstairs speak. I had to leave the Senate chamber to carry out other senatorial duties. I also wanted to be here for Senator Oliver's speech but the same thing happened. Yesterday, while Senator Joyal was speaking, I had to leave for a meeting of the Standing Senate Committee on Foreign Affairs.


Some days the topics dealt with here are of debatable importance, but when it comes to fundamental issues such as these, which engage the institution and us as individuals, I want to be fully informed before I vote. I have here the three Debates of the Senate containing the speeches of the people I have just named. I will take these reports with me this weekend and ask my granddaughters not to disturb their grandfather too much and perhaps on Monday, I will be able to appreciate my colleagues' comments.

Certainly, the debate being held right now shows how controversial the bill is. It shows how uncomfortable we feel. I am extremely uncomfortable. I have a great deal of respect for Parliament, for the procedure and rules. I do not agree with many of the provisions in the current rule; like Senator Sparrow and others, I was in the Senate during that time. I believe the debates that were held before the introduction of the current rules were much more interesting and truly got to the heart of the matter. Obviously, things sometimes took a bit of time, but that is what democracy is all about: taking the time.


This is not the chamber of second speed. It is the chamber of sober second thought — not sober second talk, but thought. I have not had time to think the whole matter through. In fact, as I listen to my colleagues today on both sides of the chamber, I see new issues rising from the foam of controversy, and I want time to think those over, for the sake of the institution and for the sake of the rest of the time I will spend here. I am most uncomfortable with the whole process.

I do not want the government to be insulted if I were to decide to vote against this proposal for allocation of time, but I also do not want the executive to rough me up. I do not like arm-twisting. It has been tried on me before. I have had calls at nine o'clock on Sunday mornings. People would be well advised to get to know me better if they are to attempt those kinds of tactics.

In any case, honourable senators, the best thing to do in the circumstances would be for my good friend Senator Robichaud — my New Brunswick colleague, Senator Robichaud — to be well advised to give this matter some deep thought over the weekend.

The other point I wish to make is that, yes, the whip will probably scrounge a majority to get this matter through, to refer it to committee, and maybe to impose closure there and impose closure here when the bill comes back, but that is not the way to go.

I do not want to belittle the dignity of new senators here, but I think that new senators who are not familiar with Parliament, the whole tradition underlining Parliament and freedom of speech as we exercise it here, should put on the brakes before blindly accepting to deal with this legislation. I am very serious in saying this.


The future of this institution is at stake. We have heard excellent comments today from all sides. Perhaps the debate has resulted in senators taking partisan positions, but I did not consider those alone. I considered the arguments, the reasoning and the weight of that reasoning and, frankly, I was impressed. On the weekend, honourable senators, I will decide how I intend to vote on this time allocation motion, but I want to make known my unease and I will not vote for something I do not understand.


Senator Carstairs: Honourable senators, I welcome this opportunity to answer many of the questions that have been posed this afternoon. It is appropriate that, when honourable senators ask questions in this chamber, they get answers.

We have been asked: Why time allocation now?

Let me begin by saying that time allocation is just that. It allows for six more hours of debate. It does not shut the debate down. It allows for six more hours of debate.

Why are we imposing it at second reading? Honourable senators, it is not as though it has not been used at the second reading stage of a bill before. Senator Andreychuk asked if that had been done previously. It was certainly used on March 29, 1993 by the now-Leader of the Opposition, who was then the deputy leader, after not a single speech by the opposition.

Senator Lynch-Staunton: Perhaps the honourable senator should read the reasons for that.

Senator Carstairs: There was not one single speech by opposition members, who happened to be Liberals at that particular time. There is precedent for this.

Senator Lynch-Staunton: Two wrongs make a right?

Senator Robichaud: You admit you were wrong.

Senator Carstairs: There is precedent for using it at second reading.

The Leader of the Opposition also asked why we were using it in respect of this bill and not with regard to Bill C-17, a most complicated bill. Honourable senators, I would suggest that this bill has been not one year or two years or three years in the making; it has been 30 years in the making.

As concept, this bill began with a green paper from Allan MacEachen in 1973, 30 years ago. Ten years after that, there was a report called the Stanbury-Blenkarn report. Ten years after that we had the Milliken-Oliver report. Yet, here we are, in 2003, and none of the recommendations in the green paper, the Stanbury- Blenkarn report or the Milliken-Oliver report have ever come into force and effect. We have had 30 years of debate and we still do not have a policy.

We have before us a bill that is simple in nature. It calls for the establishment of an ethics commissioner. That is all it does, honourable senators.

The Hon. the Speaker: I am sorry, Senator Carstairs, but, it being six o'clock, I must rise to leave the Chair unless there is agreement not to see the clock.

Senator Carstairs: I understand, Your Honour, that when dealing with a time allocation motion, we do not see the clock.

The Hon. the Speaker: I will read the rule. Rule 40 reads:

(1) When an Order of the Day for a motion to allocate time for the consideration of any item of government business is called:

Rule 40(2) reads as follows:

During debate on the motion:

(d) whenever the debate is interrupted pursuant to rule 13, the debate shall be resumed when the sitting is resumed.

Accordingly, the rule anticipates that we would observe rule 13, which is the rule regarding six o'clock, which is as follows:

(1) Except as provided in section (2) below, and elsewhere in these rules, if, at 6:00 o'clock in the afternoon, the business be not concluded, the Speaker...leaves the Chair until 8:00 o'clock, the Mace being left on or under the Table...

Therefore, the six o'clock provision of rule 13 applies on the motion for time allocation. It does not, however, apply to the debate if the time allocation motion is passed.

Accordingly, it being six o'clock, I ask, is it your pleasure, honourable senators, not to see the clock?

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Hon. the Speaker: I am sorry; do you wish not to see the clock, honourable senators? Say "no" if you do not and "yes" if you do.

Some Hon. Senators: No.

The Hon. the Speaker: You wish to see the clock?

Senator Lynch-Staunton: We want to see the clock.

The Hon. the Speaker: I will leave the Chair.

The sitting was suspended.


The sitting was resumed.

The Hon. the Speaker: Honourable senators, I will call on Senator Carstairs and advise the chamber that there are 10 minutes left of the time allocated for the motion.

Senator Carstairs: Honourable senators, we have heard a lot in the discussion on this time allocation motion about the fact that this is a debating chamber, and I agree. It is, of course, a debating chamber. That is why immediately after my speech on October 7, the Deputy Leader of the Government and, I must say, concurred in by the Deputy Leader of the Opposition, encouraged senators to speak on Bill C-34. Each time the item was called, they were encouraged to speak on Bill C-34. It happened three days in a row that they were encouraged to speak, and no one chose to speak. We cannot force senators to debate. When they choose not to debate, I do not think they can then say, "Well, I wanted to speak but did not have time to speak," because they did have time to speak.

More important, we must remember that this is not just a debating chamber; it is a decision chamber. We make decisions. We vote and our votes are counted.

All we are asking is that this vote be taken on second reading and that Bill C-34 then be referred to committee where more debate and more discussion will take place. When the committee reports, there will be a third reading stage where more debate will take place —

Senator Lynch-Staunton: And no time allocation?

Senator Carstairs: — before we finally come to a decision on the issue of a vote in this chamber.

Honourable senators, we have been waiting 30 years to vote on this issue. It is time for us to vote.

We have heard that this bill is being rammed through. This bill has some history, and it was not subjected to pre-study. This bill was presented in draft form, the same way Bill C-36 was presented in draft form. We were asked for our comments. We were asked for our contributions to that discussion and to that debate.

In his question to one senator, Senator Grafstein said, "Well, what are those four points that senators wanted in their interim report? What were those four changes that senators on the committee wanted and now have in this new bill?"

They wanted an ethics officer for each chamber because the original draft bill called for one ethics officer. Senators argued, "No, that is not good enough. We want our own ethics officer." This bill provides for our own ethics officer.

Members of the committee said they did not like the method of appointment and wanted input from the Senate. What does this bill provide? It provides for a vote in this chamber on who will be our ethics officer.

Senators in the committee did not like the five-year term. They argued that that would be more appropriate to the electoral cycle of which we are not participants. Thus, the bill does what the Senate committee recommended and provides for a seven-year term.

Senators said that the term should be subject to reappointment. What does the bill say in that regard? It can be subject to reappointment.

There is no question that the Senate committee was not sufficiently ready to make a decision on a certain issue, an issue that I think our committee must study. The issue is: Should this be a rules-based system or a statute-based system? We have heard arguments in favour of both. Those arguments, I think, are very legitimate. However, senators, we are a decision chamber. We must come to a conclusion as to whether it will be rules-based or statute-based.

There is no question that I have a preference. I prefer a statute- based system. That preference has absolutely nothing to do with the fact that I am the Leader of the Government in the Senate and everything to do with the fact that as a member of the Manitoba legislature for eight years I was subject to a statute-based system that worked. Thus, I have firsthand experience with a statute- based system. Each year I had to file with the clerk of the Manitoba legislature, indicating my assets. The only thing wrong with that system was that I did not have an ethics officer I could go to with my questions. Because I was so concerned, I filed everything — everything — not only for me but for my husband. I did that because I did not want in any way for there to be any conflict. If I had had an ethics officer that I could have gone to for advice, then I may have done things differently. I wanted someone who could give me that advice. Since our legislation did not provide for an ethics officer, I did everything beyond what the statute actually requested.

