Debates of the Senate (Hansard)
Debates of the Senate (Hansard)
3rd Session, 37th Parliament,
Volume 141, Issue 15
Tuesday, February 24, 2004
The Honourable Dan Hays, Speaker
- SENATORS' STATEMENTS
- ROUTINE PROCEEDINGS
- QUESTION PERIOD
- Parliament
- Prime Minister
- Public Works and Government Services
- Auditor General's Report—Sponsorship Program—Involvement of Ministers
- Auditor General's Report—Sponsorship Program—Availability of Funds
- Auditor General's Report—Sponsorship Program—Involvement of Officials
- Auditor General's Report—Sponsorship Program—Involvement of Ministers
- Auditor General's Report—Sponsorship Program—Alleged Laundering of Funds
- Auditor General's Report—Sponsorship Program—Involvement of Crown Agencies
- Solicitor General
- Auditor General
- Point of Order
- ORDERS OF THE DAY
THE SENATE
Tuesday, February 24, 2004
The Senate met at 2 p.m., the Speaker in the Chair.
Prayers.
Visitors in the Gallery
The Hon. the Speaker: Honourable senators, I draw your attention to the presence in our gallery of the Honourable Dragoljub Micunovic, President of the Parliament of Serbia and Montenegro. He is accompanied by Dr. Milorad Drljevic, Deputy Speaker, Serbia and Montenegro; Professor Zarko Korac, Member of Parliament; Mr. Borislav Banovic, Member of Parliament; and Mr. Branko Marjanac, Minister-Counsellor and Chargé d'Affaires for Serbia to Canada.
Welcome, gentlemen, to the Parliament of Canada and to the Senate.
[Translation]
SENATORS' STATEMENTS
National Archives
State of Storage Facilities
Hon. Viola Léger: Honourable senators, like hundreds of thousands of Radio-Canada television viewers on Sunday evening, I saw the pitiful state of our archives at the National Library of Canada. I was horrified by the facts presented by journalist Paul Toutant, especially after watching the comforting Jutra Awards ceremony.
In her report, Auditor General Sheila Fraser denounced the lamentable state of the building that houses the National Archives in Ottawa; more than 30,000 items in the collection have already been lost forever.
Nevertheless, what I saw Sunday evening just flabbergasts me. I was outraged to see documents of such great value — documents that are 400 years old, such as the original memoirs of Champlain, the founder of Quebec City, the Relations des Jésuites, and other precious historical documents, almost in ruins, in danger of being lost forever. At the end of the story, the reporter showed us the works of Victor Hugo, which had been ruined in a previous flood. These images were a real shock to me.
I was shocked to see dripping pipes and electrical wires that can overheat and set off the sprinklers at any moment, and to see our historical documents, the country's memory, being destroyed by water, mould and neon lights. The National Librarian, Roch Carrier, a writer himself, has not yet dared entrust his personal archives to the institution he heads.
The building where the Canadian newspaper collection is stored is hardly any better off. We saw items that were crumbling into dust, eaten up by fungus, because of the uncontrolled humidity. Almost a total loss. The cultural future is built on the past, and that past needs to be saved immediately, using the necessary means. It is not right that the budget of the National Library has not changed since 1990, even though its collection has grown by 3 per cent per year.
What Canadians saw Sunday night on Radio-Canada is unworthy of a country like ours, which claims that it is respectful of its past in order to better face its future.
[English]
National Heart Month
Hon. Wilbert J. Keon: Honourable senators, as many of you know, today is Heart on the Hill day, which takes place within this year's National Heart Month. I would like to take this opportunity to raise awareness of the prevention and treatment of heart disease in Canada and to briefly tackle two other issues currently relevant to the health care system in Canada. Heart disease and stroke remain the leading cause of death, hospitalization and prescription drug costs among Canadians. The strain of this tendency on our economy is evaluated at over $18 billion per year and is expected to increase as the population ages. The situation calls for more research and improvement in the methods of treatment of heart disease, and most particularly for improved means of prevention.
Heart disease and stroke are more easily preventable than is commonly believed. Of the nine most common risk factors contributing to heart disease, only three cannot be controlled: increasing age, heredity and gender, and soon it may be possible to do something about heredity. The occurrence of heart disease is more likely among seniors, people with a family history of heart disease, and males. However, the risk factors that can be controlled include smoking, high blood pressure, obesity, lack of regular physical activity, high blood cholesterol and diabetes. For example, high blood pressure and blood cholesterol can be avoided by reducing the intake of salt and of saturated and hydrogenated fats. Other small but significant changes can be made to the daily lifestyle to reduce the risk of heart disease.
We must work harder at promoting a lifestyle that will encompass all of these healthy habits and focus on eliminating the preventable risk factors that contribute to the strain of heart disease in our health care system. Heart Month is an excellent time to recognize the factors that put you at risk and to make changes to your lifestyle accordingly.
At this time, I would like to comment on the section of the Speech from the Throne entitled, "Partnership for a Healthy Canada."
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One of the prominent concerns with the current system is the length of waiting times for important diagnosis and treatments. Canadians are increasingly worried that the availability of services will not satisfy their needs, which results in the loss of public support for the health system.
The inefficiency of waiting lists is caused by serious weaknesses in the management of these lists. The criteria for placing patients on lists and the methods used to measure waiting time are inconsistent, and there is very little evidence of audits.
Honourable senators, the fundamental principle that motivates publicly funded health care is that every Canadian should have timely access to quality care. The approval of the current health care system by the population is being jeopardized by its failure to meet this principle. How can we reduce waiting times and manage lists better?
I would recommend three correctional measures: the standardization of methods for measuring and reporting waiting times, the development of consistent procedures to classify patients on waiting lists, and the creation of alternatives to waiting lists through the redirection of patients to individual clinicians and institutions elsewhere.
Some of this currently —
The Hon. the Speaker: I regret to advise the honourable senator that his time has expired.
Los Angeles Open
Congratulations to Mike Weir
Hon. Francis William Mahovlich: Honourable senators, last Sunday there was an Asian invasion in Los Angeles. The Asian was Shigeki Maruyama. He was seven strokes back with 15 holes to play. When Mike Weir and Shigeki approached the eighteenth green, they were tied. Mike Weir kept his composure, sunk the putt and won the tournament known as the L.A. Open.
In the next few weeks and months to come, America is preparing for the famous Masters Tournament, of which Mike Weir is champion. He will be a contender again this year. He is showing it in his play in recent tournaments. Canada has much to look forward to.
Celebration of Eid Al Adha
Hon. Mobina S. B. Jaffer: Honourable senators, on Wednesday February 11, the Prime Minister, members of cabinet, senators and members of the House of Commons representing all political parties, as well as ambassadors and members of the Muslim community, were in attendance on Parliament Hill to celebrate one of the major Muslim festivals — Eid Al Adha. The celebration commemorates the willingness of the prophet, Ibraham, to sacrifice his eldest son, Ishmael, for Allah. He has come to signify the spirit of sacrifice that every devotee of Allah should carry in his or her heart.
The Association of Progressive Muslims of Ontario, a non-profit organization that is open to all Muslims, organized this important event. Under the leadership of Mobeen Khaja, president, and Zul Kassamali, vice-president, the association was created to build bridges of understanding between Muslims and other faith groups.
This year the Association of Progressive Muslims honoured two political figures. The association presented our colleague Senator Prud'homme with a plaque that reads: "His dedication to just causes, his 40 years of public service, his contributions toward parliamentary democracy, his friendship toward the Muslim community and other communities."
The association also honoured the late Right Honourable Pierre Elliott Trudeau for the lasting legacy he left Canadians. It was Mr. Trudeau's promotion of tolerance for all faiths and his recognition and understanding of all peoples regardless of beliefs, origins or values that created the vision of multiculturalism that is the foundation of Canada's modern society. Canadians owe much to Mr. Trudeau for his vision.
Honourable senators, I know that you will join me in congratulating Senator Prud'homme for his achievements.
ROUTINE PROCEEDINGS
The Estimates, 2004-05
Documents Tabled
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, I have the honour to table the 2004-05 Estimates, Part I and Part II, the government expenditure plan and the Main Estimates.
[Translation]
Library of Parliament
Report of Joint Committee Pursuant to Rule 104 Tabled
Hon. Yves Morin: Honourable senators, pursuant to rule 104 of the Rules of the Senate, I have the honour to table the report of the Standing Joint Committee on the Library of Parliament, regarding the expenses incurred by the committee during the Second Session of the Thirty-seventh Parliament.
(For text of report, see page 203 of today's Journals of the Senate.)
[English]
The Estimates, 2004-05
Notice of Motion to Authorize National Finance Committee to Study Main Estimates
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, I give notice that tomorrow, Wednesday, February, 25, 2004, I will move:
That the Standing Senate Committee on National Finance be authorized to examine and report upon the expenditures set out in the Estimates for the fiscal year ending March 31, 2005, with the exception of Parliament Vote 10.
Notice of Motion to Refer Vote 10 to Joint Committee on Library of Parliament
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, I give notice that tomorrow, Wednesday, February 25, 2004, I will move:
That the Standing Joint Committee on the Library of Parliament be authorized to examine the expenditures set out in Parliament Vote 10 of the Estimates for the fiscal year ending March 31, 2005; and
That a message be sent to the House of Commons to acquaint that house accordingly.
[Translation]
National Security and Defence
Notice of Motion to Authorize Committee to Continue Study on Veterans' Services and Benefits, Commemorative Activities and Charter
Hon. Michael A. Meighen: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:
That the Senate Committee on National Security and Defence be authorized 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 papers and evidence received and taken on the subject during the Second Session of the Thirty-seventh Parliament be referred to the Committee;
That the Committee report no later than June 30, 2004.
Official Languages
Bilingual Status of City of Ottawa—Presentation of Petitions
Hon. Michel Biron: Honourable senators, pursuant to rule 4(h), I have the honour to table in this chamber a petition from 107 persons asking that Ottawa, the capital of Canada, be declared a bilingual city, and the reflection of the country's linguistic duality.
The petitioners ask Parliament to consider the following points:
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 ask Parliament to confirm in the Constitution of Canada that Ottawa, the capital of Canada — the only one mentioned in the Constitution — is officially bilingual, pursuant to section 16 of the Constitution Acts from 1867 to 1982.
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Hon. Gérald-A. Beaudoin: Honourable senators, pursuant to rule 4(h), I have the honour to table, in this chamber, a petition from 41 persons asking that Ottawa, the capital of Canada, be declared a bilingual city and the reflection of the country's linguistic duality. The petitioners pray and request that Parliament consider the following points:
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 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 ask Parliament to confirm in the Constitution of Canada that Ottawa, the capital of Canada — the only one mentioned in the Constitution — is officially bilingual, pursuant to section 16 of the Constitution Acts from 1867 to 1982.
[English]
QUESTION PERIOD
Parliament
Separation of Powers Between Parliament and Judiciary
Hon. Jerahmiel S. Grafstein: Honourable senators, I have a question for the Leader of the Government in the Senate.
Yesterday, we saw newspaper reports of the former Prime Minister being required to attend a civil hearing before the Federal Court to deal with policy matters with respect to the government. This, to my mind, is the second time I have read recently in the newspapers of the courts somehow not being sensitive and mindful of the separation of powers between the courts and Parliament. I have also read recently of a request by the courts to summon the current Prime Minister to a judicial hearing.
Has the government examined this question? Is it sensitive to the separation of powers between the judiciary and Parliament so that the privileges of Parliament can be preserved?
Hon. Jack Austin (Leader of the Government): Honourable senators, it is clear that a private citizen, which is what former Prime Minister Jean Chrétien is now, can be subpoenaed by a court, provided the court is satisfied that the evidence the private citizen has touches on the litigation before the court and provided that when the former Prime Minister or any person in his position is before a court, the questions are relevant to the issue in front of the court and do not touch on cabinet confidentiality or other matters. That is my understanding of the situation in the Alberta courts this week.
With respect to any member of Parliament — and I do not understand that a member of cabinet or the Prime Minister has any privilege larger than that of any other member of this house or of the other place — the current state of judicial interpretation is somewhat varied. As Senator Grafstein has said, Prime Minister Paul Martin has been requested to appear as a witness in a proceeding, as has the former Minister of Finance, John Manley. The courts seem now to accept the test of the relevance of their evidence, but also that they are not compellable within 40 days of the commencement or termination of a session of Parliament. As Senator Grafstein knows, there are other interpretations, but that is what I now see as the current judicial position.
Senator Grafstein: Honourable senators, it is my understanding — and I may be wrong about this — that the former Prime Minister was summoned to the courts while he was the Prime Minister. Again, it is my understanding, because there is not full evidence about this, that initially the government refused the request; and, subsequently, the former Prime Minister chose to accept the request of the court.
That is not my concern. My concern is that the courts appear to cross the line regarding the separation of powers, mandating or putting under subpoena cabinet members to give testimony in their capacity as ministers who deliberate on public policy, not in their capacity as individual citizens. Individual citizens are compellable.
It strikes me that if there is a separation of powers on any issue, there should be one between a prime minister and a cabinet member discussing public policy and the courts pursuing their particular issues. This, to me, is usurping — and I use the word carefully — the powers of Parliament, and therefore will cause the courts to set themselves up separate and apart from Parliament as the supreme legislature of the country.
Honourable senators, this is an important issue that goes to the question of the constitutional separation of powers. I apologize because I did not give appropriate notice, but I hope the Leader of the Government in the Senate will go back to the law officers of the Crown, go back to their constitutional advisers, and determine whether the courts have offended the separation of powers, which I believe, based on the preliminary and sketchy information I have —
The Hon. the Speaker: Please come to your question.
Senator Austin: Honourable senators, if what I heard from Senator Grafstein is a representation of his position and that of honourable senators, it would no doubt be an issue that the chamber would want to consider in an appropriate process at some future time.
Prime Minister
Auditor General's Report—Sponsorship Program—Involvement
Hon. Gerry St. Germain: Honourable senators, my question is for the Leader of the Government in the Senate. The Liberal Party's culture of corruption is coast-to-coast at the highest levels.
Some Hon. Senators: Oh, oh!
Senator St. Germain: It hurts, does it? Have I hit a sensitive nerve?
Now we learn that cabinet ministers, as well as staffers, were well aware that the sponsorship program was a secret slush fund available to good Liberal friends with worthwhile projects.
Senator Rompkey: Something like Airbus.
Senator St. Germain: Honourable senators, Jamie Kelley, a long-standing member of the Liberal Party, outlined how it worked: An application was not necessary; there was no process to follow. One just had to write a letter to Pierre Tremblay at the Department of Public Works, cite good Liberal credentials, and sit back and wait for an advertising agency to launder the cash. What could be easier for a good Liberal?
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We also understand that the Minister of the Environment apparently put Mr. Kelley's case personally to then Minister Gagliano.
Does the Leader of the Government in the Senate expect Canadians to believe that Prime Minister Martin knew nothing about this scam when even constituency assistants across the country were dispensing advice on how to access this secret slush fund?
