Journals of the Senate
52 Elizabeth II, A.D. 2003, Canada
Journals of the Senate
2nd Session, 37th Parliament
Issue 79
Tuesday, September 30, 2003
2:00 p.m.
The Honourable Daniel Hays, Speaker
The Members convened were:
The Honourable Senators
Andreychuk, Angus, Atkins, Austin, Bacon, Banks, Beaudoin, Biron, Buchanan, Callbeck, Carney, Carstairs, Chalifoux, Chaput, Christensen, Comeau, Cook, Cools, Corbin, Cordy, Day, De Bané, Doody, Downe, Eyton, Finnerty, Furey, Gauthier, Gill, Grafstein, Graham, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Joyal, Kelleher, Kenny, Keon, Kinsella, Kolber, Kroft, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Mahovlich, Massicotte, Meighen, Milne, Moore, Morin, Murray, Nolin, Plamondon, Poulin (Charette), Poy, Prud'homme, Ringuette, Robichaud, Roche, Rompkey, St. Germain, Smith, Sparrow, Stollery, Stratton, Tkachuk, Trenholme Counsell, Watt, Wiebe
The Members in attendance to business were:
The Honourable Senators
*Adams, Andreychuk, Angus, Atkins, Austin, Bacon, Banks, Beaudoin, Biron, Buchanan, Callbeck, Carney, Carstairs, Chalifoux, Chaput, Christensen, Comeau, Cook, Cools, Corbin, Cordy, Day, De Bané, *Di Nino, Doody, Downe, Eyton, Finnerty, *Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Gustafson, Harb, Hays, Hervieux-Payette, Hubley, Jaffer, Joyal, Kelleher, Kenny, Keon, Kinsella, *Kirby, Kolber, Kroft, Lapointe, Lavigne, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Mahovlich, Massicotte, Meighen, Milne, Moore, Morin, Murray, Nolin, *Oliver, *Pearson, *Pépin, *Phalen, Plamondon, Poulin (Charette), Poy, Prud'homme, Ringuette, Robichaud, Roche, Rompkey, St. Germain, Smith, Sparrow, *Spivak, Stollery, Stratton, Tkachuk, Trenholme Counsell, Watt, Wiebe
PRAYERS
SENATORS' STATEMENTS
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Tabling of Documents
The Honourable Senator Robichaud, P.C., tabled the following:
Report of the Auditor General of Canada to the House of Commons on the Office of the Privacy Commissioner of Canada pursuant to the Auditor General Act, R.S.C. 1985, c. A-17, sbs. 8(2).—Sessional Paper No. 2/37-667.
Presentation of Reports from Standing or Special Committees
The Honourable Senator LeBreton, Deputy Chair of the Standing Senate Committee on Social Affairs, Science and Technology, presented its Twelfth Report (budget—study on public health).
(The Report is printed as Appendix "A'')
The Honourable Senator LeBreton moved, seconded by the Honourable Senator Stratton, that the Report be placed on the Orders of the Day for consideration at the next sitting.
The question being put on the motion, it was adopted.
The Honourable Senator Kenny, Chair of the Standing Senate Committee on National Security and Defence, presented its Fifteenth Report (budget—release of additional funds (study on the need for a National Security Policy)).
(The Report is printed as Appendix "B'')
The Honourable Senator Kenny moved, seconded by the Honourable Senator Moore, that the Report be placed on the Orders of the Day for consideration at the next sitting.
The question being put on the motion, it was adopted.
First Reading of Commons Public Bills
A Message was brought from the House of Commons with a Bill C-212, An Act respecting user fees , to which they desire the concurrence of the Senate.
The Bill was read the first time.
The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Rompkey, P.C., that the Bill be placed on the Orders of the Day for a second reading two days hence.
The question being put on the motion, it was adopted.
DEFERRED VOTE
At 3:30 p.m., pursuant to the Order adopted September 25, 2003, the Senate proceeded to the taking of the deferred standing vote on the motion in amendment of the Honourable Senator Murray, P.C., to the motion of the Honourable Senator Day, seconded by the Honourable Senator Harb, for the third reading of Bill C-25, An Act 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.
The question was put on the motion in amendment of the Honourable Senator Murray, P.C., seconded by the Honourable Senator Oliver, that the Bill be not now read a third time but that it be amended in clause 12,
(a) on page 145, by replacing line 20, with the following:
"(5) The Governor in Council shall designate, after approval by resolution of the Senate and House of Commons,''; and
(b) on page 151, by replacing lines 20 to 31, with the following:
"110. (1) The Chairperson shall, as soon as possible after the end of each fiscal year, submit an annual report to Parliament on the activities of the Tribunal during that fiscal year.