Honourable senators, we talked about the fact that this was an interim report. Senator Stratton said that they were not happy with the interim report, or that is what he seemed to imply.

During the break, I took a look at the interim report, and it was voted on unanimously. No senator raised concerns that the interim report was inadequate. Presumably, then, it met the needs of those who participated in drafting the report.

On May 1, 2003, I gave a speech in this chamber on the report. Because the legislation had already been tabled in the other place, I went into some detail about the changes that had taken place.

Senators, that report has been on the Order Paper for 33 days — 33 days. No one has chosen to speak to it — no one.

Someone asked why we did not bring it to a vote then. We did not bring it to a vote because we wanted to give honourable senators the opportunity to speak to it.

We have a situation, honourable senators, in which we need all voices to be heard. That is why in just a few moments we will begin a six-hour debate.

I hear some giggles and laughs from the other side. If you do not wish to participate in the debate, then you will have said it all. You will have said that you do not wish to participate in the six- hour debate, should this motion pass.

Honourable senators, we are now dealing with a bill that has passed the other place. I was interested in how people in the other place voted. I do not suppose it would surprise honourable senators that all the Liberals voted for it — every single one of them. Every single Conservative who voted in the other place voted in favour of the bill. Every single member of the NDP voted in favour of it. Therefore, all I can say is that the bill must have some merit worthy of our careful consideration and study in committee.

We are voting tonight, first, on time allocation and, then, should that motion pass —

The Hon. the Speaker: I am sorry to interrupt the Honourable Senator Carstairs, but the time provided for debate has expired.

Pursuant to rule 40, it is now my duty to put the question.

It was moved by the Honourable Senator Robichaud, seconded by the Honourable Senator Rompkey:

That, pursuant to rule 39, not more than a further six hours of debate be allocated for the consideration for second reading of Bill C-34, An Act to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence;

That when debate comes to an end or when the time provided for the debate has expired, the Speaker shall interrupt, if required, any proceedings then before the Senate and put forthwith and successively every question necessary to dispose of the second reading of the said Bill; and

That any recorded vote or votes on the said question be taken in accordance with rule 39(4).

Will those honourable senators in favour of the motion please say "yea"?

Some Hon. Senators: Yea.

The Hon. the Speaker: Will those honourable senators opposed to the motion please say "nay"?

Some Hon. Senators: Nay.

The Hon. the Speaker: I believe the "yeas" have it.

And two honourable senators having risen:

The Hon. the Speaker: Call in the senators. It is a one-hour bell.

Senator Stratton: Honourable senators, I rise on a point of order. In the motion that Your Honour just read, the last sentence states:

That any recorded vote or votes on the said question be taken in accordance with rule 39(4).

I ask Your Honour to refer to rule 39(4), which clearly states that the vote shall be deferred. I am reading the last part of the last sentence on page 40, which states that:

...any standing vote requested in relation thereto shall be deferred until 5:30 o'clock in the afternoon of the next day thereafter on which the Senate sits;

Senator Robichaud: Honourable senators, I think that part of the rule applies to the vote on the main motion and not the vote on the time allocation motion, which is the vote that we will be taking now.

The Hon. the Speaker: On the point of order, I should read the rule that applies to what is before us now. It is rule 40(1), which states:

When an Order of the Day for a motion to allocate time for the consideration of any item of government business is called:

(b) the Speaker shall interrupt any proceeding then before the Senate and put every question necessary to dispose of the motion not later than two and one half hours after the order is called; and

(c) any standing vote requested in relation thereto shall not be deferred and shall be taken subject to the provisions of rule 66(1).

Rule 66(1) states:

Unless previously ordered or elsewhere provided in these rules, when a standing vote has been requested in accordance with rule 65(3), the bells to call in the Senators shall be sounded for sixty minutes unless otherwise ordered, and with leave of the Senate.

Accordingly, it is a one-hour bell. The vote will be taken at 9:15 p.m.


Motion agreed to on the following division:


Carstairs Mahovlich
Chalifoux Massicotte
Christensen Merchant
Cook Milne
Cordy Pearson
Day Phalen
De Bané Plamondon
Fairbairn Poulin
Finnerty Ringuette
Fitzpatrick Robichaud
Fraser Rompkey
Hubley Smith
LaPierre Trenholme Counsell
Léger Wiebe—28


Andreychuk Joyal
Atkins Lynch-Staunton
Beaudoin Sparrow
Cochrane Stratton—9


Banks Prud'homme—3

Parliament of Canada Act

Bill to Amend—Second Reading—Vote Deferred

On the Order:

Resuming debate on the motion of the Honourable Senator Carstairs, P.C., seconded by the Honourable Senator Graham, P.C., for the second reading of Bill C- 34, to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence.

Hon. Gérald-A. Beaudoin: Honourable senators, I am pleased to participate in this interesting and important debate. In 1867, Canada became a federal state and is today very well considered in the concert of federations. In 1982, we entrenched, in the Constitution of Canada, the Canadian Charter of Rights and Freedoms. As former Chief Justice Brian Dickson said, it was the most important event since 1867.

Because it is in the Constitution, that Charter is binding. Our legislation, our statutes, our laws, and all legislative measures at the federal and provincial levels are bound, as are the ordinances and the delegated legislations adopted by our three territories. The Charter also binds the executive branch and the judiciary. What about the privileges of the Senate and the House of Commons? Do they come under the Charter? I want to deal with that question.


Senator Oliver, in his speech on Tuesday last raised the right question: Does the Charter of Rights and Freedoms trump parliamentary privilege and will the Charter be applied to the activities of an officer or commissioner of ethics, thus giving the courts the role as ultimate arbiter over the meaning, the extent and the application of the privileges of an honourable senator?

At the outset, I must say that the Charter is at the heart of the Constitution. From now on, all laws should respect not only federalism, but also the Charter. The influence of the Charter on legislation is huge. In 20 years, the Supreme Court has rendered 450 decisions on the Charter. That is unprecedented in our history.

That being said, the Charter does not necessarily regulate everything. For example, I am inclined to think that what we call lex parliamenti does not come under the Charter. However, what is lex parliamenti? That is the question. The Senate has the inherent right to govern its internal operations. This is a legislative house and, with the House of Commons, it comprises the legislative branch of the federal state. The legislative branch is one of the three great powers. We need and we have autonomy, and the Supreme Court respects that autonomy. In any great democracy, the three powers are divided. It is a question of degree, depending on our system, parliamentary or presidential.

More and more cases relate to parliamentary privilege. Senator Oliver referred to many of them: Vaid, Donohoe, Harvey, Tafler v. Hughes, Morin v. Anne Crawford and, finally, Roberts. In my opinion, this is law in the making. The tendency so far seems to extend more and more to the application of the Charter to parliamentary privileges.

The present Chief Justice of Canada, the Right Honourable Beverley McLachlin, has clearly expressed her point of view, according to my colleague, Senator Oliver.

If a principle is enshrined in a statute, a court may interpret that statute. This is our system. No one denies that. However, we have cases where the Supreme Court has stated that the question before them or part of it should be dealt with by Parliament and not by the court. We have cases where the Supreme Court has stated what the Constitution is and returned the matter to Parliament for the adoption of a legislative act.

There is a dialogue between the Parliament and the judiciary. I agree with that; it is a very good thing. In my opinion, this debate will continue. The judgment of our Supreme Court, in my view, will establish the dividing line between what is a privilege that the court will treat as such and what is a principle of law that comes under the competence of the court. For the moment, we cannot be more precise.


The trend today in our Parliaments is towards increasing legislation. The State intervenes in just about everything. People do not realize that the more legislation there is, the greater the application of the 1982 Charter of Rights and Freedoms becomes.

Our parliamentary system has deep historical roots. Over the centuries, a number of privileges have developed to help our Parliaments to do their job. We must not imagine that these privileges will always remain unchanged. There is a tendency to regulate everything nowadays. We must move with the times. Codes of conduct are increasing in number. We must not assume that legislatures can do anything they want. Employees of legislative chambers are entitled to an employment code, or at the very least fair principles of employment.

That is why I am inclined to think that the number of cases relating to parliamentary privilege will increase for some years to come. The courts are becoming more involved. That is the current trend. If Parliaments retain privileges, which I feel are necessary, a way must be found to ensure that the principles of justice and our values are respected. We can no longer operate in a vacuum.

On the other hand, a balance must be struck between the legislative, the executive and the judiciary. The three branches of the State are all entitled to autonomy so that they may do their jobs properly. There is a dialogue between the courts and the legislators. This we have seen when we were enacting terrorism legislation and will see again in connection with parliamentary privileges.

In my opinion, legislative chambers, courts and ministers all require a certain minimum of privileges if they are to do their job. I still believe that the Supreme Court, which has its own privileges — not holding its deliberations in public for instance — will understand that a certain internal autonomy must be respected for the three key powers of the State. In fact, I would say that this is absolutely the case.

That said, a privilege is still a means. Justice as a whole must be respected. The three major powers have an obligation to do so.