Hon. Jack Austin (Leader of the Government): Honourable senators, it is and was no secret that there was a program called the sponsorship program. Applications were submitted not only from the province of Quebec, but also from across the country. Any constituency assistant worth his or her salt, to use an old Victorian expression, should have known about the program and, when an appropriate opportunity to apply under the program presented itself, should have moved forward. That is exactly what I believe happened in the case of the Minister of the Environment's assistant in Victoria.
That the process was inadequate and in breach of the rules is clear. That is not the fault of either Mr. Anderson or his assistant. The inadequacies in the process dealing with the sponsorship program are the subject of a great deal of activity — including inquiries and an investigation by the Public Accounts Committee. There is a great deal that is happening to get to the bottom of what actually took place.
I also wish to tell the Honourable Senator St. Germain that his rhetoric and righteous indignation impress no one.
Some Hon. Senators: Hear, hear!
Senator St. Germain: Maybe it does not impress Liberals — but I am not trying to impress Liberals.
Public Works and Government Services
Auditor General's Report—Sponsorship Program—Involvement of Ministers
Hon. Gerry St. Germain: Honourable senators, Mr. Anderson was not at fault, yet he obviously knew of the process. A Minister of the Crown allowed a process to proceed without an application, without a process to follow; one needed simply to write a staff member in Public Works.
Did the Leader of the Government in the Senate know that this slush fund existed? My office certainly knew nothing about the existence of the slush fund. Did the Leader of the Government's office take advantage of the slush fund in question?
Hon. Jack Austin (Leader of the Government): Honourable senators, my office was next to the honourable senator's. I did not hear anything from his office, nor did he hear anything from my office, about the sponsorship program. I knew nothing of it, nor was it ever brought to my attention.
In addition, senators are not often active in constituency work, but members of the House of Commons have that as their major assignment.
From time to time I try to assist other members of Parliament in my province — perhaps it is different on the other side — but I have never had a constituency load to discharge.
Senator St. Germain: Honourable senators, the honourable senator was in the Fraser Valley talking to Langley city and Langley district about constituency items. I do not know what he was doing, if that is not constituency work, which I do a fair amount of. Having been a former member of the House of Commons for a British Columbia riding, I am often asked to deal with immigration issues.
In fact, an issue came forward in regard to one of our annual events in British Columbia — they were seeking funds. I spoke to the government leader about this issue, advising him that it might come forward. Yet the Leader of the Government is telling this chamber that he does not do constituency work. I think he does — but I am not saying that he knew anything about the sponsorship program.
I would like all senators to know that I do not eavesdrop on the office of the Leader of the Government in the Senate. Even though we are neighbours, I am respectful of whatever it is he is doing.
Last week, the Prime Minister assured us that he spoke to every cabinet minister about his or her knowledge of unacceptable activities. Perhaps the Prime Minister may wish to go back and explain that unacceptable activities include secret slush funds only available to good Liberals. We are not saying this; Mr. Kelley is saying this.
In his interview with the Prime Minister, did Minister Anderson mention helping Mr. Kelley get his festival funds — I am not questioning the festival; this is a question of how the money flowed from the advertisement agency — from the Liberal slush fund, or was that considered acceptable behaviour in the Liberal caucus, the Liberal cabinet, or what have you?
Senator Austin: Honourable senators, when I said I did not do constituency work, I do receive representations and I give them to members of Parliament to manage. I wish to be clear that I want to support, in my case at least, the members of Parliament from my province. The honourable senator opposite may not do that with respect to the members of Parliament from his province, but that is a choice each one of us makes.
With respect to the application for an overpass at Langley — this is an application from a city and a municipality, both, to the province and the federal government — I was speaking in Langley, advancing the cause of the Glenugie Winery there. I trust honourable senators do not mind my mentioning an enterprise in Langley, British Columbia. In that regard, I received this representation and passed it on to the British Columbia Liberal caucus.
With respect to the question relating to Minister Anderson and the application to the sponsorship fund, I fully answered that question. It is a perfectly normal operation for a member of Parliament and a constituency assistant who is aware of a public program — and he should be aware of it if he is doing his job — to make an application under that particular program.
The deficiencies in the way the program was administered have been revealed to a considerable extent by the government and by the Auditor General. Those deficiencies have nothing to do with either Minister Anderson or his assistant.
Auditor General's Report—Sponsorship Program—Availability of Funds
Hon. Gerry St. Germain: The honourable senator, in relation to another subject, said that we are all supposed to be equal. I worked in the Pemberton Valley. There was a group of world-class rowers there, for whom we sought funding, but there was no way any federal funding was available.
My question to the Leader of the Government in the Senate is this: Did all members of Parliament know of this fund and how it operated? If so, why is it that that information is only coming out now? It is obvious that only Liberals members of Parliament had knowledge of this slush fund and were aware of the way it was administered and how the funds were accessible.
I have worked with other members of Parliament in the province — and I would work with any member of Parliament. The inference of the Honourable Leader of the Government that I do not is totally false, because I do. I would work with him; he knows that. I have worked with Senators Lawson and Austin on various initiatives, and will continue to do so.
By every indication, this sponsorship fund was administered in such a way that it was accessible only to Liberals. If it was not, in what way was it presented to the other members of Parliament? Exclude senators; let us just talk about members of the House of Commons.
Hon. Jack Austin (Leader of the Government): Honourable senators, it is my information that a number of members of Parliament from across Canada made applications for funding under the sponsorship program and that funds were awarded. I include members of the opposition. If the honourable senator would like a list of non-Liberals who made application and received funds under the sponsorship program, I shall endeavour to obtain that information for him.
Some Hon. Senators: Hear, hear!
Auditor General's Report—Sponsorship Program—Involvement of Officials
Hon. Marjory LeBreton: Honourable senators, I am not trying to impress anybody with this question, other than trying to get to the bottom of it. This is a sad and disgusting tale.
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Honourable senators, today we learned, thanks to Canada AM, that allegations of corruption at the highest level of the Liberal Party reach all across Canada: money laundering, shopping trips at exclusive shops for the wives of senior political figures and condos for special entertainment of a questionable nature, all being paid for with taxpayers' money, courtesy of Liberal-friendly advertising agencies. On Sunday, we read in the Ottawa Sun of expensive bottles of wine — $4,500 per bottle — purchased through this covert system.
Can the Leader of the Government in the Senate tell us who these senior people are, how long the practice has been going on and how much money was lifted from hard-working Canadians? These are shocking, sad and disgusting revelations.
Hon. Jack Austin (Leader of the Government): Honourable senators, I have no idea to what the Honourable Senator LeBreton is referring. I did not watch Canada AM this morning. I do not know who said what about what, or anything at all about the assertions she is making. However, I will watch the program and then make inquiries.
The language of the Honourable Senator LeBreton is not language that I would want to use myself, and I would like to caution other senators with respect to allegations by unnamed people about unnamed people. This is not the kind of search for the truth in which I believe the political system, initiated by the present government, is engaged.
Senator LeBreton: Honourable senators, I think what is happening is that many people who heretofore were afraid to speak up are speaking to journalists. I think that is where these stories are coming from.
Auditor General's Report—Sponsorship Program—Involvement of Ministers
Hon. Marjory LeBreton: Honourable senators, allegations are being made about cabinet ministers in the current cabinet. About a week ago, the Prime Minister said that he had interviewed his cabinet about unacceptable activities. Obviously, something was left out of the conversations.
Has the Prime Minister gone back to his ministers and held private conversations with each and every one of them, and asked him or her to tell him what they know?
Hon. Jack Austin (Leader of the Government): Honourable senators, there is no information that indicates that anything relevant was not disclosed to the Prime Minister.
Auditor General's Report—Sponsorship Program—Alleged Laundering of Funds
Hon. Terry Stratton: Honourable senators, the dry-cleaning scandal gets worse. Last weekend, Greg Weston reported in the Ottawa Sun that taxpayers' dollars were used to buy government officials Château Pétrus wines at $450 per bottle —
Senator LeBreton: Four thousand five hundred.
Senator Stratton: On a Team Canada trip to Hong Kong, an advertisement executive picked up the cost of Pétrus wine at dinner so that it would not appear on a government expense claim. The expense was then dry cleaned by the advertising agency, which charged the amount back to the government as another expense.
Can the Leader of the Government in the Senate tell us how widespread this practice is and how much the taxpayer has been taken for?
Hon. Jack Austin (Leader of the Government): Honourable senators, I want simply to refer the honourable senator to my answers to Senator LeBreton. There is no basis for these allegations of which I am aware. I will make inquiries, but unnamed allegations by unnamed people about other people have no value whatsoever.
Senator Stratton: Honourable senators, it was not just the wine that was bought and dry cleaned; expenses for exclusive salmon fishing trips at $3,500 per person per day were picked up by the advertising agencies and, as an additional bonus, a case of the Château Pétrus wine would be thrown in.
Can the Leader of the Government tell us if these outrageous and corrupt practices have stopped, or will Canadians learn that more of their tax dollars have been laundered into other exotic purchases?
Senator Austin: Honourable senators, has the Honourable Senator Stratton allegations to make with respect to any particular person — any employee of the Government of Canada, any minister, any member of Parliament? Is this just dust thrown up in the air or does he have real information? Is he prepared to tell the Senate whom he is accusing of what?
Auditor General's Report—Sponsorship Program—Involvement of Crown Agencies
Hon. Gerald J. Comeau: Honourable senators, it has been two weeks since the Auditor General released her report about government corruption and money laundering. Ms. Fraser outlined numerous instances of Crown corporations being involved in cutting cheques based on a phone call without contracts or even an invoice. Notwithstanding the suspension of the presidents of VIA Rail, the Business Development Bank of Canada and Canada Post, will the Prime Minister endeavour to find out how such actions took place without their being caught in the annual audits of these Crown corporations? Has the Prime Minister asked why those activities were not detected by the audits?
Hon. Jack Austin (Leader of the Government): Honourable senators, the Prime Minister asked the President of the Treasury Board to make inquiries and obtain that information. The President of the Treasury Board was also asked to advise the Crown corporations mentioned in the Auditor General's report to report why they did not have adequate controls in place and whether, when it was discovered that they did not have such controls, they took immediate action, first, to put controls in place and, second, to audit and analyze the events that took place and learn who was responsible for them.
Senator Comeau: Honourable senators, will the Leader of the Government in the Senate tell us whether the Auditor General will be given access to the books of these Crown corporations, and whether those Crown corporations will be made subject to the Access to Information Act? In that way, we can assure Canadians that these kinds of activities will no longer take place, that they will not be hidden by an internal audit, and that the Auditor General, whom Canadians trust and respect, is making decisions on the books of these Crown Corporations?
Senator Austin: Honourable senators, each of the Crown corporations to which the Honourable Senator Comeau is referring — Canada Post, VIA Rail and the Business Development Bank — are served by very well known and highly reputable private auditing firms. I hope there is no allegation that those auditing firms failed to do their work, or that they do not have the highest level of competence in doing their work.
With respect to the balance of the question, there are interesting issues of public policy there. As honourable senators know, the three Crown corporations mentioned are commercial corporations that operate in the commercial sphere and have commercial proprietary information. Therefore, it is questionable whether the access to information legislation should be applied to them in full, or at all.
With regard to the question of an ongoing role for the Auditor General, the Auditor General believes that she and her office should have such a role, and the matter is being considered.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, for greater clarification, if the Auditor General requires a special decree in order to be able to examine the books of Canada Post, will the government grant that necessary decree?
Senator Austin: Honourable senators, my present information is that that issue is being considered at this time.
Solicitor General
Oversight of Intelligence Agencies
Hon. A. Raynell Andreychuk: Honourable senators, one finding in the Auditor General's report is that the activities of Canada's security and intelligence agencies are not subject to consistent levels of review and disclosure. Surprising, too, for most Canadians will be the number of agencies and departments, and agencies within departments, that have an intelligence-gathering capacity. The lack of consistent oversight of these organizations and the number of them spread across the government opens the door to the possibility of abuse of power.
For instance, I worry that those agencies subject to oversight might ask those agencies less subject to oversight to carry out certain tasks on the supervised agency's behalf, which tasks might involve an abuse of power or wrongdoing. This is especially worrisome in today's legislative environment where human rights and privacy issues run a distant second to security concerns.
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My question for the Leader of the Government in the Senate is this: Why are some government intelligence agencies subject to oversight while others are not?
Hon. Jack Austin (Leader of the Government): Honourable senators, I think that is a question of public policy, and it is receiving high-level attention at this moment.
Senator Andreychuk: Honourable senators, I know that Minister McLellan will have some oversight roles to play, but in a democratic legislative setting, there should be an oversight of the actions of government. We fought hard for CSIS to have such an oversight role of government action. In the aftermath of September 11, anti-terrorism legislation was put in place, yet we do not know what level of scrutiny there is in some places and how our rights are being tampered with. How long will it take before we can find this out?
Senator Austin: Honourable senators, I cannot address the question of how long it will take. I can only say that there is an active examination of the issue.
I would also like to advise the Senate that I received a letter from the Deputy Prime Minister, a copy of which was sent to the Leader of the Opposition, the Honourable Senator Lynch-Staunton, suggesting that the Standing Senate Committee on National Security and Defence, along with a similar committee in the other place, cooperate in an overview of a possible parliamentary mechanism to deal with questions of national security. The process begins with a dialogue between parliamentarians on those two committees to set out terms of reference.
The objective of the proposal is to follow, if so desired, a parallel type of mechanism that is in place in the United Kingdom, Australia and some other countries under which members of this chamber and members of the other place would serve as parliamentarians with oversight of these issues. Those parliamentarians would be sworn in to the Privy Council, if they were not already Privy Councillors. Certain restraints with respect to disclosure of information given to them as Privy Councillors would be necessary.
One of the issues to be considered is whether parliamentarians would agree to remove themselves from a partisan role in these issues. For example, if the Honourable Senator Andreychuk were asked to serve on such a committee, she would no longer be able to ask the questions she just asked me.
Senator Andreychuk: Honourable senators, my concern is precisely that. We must continue to look at our safety and security. The government is introducing a measure to do just that.
Of equal concern is that the agencies which deal with security are held in check and that we do not unreasonably lose our human, civil and privacy rights. The mechanisms that have been put in place are very much the subject of debate in other countries, but that is only half the job. It is necessary to ensure that we are doing all we can in the areas of security, safety and protection. That is what I hear the Leader of the Government in the Senate saying.
Yes, I would serve in such a role, gladly giving up my partisan role to ensure that Canada's safety comes first.
At the same time, I am extremely concerned that while we grapple to have these security measures put in place, we are losing rights, including privacy rights. The question is: Do we have to pay that price?
I hope that the government will take a balanced approach to studying the issues surrounding safety and security. There are two sides to the issues.
Senator Austin: Honourable senators, I acknowledge entirely the paradox of public safety for the Canadian community and individual rights and freedoms. There is always a trade-off. Trying to understand where the trade-off line should be is a difficult exercise. It is the responsibility of us all.
Auditor General
Sponsorship Program—Release of Report
Hon. Jack Austin (Leader of the Government): Honourable senators, I want now to answer a question asked of me yesterday by the Honourable Senator Angus, which I undertook to answer today.