(2) The Chairperson may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers and functions of the Tribunal where, in the opinion of the Chairperson, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for transmission of the next annual report of the Tribunal.''; and
(c) on page 168, by replacing line 11, with the following:
"(4) The Governor in Council shall designate, after approval by resolution of the Senate and House of Commons,''.
The motion in amendment was negatived on the following vote:
YEAS
The Honourable Senators
Andreychuk, Angus, Atkins, Beaudoin, Carney, Comeau, Doody, Gustafson, Kelleher, Keon, Kinsella, Lawson, LeBreton, Lynch-Staunton, Meighen, Murray, Nolin, Prud'homme, Roche, St. Germain, Stratton, Tkachuk—22
NAYS
The Honourable Senators
Austin, Bacon, Banks, Biron, Callbeck, Carstairs, Chalifoux, Chaput, Christensen, Cook, Corbin, Cordy, Day, De Bané, Finnerty, Furey, Gauthier, Gill, Grafstein, Graham, Harb, Hubley, Jaffer, Joyal, Kenny, Kroft, Lapointe, Lavigne, Léger, Losier-Cool, Mahovlich, Massicotte , Milne, Moore, Morin, Poulin, Poy, Ringuette, Robichaud, Rompkey, Smith, Trenholme Counsell, Watt, Wiebe—44
ABSTENTIONS
The Honourable Senators
Plamondon—1
MESSAGE FROM THE HOUSE OF COMMONS
A Message was brought from the House of Commons in the following words:
MONDAY, September 29, 2003
ORDERED,—That a message be sent to the Senate to acquaint their Honours that, with respect to Bill C-10B, An Act to amend the Criminal Code (cruelty to animals), this House continues to disagree with the Senate's insistence on amendment numbered 2 and disagrees with the Senate's amendments numbered 3 and 4. This House notes that there is agreement in both Houses on the need for cruelty to animals legislation to continue to recognize reasonable and generally accepted practices involving animals. After careful consideration, this House remains convinced that the Bill should be passed in the form it approved on June 6, 2003.
(1) This House does not agree with the amendment numbered 2 (replace "kills without lawful excuse'' with "causes unnecessary death''), on which the Senate is insisting. This House is of the view that the defence of "without lawful excuse'' has been interpreted by the case law as a flexible, broad defence that is commonly employed in the Criminal Code of Canada. It has been the subject of interpretation by Courts for many years, and is now well understood and fairly and consistently applied by courts in criminal trials. This defence has a longstanding presence in the Criminal Code, including being available since 1953 for the offence of killing animals that are kept for a lawful purpose. The House is convinced that the defence of "lawful excuse'' offers clear and sufficient protection for lawful purposes for killing animals. There are no authorities that suggest that this defence is unclear or does not cover the range of situations to which it is meant to apply. For all of these reasons, this House remains convinced that maintaining the defence of "lawful excuse'' in relation to offences for killing animals continues to be the best and most appropriate manner of safeguarding the legality of purposes for which animals are commonly killed.
The House disagrees with the Senate that the proposed amendment would provide better protection for legitimate activities. The House is of the view that the amendment would not bring any added clarity, and would give rise to confusion. The term "unnecessary'' has been judicially interpreted to comprise two main components: (a) a lawful purpose for interacting with an animal, and (b) a requirement to use reasonable and proportionate means of accomplishing the objective (i.e. choice of means that do not cause avoidable pain). Only the first part of the legal test for "unnecessary'' is relevant to offences of killing, namely whether there is a lawful purpose. It has been the law for many decades that persons who kill an animal without a lawful excuse are guilty of an offence. It has also been the law since 1953 that if they kill the animal with a lawful excuse, but in the course of doing so cause unnecessary pain, they are guilty of a second, separate offence. To collapse the elements of these two different offences into one will invite a re- interpretation of the well-developed test of "unnecessary'' and will add confusion, rather than clarity, to the law.
(2) This House does not agree with the modified version of amendment numbered 3 (creating a defence for traditional aboriginal practices), on which the Senate is insisting. This House appreciates the recent clarification of an ambiguous component of the amendment, and agrees with the Senate that traditional aboriginal practices that cause "no more pain than is reasonably necessary'' should be lawful. However, this House does not agree that the proposed amendment is necessary. Aboriginal practices that do not cause unnecessary pain are not currently offences and will not become offences under the Bill. This House believes that the Bill, as worded, already achieves the objective sought by the Senate.