In conclusion, if we are truly interested in maintaining our parliamentary privileges, it is our duty to define them adequately, as stated so well by my colleague Senator Oliver. Some internal operations of the Senate are necessary for the passage of bills in our chamber and for the work of our committees. The executive, the judicial and legislative branches need autonomy, and the courts will respect that principle.

As I said, we are in a period of law in the making. We cannot decide everything at the same time. I am inclined to think that the courts will stop somewhere because, as our history demonstrates, the courts have not, so far, exceeded their control of constitutionality of laws, which, in Canada, is fundamental.

This being said, our two legislative houses should respect our values and apply them in the domain of lex parliamenti; they have no choice. The rights and freedoms are everywhere, but they may be applied in manners that differ.

On the subject of the code of ethics, if a code is adopted by way of a statute in the Senate, it is subject to the Canadian Charter of Rights and Freedoms. The Civil Code of Quebec is subject to the Charter, as is the Criminal Code of Canada and as are the various labour codes at both federal and provincial levels. No one may deny that. However, if we have a commissioner of ethics, chosen according to our rules, and acting in accordance with our rules, the question may be a different one.

One way or the other, the Supreme Court and our legislative house, if we are vigilant and if we do our jobs, will come to a certain compromise.


We have a dialogue between the courts and the legislative houses, but we have to be there. We have to do something. We have to fight for this. It is because I attach so much importance to this very difficult point of law that I think we should be very vigilant.

No doubt, the situation will change. No doubt, some parliamentary privileges will change over the centuries. They have been there for centuries, and they have importance, more or less, depending on the circumstances. However, our system is very good. There will be some kind of compromise, as I said, but we are there to defend our internal autonomy. As the Supreme Court itself has a certain autonomy and the ministers in the cabinet have autonomy, so too do we have autonomy in the legislative branch. In the British system, we have to defend the legislative branch of the state.

Hon. Jerahmiel S. Grafstein: Honourable senators, I do not want to place my great reputation in the Senate in jeopardy by speaking at greater length. I hope that, as the Leader of the Government in the Senate has indicated, we will have ample opportunity to have a fulsome discussion with respect to amendments and to follow the line taken by the committee in its interim report on this measure. I hope then we will be able to have a fulsome discussion about the issues raised by the government leader, because I have the impression that all members on all sides would like the committee not to rush to judgment, but to take the time to listen to witnesses and to consider whether the views that have been reflected on this side and the other side are, in effect, of merit.

I start with the proposition that we have been promised an ample opportunity in committee and in third reading to discuss this. The government wants to get this through quickly to committee, so I will not hinder that thrust because the will of the Senate has spoken in an overwhelming voice.

Obviously, there are still in the minds of some senators serious questions about the bill, not, as Senator Joyal pointed out, the objectives of the bill, but the balance in the bill to properly satisfy all senators that the private interests of each member and his or her privileges are not in any way detrimental to the public interest. It is a balance and a compromise. I hope that, in the spirit of compromise, we will reach a satisfactory solution that will make those senators comfortable, because we come to this place with different aspirations and at different times.

I wish to say to the Leader of the Government in the Senate that I do not think it is appropriate to criticize those who are sitting in this place today for papers on conduct over the past 30 years. I have only been here for 20 years, and it has only been in the last several years that I have been a member of the Rules Committee. There have been a number of discussions in our caucus about the question of a more transparent regime or a code of conduct. We have never dealt with the issue, as I recall it, of ethics because, as the witnesses before the committee pointed out, ethics is different than conduct. Ethics really deals with the question of religious morality, and we are here, not as a religious body but a secular one, to do what we can in this particular light, and that is to present conduct and to ensure that our private interests are balanced against the public interest.

I for one — and I have said this in committee and say it again — object to the concept of the word "ethics," because it implies that there is ethical conduct to be considered and that somehow there will be ethical penalties. I have a problem with that notion, and I suggested that in the committee, but because the committee wished to reach a consensus I did not take the matter further. However, I did make my point felt on the record, not once but a number of times, to say we must be very careful with these concepts. I have no problem with a code of conduct and I have no problem with transparency with respect to the code of conduct, but I do resent the notion that we need an ethical counsellor, because I wonder who will overlook the ethical counsellor's ethics.

Senator Stratton: The Privacy Commissioner.

Senator Grafstein: Let me start with the report the Leader of the Government said that I supported, which I did. I want to carefully read to her and to the government members pages 2 and 3 of that report. Honourable senators will recall that this was the eighth report of the committee, but that it was not a report in the traditional sense. It was a collage of arguments. We did reach a consensus on some arguments, but we did not specifically deal with the measure at hand. Let us see what the view was of members of the committee that was, as the government leader pointed out, a consensus. At the end of the second page — and I will read this carefully — it says:

Pursuant to this Order of Reference, your Committee has considered this issue in great detail over the past two months.

The reference was a draft bill, which has since been changed, and the Milliken-Oliver report, and then it was to review the present rules of the Senate, which we did not get into, the proposed changes to the Parliament of Canada Act, which were just tabled in the form of Bill C-34, the Criminal Code, which we barely touched, and the Canadian Constitution, which we alluded to.

I urge every senator to read this very thin report — not thin in substance, but very short. It runs, without the appendix, some 10 pages, double-spaced. It is easy to read.

Let me start with the first directive for the consensus that the chairman was able to exact from our committee.

Pursuant to this Order of Reference, your Committee has considered this issue in great detail over the past two months.

Two months. Not years, but two months. We should not, in the fullness of time, try to make debating points. Let us talk about the facts. The fact is the committee had this draft bill over two months. Remember that the other place had five months to consider its bill, and we had two months.

It goes on, in the second sentence:

While considerable work remains to be done, the members of your Committee believe that it would be useful for our colleagues in the Senate and others to have an idea of our current thinking on the issues raised by the documents.

We started out clearly indicating that consensus by every government member — Senators Rompkey and Milne were on the committee, from time to time the Leader of the Government showed up at meetings, as did the deputy leader, and others. We all agreed there was considerable work remaining to be done after two months.

Then we concluded by saying:

We emphasize that this is an interim report and that our ideas may evolve further as we continue our examination of the issues.


That is a fair statement, but I do not think it implies in any way, shape or form that we have completed or half-completed our work. Not at all. This document is not misleading. Therefore, I do not want anyone to be misled that our work was concluded or that substantial amendments were taken from this report and put into the bill, as the Leader of the Government has suggested. I will deal with that in a moment.

I will now turn to page 3. This will save senators a lot of reading time because I will try to highlight some of the issues that might commend themselves. The report states:

3. We begin by highlighting the key areas of agreement at this point in our study:

The Committee has been guided by two fundamental principles:

The public —

— and Senator LaPierre is concerned about this —

— should have confidence that Parliamentarians conduct themselves with a high standard of ethical behaviour; and...

I want to put "ethical" in quotation marks because I objected to that word on the record several times, but the committee on the whole felt that the word should be appropriated. I did not agree. I want to make it clear to the house, as I did to the committee, that I did not agree with the use of that word. "Ethics" is a deeper matter to my mind. I cannot find myself in a position, nor should any of you, where someone can opine on my ethical conduct — my conduct and my standards, yes; my ethics, no.

Having said that, the committee said that the public should have the confidence that parliamentarians conduct themselves to a high standard. I have no problem with that. The interim report goes on to state, "of ethical behaviour." I would have left it at "a high standard of ethical conduct."

This is where I agree, and I still agree. The committee agreed unanimously. What did the committee say? It stated in the report:

The Senate, the House of Commons, and the Executive are separate entities.

That is pretty clear, not confusing. There was overwhelming consensus. I will repeat what the committee said:

The Senate, the House of Commons, and the Executive —

I will add the words "the cabinet" so that no one misunderstands what we say. I repeat: The Senate, the House of Commons and the cabinet are separate entities. Hallelujah. We agree with the founding Fathers of Confederation, who made that clear and who in turn agreed with Blackstone, who made it clear, who in turn agreed with The Spirit of Laws by Montesquieu, who said carefully that the human condition is flawed. There is no perfect human being. The fathers of the American Constitution agreed. They did not trust the human condition. They did not deal with the ethics of the human condition; they did not trust the human condition. Hence, they said — and we agree — that the only way we can agree that there are reasonable standards of conduct in public life is to ensure that there are checks and balances. Do not allow any element of government to override another element of government. Montesquieu said this in The Spirit of Laws, first chapter, first paragraph, in both French and English. Read it. It was well done. It was then picked up by Blackstone, which in turn was picked up by the fathers of the American Constitution and in turn by our Fathers of Confederation. They all agreed that the human condition is flawed and that, therefore, there must be daily checks and balances to separate the functions of government because power corrupts. They all examined the question of power. Everyone is corrupted by power.

Senator Stratton: We are seeing that in spades!

Senator Grafstein: Therefore, the only way to establish a rational system is to check that power and have daily, weekly and monthly checks in a transparent way, which is the core of the so- called code of conduct.

At the first level, there were to be checks and balances. Do not take what one element of the government says without carefully examining it: first reading, second reading, both Houses, separation of powers, ministers responsible to the House, Houses of confidence, with the Senate to be a check on all of that and to be separate from the courts. The courts are to be off to one side for all the reasons that we talked about in this report. We all agreed with that. It is all in the report. Well done.