To paraphrase the question, the honourable senator asked: When did the government receive the Auditor General's report, and when did the Prime Minister become aware of the contents of that report?
The Auditor General made draft copies of her report available to the previous government shortly before the anticipated tabling date in November. Making draft audits available and discussing them with those departments that are subject to the audit is a normal part of the audit process.
The Auditor General has also adopted the practice of sharing her reports with central agencies — that is, the Privy Council Office, the Treasury Board and the Department of Finance — for briefing purposes, once the report is finalized.
As per the usual process, the present Prime Minister was briefed on the findings of the Auditor General shortly after he became Prime Minister.
Point of Order
Hon. David Tkachuk: Honourable senators, I wish to raise a point of order.
As I was not here on Friday, I was surprised to notice that on that day it looks as if there were two meetings of the Senate, as set out in the Debates of the Senate for Friday, February 20. I refer honourable senators to page 331 of the Hansard for that day, which states:
The Hon. the Speaker: Honourable senators, in accordance with our rules, we now stand adjourned automatically until the next sitting.
I wish to quote the rule with which His Honour was in accord. Rule 39(5) states:
When an Order of the Day has been called, to which a specified period of time has been allocated for its consideration, and is under consideration:
(b) when the question is put pursuant to sub-paragraph (a) above, the Speaker shall thereupon declare that a motion to adjourn the Senate has been deemed to have been made and adopted and leave the Chair until the time provided for the next meeting of the Senate;
Honourable senators, at that point, the Senate stood adjourned until the next sitting of the Senate, which would be Monday, February 23. According to rule 39(5)(b), this is automatic. His Honour was to leave the Chair.
His Honour is then recorded in the Debates of the Senate as having said:
However, Senator Kenny has requested the floor to request leave. For that to happen, I need your unanimous consent giving him leave and permission to do so. Is leave granted?
Whose unanimous consent was His Honour seeking? The sitting was adjourned. There was no session. The rule is clear. As well, it was clearly stated by His Honour that the Senate was adjourned.
The point of order I raise concerns my right to be in the Senate when business is conducted. It is not enough that I had to miss a day, which I did through no fault of my own. I missed further business that should not have been conducted because the sitting of the Senate was adjourned.
My right as a senator is to know that when the Senate adjourns, it stands adjourned. We cannot go around doing business after we adjourn to the next sitting of the Senate.
This is a serious breach of the Rules of the Senate, honourable senators. A small group of senators from both sides of this chamber, at the behest of His Honour, agreed that the Senate would conduct business even though the Senate had adjourned until the next sitting of the Senate.
The point of order also calls into question what happened during that sitting of the Senate that was not supposed to happen because the Senate was adjourned. It calls into question the status of the two motions that were passed by the Senate. Did the National Security and Defence Committee have permission to sit yesterday afternoon?
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, I think His Honour will find that there is no point of order. We went through all of that on Friday. It is too bad the honourable senator was not here on Friday to experience the joys of the day that the rest of us experienced, but I am sure he was engaged in other more worthwhile pursuits.
We dealt with that issue. Your Honour ruled. I was the one who adjourned the Senate. There was no adjournment until all our business had been properly conducted. We have been through that debate, involving both sides of the chamber, and I feel that there is absolutely no point of order here.
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The Hon. the Speaker: Do any other honourable senators wish to intervene? If not, Senator Tkachuk, do you wish to make a final comment?
Senator Tkachuk: Honourable senators, in response to Senator Rompkey, I am reading what happened. I am not reading what he thinks happened. I am reading what happened, and what happened is that the Senate was adjourned. Your Honour adjourned the sitting, and it is automatic; Your Honour said so:
Honourable senators, in accordance with our rules, we now stand adjourned automatically until the next sitting.
That is recorded in the Hansard. I am not making this up. I am asking, on a point of order, if the Senate is adjourned, how can it conduct business, and if the business that it conducted is valid?
Hon. Sharon Carstairs: Honourable senators, I am having great difficulty in knowing what the honourable senator is quoting from. On page 330 of Debates of the Senate, it says, "The sitting of the Senate was suspended." It then says, "The sitting of the Senate was resumed."
Senator Tkachuk: I was reading from page 331.
Senator Lynch-Staunton: It is right toward the end.
Senator Tkachuk: It is on page 331, Senator Carstairs, right at the bottom, under "Business of the Senate."
Senator Carstairs: Honourable senators, if you go to the next part, obviously after 5:30, after the vote:
Honourable senators, in accordance with our rules, we now stand adjourned automatically until the next sitting. However, Senator Kenny has requested the floor to request leave. For that to happen, I need your unanimous consent giving him leave and permission to do so. Is leave granted?
The honourable senator opposite should know that, despite the Rules of the Senate, when leave is requested and unanimous consent is given, the rules are suspended. The rule was suspended because there was unanimous consent.
The Hon. the Speaker: Did you wish a final comment, Senator Tkachuk?
Senator Tkachuk: Someone could have asked leave to suspend the adjournment, but no one did. From what I understand, the rules clearly state that when this business took place, and it was restated in the minutes and in the debates, business was finished and the Senate had adjourned. Therefore, no other business should have been conducted.
Hon. Anne C. Cools: Honourable senators, there is clearly some confusion. I should like to say, in response to the last intervention, that unanimous consent is leave, which is the permission of the senators to suspend a rule temporarily. That is what unanimous consent is. Unanimous consent cannot be used as a means of creating a motion or an order of the Senate. In other words, it is not an enabling power. It cannot create a positive power.
Honourable senators, the automatic adjournment of the Senate is in the nature of an order of the Senate. It is more than a rule. Honourable senators, perhaps at some point we should have a debate on the difference between the rules and orders and standing orders. Rules guide decisions. Orders are decisions already taken.
The fact of the matter is that once a decision has been taken, it is not easily overcome. I have said this again and again. Repealing an order of the Senate takes a special process called rescission of an order, and it goes on notice, and a motion is required. There is a big difference between what can be done in this chamber by unanimous consent and what can be done by an order of the Senate and by a motion. Perhaps at some point in time we should have a debate here to give clarification on the two issues, because these mistakes are being made again and again.
Senator Comeau: Good point.
The Hon. the Speaker: Honourable senators, I thank Senator Tkachuk for his point of order, and honourable senators for their interventions.
The question is one I think we can deal with on two grounds: One is the timeliness in raising the matter in question. The motions passed with unanimous consent were with respect to matters that had already taken place. For a remedy to be given, if the point of order were a good one, it would have had to have been raised before the matter that it related to was executed or completed. It is not our practice to go back to rescind or nullify a proceeding that was carried out with unanimous consent.
The other reason that I believe the point of order is one which does not affect matters that we have dealt with in this house is well covered in Beauchesne, sixth edition, at paragraph 18 on page 7. I will read Part 1 and Part 2. They deal with unanimous consent:
(1) Within the ambit of its own rules, the House itself may proceed as it chooses; it is a common practice for the House to ignore its own rules by unanimous consent. Thus, bills may be passed through all their stages in one day, or the House may decide to alter its normal order of business or its adjournment hour as it sees fit.
(2) The House is perfectly able to give consent to set aside —
This is the most relevant part:
— its Standing Orders and to give its unanimous consent to waive procedural requirements and precedents concerning notice and things of that sort.
That is perhaps the strongest ground we have in terms of the authorities that we rely on in this place.
Accordingly, there is no point of order.
ORDERS OF THE DAY
Business of the Senate
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, I call, as the first order, Bill C-4, and the other orders of Government Business can proceed as they stand on the Order Paper.
Parliament of Canada Act
Bill to Amend—Second Reading—Debate Adjourned
Hon. Jack Austin (Leader of the Government) moved the second reading of Bill C-4, to amend the Parliament of Canada Act (Ethics Commissioner and Senate Ethics Officer) and other Acts in consequence.
He said: Honourable senators, this may be the most important speech I will make in the Senate — important to me and, I submit, to the Senate. I beg your attention and careful consideration.
On February 11, 2004, the House of Commons reinstated a bill that was the subject of intense debate when it was before us when last we met in November 2003. I refer, of course, to the former Bill C-34, to create an independent ethics commissioner for the House of Commons who would also have responsibility for most public office-holders, including the ministry, and also to create an independent Senate ethics officer who would report to, and be responsible to, the Senate.
Bill C-4, which is now before us for approval in principle on second reading debate, is designed to fulfil the commitment of the government headed by Prime Minister Paul Martin as laid out in the Speech from the Throne on February 2, 2004, and in the action plan for democratic reform tabled in the Senate on February 4, 2004.
The keystone principle of this proposed legislation to amend the Parliament of Canada Act is that ethics and integrity are at the core of public confidence in government and in the political process. No issue in the public domain is more debated today than is the issue of integrity in government, in the private business sector and even in religious institutions.
Honourable senators may argue that we are not touched at this time by any issues that challenge the integrity of senators. The behaviour of no senator, nor the institution of the Senate, is the subject of public concern at this time. However, honourable senators, we are part and parcel of the federal democratic system. The Parliament of Canada, with its included ministry, for some time has been the subject of public concern, for the standards of behaviour of some of its members and members of the public service. We are a part of a greater institutional family: the Parliament and the Government of Canada. The public demands that all their institutions of governance set the highest objective standards for the performance of public duty.
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As we are now called upon to act, honourable senators, let us do so in a manner that will do the greatest credit to our own public responsibilities and meet the high expectations that the public of Canada rightly demands of their political and public servants.
Bill C-4 comes to us in the identical form in which it was passed by the other place on October 1, 2003. The amendment, which was passed by the Senate at third reading on November 7, 2003, is not a part of this bill. This is the result of an unusual set of circumstances. The message sent by this chamber to the other place after third reading here was never received as the other place had adjourned and then Parliament prorogued. We have an opportunity, then, to revisit the issues raised in the last session, an opportunity truly to be a chamber of sober second thought, prepared to reconsider even our own actions.
Let me first briefly describe the bill. The bill would amend the Parliament of Canada Act, which, next to the Constitution, most governs our role and responsibilities. As I have said, Bill C-4 would provide for the appointment of an independent ethics commissioner for members of the House of Commons and public office-holders and for the appointment of an independent Senate ethics officer. This is all the bill will do. It will not set out the rules of conduct that would govern senators' activities. Those will be set out by this chamber in the Senate rules. The bill would simply provide for the appointment of a Senate ethics officer and set out the terms of office, including the possible grounds for his or her dismissal. He or she would only perform the duties and functions assigned by this chamber, and they would be performed entirely within the institution of the Senate and under the exclusive control of the Senate.
This is explicit in section 20.5(1) of the bill, which reads:
The Senate Ethics Officer shall perform the duties and functions assigned by the Senate for governing the conduct of members of the Senate when carrying out the duties and functions of their office as members of Senate.
Honourable senators, I believe that when we debated this bill in the last session, there was general consensus that indeed the time had come to update the rules that govern our conduct in this place and that an independent person to oversee these rules would be a positive addition. A point of contention among honourable senators was the manner of appointment of this independent person.
Again, the issue is not whether the person should be independent. It is fair to say that everyone in this chamber wants to ensure that the person to whom we would turn to on matters of code of conduct would be independent and clearly be seen to be independent, both of the Senate and of the Governor-in-Council. In other words, we do not want a Senate ethics officer to be or seen to be under any taint that would be argued as an undue influence on the performance of the duties that the Rules of the Senate would provide.
The key issue for a number of senators was something quite different. It was preserving the independence of the institution of the Senate and the right to govern its internal affairs free of the control of the executive. This is a long-standing parliamentary right that goes back to time immemorial. For this reason in particular, a number of senators expressed deep concern with the provision in the bill that the Governor in Council would initiate the appointment of the Senate ethics officer. The assumption contained in the concern was that a name would be sent without there being any initial steps to ascertain the views of the Senate.
It appeared that section 20.1 gave the Governor-in-Council the role of choosing the name to be submitted and the Senate the role of accepting and submitting; in other words, it appeared that the Prime Minister's Office, by sending us a name, would be directing our choice. The argument was made that the whip would be on and that the Prime Minister's Office would have its way. In the matter of appearance, we wondered how a name sent to us by the Governor-in-Council in that way could appear to be a person independent of the Prime Minister's Office.
Let me now address this issue. As we all know, there is some urgency to put in place the proposed independent ethics commissioner for the members of the House of Commons and public office-holders described in this bill, and concurrently to put in place an independent Senate ethics officer. Issues now in play in public debate and public concern argue for these steps to be taken quickly to strengthen support and respect for Parliament and the institutions of government.
However, to meet the key concern of senators for both the substance and the appearance of independence, I am proposing on behalf of the government a procedure for the appointment of a Senate ethics officer that I believe will meet both objectives. Let me note, however, the exact wording of section 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.
Nothing in that section says whether the Governor-in-Council must initiate the name or whether the Senate would initiate the name. As this is a critical issue in the appearance of the Senate's independence, on behalf of the government I now make a commitment that prior to sending the Senate the name of any person to be proposed to the Senate to be a Senate ethics officer, the Leader of the Government in the Senate shall be authorized to consult informally with the leaders of every recognized party in the Senate and with other senators and shall be authorized to submit to the Governor-in-Council the names of such persons who shall, in the opinion of the Leader of the Government in the Senate, have the favour of the leaders of every recognized party, as well as the support of the majority of the senators on the government side and the majority of the senators on the opposition side.
The Governor-in-Council, in turn, will make every effort to accommodate the interests of the Senate in ensuring that the Senate ethics officer is both seen to be independent and is in fact independent in the discharge of those duties that will be assigned to the Senate ethics officer under the code of conduct the Senate decides to adopt.
Honourable senators, on November 6, 2003, Senator Bryden argued very strongly in this chamber that giving the Governor-in-Council the power to appoint an office of the Senate would be an unprecedented encroachment by the executive on the traditional powers the Senate. Specifically, he said:
In my opinion, with respect to the statutory right of the executive, that is, the Prime Minister's Office, to appoint, — I have read the act; there will be consultations, et cetera — the bottom line is that that statutory right to appoint, reappoint or discharge, and the only avenue of oversight of the officer of the Senate of Canada is the first major infringement of this type of executive power on the independence and the autonomy of this chamber. I fear that it has long-term implications for the proper functioning of this chamber and for our performance of our constitutional obligations."
Like all honourable senators, I have the highest respect and regard for Senator Bryden and have learned to listen very carefully to his arguments and to take them seriously. As a result, I researched the issue. My conclusion is quite different. Far from being an infringement on the independence and autonomy of this chamber, having the Governor-in-Council appoint Senate officers in fact is the traditional approach in our parliamentary system. It is part of the balance of responsibility that is and has been used in our parliamentary democracy since Confederation, and it works well. Citation 218 of Beauchesne's Parliamentary Rules & Forms, sixth edition, states:
The appointment of Officers in the service of the House is the prerogative of the Governor in Council and not the Speaker or the House of Commons.
This, of course, concerns the other place but applies as well with respect to the Senate chamber, and this is what is reflected in section 20.1 of the bill before us. Accordingly, far from correcting an anomaly, it is the amendment put forward in November by Senator Bryden that would have changed the traditional balance of responsibility in our parliamentary system. This balance has worked effectively for Canadian democracy and I believe it continues to work effectively. I do not think anyone here would suggest that any of the Officers of the Senate who have been appointed in this manner have been in any way beholden to the executive or less than fully devoted to the highest-quality service to this chamber.