This House remains convinced that creating a defence for this purpose is not legally necessary and may create unintended mischief. Any act that has a legitimate purpose and does not cause unnecessary pain does not fall within the definition of the crime, and cannot be the subject of an offence. A defence only applies where the conduct actually falls within the definition of the crime and is excused for other reasons. It is illogical and confusing to create a defence for actions that do not constitute a crime. More specifically, as causing unnecessary pain is not a crime, it is not meaningful to create a defence for Aboriginal persons who cause no more pain than is reasonably necessary. In addition, there is no need to mention aboriginal practices specifically; the law is already flexible enough to consider all fact situations and contexts.
The House remains convinced that the wording and effect of the amendment are ambiguous and unclear. For example, there is no clarity as to what "traditional practices'' are in the criminal law context and whether there is sufficient clarity to guide the police in their law enforcement duties. In the absence of a demonstrated need for clarification in the law, this amendment could also create mischief by generating a different test for liability for Aboriginal persons. This House does not believe that the law would be improved by creating a defence that is legally unnecessary and has the potential to confuse, rather than clarify, the interpretation of the offences.
(3) This House does not agree with the amended version of amendment numbered 4 (the defences in subsection 429(2)). The defences of legal justification, excuse and colour of right set out in subsection 429(2) of the Criminal Code are applicable to a multitude of different kinds of offences including offences of animal cruelty. The defences apply differently depending on the elements of the offence under consideration. The phrase "to the extent that they are relevant'' is included to indicate to the courts that the Bill is not intended to change the defences that are currently relevant to animal cruelty offences, or the way that they apply. It makes clear that the intention is to maintain the current availability and interpretation of defences, and not to alter it. This phrase sends a clear message to the courts that in any and all cases where the defences are currently relevant, they continue to be. Whether a particular defence is relevant will depend on the specific circumstance of each case. The phrase guarantees an accused access to these defences when they are relevant; it does not in any way limit access to defences that are relevant on the facts of the case. For these reasons, the House does not agree with the amended amendment proposed by the Senate.
ATTEST:
William C. Corbett
The Clerk of the House of Commons
The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Rompkey, P.C., that the Message be placed on the Orders of the Day for consideration at the next sitting.
The question being put on the motion, it was adopted.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Resuming debate on the motion of the Honourable Senator Day, seconded by the Honourable Senator Harb, for the third reading of Bill C-25, An Act 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.
After debate,
In amendment, the Honourable Senator Beaudoin moved, 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''.
After debate,
The Honourable Senator Comeau moved, seconded by the Honourable Senator Andreychuk, that further debate on the motion in amendment be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Order No. 2 was called and postponed until the next sitting.
Motions
Order No. 1 was called and postponed until the next sitting.
Reports of Committees
Order No. 1 was called and postponed until the next sitting.
OTHER BUSINESS
Senate Public Bills
Orders No. 1 to 4 were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Day, seconded by the Honourable Senator Gill, for the second reading of Bill S-20, An Act to amend the Copyright Act.
After debate,
The Honourable Senator Nolin moved, seconded by the Honourable Senator Stratton, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 6 and 7 were called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Oliver, seconded by the Honourable Senator Stratton, for the second reading of Bill S-16, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate).
After debate,
The Honourable Senator Beaudoin moved, seconded by the Honourable Senator Stratton, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Commons Public Bills
Resuming debate on the motion of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator Mahovlich, for the second reading of Bill C-250, An Act to amend the Criminal Code (hate propaganda).
After debate,
The Honourable Senator Stratton moved, seconded by the Honourable Senator Kinsella, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Reports of Committees
Order No. 1 was called and postponed until the next sitting.
Consideration of the Sixteenth Report of the Standing Committee on Internal Economy, Budgets and Administration (salary increase for senior management employees) presented in the Senate on September 25, 2003.
The Honourable Senator Bacon moved, seconded by the Honourable Senator Callbeck, that the Report be adopted.
After debate,
The question being put on the motion, it was adopted.
Consideration of the Sixth Report of the Standing Senate Committee on Fisheries and Oceans (budget—study on Nunavut and Nunavik quotas and benefits) presented in the Senate on September 25, 2003.
The Honourable Senator Comeau moved, seconded by the Honourable Senator Stratton, that the Report be adopted.
The question being put on the motion, it was adopted.
Consideration of the Fifth Report of the Standing Senate Committee on Human Rights (budget—study to hear witnesses with specific human rights concerns) presented in the Senate on September 25, 2003.
The Honourable Senator Chaput moved, seconded by the Honourable Senator Trenholme Counsell, that the Report be adopted.