We go on to say in our report:

(b) Each of the Senate, the House of Commons and the Executive should have its own ethics officer.

As the Leader of the Government in the Senate pointed out, yes, indeed, there has been a separation, not a full separation — they did not follow our report — but a partial separation. We now have a separate officer for the Senate and a separate officer for the House of Commons and, I assume, the executive and the bureaucracy.

Quite frankly, that is none of our business. We can opine on that. We can say that we do not like the human condition and would like more checks and balances, but let us focus on our own business. We agreed that each the Senate and the House of Commons should have its own ethics officer, but that is not what the bill says. In fact, as the Leader of the Government pointed out, we got a grudging acknowledgment that we should have a separate officer for the Senate.

Did the bill follow the Milliken-Oliver report? Not so, because we said there was to be a separate officer, not someone appointed by the cabinet. That is not separate. The cabinet appoints someone on consultation with the House leaders. The government leader has just said to us, "There is no problem with that. We met the requirement of the Milliken-Oliver report and our own report because it will be a majority view of the house, 51 per cent." Come on! After tonight, we know that governments are governments. There is no question about that. Let us not try to suggest that an independent officer will be truly independent and will only be based on the will of the Senate, which can only be based on what we say in paragraph (d) of the report, namely that:

(d) A Senate ethics officer shall be appointed after agreement by the leadership of the recognized parties in the Senate...

That is not what Bill C-34 says. We heard the discussion between Senator Oliver, Senator Joyal, Senator Lynch-Staunton and others that there is consultation. You pick up the phone and say, "I will appoint George Radwanski. Have you been consulted? Yes, thank you very much." Boom goes the line and the deal is done. It is not 51 per cent. It is not the will of the Senate; it is the will of the government in the Senate that can compile 51 per cent of the vote. The minority interest is not taken on this side or on the other side.

The Hon. the Speaker pro tempore: I am sorry to interrupt, but I must advise the honourable senator that his time has expired.

Is leave granted to allow the senator to continue?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

Senator Lynch-Staunton: Closure on closure!

The Hon. the Speaker pro tempore: Resuming debate.

Hon. A. Raynell Andreychuk: Honourable senators, it is unfortunate that we have just voted to limit the debate on this issue, one that will affect all of us in ways that we have yet to discover. It is unfortunate that Senator Grafstein could not finish his points.

I will underscore again that there was some collegiality in the committee. We knew we were addressing a very difficult topic. The majority in the committee said we had to give some advice to the government, despite the fact that we had not finished our work and despite the fact that we said we might change our opinions once we did further study. However, we gave our best advice at the moment, and we underscored it, never believing that it would be used against us to say this was our definitive situation. In a spirit of collegiality, we believed that the message to the government would be conveyed that we had some preliminary discussion and took some decisions.

This debate should not be cut off. Senator Grafstein should not be cut off from finishing his remarks. We have six hours of debate. Look around this chamber. Will we really be here for six hours? We see the lay of the land. We know what will happen. We know who can bring out the numbers. Surely, those who have studied this issue and have something to say should be able to finish. This situation is regrettable and has been regrettable throughout.

Where does this leave the Senate? Is this the way we conduct ourselves? We are talking about our ethical standards, our behaviour. Is this how we will conduct ourselves in the future? I think it is probably the lowest day of my life in the Senate, and I have been here 10 years. It is unfortunate. I hope all honourable senators will remember October 23, 2003, as a day when we shut down debate, when we said to minorities, "Your opinion does not count, so we will not give you any time to discuss it."

Honourable senators, I am here. I should count as one person. We know the numbers, so why should 29 of us be here against 60? Surely, if I am here, I should be shown enough respect to be heard.


The views of the minority opposition should count. We are thwarting debate in this chamber, and we will probably exhibit the same behaviour in committee. I can only hope that we do get some time to discuss this in committee in an attempt to complete our study. I would remind honourable senators that our findings were preliminary; they were not definitive.

At the outset, we had one bill before the committee, and now have a different bill before the house. Therefore, we have the right to fulfil our mandate. The Senate must give the committee the responsibility to do its work appropriately and not thwart our work, particularly if we are reasonably here until the end of December. From our side, we on the committee are willing do that.

It is interesting that we are here talking about a code of conduct and behaviour. We say that the public demands new standards and needs to know that there is some ethical accountability from us. Yet, Bill C-34 does not relate to a code of conduct. It simply puts in place an ethics officer to be appointed by the government. For a number of years, we have had an ethics officer in the Prime Minister's Office. How independent does the public view that ethics officer to be?

If you read the fine print in Bill C-34, you will find that it does not set the standard or the rules. What does it do? It specifies that the senators will set those standards or rules. Is that not what we are doing today? Are we going to pass Bill C-34, which implies we will do something about a code of conduct, as if we have not? What are all those rules in the Parliament of Canada Act? What are our rules here? What have we been doing? Do you think that the public will be satisfied with our writing our own code, once it finds out that what the government is selling is not a new standard or a code of conduct for the senators, but simply another ethics officer so that the government can say, "Look what we have done," when in fact that will not be the expectation of the public?

The question I am asked most about the Senate is why certain senators sit on certain boards. Today I say, "Because they have a right to do that. There is no law prohibiting it." They believe, as they keep telling me, that Bill C-34 will correct that. If you question members of the public a little farther, you will find that they have different opinions about what the code should be. There is no unanimity in the public. We have not had a debate with them. Yet, we are selling Bill C-34 as if it will be an ethical standard set for the Senate. There is nothing in the bill to do that.

On the one hand, we are putting at risk framework legislation, bearing in mind the points made by Senator Joyal, Senator Oliver and now Senator Beaudoin about the court's role in the Senate operations and whether or not there will be a distinct separation of powers after this act comes into force.

On the other hand, we put at risk the privileges and the domain of the Senate, but we give the public nothing in return. We do not give them a code. We do not give them a standard. That is to be done later.

I urge honourable senators to read the bill. It is of no service to the public and it may be a disservice to the Senate. We are being asked to pass this bill in haste. Where is the redeeming feature in this bill — that public necessity is being addressed? There is no code in the bill for the public, and there is an inference that the Senate has not done its job; that in fact we have not had codes to guide us. Where does this bill address amendments to the Parliament of Canada Act? Where does it point to the inappropriateness of the rules that we have today and supplant them with additional rules or different rules? There is nothing in this bill to deal with those matters.

The public will, for a time, believe that they have something new, something transparent, some way to hold parliamentarians accountable. In fact, there is nothing. The emperor has no clothes. This bill needs more scrutiny. If it is not to be debated here, this bill must be debated in committee.

I, for one, in consultation with my colleagues on this side, am prepared to sit as long as it takes in the Senate, this year and next year, to ensure that we have an appropriate code of conduct and that we have framework legislation that is the best the experts can give us.

I do not believe Bill C-34 reflects what Senator Grafstein started and attempted to point out. It does not address our concerns, and it does not reflect what I think needs to be in the bill, if we are allowed to continue our study.

I have yet to receive a satisfactory answer from the government.

We did exactly the same thing with Bill C-36. We entered into a pre-study. We were shortchanged there. When it was reported to the Senate, we were told that no further examination was necessary because we had already dealt with all the issues.

I think we will, in our analysis of Bill C-36, see that we could have done better. With that bill, there was some necessity for haste. September 11 had happened. There was a need to respond to it. There was urgency, and the benefit of the doubt should have gone to the government. The Senate did that.

Where is the emergency situation that relates to this code of conduct? The Leader of the Government is implying we need Bill C-34 to give the public confidence in the Senate because there will be the code of conduct. However, it is not in the bill. It is not there. There is no emergency situation which caused us to curtail our study.

Senators on both sides of the committee wanted a review to assess whether our rules were modern and updated. They wanted to determine whether we have the best response to the issues facing senators today. It is not good enough to say that 30 years ago we talked about ethics, and it is not good enough to say we had the Milliken-Oliver report. Time has passed. Expectations have changed. The Senate's operations have changed. We need to address that issue through a review of our rules and determine whether all of them are sufficient for what we need, or whether we need to add to them. Then we can consider the best way to implement this code of conduct. Will it be through an ethics officer, or will it be through another mechanism that can be formulated and administered by the Senate?

Perhaps the code of conduct should have been in the bill. That would have been my preference. If we were seriously going to respond to the public's expectations, we would have had a code of conduct in Bill C-34. We would have had extraneous mechanisms — not government mechanisms — that would enforce the code of conduct along with the Senate. It would not be done with an ethics officer appointed by the government.

In conclusion, honourable senators, when we talk about multi- party systems and good governance, let us make certain that the first ethical code gives us an opportunity to do our jobs properly, so that whether I sit in the opposition or in the majority, I can contribute.


We take great pride in saying that we are independent senators and that we speak from our own consciences and our own experiences, but have I had a full opportunity to get involved? I do not think so. Anyone who sat on the committee knew that we were responding to the government because we thought that was the most responsible thing to do. We allowed the report to move forward just to give a heads-up about the issues we were thinking about. We also alerted the government that we were not finished the study and said, "Please do not take these as our final opinions." Are we serious about having a code of conduct? Are we serious about serving the public and making certain that, when we serve, we are not in conflict? Do we want to have a code of standards that most of us agree, when we are in the Senate or outside of it, is desirable and acceptable? That is what we are doing here, and we should not be rushing to judgment on Bill C- 34, indicating that there is something important and valuable in that bill. There is not at this point. Perhaps with study, with amendment, marrying it with a code of conduct could give it some value.