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The appointment of key office-holders in the Senate by the Governor-in-Council is in fact found in our Constitution, in our statutes and in long-established practice predating Confederation. In our Constitution Act, 1867, section 34, we find the following:
The Governor General may from Time to Time, by Instrument under the Great Seal of Canada, appoint a Senator to be Speaker of the Senate, and may remove him and appoint another in his Stead.
In our statutes, we find section 40 of the Public Service Employment Act, which provides:
The Governor-in-Council may appoint and fix the remuneration of...
(c) the Clerk of the Senate.
In our practice, the Usher of the Black Rod is appointed by Governor-in-Council not on the basis of specific constitutional or legislative authority but because this was the practice in the pre-1867 legislative bodies, and it was carried forward into Canada's new Parliament.
Governor-in-Council appointments have a very strong and long-standing tradition when it comes to key office-holders in the Senate. In fact, one could argue that the tradition in the Senate is even stronger than in the House of Commons because, though the Constitution provides for the election of the House of Commons Speaker, it specifies that our Speaker is appointed by the Governor in Council. Other officers of Parliament who are appointed by the Governor in Council include the Auditor General, the Information Commissioner and the Privacy Commissioner.
Honourable senators, I believe we would be hard pressed to argue that we trust the Governor-in-Council to appoint someone sufficiently independent of government to be entrusted with auditing the government's accounts for the Canadian public but that we do not trust the Governor-in-Council to appoint someone sufficiently independent to advise the members of this chamber on our ethical duties and responsibilities. Certainly, the events of the last few weeks have not given rise to even a whisper of criticism that the Auditor General is behaving as if she were somehow beholden to the executive because of the manner of her appointment.
As a matter of parliamentary tradition, which includes the preservation of the traditional independence of the Senate, I believe that the appointment of the officers of Parliament by Governor-in-Council is in complete accordance with precedents dating back to Confederation. However, honourable senators, as a practical matter, in view of the unique nature of this person's office, the government has gone one step further. The testimony heard by the Rules Committee last year and, indeed, the testimony heard by previous parliamentary committees that studied the issue was absolutely clear: The person appointed to this position must be someone who in fact enjoys the broad-based confidence of the senators he or she would serve on both sides of this chamber. Robert Clark, then ethics commissioner of Alberta, testified last year before the Rules Committee that, in his view, anyone who would take on this kind of job without broad-based initial support would be extremely foolish. He simply did not see it happening.
Ted Hughes, one of the deans of this field, who is now conflict of interest commissioner of the Northwest Territories and who formerly served in the same position in British Columbia, concurred entirely with that assessment.
The bill provides a double-sided procedure to ensure that the Senate ethics officer enjoys such broad support. The Governor-in-Council would appoint the officer, as is traditional in our parliamentary system, but only after receiving the advice of the Leader of the Government in the Senate in the manner I have outlined in this address.
Honourable senators, we have come a long way on this issue. The original proposal from the government was for a single ethics commissioner who would oversee codes of conduct for members of the Senate, the House of Commons and public office-holders. Members of this chamber expressed their strong, principled opposition to this proposal. This was changed, and the bill before us now would see the appointment of an ethics commissioner for members of the House of Commons and for public office-holders, and a separate ethics officer for members of this chamber.
The original proposal had the ethics commissioner appointed by the Governor-in-Council, period. There was no provision for consultation or approval of the appointment by either chamber of Parliament. Members of this chamber and the other place voiced their strong opposition to that proposal. This, too, was changed, and the bill before us now would require prior consultation with the leader of every recognized party in the Senate and approval of the appointment of the Senate ethics officer by resolution of the Senate. At the same time, the provisions of the bill before us ensure that the Senate ethics officer has security of tenure so that he or she will not feel pressure or be seen as potentially feeling pressure to act in any way other than that dictated by the justice of the particular situation.
Honourable senators, we know how critical security of tenure is to the independence and the perceived independence of judges, and, indeed, of the senators as well. The principle is no different here. We are the ones who may be advised by the Senate ethics officer. In the interests of upholding the integrity of the Senate, we cannot allow ourselves to be seen as in any way potentially influencing advice or recommendations of this officer by our power over his or her tenure in that position.
Section 20.2(1) of the bill provides that the Senate ethics officer may be removed only for cause and only "by the Governor in Council on address of the Senate." In other words, honourable senators, this person would not serve either at our whim or that of the Prime Minister of the day. The Prime Minister simply would not have the power to dismiss the Senate ethics officer. He or she could be removed by the Governor-in-Council only for cause and only on address of the Senate. At the same time, our ability to dismiss the Senate ethics officer would be constrained to those cases where there is cause for his or her removal. The involvement of the Governor-in-Council is a further check to ensure the Canadian public, as well as the Senate ethics officer, herself or himself, that our ethics officer is truly independent, and by enshrining these provisions in the statute, we ensure that we ourselves, or members of this honourable chamber in the future, cannot unilaterally change these critical provisions.
Honourable senators, I want to make specific mention of section 20.2(2) in Bill C-4 regarding the occurrence of a vacancy. Section 20.2(2) provides as follows:
In the event of the absence or incapacity of the Senate Ethics Officer, or if that office is vacant, the Governor in Council may appoint a qualified person to hold that office in the interim for a term of up to six months.
Once again, honourable senators, this is simply consistent with the powers provided in other statutes with respect to other officers of Parliament. The Privacy Act, the Access to Information Act and the Auditor General Act each provide for the appointment by the Governor-in-Council of a qualified person to hold the particular office on an interim basis in the event the position is vacant or the current office-holder is absent or incapacitated. This is notwithstanding the fact that the Privacy Commissioner and the Information Commissioner may only be appointed by the Governor in Council after approval of the appointment by resolution of the Senate and House of Commons, a similar procedure to that set out in Bill C-4.
This is a system that has been acceptable to us and has worked well with respect to the Privacy Commissioner, the Information Commissioner and the Auditor General, and I am confident will similarly work well with respect to the Senate ethics officer.
Other and important issues were raised by honourable senators in the debate on Bill C-34 last October and November. I should now like to provide to honourable senators my views on the arguments made in those debates.
Senator Joyal, in an address to the Senate on October 22, 2003, spoke of his concerns with respect to sections 20.5(2) and 20.6(1), (2) and (3). I believe it is important to refer to these provisions specifically. Section 20.5(2) reads as follows:
The duties and functions of the Senate Ethics Officer are carried out within the institution of the Senate. The Senate Ethics Officer enjoys the privileges and immunities of the Senate and its members when carrying out those duties and functions.
Section 20.5(5) states:
For greater certainly, this section shall not be interpreted as limiting in any way the powers, privileges, rights and immunities of the Senate or its members.
The drafting of this language comes directly from the advice that Mr. Mark Audcent, the Senate law clerk and parliamentary counsel, made to the Standing Senate Committee on Rules, Procedures and the Rights of Parliament. The conclusion of Senator Joyal's argument was that the above sections would not be respected by the judicial process because, in his view, section 18 of the Constitution Act, 1867, states that the Senate can only enjoy the same privileges as existed in the British parliament at the time of Confederation. He reasons that, as there was no House of Lords ethics officer at that time, there can be no privilege that our Parliament can extend to a Senate ethics officer today. We are thus, in his reasoning, caught by the dead hand of the past.
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However, later in his argument, Senator Joyal also refers to the case of Ross v. Edwards, a 1990 decision that found that the Register of Interests used in the House of Lords, by which its members declare and record certain positions which they hold in the private sector, is not a privileged document. The court also made clear that Parliament has abundant power to extend the privilege by statute.
Honourable senators, Senator Joyal concludes that as long as the British have not legislated or so long as we have not changed our Constitution, we cannot legislate to extend privilege to a Senate ethics officer.
With respect, I absolutely disagree with his conclusion. What Ross v. Edwards says is that Parliament has, and has always had, the power to extend privilege via legislation. It had that power in 1867 and we have it, too. The court in Ross v. Edwards did not at any time say that extending the privilege to a Register of Interests went beyond the concept of a proper parliamentary privilege. It says that if you want this privilege, then legislate it. That is what we propose to do here.
The issues we are dealing with in this bill fall squarely within the core of traditional parliamentary privilege. In the Supreme Court of Canada case of Harvey v. New Brunswick (Attorney General), now Chief Justice McLachlin wrote:
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.
That prerogative is set out in our Constitution, in our statutes, particularly the Parliament of Canada Act, and in our rules. Citation 33 in Beauchesne's sixth edition explains that:
The most fundamental privilege of the House as a whole is to establish rules of procedure for itself and to enforce them. A few rules are laid down in the Constitution Act, but the vast majority are resolutions of the House which may be added to, amended, or repealed at the discretion of the House.
Honourable senators, there is nothing to prevent Parliament from clarifying its privileges by either statute or resolution. That is what we would be doing in section 20.5(2).
The Judicial Committee of the Privy Council and the Supreme Court of Canada have never adopted the dead hand approach to Constitutional interpretation. In the arguments I put forward in the Nisga'a Final Agreement Act debates four years ago, I referred to the "living tree doctrine" of Lord Sankey, which has been followed many times by the Supreme Court of Canada. For judicial flexibility, we need only to recall the advisory opinion of the Supreme Court of Canada in the 1981 reference and its advice on conventions of the Constitution.
Senator Furey made an important contribution to the debate on this legislation when he addressed the chamber on November 6, 2003. He began by saying, "I fully endorse and support the idea and concept of a code of ethics for this chamber." However, his concern was expressed on what he described as "one proposed section of this bill, which I suggest to senators is extraordinary." He then went on to argue that the proposed section 20.6(2) placed the ethics officer above civil and criminal law in whatever is done in the exercise or the purported exercise or performance or purported performance of any function of that office.
The section itself states:
No criminal or civil proceedings lie against the Senate Ethics Officer or any person acting on behalf or under the direction of the Senate Ethics Officer, for anything done, reported or said in good faith in the exercise or purported exercise of any power or the performance or purported performance of any duty or function of the Senate Ethics Officer under this Act.
Again, it is clear from Senator Furey's presentation that he has concerns about the definition of "good faith" or of what sanctions might apply against the Senate ethics officer or staff if acts are done in which the defence of good faith is found substantiated.
It is clear that if acts are not done in good faith, there are plentiful sanctions. Such was the case in the famous Roncarelli v. the Attorney General of Quebec judgment. This was a case where the Attorney General, also the Premier of Quebec, Maurice Duplessis, acted to cancel the liquor licence held by the plaintiff, a Jehovah Witness. In short, the court found that the Attorney General did not act in good faith and the rights of Roncarelli were restored.
Senator Furey is concerned with the damage that might be caused within the successful good faith defence. He mentions the question of a slander or a defamation that flows from a mistaken view by a Senate ethics officer that the statements being made are accurate. Nothing could be done, according to Senator Furey, by the Senate to remedy the situation.
As Senator Furey well knows, immunity clauses like that of section 20.6(2) are not uncommon in federal statutes. I have been advised by the Minister of Justice that some 93 provisions in 54 statutes provide limits on criminal and civil liability for officers administering acts of Parliament. The Senate, in recent years, has passed without comment virtually identical sections for other officers of Parliament, including the Privacy Commissioner, the Access to Information Commissioner, the Official Languages Commissioner, the chairperson and members of the Immigration and Refugee Board, members of the National Parole Board and many others.
If we turn to provincial legislation, we see that provincial statutes for the appointment of an ethics commissioner also include provisions that provide limits on liability for their ethics commissioners.
Honourable senators, I agree with Senator Furey on one point: It is no answer to his arguments simply to say that this is how it has always been done. The critical question is to ask why it has been done that way.
Honourable senators, the legislative examples are not designed on the basis that appointees will act in bad faith. Every such person appointed is vetted with respect to personal integrity, training and professional experience. Such persons are then made part of the parliamentary process and are submitted to the consideration of Parliament as well as to the Governor-in-Council. We examined such proposed offices of Parliament in Committee of the Whole.
I admit that, even so, the system is not fool proof. Sometimes an officer of Parliament does not carry out their duties competently or in good faith, but Parliament is not prevented from dealing with that situation. Under section 20.2(1), the Senate ethics officer can be removed for cause by the Governor-in-Council on address of the Senate.
Should it be the view of the Senate that the Senate ethics officer should be censured or disciplined, then the Senate can so act, as long as it does so in accordance with the principles of justice. The Senate code of conduct will be placed within the Rules of the Senate and will set forth the duties and functions of the Senate ethics officer. Those rules will provide for circumstances where the Senate ethics officer fails to act within the duties and functions set forth or acts beyond the scope of those duties and functions.
Honourable senators, the Senate retains full control over the duties and functions and, implicitly, the powers that the Senate ethics officer is authorized to exercise. Senator Furey cites the great legal scholar A.V. Dicey and also the Supreme Court of Canada in the Susan Nelles case to the effect that "absolute immunity is utterly unreasonable as a rule covering public functionaries." I could not agree more, but as I have hopefully made clear, there is no "absolute immunity" anywhere in sight.
Let us turn, honourable senators, to the positive reason for the limited immunity that is provided to officers of Parliament. It is for our sake that section 20.6(2) is in the bill. Senators have expressed concerns with the prospect of judicial intervention in the activities of the Senate ethics officer. The issue of confidentiality of the information in the hands of the officer is also of great concern for senators. This protection against civil and criminal proceedings reinforces the point that the activities of the Senate ethics officer are immune from judicial scrutiny. The protection ensures that confidential information in the hands of the Senate ethics officer could not be disclosed in judicial proceedings.
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Honourable senators, the Senate ethics officer may, if so provided in the rules, have duties of a quasi-judicial nature to carry out. Senator Furey used the example of the Senate ethics officer as a rogue policeman. I see that office as being more judicial in nature. The Senate ethics officer is protected by the extension of the Senate's privileges to that office, but in case of any doubt is not a compellable witness and cannot be the subject of judicial intervention in the performance of his or her duties. This is the purpose and effect of proposed section 20.6(2). It gives the same protection as that provided to judges who must have the liberty to decide cases without fear of external reproach.
I should also mention how difficult it could be to find the quality of candidate needed for this office if that person were without the protections that this bill provides. In such a case, he or she could be exposed to judicial process from within and without the Senate, including the possibility of criminal or civil liability. I wonder whether Senator Furey or any of us would take the job in such a circumstance.
Last but not least, I have a few comments regarding the presentation of Senator Kroft on November 6, 2003. I agree with his all-too-perceptive comments on the Clarity Bill and his view that its ghost haunts us here. Senator Kroft is clearly influenced by the differences of view on issues of independence and the method of appointment left unresolved by the work of the Rules Committee as reported in this house in the last session of Parliament. With most of his argument about the role of the Senate and the importance of the independence of the Senate, I can take no issue. I submit, however, that the process I have described and which will be followed by the government respects that independence.