After debate,
The Honourable Senator Lynch-Staunton moved, seconded by the Honourable Senator Stratton, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Consideration of the Thirteenth Report of the Standing Senate Committee on Banking, Trade and Commerce (budget—release of additional funds (study on Bankruptcy and Insolvency)) presented in the Senate on September 25, 2003.
The Honourable Senator Kroft moved, seconded by the Honourable Senator Moore, that the Report be adopted.
The question being put on the motion, it was adopted.
Orders No. 6 to 16 were called and postponed until the next sitting.
Other
Orders No. 15 (inquiry), 147, 92 (motions), 23 (inquiry), 146 (motion), 26, 22 (inquiries), 66, 104, 86 (motions), 9 (inquiry), 130 (motion) and 2 (inquiry) were called and postponed until the next sitting.
Resuming debate on the inquiry of the Honourable Senator Gauthier calling the attention of the Senate to the important role of culture in Canada and the image that we project abroad.
After debate,
The Honourable Senator Banks moved, seconded by the Honourable Senator Cook, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 16 (inquiry), 115 (motion), 6 and 11 (inquiries) were called and postponed until the next sitting.
Order No. 21 (inquiry) was called and pursuant to Rule 27(3) was dropped from the Order Paper.
INQUIRIES
The Honourable Senator Callbeck called the attention of the Senate to the crisis of increasing labour shortages in the skilled trades.
After debate,
The Honourable Senator Hubley moved, seconded by the Honourable Senator Prud'homme, P.C., that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Reports of the Department of Justice for the fiscal year ended March 31, 2003, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2). —Sessional Paper No. 2/37-656.
Reports of the Canadian Human Rights Commission for the fiscal year ended March 31, 2003, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2).—Sessional Paper No. 2/37- 657.
Report of the Administrator of the Ship-source Oil Pollution Fund for the fiscal year ended March 31, 2003, pursuant to the Marine Liability Act, S.C. 2001, c. 6, sbs. 100(2).—Sessional Paper No. 2/37-658.
Reports of the Economic Development Agency of Canada for the Regions of Québec for the fiscal year ended March 31, 2003, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2).—Sessional Paper No. 2/37-659.
Copy of Order in Council P.C. 2003-1228, dated August 13, 2003, concerning the Agreement on Social Security between the Government of Canada and the Government of the Italian Republic, pursuant to the Old Age Security Act, R.S.C. 1985, c. O-9, sbs. 42(1).—Sessional Paper No. 2/37-660.
Reports of the Department of Agriculture and Agri-Food for the fiscal year ended March 31, 2003, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2).—Sessional Paper No. 2/37- 661.
Report of the Hazardous Materials Information Review Commission for the fiscal year ended March 31, 2003, pursuant to the Hazardous Materials Information Review Act, S.C. 1987, c. 30, sbs. 45(2).—Sessional Paper No. 2/37- 662.
Reports of the Atlantic Canada Opportunities Agency for the fiscal year ended March 31, 2003, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2).—Sessional Paper No. 2/37- 663.
Reports of Communication Canada for the fiscal year ended March 31, 2003, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2). —Sessional Paper No. 2/37-664.
Reports of the Department of Western Economic Diversification for the fiscal year ended March 31, 2003, pursuant to the Access to Information Act and to the Privacy Act, R.S.C. 1985, c. A-1 and P-21, sbs. 72(2).—Sessional Paper No. 2/37-665.
Report of Export Development Canada for the fiscal year ended March 31, 2003, pursuant to the Alternative Fuels Act, S.C. 1995, c. 20, s. 8.—Sessional Paper No. 2/37-666.
ADJOURNMENT
The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Rompkey, P.C.:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 6:03 p.m. the Senate was continued until 1:30 p.m. tomorrow.)
__________________________________________________________
Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on Aboriginal Peoples
The name of the Honourable Senator Johnson substituted for that of the Honourable Senator Forrestall (September 26).
Standing Senate Committee on Transport and Communications
The names of the Honourable Senators Johnson and Eyton substituted for those of the Honourable Senators Cochrane and Comeau (September 26).
Standing Senate Committee on National Finance
The names of the Honourable Senators Comeau and Banks substituted for those of the Honourable Senators Kinsella and Ferretti Barth (September 29).
Standing Committee on Rules, Procedures and the Rights of Parliament
The names of the Honourable Senators Cordy and Cook substituted for those of the Honourable Senators Chaput and Cordy (September 29).
Standing Joint Committee for the Scrutiny of Regulations
The name of the Honourable Senator Harb added to the membership (September 29).
Standing Senate Committee on Social Affairs, Science and Technology
The name of the Honourable Senator Cordy substituted for that of the Honourable Senator Fairbairn (September 30).