Honourable senators, I trust that you will give the committee the opportunity to hold hearings, to deliberate and to debate. What is most disconcerting is that the debate has been about closure, about time allocation, when in fact this very institution is about debate. Debate is my opportunity to attempt to influence others after some reasoned study. I do not think we have done the reasoned study. How can we carry on a debate? If minds are made up, then how can we compromise? How can a minority influence a majority? How can we say we are truly democratic and that we deserve to be here as an institution in Canada in 2003?

The Hon. the Speaker: Honourable senators, I regret to advise that Senator Andreychuk's time has expired.

Senator Andreychuk: I request leave to continue.

The Hon. the Speaker: Senator Andreychuk has requested leave for a question to be put. Is leave granted, honourable senators?

Hon. Senators: Agreed.

The Hon. the Speaker: Leave is granted.

Did you have a question, Senator Wiebe?

Senator Wiebe: No, I wanted to participate in the debate.

The Hon. the Speaker: Senator Sparrow, did you have a question?

Hon. Herbert O. Sparrow: Honourable senators, I do have a question, but if leave has been refused to some senators, then I will not ask for additional time.

Senator Andreychuk: You can ask a question.

Hon. Jack Wiebe: Honourable senators, I welcome the opportunity to take part in this debate this evening. As most of you know, I was among those who voted in favour of closure on second reading. I look around the chamber tonight and I see a lot of senators here. They are here, I imagine, because they want to take part in this debate. I want the record to show that I was the individual senator who said no to Senator Grafstein going beyond his 15 minutes. I should probably explain.

We have rules within this chamber that state that a senator can speak for 15 minutes. We have just passed a closure motion allowing for six hours of debate. There are more than 45 senators in this chamber tonight. We will be debating this particular bill for the next six hours. If all 45 senators wish to make comments on Bill C-34 for the maximum 15 minutes, not everyone will have an opportunity to get their views on the record. I wonder how many have really put their views on the record in regard to this particular legislation.

I have heard many views off the record but not too many views being put on the record. We have an opportunity tonight to put our particular views on the record as to why we are in favour or are opposed to this legislation. In my mind, most of the work done studying legislation is done in committee. Committee hearings allow people from outside this chamber to provide us with their views as to why they think the legislation is good or why they think the legislation is bad. Committees then bring their work back to this chamber. That is why I believe the real debate takes place at third reading. We have had an opportunity to listen to the pros and cons to legislation, and it is up to us to make up our minds as to the direction we want to take.

I look at the ethics officer question from a rather simplistic point of view. I never object to rules as long as I know what the rules are before I enter the game. Rules are there for a purpose and are meant to be followed. That is why we implement them. If we disagree, for example, with the 15-minute time limit on speeches, we have the opportunity to change the rules. There must have been a reason for that limitation being placed there. In my experience in this chamber for the last three years, we have a tendency not to follow too closely many of the rules that we ourselves have adopted. That may be a positive or a negative; I do not know. I believe rules are made to be followed.

I have no problem with an ethics commissioner. The views of Canadians about the role of the Senate have certainly improved in the last three or four years. That happened because of the tremendous work that our committees have done. Many people have talked to me about senators being in Mexico and about the few indiscretions that have happened. While we may be one great big barrel of wonderfully fine, ethical people, every barrel has a bad apple. What does the general public hear? They do not hear about the 99 apples that are good. They hear and remember the one apple that was bad.

What does an ethics commissioner do? An ethics commissioner gives the general public some comfort that 100 apples might be good. That is why I believe this bill is important.

Honourable senators, I am not afraid, as some have expressed, that our "assets" may become known in court. I am proud of my assets. I worked damn hard for them. I am not ashamed to have people know what they are, whether through this chamber or through the office of an ethics commissioner or whether it is in the courts or in the general public. That is my simplistic view.

I have no problem referring this bill to committee. Let us find out what other senators think tonight. We have an opportunity for another five hours of debate. Let us find out how senators feel so the committee will have some bearing or some guidelines to follow when we present the bill to them.

Honourable senators, I urge your support for this legislation.

Hon. Marcel Prud'homme: Will the honourable senator take a question?

Senator Wiebe: Yes.

Senator Prud'homme: I think I campaigned for Senator Wiebe in Saskatchewan. He is a fine senator.

As Senator Carstairs mentioned in her speech, a few years ago Senator Stanbury and Mr. Blenkarn and Senator Callbeck and I sat for over a year on this issue.


The honourable senator said that he wants us to make our views known. Sometimes the best speech is the vote. If someone is to reflect my views, and many people reflect my views, and others answer to that, then sometimes it is not necessary to express my own views. You express them when you vote.

That being said, I think I was the one who invented two words that worry so many people. I would like honourable senators to help me out in my reflection.

At the Blenkarn committee almost 20 years ago, I invented words to test the difference between "quantification" and "qualification." That was because many senators, but more so members of the House of Commons, were worried about qualifying their assets. However, they had no objection to quantifying them. That means, "I have...," or, "I own..." but then I have to say how many millions or how many hundreds of thousands — and I am not in that club — or how many tens of thousands I have.

Would the honourable senator comment on the words "qualification" and "quantification"?

Senator Wiebe: Honourable senators, I do not know whether I am qualified to answer the question on quantification or qualification in terms of assets. Is that what the honourable senator is asking me?

Senator Prud'homme: Yes, because that will be part of it.

Senator Banks: You have to tell him how many zeroes you have.

Senator Wiebe: Is the honourable senator asking me how many zeroes I have personally? Is that what he is after? What difference does it make? If an individual is worth $40,000, and he worked hard for that $40,000 and is satisfied with it, then he should be happy. Why should anyone bother? If I have $1 million, and I worked darn hard for it, I do not mind people knowing that I have that $1 million. I would probably show that in my lifestyle, in the kind of house I have or the kind of car I drive. What difference does the actual figure make?

My wife helped me a lot with my assets as well. She has her own assets. I have no objections to letting the general public know what my wife's assets are, nor does she. She worked just as hard for those assets as I did. She is jut as proud of them as I am. Some day, hopefully, our children will be able to enjoy the benefits of those assets. As far as making them public, I have no qualms about that.

Senator Prud'homme: I have a great deal of respect for the honourable senator from Saskatchewan.

What worries people is to know that, for instance, you are chairman of the Energy Committee and you happen to own so many shares or you are a director of a certain company. That is what bothers people. It is not the product of all your estate, talents and work. When some members come to make the rules they will see there is a big difference between qualification and quantification.

I think people want to know if members are independent in their responsibilities and do not mix the two or more together. There must have been a debate, unless I invented one. For weeks, we debated the difference between qualification and quantification. Finally, people got around it.

I will leave the matter for tonight and deal with it when we go to the committee. I usually attend these committee meetings, even though I am not a member.

Senator Wiebe: Honourable senators, I cannot speak for other senators. My comments tonight were my personal views. It is on that basis, because it is an ethics commissioner that affects this chamber, that I feel I have to express my personal views. I would vote accordingly.

As to how I approached my assets, shares, or involvement with boards of directors, I resigned from many of the positions I held when I accepted the call to the Senate. I did that because, in my mind, this is a very important place. It is a chamber of sober second thought. However, it is also our responsibility to look at both sides of a question. If I believe that I have any conflict, of course it is important for me to remove myself from the conflict situation. It is on that basis that I accepted the call to this chamber. I cancelled memberships that I had and a few other things because I want to tackle this job from an unbiased point of view. That is how I am approaching this ethics package. Some senators may differ in their reasons or their involvement, but that is my particular position. I have no problems with it.

Senator Andreychuk: Senator Wiebe mentioned precisely the point that I was trying to make. I understood there was to be an "ethics package." In such a package, we would examine a code of conduct and an ethics officer. We would have then matched that up with the Parliament of Canada Act and all of the other rules that we have that guide our conduct.

Where in Bill C-34 does it talk about the issues that the honourable senator mentioned? Where is there talk of a code of conduct? There is nothing in there. It would simply put in place an ethics officer.

The dilemma I am having is how can I judge a bill when it is only one small piece of the work the Senate should undertake with respect to the ethics package.

Senator Wiebe: Again, I look at this very simplistically. I think the code we will follow will be our own code, one that we develop in this chamber.

In my mind, the advantage is having an ethics counsellor who will say to us all, "Look, it is about time we got off our rear ends and started building that code of conduct." If we do not have an ethics counsellor, we may go on for another 30 years talking about the fact that we should have a code of conduct.

Every mile starts with one step. In my mind, passing this legislation is the first step to ensuring that each and every one of us takes very seriously the fact we have to get down to work and develop our own code of conduct.

Senator Andreychuk: Senator Wiebe is indicating that he is in favour not of a code of conduct that would be developed and included in a statute, but in favour of directing our own affairs and setting our own code. Bill C-34 would give us only an ethics officer, something which we could do today without Bill C-34. We could find a person to fill that role. We would keep that person at arm's length, or not at arm's length as we wished. We could do all of that without Bill C-34. Is that correct?