Honourable senators, please believe that I have carefully considered all of the presentations made by honourable senators who participated in the debates on this bill in the second session of this Parliament. I respect the high quality of the argument made by each senator. The result is the proposal that I have made today, which I submit will act to protect the cherished independence of the Senate that is so much the concern of all honourable senators, and so effectively put forth by Senators Oliver, Joyal, Kroft, Bryden, Milne, Fraser and Carstairs from their respective viewpoints. It would be an egregious error to say that one argument was right and another wrong. What is important is that we use the wisdom of Viscount Whitelaw, to which I referred last week in our debates:
I have learnt that a certain flexibility, together with a certain understanding of convention, has worked much to the benefit of this House.
Last October and November we gave first thought to this bill, as Senator Kroft insightfully said. Now, we are giving it sober second thought; the first time was to assess our passion and the second time is to assess our reason. It is my personal belief that our decision on Bill C-4 will bear the most important consequences for this institution. It is my conclusion that the bill before us is right and proper and in the interests of the integrity of the Senate. I hope that you will join me in supporting the bill, and I await the considered opinion of the Senate.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, will the Leader of the Government take a question?
Senator Austin: Indeed, I will.
Senator Lynch-Staunton: My question is: Last fall we had the unfortunate experience of the Rules Committee calling meetings outside its regular time slot. We objected to that out of principle and for practical reasons. We have enough difficulty now sending sufficient members to committee meetings because of our low numbers, and it will prove even more difficult to find senators to attend meetings that are scheduled at the last minute for time slots outside the norm.
I hope that the Leader of the Government will agree with me that that experience should not be repeated and that there be sufficient time on our calendar for the committee, whichever one, to study this bill within its regular time slots. I can assure the honourable senator that this side will not obstruct the passage of the bill.
Senator Austin: Honourable senators, if any problem arises with respect to the sittings of the committee to which this bill is referred, I would be happy to hear from Senator Lynch-Staunton or to initiate a discussion with him.
Senator Lynch-Staunton: The leader has heard from me already, asking for agreement in principle that no committee should sit outside its regular hours without the support and approval of the opposition, and that it not be done unilaterally as happened during the discussion of this bill's predecessor last fall.
Senator Austin: Honourable senators, I am not willing to answer a question and give an assurance in advance of a specific issue arising. I would expect the committee to conduct its business in the normal course and, if a difficulty were to arise, I would be more than willing to discuss the matter with the Leader of the Opposition.
Senator Lynch-Staunton: Does that mean it is perfectly proper, and the Leader of the Opposition is in agreement, for a committee to sit outside its regular time slot without the support of the opposition?
Senator Austin: Honourable senators, I am new at the rules and their application. I have had some interesting lessons in the last couple of weeks. James Joyce once said that a mistake is a portal to discovery, and yet I am not prepared to jump through the portal just yet.
The Hon. the Speaker: I have a list that I will read to honourable senators. I will call on the senators who have questions in this order: Senators Cools, Kroft, Comeau and Andreychuk.
Hon. Anne C. Cools: Honourable senators, my question is for the Honourable Senator Austin. I believe that Senator Austin described the position of the Senate ethics officer as "quasi-judicial."
My first question is: How can Senator Austin describe that position as quasi-judicial when section 20.5(2) clearly states:
...The Senate Ethics Officer enjoys the privileges immunities of the Senate and its members...
In other words, this officer is getting the cumulative and aggregate privileges of the Senate and senators while senators do not have those privileges. Rather, we have privileges as individual senators, but only the Senate as a whole may exercise the Senate's privileges. The position of Senate ethics officer, I understand, would be vested with the full privileges of the Senate. Thus, one individual would be vested with the powers and privileges that it takes 105 senators, acting together, to have.
By my reckoning, Senator Austin's description of the officer is inaccurate and insufficient. This position would be vested with the full inquisitorial and judicial powers of the Senate. There is no other individual in the country that has such power because it does not exist.
Senator Austin: Honourable senators, I would like to make it as clear as possible that the Senate ethics officer would have no greater privileges or powers than any senator has. The statute provides a limitation on liability for all the reasons that I have explained so carefully in my address. In respect of the word "quasi-judicial" as used in my remarks, I will repeat: I said: "The Senate ethics officer might, if so provided in the rules, have duties of a quasi-judicial nature to carry out."
Honourable senators, we control what is in our rules. The rules are ours to settle and decide. We control the duties of the Senate ethics officer. There is no legislation that imposes anything of the nature of duties on us with respect to the Senate ethics officer.
I repeat: The rules that we decide to adopt govern the performance and conduct of the Senate ethics officer.
Senator Cools: I fail to see how, but I will move to my next question. Senator Austin has said that that position would have no greater privileges than individual senators. I disagree with that and I would challenge it strongly. However, I can be assured that that position will certainly have a greater budget than any senator has. I am certain of that.
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My question is about his statements about independence. While Senator Austin was speaking, I heard an inversion of the meaning of independence as I have studied it. The word "independence" when referring to judges does not mean independence from Parliament. Independence means independence from King and cabinet — from the executive.
The word "independence" has been misused and abused in today's community. Judicial independence meant that judges would no longer be fired at the pleasure of the King either because the King favoured or did not favour a judge. It worked two ways. There were cases where the King favoured a judge, as in the case of King James II and Judge George Jeffreys in the 1680's.
Judicial independence in the instance of the Constitution of this land is that the fate of judges was given to Parliament. It was taken away from the executive and assigned to Parliament. That is not happening in this bill.
For at least 500 years, honourable senators, we have had a situation where the executive was limited, and independence has meant distancing judges from the executive. For centuries, parliaments have attempted to reduce the influence of the executive on individual members of Parliament. This bill is a regression of a few hundred years.
What constitutional authority does Senator Austin use to bring forward such an innovation in the history of Parliament? Independence means from the executive. For 400 years, Parliament has eschewed and abhorred the imposition of any office-holder in its midst having authority over members of Parliament.
Senator Austin: Honourable senators, I find it impossible to answer Senator Cools because I do not consider her intervention a question. I consider it an entry into the debate on this particular subject. I would like her to read my speech and see whether there is any point in it that we could specifically focus on later to discuss in a further part of this debate.
I made my position clear. There is no constitutional bar to Bill C-4. It is entirely constitutional. If Senator Cools believes that there is some constitutional impairment, I would like, in the due course of this debate, to hear her argument.
Senator Cools: Honourable senators, I believe that the Constitution has a design. Part of that design involves a harmony and a balance between the constituent parts of the Constitution. For hundreds of years now, the Constitution has been careful — to put it in the vernacular — to keep members of Parliament beyond the claws of the King.
My question was what constitutional authority was Senator Austin relying on to bring this innovation forward in parliamentary history. I assure the honourable senator that I am a reader. I can show the history.
This is a grand departure from the constitutional history of our system. I want Senator Austin to know that many of us feel greatly that Prime Minister Martin means to bring change. I also have to tell him that I am of the opinion, as many in the country are, that Parliament is in the weakest state of its entire history, and Parliament is an ancient institution.
I do not understand why, with this particular bill, we would introduce an innovation subjecting individual senators to the inquisitorial powers of an office-holder, a servant of the Queen. That is what I am talking about. Parliament has banned office-holders for a couple of centuries.
The honourable senator's description of the officers of Parliament, as his description of the officers of this chamber, is insufficient and inaccurate in many places. I would be happy to show him some of that.
Senator Austin: Honourable senators, the onus is on Senator Cools to show where there is any lack of constitutional authority here. I think she agrees to that.
I have said, and I will repeat, that all the statute does is enable an office to be created. The powers and duties of that office belong to the Senate. There is no role for the executive in describing the powers and duties of that office.
Senator Cools: Honourable senators, I can prove my point by showing that for many years now the notion of office-holders, under Her Majesty's emolument, has been so alien to this chamber that no prime minister nor government would permit more than one cabinet minister in this place. Office holders have not been allowed to sit here as cabinet ministers.
We can talk. There is a high degree of mutual respect. However, I do honestly hope that this debate can go forward with a wide-open intellect and a wide-open mind.
Hon. Richard H. Kroft: Honourable senators, I have a question for the Leader of the Government in the Senate. I thank Senator Austin for a thoughtful and obviously carefully studied speech. It will provide an opening framework for discussion that will be challenging for many of us here in the next period of time.
I do not want to take issue with any of the matters of substance. We will have time to do that in the course of study. I do want to mention a specific that the honourable senator referred to a couple of times in his main address and in the response to Senator Cools. We all accept that there is nothing in this bill other than setting up the overall structural authority. All the effective rules are to be the creation of this house. However, I am looking for some comfort as to how those rules will evolve.
A model code of conduct contained in the fifty-first report of the Commons committee is now, as I understand it, before the Standing Committee on Rules, Procedures and the Rights of Parliament. If we, in fact, do create a body of rules that truly reflects the needs, desires and unique Constitutional powers and history of this chamber, I would have thought that we would have started with a clean sheet of paper and developed processes on a caucus basis, a broad basis, and evolved something that would be fundamentally and intrinsically for and of the Senate.
We received a model cast in another place to be the basis of what should do. Presumably, the Rules Committee will come forward with a report for us to consider. I find it, unfortunately, an ab initio compromise of the fundamental independence of this house. I would look for some comfort that we may find another role and not be put in the role of deciding whether we approve of the model code that has come from other place.
Senator Austin: Honourable senators, the code, as I understand it, was referred to the Rules Committee for study, but in no manner whatsoever was it referred in any mandated form.
The Senate is free to debate and adopt rules that are apposite to our needs. However, in doing so, we must also recognize that there are public expectations of the institution of Parliament. How the house conducts itself, and the code of conduct that it will eventually decide to adopt for itself, will have perhaps persuasive value in many of its aspects.
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Nothing requires us to mirror the House of Commons. If we have a better way to do things, if we are prepared to justify that better way to the Canadian public, then I presume we will go in the direction we feel is the best way to serve integrity in the public policy system.
Senator Kroft: Honourable senators, it would seem to follow that, although the government clearly has a priority in wanting to bring this proposed legislation before us for passage, there is no connectivity in time necessarily between the code of conduct and the bill.
Is it the view of the Leader of the Government in the Senate that we could pass the bill and then at leisure — not in the sense of when we feel like it, but in the sense of giving ourselves the time to do it properly — evolve the rules that we will eventually want in this bill, so that there will be no pressure on the Senate to evolve a code of conduct simultaneously with, or before, the passage of the legislation?
Senator Austin: Honourable senators, I thank Senator Kroft for that valuable question. The passage of this bill and the coming into force of the code of conduct have nothing to do with one another. I see the sequence as the passage of this bill, and the Senate work on a code of conduct. The Senate should proceed, as Senator Kroft says, with due dispatch — my words but, I think, his meaning — to meet the public expectation and the institutional need. However, there is no clock, there is no timetable, and there is no specific critical path. The Senate must give real consideration to how it meets the challenge of ethical standards and of transparency with respect to the standards that we apply to ourselves.
I am not saying that there is any specific time ahead of us when that code of conduct must be brought into force. That will depend on all of us, and on our view of our public responsibility.
Hon. Gerald J. Comeau: Honourable senators, I shall not, at this time, detail at length the points I have concerns with. However, I wish to congratulate the Leader of the Government in the Senate on a very carefully crafted speech dealing with perceptions of problems and public expectations.
I understand why the Prime Minister would want to create the perception that we are dealing with a real problem, when, in fact, the real problem lies elsewhere. In doing so, it sends a message to the public that the Prime Minister is dealing with problems — not real ones, but he is dealing with problems. I am sure the Leader of the Government in the Senate feels uncomfortable about the prospect of someone from the executive walking around the floor of the chamber, visiting our offices and speaking to our staff, accessing personal files and financial information, and so on. I am quite sure that would make the government leader feel uncomfortable.
The Leader of the Government in the Senate referred to the fact that the proposed ethics officer could not be compelled to appear before the courts, under the immunity provisions. The government leader suggested that this was a good thing, in order to protect the ethics officer and perhaps overzealous employees that might be attached to the ethics officer's office. That is a good thing from the ethics officer's point of view. However, what about members of the Senate? What if there were an overzealous employee in the office of the ethics officer who, as a result of having access to files in the office of the ethics officer, inadvertently — through no malicious means — revealed information of a personal nature about a senator? Given the proposed immunity under Bill C-4, under that scenario there would be no protection whatsoever for senators. The question of immunity works both ways — which is the subject of a question I wish to ask of the government leader. From the point of view of the proposed ethics officer immunity is a good thing; what about our point of view, honourable senators?
Senator Austin: Honourable senators, as I said in my speech, the Senate ethics officer cannot be compelled to disclose any information about any individual senator — in fact, any information in his or her possession — to any court at any time. That protects us, honourable senators, because we are disclosing information to that particular person and, as such, want to be sure that information is kept secret by the ethics officer and used only for the purposes of the code of conduct that we put in place.
As I said in my address, if there is an inadvertent disclosure of information — for example, a briefcase, left in a car that is stolen is opened and, instead of finding money, the car thief discovers that Senator Austin lives in Vancouver and discloses that — then as I have said, under our own rules, under the rules that we will put in the code of conduct, we can take action. If it is for cause, that is available by resolution of the Senate to the Governor-in-Council. If it is a lesser event, as we judge it to be, we can censure, we can discipline. We can discharge any person working for the Senate ethics officer if, in our view, it is a desirable step.
Senator Comeau's question included a statement that indicated to me that he had not quite absorbed the point I was making. Specifically, the honourable senator used the phrase "someone from the executive walking around" the Senate. The ethics officer will not be from the executive; he or she will be our officer. The ethics officer will be appointed following a resolution by this chamber, directed to the Governor-in-Council under long-standing constitutional practice, so that that person has independent tenure — independent from the Governor-in-Council and us. That is not a person sent by the executive; that is our person.
Senator Comeau: Honourable senators, I do not think the Leader of the Government in the Senate has read Bill C-4.
Senator Austin: The honourable senator just said I carefully considered it.
Senator Comeau: Honourable senators, the advice of the opposition leader in the Senate will be sought, but if that advice is not accepted, is disregarded, it will become a Prime Minister's appointee. In other words, after the vast majority in here have sanctioned the appointment of the Prime Minister — because of our numbers, the opposition side in this chamber, we are not in a position to overrule the Prime Minister's recommendation.
To go further, the reappointment of the ethics officer will be in the hands of the government of day, not this chamber. As well, with regard to an increase in salary, the ethics officer will be beholden to the Governor-in-Council — in other words the executive. As well, the ethics officer's budgets must be submitted not to this chamber but to the Speaker of the Senate. This will be a new responsibility for the Speaker of the Senate, given that budgets have traditionally been handled by the Internal Economy, Budgets and Administration Committee. Henceforth, the ethics officer's budget will be in the hands of a new executive officer — which, in this chamber, will be the Speaker of the Senate. These are new innovations that are being brought in by this bill that did not exist before. Historically, the Speaker of the Senate has been the presiding officer of the Senate, and not an executive officer who deals with budgets. Under this bill, the Speaker will deal with Treasury Board on the budget of the ethics officer and his staff. We are into brand new ground. Read the bill.