Alternatively, is the honourable senator saying that we have no rules today by which we could do that internally?

Senator Wiebe: Honourable senators, I am saying that we have talked about a code of conduct, a code of ethics, for a long time. Since I have been here, it has been debated for just about two years now. We are no further ahead today than we were when we first started debating this two years ago. This bill provides us with the opportunity to say, "Look, we agree with the fact that we should have an ethics commissioner, counsellor or whatever you want to call it. We also agree that it is about time we developed a code of conduct, one that we can follow." This is what the general public wants. It is about time we started moving on it.

The Hon. the Speaker: Honourable senators, I regret to advise that Senator Wiebe's time has expired.


Hon. Lorna Milne: Honourable senators, I normally do not comment about bills that will come to a committee that I chair, but I rise to speak to Bill C-34 because I believe that the bill should go to committee immediately, and I think that the time has come for the Senate to move on.

I also believe, if honourable senators will allow me to complete my comments —

Senator Lynch-Staunton: How do you know it is going to your committee?

Senator Milne: I am certainly presuming something.

I believe that this particular bill goes out of its way to ensure that the rights and the privileges of the Senate are protected.

I also want to correct some impressions that may be lingering in some of our minds. I have to admit that I was taken aback by many of the comments that were made by Senator Joyal yesterday during his speech. He focused his speech on his contention that, as written, this bill does not adequately defend the privileges of senators. There is no doubt that some of his theories are interesting and enlightening, but that is all they are — theories.

As Senator Beaudoin said tonight, this is law in the making. I find that Senator Joyal's comments are not founded in the very real experience in some of the provinces where ethics commissioners currently exist in Canada and in statute. While Senator Joyal has concentrated on constitutional theories and interesting arguments, I stand here to tell honourable senators that this bill does not do anything new in this country and that if we look at the experience of the provinces we do not have a single thing to worry about.

Let me start with Senator Joyal's assertion that because of the way the ethics counsellor is appointed, the Senate will lose much of its independence. In particular, he notes that an ethics counsellor could be appointed with as many as 52 senators opposed to the appointment. While this may certainly have some basis in theory — after all, we can all divide 105 by 2 — it does not at all conform to the practice in other Canadian jurisdictions where the exact same structure is used to appoint ethics officers. In his appearance before the Standing Committee on Rules, Procedures and the Rights of Parliament, Robert Clark, the Ethics Commissioner for Alberta, spoke at great length about the realities of the appointment of an ethics commissioner. During his testimony, he stated:

The practice in Alberta is that the five legislative officers that you listed work with what is referred to as the "legislative officers' committee" which is made up of members of all three parties. For all practicality, a recommendation would not get out of that committee unless there was unanimous or close to unanimous support.

When I took the job on, I went to the two opposition parties and told them that I had put my name forward and that if they were prepared to support me, great; and, if not, then I would withdraw my name. Any person who would take the job on and not have that kind of initial support at the outset would be extremely foolish. I do not see that happening.

I note that he made these comments in direct response to a question from Senator Joyal. In Mr. Clark's experience, he could not see anyone ever being appointed to the position without widespread support of the members on all sides of the legislature, and I agree with him.

How, then, did Alberta create a regime that has produced an appointment process that has such a high degree of consensus building? Section 33 of the Alberta Conflicts of Interest Act mandates that an ethics commissioner be appointed by the Lieutenant Governor on the recommendation of the legislative assembly. There is no requirement that a vote even take place. There is no requirement that all parties be consulted, and there has never been a hint that the Alberta legislature has somehow lost its independence under this act.

In spite of what Senator Grafstein has said, Bill C-34 provides for significantly more input from senators from all parties.

The Hon. the Speaker: Do you have a point of order, Senator Prud'homme?

Senator Prud'homme: I will call it a question of privilege and ask Your Honour to rule on it.

The Hon. the Speaker: Privilege, unfortunately, is not something that we can deal with other than on notice at the beginning of the day. If the honourable senator has a point of order, I will hear him.

Senator Prud'homme: I have a point of order. You can rule me out of order, but I will accept your judgment. I come from the House of Commons and I have never asked for an appeal of a Speaker's judgment.

I feel extremely sad when I see that this is an immensely divided Senate. The person who will chair the committee is already answering various senators who participated. How can I go to the committee with confidence? It is not enough to be neutral. When I chaired so many difficult committees in the House of Commons, I made a point of not speaking before I received the bill. It is putting us in a very embarrassing situation.

May I make an appeal to the Honourable Senator Milne to finish?

The Hon. the Speaker: I have listened to what Senator Prud'homme has had to say in terms of whether his remarks might be something on which I could rule as a point of order. Unfortunately, I do not believe there is any point of order. Senator Milne is not prevented from speaking by any rule or custom that I know of, so I give the floor to Senator Milne.

Hon. John Lynch-Staunton (Leader of the Opposition): On the point of order, is it in order for the chairman of a committee, who by tradition is at least outwardly neutral, unbiased, to take a position on the bill, either favourable or unfavourable? It is an absolute challenge to the sanctity of our committees to know that the chairperson, who has already been told, apparently, that the bill is going to that committee before the Senate has taken a decision, has already taken a position on the bill. How can the committee conduct its proceedings properly knowing in advance that the chairperson has already taken a position on the bill that is to be forwarded to the committee she chairs? I find that reprehensible.

Hon. Sharon Carstairs (Leader of the Government): I thank honourable senators for their comments. I have been in this chamber only nine years, but I know of a number occasions when chairs of committees have actually sponsored bills in this Senate. By sponsoring a bill, they have indicated their support of that bill.

Senator Milne is well within her rights to speak tonight about testimony before her committee, because it was before her committee, and she believes — and I think that is the point she is trying make — that some of that testimony has not been properly put before us.

Senator Lynch-Staunton: How can she speak as the chair of a committee on a bill that has not been even sent to her committee and that the Senate has not decided should go to her committee? Maybe the Senate will think otherwise. How dare she speak in that capacity? She started her comments by saying, "As chairman of the committee that will receive this bill, I want to give you my views on it." As far as I know, we have not decided to which committee this bill will be referred.

Senator Milne: Honourable senators, the Senate is of course in charge of whichever committee receives any bill. The pre-study on this bill came to the Rules Committee, and this is what I am talking about. I am talking about statements that have been made in this chamber, as I have a full right as a member of this chamber to do. However, I have no knowledge whatsoever of what committee will receive this bill, and the honourable senator is quite right to correct me on that. With that, I would like to continue my remarks, if I may.

The Hon. the Speaker: It was Senator Prud'homme's point of order. I started to answer his question as to whether Senator Milne was in order in speaking as the chair of a committee that might receive this bill following second reading.

Again, I do not think that Senator Milne breaches any rule by speaking. I know this is a highly charged matter, but I think the points that have been raised in the context of the point of order are for the Senate as a whole to deal with and decide in terms of to which committee the bill might be referred or whether it is referred to Committee of the Whole. I am not aware of any rule or practice set out in the texts on parliamentary procedure that would prevent Senator Milne from speaking.


Senator Milne: I shall edit names from my remarks.

Bill C-34 provides for significantly more input from senators from all parties. The first proposed section of the bill reads as follows:

20(1) The Governor in Council shall, by commission under the Great Seal, appoint a Senate Ethics Officer after consultation with the leader of every recognized party in the Senate and after approval of the appointment by resolution of the Senate.

Now, we would be fools to approve the appointment of someone who was not accepted by all sides of this august chamber. I suggest that our deliberations on the selection of an ethics officer will unfold in much the same way as suggested by Northwest Territories Ethics Commissioner Ted Hughes, when he noted:

I think that, when the time comes for you to select a conflict or integrity or ethics commissioner or counsellor, or more than one, if that is what you decide, you will find that you will work to come up with an eminent nominee who will enjoy the confidence of the whole house. I certainly think that is very desirable.

Having served several years in this place and still learning, I have no doubt that all senators will work together to find an ethics officer of the highest integrity in whom we all have confidence.

The second point that was raised in a previous speech is the fact that when acting to punish its members, senators are somehow not acting within the sphere of the Senate's constitutional powers. The 1990 British case of Rost v. Edwards was cited in order to establish the fact that the proposed bill is not a matter of privilege. As I noted before, this could be a problem in theory, but, on the other hand, I would prefer to look at the more recent Canadian cases to determine whether or not such a thing would be within the ambit of parliamentary privilege as defined by the Constitution.

As I noticed when I was questioning Senator Oliver yesterday on the decision of the B.C. Court of Appeal in Tafler v. Hughes, Mr. Justice Lambert stated:

In my opinion, the privileges of the Legislative Assembly extend to the Commissioner who is expressly made an officer of the Assembly...

He goes on to say:

In my opinion, decisions made by the Commissioner and the carrying out of the Commissioner's powers under the Act are decisions made within, and with respect to, the privileges of the Legislative Assembly and are not reviewable in the courts.

This is not the only recent court decision where the courts have specifically found that disciplinary matters fall squarely within privilege. In the decision of the Supreme Court of Canada in Harvey v. New Brunswick, Madam Justice McLachlin, now Chief Justice, states:

The history of the prerogative of Parliament and legislative assemblies to maintain the integrity of their processes by disciplining, purging and disqualifying those who abuse them is as old as Parliament itself. Erskine May, writing in 1863 —

That was before Confederation. Chief Justice McLachlin goes on to state:

— stated this in his Treatise on the Law, Privileges, Proceedings, and Usage of Parliament.

The now Chief Justice also noted in Harvey that:

Parliament and the legislatures of Canada are not confined to regulating procedure within their own chambers, but also have the power to impose rules and sanctions pertaining to transgressions committed outside their chambers.

She goes on to say that:

The power of Parliament and the legislatures to regulate their procedures both inside and outside the legislative chamber arises from the Constitution Act, 1867. The preamble to the Constitution Act, 1867 affirms a parliamentary system of government, incorporating into the Canadian Constitution the right of Parliament and the legislatures to regulate their own affairs. The preamble also incorporates the notion of the separation of powers, inherent in British parliamentary democracy, which precludes the courts from trenching on the internal affairs of the other branches of government.

The Canadian position, as defined by the current Chief Justice of the Supreme Court, could not be more clear. On repeated occasions, the court has found that disciplinary matters are matters of privilege and the courts have no business interfering. There are no Canadian authorities that contradict this position, and I challenge someone to find such an authority.

Now, some may believe that the decisions in these cases are wrong, but if any argument regarding section 18 of the BNA Act were to be put before the courts, then perhaps they might feel that the courts would take the opportunity to jump on the matter. Unfortunately, I do not think this is the case either.

The key thing to note in this context is that the power to make decisions on what is and is not a contempt will continue to reside within the Senate as a result of Bill C-34. The Senate ethics officer will not have any power to make any decisions whatsoever regarding the punishment of a senator. The only thing that he or she can do is make recommendations to the Senate or to a committee of the Senate on what course of action to take. Those limits are very clearly proscribed within the statute and we cannot, therefore, import any analysis with respect to a British register of interests into the context of the bill that is before you because we are dealing here with fundamentally different circumstances. We must recognize that the action being taken here is to build a formal and robust support structure that will assist the Senate itself in making decisions about the conduct of its members. It is only on that basis that we can evaluate whether Bill C-34 is a proper and constitutional exercise of our privileges.

According to the test that has been set out in order for Bill C-34 to be a proper exercise of our privileges, it must be shown that the right to discipline members is a privilege that now exists within the British parliamentary system. This is what we have been told.

While Bill C-34 contemplates a comprehensive code of ethics that ensures senators' behaviour is of such high calibre and is seen to be of such high calibre that the public maintains confidence in the Senate as an institution, it is far more than the British register of interests. In fact, a parliament's ability to discipline its members when they act in such a manner as to bring a house into disrepute is centuries old and did exist at the time of Confederation.

Honourable senators, if we look at the twenty-second edition of Erskine May, on page 112 we will find numerous examples where a House of Parliament has exercised its privilege to discipline its members for contempt of Parliament. The examples on page 112 are all pre-Confederation and are all well established by the authorities, but I will not go on to list them because there are quite a few.

The kinds of conduct upon which contempt charges have been based dozens of times in the history of the British Commonwealth form the basis of the code of conduct that the Rules Committee is currently studying. The steps that are to be taken are nothing more than a modernization of centuries-old practice and are well within the normal bounds of parliamentary privilege. As such, I simply do not find arguments about the unconstitutionality of Bill C-34 to be at all persuasive.


Finally, it has been suggested that this bill does not make it clear that any senator who follows the advice of the ethics commissioner or ethics officer is completely protected under the regime. In my opinion, the only reason this section is not there is because it is more properly placed in the code of conduct itself. Senator Andreychuk has said that the code of conduct should be in statute. I personally am absolutely and completely opposed to the code of conduct being in statute. It must be within the rules of the Senate itself, not in statute.

During the hearings of the Rules Committee, there was discussion in two areas that will help us to deal with this particular issue. Your committee came to a consensus that, should there be a bill that created the position of ethics commissioner, the bill should be limited in scope and only the bare minimum of proposed sections should be in the bill. We heard that it was best to keep everything humanly possible in the code and not in the bill — not in statute. We also heard testimony indicating that it would be most beneficial if senators who followed the advice of the ethics officer were protected from any proceedings. Given the combination of these two sets of testimony, I have no doubt that, within the robust code of conduct that the Rules Committee is currently debating and that will eventually by some committee be hopefully accomplished, you will see —

The Hon. the Speaker: I am sorry to interrupt, Senator Milne, but I must advise that your 15 minutes have expired, and we did allow the time for the question of order to be taken into consideration in the determination of your time.

Senator Milne: I have about a page and a half to go. May I have leave?

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

Senator Lynch-Staunton: A page and a half, no more.

Senator Prud'homme: I am ready to say "yes" if we give an equal amount of time to Senator Grafstein.

The Hon. the Speaker: I do not think we can have conditions set except under rare circumstance.

Senator Grafstein: I appreciate the comment. I think the honourable senator should proceed. I would like to hear the conclusion of the argument. I have heard no objection on this side.

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

Senator Sparrow: No.

The Hon. the Speaker: Leave is not granted.

Hon. Tommy Banks: Honourable senators, it is the mark of only the strongest friendships that that is where the vehement disagreements take place sometimes, just as between my best honourable friend Senator Wiebe and myself and sometimes between members on this side of the house and colleagues on the other side of the house. Generally speaking, we agree precisely on exactly where we want to go; we disagree from time to time on how to get there.

I did something tonight, senators, that I promised myself, when I first came here, that I would never do. I abstained on a vote. I had the naiveté to believe that I would always form a position and take a stand. Tonight, I did not, because I had undertaken not to vote against the government, and I did not. At the same time as I made that undertaking, I expressed serious misgivings about this bill and explained that I was torn by it.

I have sought advice other than in this place, and I have sought advice from people in this place, and I must say that the best argument that I can think of for debate has been given in the past few hours, during which I believe almost all of us, certainly I have learned a great deal from the quality of the debate and from what we have heard on all sides. Every member who has spoken has said things that are true and right — every member, regardless of which side they spoke on.

I have followed this issue with great interest ever since it first came up. Honourable senators may remember that several months ago, I circulated a list which codified in one place all of the applications of regulations and law which applied to the conduct of senators in the Parliament of Canada Act, in the Criminal Code, and in the Rules of the Senate. I believed then, and I believe now, that there could be very little that a senator could ever do by way of ethical transgression or improper or imprudent conduct that would not be caught by those existing regulations and laws.

However, I also recognize that there is a political fact at work here, and that there is pressure for us to do something. I happen to believe it should be entirely rules-based, that it should be done within this house by resolution and rules of this house, that the ethics person ought to be appointed by and for this house, and that it ought thereby to be circumscribed from any questions of intervention by the courts about which we have heard.

I am worried about issues that were raised by Senator Joyal, including consultation. Mr. Churchill observed that consultation is a wonderful thing. The warden can have a consultation on Thursday evening with the prisoner about whether the prisoner would like to have his head cut off tomorrow morning and, on the whole, the prisoner is likely to say that he would rather not, but then on Friday morning, his head will be chopped off, but the warden will be able to say, "But, I consulted with him on this issue." Consultation is consultation is consultation.

The checks and balances question that has been raised by many senators is something that obtains in particular reference to this bill and has already been redressed to a degree. When Sir Clifford Sifton was the minister of the interior — he is the guy who invented the last "best west" campaign which brought people to populate our part of the country in order that it would not be taken over by others — he observed of the Senate that its job was not to be a bulwark against the House of Commons; its job was to be a bulwark against the excesses of the government. He was right then, and he would be right if he said that today.

Independence has been raised many times. The fact of our absolute independence in most respects is the entire basis of every speech that I have ever given in the aggrandizement of the interests of the Senate to every Rotary Club in Alberta, and I have made the point that, if our independence is ever compromised to any degree, then we should abolish the Senate because we would become useless.

Some have called into question some of the advice that I have heard, and others which I have sought out have called into question the sanctity and the unassailability of that very independence and our capacity to defend against assaults upon it if we deal, in creating our conduct overseer, with a legislated rather than a rules-based appointment. Senator Milne has just referred to that. An act that says to the court, "You cannot get in this door," can always be overturned. There is a danger if the means of implementing or having our officer is legislative and not rules-based.

I have heard arguments of jurisprudence, and you will appreciate I have only the most grazing understanding of what that even means, but we have heard jurisprudence saying on this side that it is XYZ and jurisprudence on this side saying that it is ABC. I would argue that, if we have to choose between jurisprudence and jurisprudence, we should choose prudence and go in that direction.

Honourable senators, I cast no aspersion on the Rules Committee or on any of its members, on Senator Joyal, on Senator Grafstein or on Senator Milne when I make the following suggestion. It is clear now that this bill will be referred to a committee for further study. We have, as the leader has pointed out to us, already heard from the Rules Committee as to its views on this bill. I do not think there is anything in this bill as it is presently before us that refers specifically to any rule or rules, but there is a great deal in this bill that is legal, and there is a great deal in this bill, since it deals with the privilege of Parliament, that is constitutional. I would therefore urge that, when we vote at the end of second reading to send this bill to a committee for study, that that committee should most logically be, since two heads are always better than one, the Standing Senate Committee on Legal and Constitutional Affairs.