Senator Austin: Honourable senators, I cited the bill in my address and then made a statement of policy on behalf of the government with respect to the way in which the bill, so far as the appointment by Governor-in-Council is concerned, would be dealt with by the government in terms of honouring and respecting the independence of this chamber. I would ask Senator Comeau to read my statement. In that statement I indicated that the government will undertake to seek the approval of the leader of every recognized party in the Senate, a majority of the senators on this side and a majority of the senators on the opposition side. Perhaps Senator Comeau could give more careful attention to what I said in my address. I would very much commend that.
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With respect to the other details, to answer is to enter into debate. We are well into a debate here, and I have not minded up until now because I am seeking to give as much information as I can to honourable colleagues, but I want to say parenthetically that I am sure Senator Oliver will not agree with Senator Comeau when it comes to providing additional powers to the Speaker. Senator Comeau is seeking to make the Speaker a much more powerful officer of this chamber. I hope Senator Comeau will have a discussion with Senator Oliver on that point.
Hon. A. Raynell Andreychuk: Honourable senators, I wish to ask Senator Austin a follow-up question to that of Senator Lynch-Staunton.
We here in opposition, with our very small numbers, have already had the experience of having the process go forward with what we considered to be unnecessary haste without affording us an opportunity to put forward our position in the routine of this chamber. Based on that history, you can appreciate that there is some skepticism about what is happening. That is coupled with the fact that I was one of those who stood up and voted for Mr. Radwanski, thinking that the process was fair. With the assurances of Mr. Radwanski and the Prime Minister, I thought we had a reasonable process. Time has proven that that process was flawed. While I think we have been admirably served by the auditors general, privacy commissioners and access to information commissioners in the past, those two events make me mindful that it is not only the responsibility of the government to create democratic change but that this chamber has the responsibility to ensure that our process is correct.
In his speech, Senator Austin addressed the concerns of certain members in this chamber. It was perhaps a coincidence that they were all members opposite. Nothing we said seemed to have registered as important. Senator Oliver, of course, co-chaired the original Milliken-Oliver committee. Senator Beaudoin and others on this side spoke to the bill.
If we care about our democracy, which has been incrementally gained, it is crucial that we not regress. At this moment in time, we have a very small opposition. We have had two instances of difficulty, and now not even the Auditor General will be appointed in the way in which that was done in the past. When we put in place the successor to Mr. Radwanski, a new process was used that strengthened the participation of opposition and government members in making assessments about the appointment.
Before we start on this process, I am looking for some assurances that the views of those who sit in opposition will be taken into account. The issue is that the government shall consult with the opposition before the Prime Minister of the day appoints. We have had tastes of consultations. With respect, I am a little shy about accepting another consultation.
Will we receive an undertaking that our opinion will be taken into account? More fundamentally, will we improve democracy by having an appointment process that is at arm's length from the Prime Minister? How will the appointment here by the Prime Minister be any different from the appointment of Mr. Wilson? I have trouble answering that question in my province.
Senator Austin: Honourable senators, I appreciate very much the various points that Senator Andreychuk has made in her argument. First, I urge her to read what I said about the way in which the appointment process would be undertaken because her questions to me about consultation do not seem to recognize the words I used in the chamber on behalf of the government.
Second, with respect to the question of the process being flawed — to use her phrase — with respect to the appointment of Mr. Radwanski as Privacy Commissioner, there was nothing wrong with the process and nothing wrong with the way in which the complaints were dealt with when his behaviour finally became known to the public. There is no process that can prevent every possible harm. Appointments are made on the best of information and with the best due diligence that is possible, but perfection in appointments is not to be found anywhere.
In this particular case, we have an excellent process. Could it be that some future Senate ethics officer will fall below our expectations? Yes, that could be, but we will have had the chance to examine and do due diligence in all the ways I spoke of in my address. However, there is no guarantee of perfection.
With respect to the way in which this issue will be deliberated, I have the hope that we will proceed to the satisfaction of all honourable senators in hearing their views and concerns at all stages of this bill.
With respect to the arguments made by honourable senators opposite during the course of the debate, while I read them all, I thought that the most acute arguments were made by my colleagues on this side and that they, in particular, needed to be addressed because they were so acute.
Senator Andreychuk: Honourable senators, we will have to debate whose points are relevant. I took all sides of the debate to be relevant. I think that eminent points of view were put forward on both sides of the issue by both members opposite and members on this side.
I also accept, with the greatest of sincerity, that the government intends to consult. While in no way disparaging this government, that is not our role. The law says we shall consult; it does not say that the government has to accept our advice or reach an agreement here. In negotiations involving labour organizations, with which I have dealt, each side puts forward names and if an agreement cannot be reached, there is an arbiter for the next step.
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Here, it is merely a consultation. Perhaps this government will handle the appointment situation with the greatest caution and care, but we are passing legislation for all time, so we had better be careful that we are not just living on the good faith of undertakings in this chamber, and that we are looking at the words. The words simply say, "shall consult". Nothing says they must take into account in some way. It is simply consult and then appoint. The safeguards are important for the future. We think we can handle ourselves today, and we take the word of the Leader of the Government, but the legislation must be looked at as eternal, at this point, until cancelled.
Senator Austin: Honourable senators, I think we should continue this debate at another time.
The Hon. the Speaker: Senator Austin, do you not want to take any more questions?
Senator Austin: Honourable senators, that is correct.
The Hon. the Speaker: I did have a list, but regrettably, our rules are clear. The person whose time it is, and in this case, of course, there is unlimited time, can agree or not agree to take questions. Unfortunately, the opportunity for putting questions has passed.
Hon. Herbert O. Sparrow: Honourable senators, when would the leader be available again for questions? The questions will be cut off today, and now there is no real provision for us, in the future at least, to ask the Leader of the Government further questions pertaining to the presentation he has made. Have we any rules that would affect when he would be available to answer those questions?
Senator Austin: Honourable senators, if I may answer that question: My concern lies with the rest of the business on the Order Paper, and not with respect to answering questions. I have been on my feet answering questions for well over an hour. However, I will be more than pleased to come to the committee to which this bill is sent and answer questions there from honourable senators. If I have the opportunity to close this debate, I could then perhaps answer questions at that stage. Of course there is also the debate on third reading. Finally, if Honourable Senator Sparrow, as the dean of the Senate, asked me to come to his office for a chat, then I would be only too happy to oblige.
The Hon. the Speaker: Honourable senators, because he put it in the form of an interrogative, I confirm that Senator Austin, as the mover of the motion, has the right of reply under our rules and would be entitled to speak at that time.
Hon. Donald H. Oliver: Honourable senators, I received a document in my office today entitled "Activities of Senate Committees, Week of February 23, 2004." Senator Kroft's question to the Leader of the Government in the Senate was quite salient, because it says that the Standing Senate Committee on Rules, Procedures and the Rights of Parliament is doing a consideration of "a code of conduct for senators."
With that, honourable senators, because I was late and missed the first part of the honourable leader's address, I will move the adjournment of the debate.
On motion of Senator Oliver, debate adjourned.
Energy, the Environment and Natural Resources
Committee Authorized to Meet During Sitting of the Senate
Leave having been given to revert to Notices of Motions:
Hon. Tommy Banks: Honourable senators, I am asking leave to make the following motion, because the committee of which I have the honour to be chair has a Tuesday meeting time of five o'clock, or whenever the Senate rises, which is quite an inexact thing, and it is difficult when we are considering legislation, as we are today, to deal with witnesses. I therefore move:
That, with leave of the Senate and notwithstanding rule 58(1)(a), the Standing Senate Committee on Energy, the Environment and Natural Resources have power to sit after the 5:30 p.m. vote today, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation there to.
I will explain to honourable senators that with respect to the piece of legislation that our committee is studying, we have with us today witnesses from British Columbia who would like to return home tonight, if possible.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon Senators: Agreed.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Motion agreed to.
Public Safety Bill 2002
Second Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Day, seconded by the Honourable Senator Christensen, for the second reading of Bill C-7, to amend certain Acts of Canada, and to enact measures for implementing the Biological and Toxin Weapons Convention, in order to enhance public safety.
Hon. A. Raynell Andreychuk: Honourable senators, I rise to speak at second reading of Bill C-7, to amend certain acts of Canada and to enact measures for implementing the Biological and Toxin Weapons Convention, in order to enhance public safety. I believe this bill, together with previous bills, are the most fundamental pieces of legislation that have come through this house in the last 10 years. They affect Canadians more fundamentally than any other legislation.
This bill was at second reading in this chamber when Parliament was prorogued unnecessarily, in my opinion, last November. Now the bill has been reinstated, and we are being urged to deal with it quickly.
Honourable senators, I believe that this bill must receive thorough study. It is approximately 100 pages long. In those 100 pages, many acts are being amended. These acts deal with matters such as environment and health, and safety and security issues. They cover the gamut of public life. We are again incrementally intruding into the lives of Canadians under the guise of public safety.
Senator Day spoke, saying that this bill was further security for Canadians. I agree that it could be such, if handled appropriately. This bill touches on furthering the ability of the government to deal with the security issue. However, we have already passed Bill C-36, the anti-terrorism legislation, and I believe that the same issues that were raised during debate on Bill C-36 in previous sessions must be addressed here. We should not just give Canadians the impression that the government is doing more; we should be adding something valuable, and in the least intrusive manner, to their rights.
This bill was first introduced some time ago. Recently, however, the powers provided to civil authorities under Bill C-36 have been called into question following the raid on the home of Juliet O'Neill. Many, including myself, have questioned the search of a journalist's home in pursuit of information in light of the potential disruption to the delicate balance so important to the proper functioning of our political system, namely between the need to maintain a keystone of democracy, the freedom of the press, and our need to ensure that our national security is properly protected.
Although Bill C-36 did not, in fact, change the clause in the former National Security Act used to obtain authorization for the search warrant of Ms. O'Neill's house and office, Canadians have associated the raid with the increased powers provided by Bill C-36. Many have called for parliamentarians to take another look at that bill. If, in fact, those powers that led to the intrusions in Ms. O'Neill's case were not part of Bill C-36 but in the old National Security Act, then what was Bill C-36 all about?
How did we get ourselves into this position? How did we give powers and lose rights under Bill C-36 in the rush after September 11, 2001, when the government said they needed these measures? Of course, there was no track record.
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However, now we are at Bill C-7 and we have a track record. Why do we need to intrude on 23 pieces of legislation, reducing the rights and the privacy of Canadians in return for what seems to be more security? In fact, Bill C-7 puts more power in the hands of the executive without any justification that each one of these is needed or would have been used in the past. In fact, it is all done under the guise of emergency.
There are powers under the emergency act. There are powers under the national security act for virtually any conceivable emergency. In fact, the government has said that this bill would allow for more efficiency and for the executive to act quickly. If that is the case, I have no difficulty with this bill; but where is the oversight? Where is the justification?
Shortcuts have been added to Bill C-7 to allow for this greater response, which is not in the national security act, the old Bill C-36 or elsewhere.
Where do we see some independent oversight of ministerial activity? More and more we see the hard-fought, democratic rights of Canadians being circumvented in a "trust me" situation. A good democracy is not built on trust. It is built on verification, accountability and reliability, and it is built on justifying actions taken.
The government has now introduced the public safety bill, known as Bill C-7 in this current session, for the fourth time. This bill in previous incarnations has been known as Bill C-17, Bill C-55 and Bill C-42. Note that Bill C-42 was first introduced on November 22, 2001, only to be withdrawn and replaced by Bill C-55. Throughout its bumpy ride through Parliament, the initial bill was the subject of several reviews, during the course of which it has been changed, amended and improved. However, honourable senators in this place have not had the opportunity to look at this complicated bill, which deals with complex issues, and there is still plenty of room for improvement in this most recent edition.
The bill was only changed from Bill C-42, Bill C-55, Bill C-17 and Bill C-7 when there was an opportunity for the House of Commons to look at the issues. These issues were studied piecemeal, which makes it very difficult to know how secure we are today, how our rights have been eroded, and whether we have struck the right balance between safety and security and other rights. We have had not an opportunity to look at all the issues. We are practically at the three-year mark of Bill C-36, and we have said that we will study it; but that is not the issue. We need to look at Bill C-36; we need to look at whether Bill C-7 is necessary; we need to look at the whole host of previous legislation, at how it has helped our security and how it has intruded on our other rights.
There appears again to be a rush on Bill C-7, if my honourable colleague is correct that we need this bill because it is an answer for and a response to emerging issues. I have yet to be persuaded that there are emerging legislative issues that we need to address. Perhaps, as Professor Roche, an eminent legal scholar, has said, we are losing our rights incrementally in the name of security, and we continue to add more legislation in the name of security when what we are really doing is eating away at our rights. Perhaps our security would be best looked after if we increased the administration of the existing legislation and paid attention to the secure areas that have caused problems in the past, such airports and ports. Our National Security and Defence Committee is studying this very issue.
Senator Lynch-Staunton, in his remarks of November 6, 2003, said:
...we must be careful about bringing in new laws that could threaten the basic freedoms that make Canada what it is. Bill C-17 adds to the arbitrary power of the government without the checks and balances to ensure that privacy rights are protected. Latitude allowed under interim orders is excessive and contrary to basic values.
Bill C-7 amends 23 acts of Parliament and introduces a new act. Parts 1 and 2 of the bill amend the Aeronautics Act. They enable the minister to take security measures relating to aviation issues and authorize information requests to airlines or reservation systems regarding passengers, information to be given to the Minister of Transport, the Minister of Citizenship and Immigration, the Minister of Revenue, the RCMP, CSIS and the CEO of the Canadian Air Transport Security Authority.
The bill enables the RCMP and CSIS, or their designates, to receive and analyze information and match it with any other information or databases under their control. The information can be matched against outstanding warrants for serious offences. This section has been criticized by the former Privacy Commissioner as enabling fishing expeditions for people whose offences are unrelated to terrorism or transportation security.
The Canadian Bar Association and the Barreau du Québec have also expressed concern about these powers. This section of the bill could certainly stand additional review. I expect the committee charged with examining the bill will want to spend time hearing from witnesses, including the new Privacy Commissioner.
I should also point out that the changes to the previous incarnations of this bill were brought about by questioning in the House of Commons, but, very curiously, Bill C-7 has an addition. It gives more powers to the Minister of Immigration. One wonders why, when in fact there have been sufficient intrusions. The government responded that it was done simply to clarify the powers that the minister already has. However, if we look at Part 11 of the bill, clauses 70, 71, 72 and proposed section 150.1, there are sweeping powers to take information under the Department of Citizenship and Immigration Act and use it for extended powers, not just for security issues. I will quote proposed section 150.1(1):
(b) the disclosure of information for the purposes of national security, the defence of Canada —
— and here is the part of concern —
— or the conduct of international affairs, including the implementation of an agreement or arrangement entered into under section 5 of the Department of Citizenship and Immigration Act.
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Honourable senators, the inclusion in Bill C-7 of more powers of scrutiny for immigration purposes goes way beyond security and allows the government to do, or at least appear to do, something that I think is inappropriate, which is to target and profile new citizens entering Canada. We worried in Bill C-36 that there would be racial profiling. I believe that our concerns were warranted. If one now looks at the extension and the broad, sweeping powers that are, in my opinion, being inserted very quietly into this proposed legislation, one wonders whether all the people who will have access to this information will use it for the purposes of safety and security. Will the people who will have access to the information broaden and deepen their interpretations in ways that we did not intend when we passed this law?
Honourable senators, one also wonders if the powers under this bill are necessary. One may say not to worry because we passed Bill C-36 and then did not use many of those powers. Well, honourable senators, we do not know. Two sections of Bill C-36 demanded filing of information, and in both cases the government filed that there was no action taken. There has been no scrutiny or review of the actions taken by the government since the passing of Bill C-36. I would point to some valuable work done by the International Civil Liberties Monitoring Group when it responded to Justice Canada's first annual report on the application of the Anti-terrorism Act, Bill C-36. They pointed out that its use had been attempted.
Honourable senators, it is almost frightening that these bills with such discretions are not being monitored in any way. There is no full oversight mechanism to ensure that they are properly monitored.
All data collected is normally destroyed within seven days. Once per year, the Commissioner of the RCMP and the Director of CSIS will review any information retained beyond the seven-day period to ensure that it is still needed for transportation security. However, the bill is silent on what happens if information is kept beyond the seven days for reasons unrelated to terrorism or transportation security. There is no oversight provision on the retention of such personal information. There is also no provision for a report to Parliament on the data that has been retained longer than seven days.
Honourable senators, the Auditor General's recent report to Parliament contained a chapter on independent reviews of security and intelligence agencies — and I referred to this in my question to the Honourable Leader of the Government. Ms. Fraser stated:
Security and intelligence agencies' compliance with the law and ministerial direction is subject to widely varying levels of independent review — in some cases, to no review at all. Review bodies also provide varying levels of details in their reports.
Independent review is important because of the intrusive powers of agencies and departments involved in intelligence gathering and law enforcement.
Honourable senators, the Auditor General is right. If we are to invest our national intelligence agencies with greater powers, it is incumbent on Parliament to ensure that those powers are exercised responsibly. Should we give the executive the power? Is it necessary?
The Honourable Senator Lynch-Staunton raised concerns about interim orders last fall, which serve to duplicate powers the government already has under the Emergencies Act. However, there is a critical difference. While the Emergencies Act requires emergency measures to be brought to Parliament within two days, the interim orders contained in Bill C-7 do not come before Parliament before 15 days. Sections 3, 5 and 11 of the Statutory Instruments Act will not apply to interim orders. The Senate committee must explore why the act that ensures the application of the Charter of Rights and Freedoms does not apply to these provisions. The interim orders provide tremendous — some would say excessive — powers to individual ministers. We should be asking why these clauses are in the bill and if they are consonant with a democratic government.
I should like to discuss the areas of information sharing that are in Bill C-7. While Bill C-44, the second of a trio of anti-terrorism bills, enabled information to be passed to the United States about passengers from Canada travelling to the United States, Bill C-7 will broaden that information sharing. Now, Canada will provide to foreign states information about passengers aboard flights that are landing outside our own country. This raises concerns that personal information about travellers may be shared with countries that do not necessarily share the same human rights values as Canada.
Honourable senators, we know from our tax laws that we started tax treaties with countries that we were reasonably certain would hold information in the same way that we do. However, here we have Bill C-7 that would allow governments to enter into agreements and "arrangements" — yet to be explored in its full meaning, and it does not restrict it to any basis. Presumably, it is to help our security, but one wonders what will be done with this information. Where will it go? How will it be used? We have yet to find out the full extent of the Arar case, which should give us some concern.
Honourable senators, there is much to be said about Bill C-7, but there are so many legal implications. On principle, the opposition, we on this side, is certainly not stating that we should not continue to be concerned about our safety and security — quite the contrary. We believe that this is one of the prime roles for government. We also do not question that certain transportation adjustments need to be made. However, we are questioning whether Bill C-7, in its present form, is absolutely necessary or whether it is an undue infringement on our rights, our freedoms and, more particularly, our privacy.
Where is that delicate balance that we tried to achieve in Bill C-36 — proportionality? Are we unduly interfering with our democratic rights? Is this the right balance to strike? These are legal questions. The interim orders give the government and individual ministers unfettered and unstructured ministerial discretion. We must look carefully to ensure that those interim orders are consistent with the fundamental principles of justice.
I refer honourable senators to a statement in the judgment of the Parker case, 1999.
The problem in the Parker case, which had to do with an exemption for marijuana use; the indication was that the problem was not unlike the issue confronting the court in committee for the Commonwealth of Canada versus Canada, 1991, reported in Volume 1 of the Supreme Court reports at page 139. That case concerned freedom of expression and the validity of section 7 of the Government Airport Concession Operations Regulations.
Madam Justice L'Heureux-Dubé held that the violation of freedom of expression could not be saved because an applicant could apply for authorization. At page 214, she wrote:
Rights and freedoms must be nurtured, not inhibited. Vague laws intruding on fundamental freedoms create paths of uncertainty on to which citizens fear to tread, fearing legal sanction. Vagueness serves only to cause confusion, and most people will shy from exercising their freedoms rather than facing potential punishment.
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She then writes.
If there is ministerial discretion, that fact in itself may create a standard which is so vague that it can be incomprehensible.
I would say that our sections of Bill C-7 are vague and, therefore, incomprehensible. They give wide, sweeping powers to ministers without scrutiny under the regulations and without the benefit of any oversight mechanisms of the minister. Consequently, I believe that cumulatively with the other pieces of legislation, Bill C-7 is reaching dangerous ground without much benefit for security.
This bill is so complex in its legal interpretations that the only correct place to analyze these proposed sections would be before the Standing Senate Committee on Legal and Constitutional Affairs. The import of these ministerial orders, the proportionality issues, the application of the Charter of Rights and the interpretation of regulation, I believe, are legal issues with which we will struggle in attempting to study a bill of over 100 pages. We do universally agree that we need security.
Honourable senators, I will end by quoting the Justice Minister, Irwin Cotler, in the previous session when he was a member without executive authority. He spoke in the House of Commons, on Thursday, May 2, 2002. At that time, he enumerated some of the difficulties with this legislation. When he came to the area indicating that the emergency orders are exempt from the application of the Statutory Instruments Act, he said:
This does not mean that such decrees or regulations are not subject to the charter, but it does mean that the "scrutiny and screen filter", the filtering out of objectionable features before the regulations are enacted, is absent. Regrettably, a judicial corrective may be necessary when a pre-emptive screening corrective could be utilized first.
He was speaking to Bill C-55 at that time. He continued:
... while Bill C-55, for the most part, strikes a reasonable balance between security and privacy rights, the new provisions giving RCMP and CSIS unrestricted access to the personal information of all Canadian air travellers, both on flights within Canada as well as on international routes, are also disconcerting. For example, if the RCMP can obtain and scan airline manifests in search of anyone subject to an outstanding warrant for any offence punishable by five years or more, or for an offence under the Immigration Act, this would appear to be an undue expansion of police power at the expense of privacy rights, without clear justification.
In other words, if, as the privacy commissioner has put it, proposed section 4.82 were limited to providing the RCMP and CSIS with access to airline passenger information for the sole purpose of checking against databases of known or suspected terrorists, with the proviso that all such information would be destroyed except where a match with the database was found, this could be regarded as a legitimate exercise of police power for security purposes.
He continues with other examples, basically making the distinction that these words in Bill C-7 have great legal interpretation that needs to be discussed. He said in conclusion that the Public Safety Act, 2001 has important features, some of which he described, that are germane to an anti-terrorism law and policy and to the protection of public safety and human security. He said:
However, there are also some disconcerting features that taint the bill and which need to be addressed and redressed so we can promote human security without unnecessarily intruding on civil liberties.
Honourable senators, my submission is that the bill needs the kind of scrutiny that was delineated by Mr. Cotler, as he then was, and Minister Cotler now. These are legal issues that could taint the bill. The essence of the bill may be laudatory, but the devil is in the detail. These legal matters are important because they will touch citizens.
What happens when interim orders are made? A citizen will be tainted. There will be that way of trying to clear your name but we are using terrorist activity too broadly. In our zeal to ensure that we are safe from terrorist activity, we should not trample on people's rights, their reputations nor their ability to be true Canadian citizens.
As we said with respect to Bill C-36, it is highly unlikely that we will come to be scrutinized by security officials. It is more likely that someone coming from a particular part of the world will find themselves under this type of scrutiny. We do not want to damage reputations. We do not want to harm citizens. If we, honourable senators, in this place can put our heads together and devise a way to ensure that every Canadian citizen will be treated equally, fairly and justly, that the powers of the government are only those that they absolutely need and that Parliament will be accountable in some oversight manner, then we will have done our job. To do anything less will be to fail Canadians.
The gravest concern lies not in the transportation or the security areas; the gravest concern lies in the legal implications of the proposed sections. I therefore urge honourable senators to ensure that the appropriate committee — in my opinion, the Standing Senate Committee on Legal and Constitutional Affairs — would have the appropriate time to look into these matters and match them with the precedents to date to ensure that we are not subjecting Canadians, either individually or collectively, to undue prejudice.
Some Hon. Senators: Hear, hear!
Hon. Serge Joyal: Honourable senators, Honourable Senator Andreychuk has raised many concerns with which I agree. Like many other senators in this room, I have read the previous incarnations of this bill — Bills C-55, Bill C-17 and Bill C-35. The Honourable Senator Andreychuk addressed specific aspects of the bill, and I commend her. It was an essential and inescapable exercise. I am concerned by the dynamics of the bill.
What are the dynamics? For the purpose of enhancing security, generally air travel security, we are giving additional powers to the various government departments such as national revenue, citizenship, transportation, immigration, and to various groups within the government administration. These are unique powers never previously bestowed in the broad system of Canada.
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What are those powers? We give the aforementioned departments the power to look into the files of all Canadians who have received a jail term of five years or more for an offence. In the Criminal Code there is a thick list of offences punishable by five years or more, and most of those offences are not associated with security threats. There are numerous offences that have no direct bearing on security. The bill, as drafted, does not give a list of offences; it has only the broad definition of five years and more.
Moreover, the information would be kept in the system for seven days. In other words, when you go to board a plane, for example, a computer search is done on your name. It may come up if you are under a warrant of some sort, even though it has nothing to do with security. The information could immediately be passed on to someone in the administration who might be looking after you.
That is what this bill does. One asks what control mechanisms are in place to ensure that this extraordinary system that we are putting into place is not abused? We saw at the beginning of January an abuse of procedure in the case of the journalist mentioned by the honourable senator. When additional powers and immunities are given to the administration, we must ensure that we counterbalance these powers to be sure that the system is not tilted in favour of invasion by the administration into the privacy of citizens. That is one dynamic of the bill, and the dynamics of this bill are not at all obvious.
I remember, honourable senators, when we had the special committee in this chamber to deal with the first part of the anti-terrorism legislation. The special committee was chaired by my seatmate, Senator Fairbairn. One of the key recommendations in the special committee report was about parliamentary oversight. I clearly remember that Senator Grafstein raised this issue many times, with Senator Beaudoin expanding on it.
Honourable senators, I have difficulty finding the balance in this bill.
I was reading a speech given by Chief Justice Roy McMurtry, the Chief Justice of the Ontario Court of Appeal, on December 3, 2001, before the Canadian Club in Toronto in the aftermath of September 11. Things were hot at that time and everyone wanted to shield under the security umbrella.
The title of Chief Justice McMurtry's speech was "The Role of the Courts in Turbulent Times." On page 4 of his speech, he said:
The task of the legislature, and perhaps the court, will be to balance the strength of the concern around terrorism against the reasonableness and rationality of the means selected to combat it. This test of proportionality and balance includes a consideration of whether there is a rational connection between the threat and the response, whether the response impairs constitutional freedom and limits as little as possible and whether there is balance between the deleterious effects of the measures and their salutary effects.
The Chief Justice said that in exercising legislation that deals with security, it is very easy to be carried in one direction. Everyone wants security, but in our Constitution, we have the protection of privacy and freedom, and those must be reconciled. When you draft legislation in the days after the threat, the damage and the killing of people, you are carried in one direction. You want so much to protect so many people. However, sober second thought ensures that you control those powers in case, at some time, we get carried in the other direction.
Honourable senators, this is a very important legal issue and the courts have recognized that they will have to adjudicate on it at some point in time. This bill deals with transportation policy issues, and I am not an expert in that regard. However, the legal implications of privacy and the constitutionally protected freedoms of Canadians are very sensitive. I hope that there will be a proper airing of those aspects of this bill, which is thick and complex because it amends many pieces of legislation.
That is the concern I wanted to share with honourable senators. I hope that in its study the committee will hear the appropriate witnesses and will reflect on these matters because they, to me, are the heart and soul of this bill.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, we heard impressive arguments this afternoon on some of the legal and human rights concerns that flow from the principle of this bill. We on this side have no difficulty with the general principle of the bill, but we are now hearing an argument that it is critical and incumbent upon us to give detailed examination to the issues of human rights that are placed in the balance by these measures that, in the environment in which we live, are perhaps now required but were not required in years past. As we give these extra powers to the state, it is incumbent upon us to ensure that our human rights values will continue to transcend these measures.
There is a shift in the debate in which we are now engaged that centres not so much around the principle of the bill as around the next step; namely, the committee study. The argument being made is that if we accept this bill at second reading, it would be on the condition that it would be referred to the Standing Senate Committee on Legal and Constitutional Affairs.
Hon. Jerahmiel S. Grafstein: Honourable senators, I thank Senator Joyal for reminding the Senate and myself about the role that he and I took. Although we are not members of the special committee to deal with this extraordinary legislation, we took an interest in the bill.
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I had a concern then, and I thank Senator Joyal for reminding me that the concern is the same today as I had then, which is that the government is asking for extraordinary powers, well beyond the reach of normal practices. It strikes me, as it did then and it does now, that the government has a huge onus upon it to demonstrate to the committee — the reference will be, I assume, to the Standing Senate Committee on Legal and Constitutional Affairs — that these extraordinary powers are necessary.
We have still not had an audit of the original legislation. We have no facts, other than sporadic cases that we hear in the press from time to time, which appear to be egregious on their face. We have no facts. I have always believed facts before policy, and I would hope that the government will be very careful in presenting the practices and the need for these additional powers.
Just to say that we require the powers for efficiency or effectiveness does not answer any of the issues that honourable senators today have discussed. It is not a question of efficiency or effectiveness; it is a question of proportionality and balancing the danger against rights. I would hope that the government will take it upon itself to convince the committee that these extraordinary powers are necessary for the peace, order and good government of the country.
At this juncture, I am very sceptical, as I was in the first instance: If we give the government extraordinary powers, we will never be able to get them back. Therefore, it will distort what we have had in this country — a good and peaceable kingdom.
Hon. Gérald-A. Beaudoin: I should like to move the adjournment of the debate, if no other honourable senator wishes to speak.
Hon. Joseph A. Day: Honourable senators, I wonder if we could hear from Senator Beaudoin as to when he might speak on this. I want to give the honourable senator an opportunity to speak, but we were hoping this might go to committee today.
The Hon. the Speaker: We are on a motion. Senator Beaudoin, did you wish to respond?