At this point, honourable senators, I yield to Senator Grafstein.

The Hon. the Speaker: Do you have a question, Senator Grafstein?

Senator Banks: I yield the floor to Senator Grafstein.

Senator Lynch-Staunton: We do not do that here.

The Hon. the Speaker: We do not have that procedure here, but Senator Grafstein could make a comment or ask you a question.


Senator Grafstein: I appreciate those comments. I had heard that a number of senators did not wish to use their time. That is why I asked for consent. Senator Wiebe did not hear that and, thus, did not allow me to speak beyond my time. I will abide by the rules and not speak beyond my time.

Senator Prud'homme: May I ask a question? You have raised an excellent suggestion. Perhaps I may add one, for your comment. In the House of Commons for a while there was board of chairs, usually elders, people who could handle very difficult situations. The Speaker was the one who would, from time to time, choose them. They could be from any party. I chaired, for instance, the discussions on the equity bill. That was the most explosive issue in the matter of employment. The issue was extremely divided and extremely difficult, but we sailed very well through, with patience.

Would you think that we should, using your first suggestion, consider this idea of having a board? Sometimes we may send too many bills to the same committee. That was exactly what was happening in the House of Commons. Some committees had nothing to do with bills themselves. The panel of chairs was at the disposal of the House, chosen by the Speaker.

Senator Banks: Honourable senators, I believe I understand the question, but I do not think that I am competent to answer it. I have never been dissatisfied so far with the selection that has been made by the house of which committee a bill ought to be sent to for study. I have never had any reservations about that, and I have no reservation about this bill having been sent to the Rules Committee and our having heard what it had to say. I am merely now proposing that it would be a good idea, since we have the opportunity to hear from a second group of senators. I prefer the idea of a motion being approved by the house to another board.

Hon. Joan Fraser: I have a question for Senator Banks. It has been my impression that the Senate prides itself on institutional memory and does not shop legislation around from one committee to another. Has it escaped his memory, the hour being late, that the full title of the Rules Committee is the Standing Committee on Rules, Procedures and Rights of Parliament, which items the committee has spent much time contemplating and building up a background of understanding?

Senator Banks: I regret not having used its full name. I was aware that that was among its prerogatives. I certainly agree that the idea of institutional memory is useful. However, in this particular case, this bill is unique. This has never occurred before, and in whatever form it ends up, is unlikely ever to occur again. In that case, I think it is advisable and advantageous to us to hear from studies that have been conducted in this unique case by more than one committee.

Hon. Francis William Mahovlich: As I listened, I noticed that no one mentioned the cost to the public for this commissioner. I should like to recommend that the first thing we do is set up a comptroller, since it appears that most of these commissioners adopt a carte blanche approach.

Senator Lynch-Staunton: Visa and MasterCard.

Senator Mahovlich: I also think we should not rush into this. I know the debate has been going on for 30 years by many smarter men than us. It is still under discussion. If you read your history books, you will read about wars that lasted 100 years.

The Hon. the Speaker: If no other senator wishes to participate in the debate, then my obligation is, as called for under the rules and the order under which we are operating, to put the question. In that no senator wishes to speak, I will then put the question.

Senator Grafstein: I have a point of order. I spoke to Senator Wiebe about his intervention against me continuing. I sought the leave of the house and I accepted the view of one senator that, on the information he has since given me, he felt it was not proper for a senator to appropriate more than ample time. I was two thirds through my summary and felt that, with the leave of the house, I would like to continue.

However, here we are, in six hours of full and fulsome debate, and we are aborting what I consider to be an appetite for further information. I am prepared to speak for another five or 10 minutes, with the consent of the house.

The Hon. the Speaker: Senator Grafstein is asking for leave to take the floor again in this matter, having spoken once. I will put the question to the house. Honourable senators, is leave granted for Senator Grafstein to continue to speak?

Senator Lynch-Staunton: For how long?

An Hon. Senator: Leave denied.

The Hon. the Speaker: Leave is not granted. I return then to the matter before us, which is the question on the motion of Senator Carstairs.

I will now, having looked again for speakers and seeing none, put the question.

It was moved by the Honourable Senator Carstairs, seconded by the Honourable Senator Graham, that this bill be read the second time.

Is it your pleasure, honourable senators, to adopt the motion?

All those in favour of the motion will please say "yea."

Some Hon. Senators: Yea.

The Hon. the Speaker: Those opposed to the motion will please say "nay."

Some Hon. Senators: Nay.

The Hon. the Speaker: I believe the "yeas" have it.

And two honourable senators having risen:

The Hon. the Speaker: Call in the senators.

Do you wish to speak, Senator Stratton?

Hon. Terry Stratton: Honourable senators, I wanted to refer to rule 39(4), that the vote be deferred to 5:30 of the next sitting of the Senate.

Hon. Bill Rompkey: Could we agree, Your Honour, to ring the bell at three o'clock at the next sitting of the Senate, with the vote at 3:30? I make that proposal because in all likelihood the next sitting of the Senate will be Monday. If it is Monday, we have the land mines dinner starting at 5:30.

Senator Stratton: If we can have the assurance from the leadership that it will indeed be Monday, then we would be cooperative in that sense. The only real concern that I have, typically, is for senators returning to Ottawa in time for the vote. If I may ask, when does the dinner start?

Senator Carstairs: It starts at 5:30.

Senator Stratton: A vote at four o'clock or 4:30 would be in order. We want to allow time for people to return to Ottawa. It takes Senator Carney 12 hours to get here and it takes Senator Andreychuk 10 hours. As for Senator Watt, God only knows how long he takes.

Senator Carstairs: I think we are all acting in a spirit of cooperation. I want to point out that the flight from Vancouver arrives at four o'clock, so even 4:30 might be too soon. Perhaps we could agree on five o'clock. That will give us time for the land mines dinner.


The Hon. the Speaker: I should remind honourable senators that either whip can defer the vote to 5:30 the next day. The government whip, as the next day is Friday in this case, has the right to defer the vote to Monday. If it is to be held at any time other than 5:30, unanimous consent is required.

What is the question the honourable senator is asking me to put to this house?

Senator Stratton: It is a 5:00 vote with a half-hour bell. The bells will start ringing at 4:30 for a 5:00 vote on Monday.

Senator Rompkey: I absolutely agree.

The Hon. the Speaker: I look to all senators. That is not what is provided for in the rules. The change requires unanimous consent. Is it agreed that the vote will be taken, as the whips have agreed, at 5:00 on Monday, with the bells to ring at 4:30 in the afternoon?

Hon. Senators: Agreed.

Public Service Modernization Bill

Third Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Day, seconded by the Honourable Senator Harb, for the third reading of Bill C-25, to modernize employment and labour relations in the public service and to amend the Financial Administration Act and the Canadian Centre for Management Development Act and to make consequential amendments to other Acts.

Senator Day: Question!

The Hon. the Speaker: Is the house ready for the question?

Hon. Terry Stratton: If I may, Your Honour, I believe this item stands in the name of Senator Oliver. I will move the adjournment in my name.

On motion of Senator Stratton, debate adjourned.


Business of the Senate

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I think that we have had very interesting debates. Time just flew. At this late hour, I think we might find consent to stand all items on the Order Paper that have not been reached, except for Government Notices of Motions, in the order in which they are today.


Hon. Jack Wiebe: Honourable senators, if I could be permitted a question, will we adjourn on Monday at 5:30? If not, I would like to move the motion, on behalf of Senator Kenny, to allow the National Security and Defence Committee to meet on Monday in the event that the house is still sitting.

Senator Robichaud: The honourable senator is referring to Motion No. 158 on the Notice Paper, the last item. This committee usually sits on Mondays when the Senate does not usually sit. The committee requires permission to sit. It is understood that the committee would have to sit after the vote and not during the vote. Perhaps I could amend the proposition I made that all items stand, except Motion No. 158. Once we deal with that, I would proceed to Government Notices of Motions.

The Hon. the Speaker: Is it agreed, honourable senators?

Hon. Senators: Agreed.

National Security and Defence

Committee Authorized to Meet During Sitting of the Senate

Hon. Jack Wiebe, for Senator Kenny, pursuant to notice of October 21, 2003, moved:

That the Standing Senate Committee on National Security and Defence have power to sit at 5:00 p.m. on Monday, October 27, 2003, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.

The Hon. the Speaker: There is a vote at 5:00 and the committee wishes to sit at 5:00.

Senator Wiebe: I would ask permission to amend the motion to read 5:30.

The Hon. the Speaker: I believe that would be adequate.

Is it agreed that the motion be amended to read "sit at 5:30 p.m." instead of "sit at 5:00 p.m."?

Hon. Senators: Agreed.

The Hon. the Speaker: It is your pleasure, honourable senators, to adopt the motion, as amended?

Motion agreed to, as amended.



Leave having been given to revert to Government Notices of Motions:

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 Monday, October 27, 2003, at 2:00 p.m.

The Hon. the Speaker: Honourable senators, is leave granted?

Hon. Senators: Agreed.

Motion agreed to.

The Senate adjourned until Monday, October 27, 2003, at 2 p.m.

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