Senator Beaudoin: Honourable senators, I intend to speak tomorrow on one aspect of the bill.
The Hon. the Speaker: I think that answers any questions that honourable senators might have had.
On motion of Senator Beaudoin, debate adjourned.
Agriculture and Forestry
Committee Authorized to Meet During Sitting of the Senate
Leave having been given to revert to Notices of Motions:
Hon. Donald H. Oliver, Chairman of the Standing Senate Committee on Agriculture and Forestry, with leave of the Senate and notwithstanding rule 58(1)(a), moved:
That the Standing Senate Committee on Agriculture and Forestry have power to sit after the vote today, even though the Senate may then be sitting, and that Rule 95(4) be suspended in relation thereto.
Motion agreed to.
Speech from the Throne
Motion for Address in Reply—Motion in Amendment Negatived—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Trenholme Counsell, seconded by the Honourable Senator Massicotte, for an Address to Her Excellency the Governor General in reply to her Speech from the Throne at the Opening of the Third Session of the Thirty-seventh Parliament,
On the motion in amendment of the Honourable Senator Comeau, seconded by the Honourable Senator Beaudoin, that the motion be amended by adding:
"That the Senate of Canada regrets that the Speech from the Throne does nothing to either deal with the culture of corruption that has pervaded the federal government in the last ten years or to fix the broken machinery of government system."—(12th day of resuming debate)
The Hon. the Speaker: It being 5:15 p.m., pursuant to the order adopted by the Senate on February 23, 2004, I interrupt the proceedings for the purpose of putting the question on the motion in amendment of the Honourable Senator Comeau concerning the Speech from the Throne. The bells to call in the senators will be sounded for 15 minutes, so that the vote takes place at 5:30 p.m.
Call in the senators.
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Motion in amendment negatived on the following division:
YEAS
THE HONOURABLE SENATORS
| Andreychuk | Keon |
| Beaudoin | Kinsella |
| Buchanan | LeBreton |
| Cochrane | Lynch-Staunton |
| Comeau | Nolin |
| Di Nino | Oliver |
| Forrestall | St. Germain |
| Gustafson | Stratton—17 |
| Kelleher |
NAYS
THE HONOURABLE SENATORS
| Austin | Kenny |
| Baker | Kirby |
| Banks | Kroft |
| Biron | Lapointe |
| Bryden | Lavigne |
| Callbeck | Lawson |
| Carstairs | Léger |
| Chaput | Losier-Cool |
| Christensen | Maheu |
| Cook | Mahovlich |
| Cools | Massicotte |
| Corbin | Mercer |
| Cordy | Milne |
| Day | Moore |
| De Bané | Munson |
| Downe | Pépin |
| Fairbairn | Phalen |
| Ferretti Barth | Plamondon |
| Finnerty | Poulin |
| Fitzpatrick | Poy |
| Fraser | Prud'homme |
| Furey | Ringuette |
| Gauthier | Robichaud |
| Gill | Roche |
| Grafstein | Sibbeston |
| Graham | Smith |
| Harb | Sparrow |
| Hervieux-Payette | Stollery |
| Hubley | Trenholme Counsell |
| Jaffer | Watt—61 |
| Joyal |
ABSTENTIONS
THE HONOURABLE SENATORS
| Atkins | Murray—2 |
On motion of Senator Beaudoin, debate adjourned.
Foreign Affairs
Committee Authorized to Meet During Sitting of the Senate
Leave having been given to revert to Notices of Motions:
Hon. Peter A. Stollery, Chairman of the Standing Senate Committee on Foreign Affairs, with leave of the Senate and notwithstanding rule 58(1)(a), moved:
That the Standing Senate Committee on Foreign Affairs have power to sit today after 6 p.m. today, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.
Motion agreed to.
Fisheries and Oceans
Committee Authorized to Meet During Sitting of the Senate
Leave having been given to revert to Notices of Motions:
Hon. Gerald J. Comeau, Chairman of the Standing Senate Committee on Fisheries and Oceans, with leave of the Senate and notwithstanding rule 58(1)(a), moved:
That the Standing Senate Committee on Fisheries and Oceans have power to sit at 6 p.m. today, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.
Motion agreed to.
Criminal Code
Bill to Amend—Second Reading
On the Order:
Resuming debate on the motion of the Honourable Senator Moore, seconded by the Honourable Senator Ferretti Barth, for the second reading of Bill C-13, to amend the Criminal Code (capital markets fraud and evidence-gathering).
Hon. James F. Kelleher: Honourable senators, I am pleased to rise today to speak at second reading of Bill C-13. We in the Conservative Party of Canada support this bill and only wonder why it has taken so long for the government to take action.
The world has for some time been well aware of the financial scandals that have taken place in recent years in the United States. Indeed, the word "Enron" is almost synonymous with the words "financial scandal." Last year, the Standing Senate Committee on Banking, Trade and Commerce conducted lengthy, intensive and comprehensive hearings on the impact that Enron was having on the confidence of Canadians in the marketplace. Its excellent report included several recommendations aimed at curbing corporate corruption and restoring the public's confidence in the stock market.
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Of course, one might have legitimately asked at the time: Is the fallout from Enron really our problem since it occurred in the United States? Why should we be worried here in Canada?
Enron, Tyco, WorldCom and the like were only the biggest of the corporate scandals that took place. They were so big that their high profile perhaps obscured the fact that Canada has undergone a series of its own corporate scandals over the years. I need only mention the words Livent, Bre-X, Cinar, Nortel, Laidlaw and, most recently, the case of Hollinger Inc. to name a few. This proposed legislation is welcome in Canada in that it should, in some small way, contribute to the restoration of confidence on the part of the Canadian investor.
Honourable senators, let me review the main pillars of the bill because I do have some questions about them that I think need to be raised. First, the government proposes to establish six investigative teams dedicated to the pursuit of capital market fraud. These integrated market enforcement teams, IMETS, will be made up of RCMP investigators, federal lawyers and other experts dedicated solely to capital market fraud cases. These teams, the government argues, will enhance the effort to track down corporate criminals and deter future occurrences of these crimes.
These are lofty words. Catching white-collar criminals is one thing, but putting them behind bars is quite another. It seems to me that the financial criminals are not that hard to catch. They tend to identify and eventually undo themselves by their own insatiable greed.
This is true of these kinds of criminals in any walk of life, even those who might work in the public sector. The only question is how much damage they do before they reveal themselves. If we want to better deter these actions, we would be better served if a higher proportion of them ended up, as honourable senators on the Banking Committee never tire of hearing me say, "in orange suits."
I now suppose this issue is referenced somewhat in Bill C-13 by the government's proposal for tougher sentencing. Under this legislation, the current Criminal Code offences of fraud and fraud affecting the marketplace would be punishable by a maximum sentence of 14 years, up from the former maximum sentence of 10 years. The maximum sentence for fraudulent manipulation of stock exchange transactions would increase from five years to 10 years. Moreover, certain aggravating factors, such as the size of the economic fallout, could result in even longer sentences.
Honourable senators, I agree that tougher sentences are called for and I believe that their creation will send the right message to the Canadian investor, although I am not convinced that the message is not more illusory than real. In increasing the maximum sentence to 14 years from 10 years, it is highly unlikely that will curb, to any measurable extent, the fraudulent tendencies of those in the corporate world who stand to make millions of dollars from their various shenanigans. If they are not deterred by the possibility of spending the next 10 years of their lives behind bars, I hardly imagine that an extra four years will change their calculations much. It would be better, perhaps, to increase the minimum sentence rather than the maximum sentence.
Honourable senators, this legislation also includes whistle-blower protection by creating an employment-related intimidation offence and creates a new Criminal Code offence of improper insider trading. This new offence includes more severe penalties than are currently available under provincial securities laws and adds to the prohibition of such activities under the Canada Business Corporations Act. Again, I would like to comment that the important aspect here is not the penalties themselves but ensuring that they are brought to bear more often.
Honourable senators, there is more to this legislation, but I would like to use the remainder of my time talking about the enormous irony of this bill being brought forward by the current government. It is hoped that this bill will increase the public's confidence in the corporate sector, but what will this government do to increase the confidence of Canadians in the public sector? That confidence has been shaken to its very foundation by the stupefying depth and breadth of the financial improprieties of the Liberal government. It beggars belief that when the government was developing this piece of legislation that we now have before us, it was at the same time knee-deep in the widespread corrupt financial practices it was seeking to curb in the private sector. I guess, as the saying goes, what is good for Peter is not good enough for Paul.
Honourable senators, the Canadian taxpayers are the public equivalent of corporate shareholders. They consider the money they contribute to the government an investment in their future, in the future of their country and in the future of their children's country. They invest that hard-earned money in the firm belief that it will pay dividends. They invest in the belief that those to whom they entrust it will manage it to the mutual benefit of all, not just to the mutual benefit of a chosen few as this government has done.
That, honourable senators, is a shameful and outrageous betrayal. It is a betrayal and a scandal of the same order as those that have taken place throughout the corporate sector — the kind of scandal that this legislation has been designed to prevent and punish.
Honourable senators, the Liberal government should be aware that legislation is oftentimes not enough, at least for the shareholders. Sometimes they take matters into their own hands, as recently happened at Hollinger Inc. In that instance, it came to light that the chairman and chief executive officer was using shareholder money to enrich himself and his friends. In very short order, the man who controlled the company found that he no longer did so. The shareholders spoke and the chairman and CEO lost his job.
Soon, honourable senators, the Canadian shareholders will have a chance to speak and I, for one, will not be surprised if, like the man in charge at Hollinger, the man in charge at the PMO loses his job.
The Hon. the Speaker: Senator Kelleher, will you take a question?
Senator Kelleher: Considering the questioner, I do not know; but I will listen.
Hon. Consiglio Di Nino: Honourable senators, it is interesting that the honourable senator finished off his participation in the debate with such comments. I have a paper written by someone who deals with these matters, and it has an amazing title: "The Government of Canada: The Ultimate Enron." I would be happy to share the paper with anyone who wishes to read it.
This legislation is obviously intended for the private sector. Will it do anything to stem the abuses that have taken place in the federal government? Does the honourable senator think it would help in any way, or should we create another piece of legislation to deal specifically with the government sector?
Senator Kelleher: Honourable senators, I want to hear this answer, too.
I think we could use a little of both, Senator Di Nino.
Senator Di Nino: A little of both of what?
Senator Robichaud: Good answer.
(1750)
The Hon. the Speaker: Are honourable senators ready for the question?
Hon. Senators: Question!
The Hon. the Speaker: It was moved by the Honourable Senator Moore, seconded by the Honourable Senator Ferretti Barth, that this bill be read the second time.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and bill read second time.
Referred to Committee
The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?
On motion of Senator Moore, bill referred to the Standing Senate Committee on Banking, Trade and Commerce.
Criminal Code
Bill to Amend—Second Reading—Debate Adjourned
Hon. Mac Harb moved the second reading of Bill C-14, to amend the Criminal Code and other Acts.
He said: Honourable senators, it is a pleasure for me to rise today to speak on Bill C-14. This bill is a criminal law bill that has a number of worthy amendments, the details of which I will explain in a moment.
First, I point out that while in the House of Commons, Bill C-14, formerly Bill C-32, received the support of all parties. It is a small and manageable omnibus bill that contains largely non-controversial amendments, but some of the amendments therein are urgent.
The first such amendment has to do with the weapons search and seizures warrant provisions in the Criminal Code. In July of 2002, the Ontario Court of Appeal found the wording in subsection 117.04(1) to be contrary to the Charter due to the fact that it did not explicitly contain and set out the belief that the peace officer is required to have in order to obtain a warrant to search and seize weapons, explosives or other regulated items. Although the requisite grounds to obtain a warrant may be known and applied in practice, it is important that the provision provide that explicitly in its wording.
In effect, the Ontario Court of Appeal decision in R. v Earle had been originally stayed for six months to allow the government to pass an amendment to rectify the problem. However, since the matter is being appealed to the Supreme Court of Canada, the stay has been further extended until the matter is resolved in that court. A motion is pending to delay until the fall the hearing currently scheduled for May 17, 2004. Obviously, it would be preferable to enact this amendment beforehand, to ensure that our laws are clear respecting the Charter rights of Canadians.
Also, another pressing amendment in Bill C-14 is the one dealing with the use of intrusion detection systems. Intrusion detection systems, IDS, are measures used by computer management personnel to protect computer systems against attacks that could harm their systems, or to troubleshoot problems relating to quality of service. These intrusions detection activities include ensuring the flow of communications and maintaining the security and integrity of the computer system and the data in those systems. Computer management activities that are intended to prevent harmful intrusion into a computer system such as worms, viruses or breaches are legitimate and normal activities.
However, there is a risk that private communications could be intercepted while performing these activities. It is important that our criminal laws are clear in ensuring that those who conduct such defensive monitoring activities are not found criminally liable.
The amendment to the Criminal Code in Bill C-14 would provide exemptions for persons who operate computer networks similar to those that already apply to the data communications industry. The Financial Administration Act has also been amended to confirm authority for the federal administration to conduct such activities.
Honourable senators, a much anticipated amendment concerns the setting of deadly traps often organized by criminals to protect their unlawful activities. For years, law enforcement agencies such as police forces and firefighters have expressed concern about deadly traps that they encounter while entering premises in response to calls. Organized crime has become increasingly involved in what are commonly referred to as "grow ops" where residential homes are kept for the growth and production of illicit drugs. First responders, in this case firefighters, now face additional risk in entering such premises where deadly traps have been deliberately set to strike at intruders — be they firefighters, police or rival gangs.
The proposals in the bill seek to restructure the traps offence provision to provide for such activities, and increase the penalties where traps are set for the purpose of protecting a place used to commit other offences. The penalty for setting a deadly trap is currently five years. Bill C-14 seeks to raise it to a maximum of 10 years. We believe that this penalty should deter those kinds of offences. The penalties would increase to a maximum of 14 years if a deadly trap set in such a location injures a person. The penalty would increase to a maximum of life imprisonment if such a trap caused the death of a person.
As honourable senators can imagine, this particular amendment has received a great deal of support from law enforcement agencies as well as from the International Association of Fire Fighters, which has expressed concern with the increased use of deadly traps in Canada.
Honourable senators, Bill C-14 seeks to make a small number of technical amendments. One such amendment would clarify the law with respect to the use of reasonable force on an aircraft in flight to ensure the safety of the aircraft and the people and property therein. Under the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, any crew members or passenger is authorized to take reasonable preventative measures when he or she has reasonable grounds to believe that such action is immediately necessary to prevent an offence that would endanger the safety of persons on board.
Honourable senators, the event that occurred on December 22, 2001, illustrates the circumstances that these proposals seek to address. On that day, a 29-year-old British man named Richard Reed had tried to set fire to explosives in his shoes while on an American Airlines flight from Paris to Miami. Fortunately, a vigilant flight attendant and a determined passenger thwarted this would-be suicide shoe-bomber, who later said that he was part of the Al-Qaeda network. He was overpowered, and a doctor on board sedated him until the plane landed at the Boston airport to where it had been diverted. Mr. Reed was arrested.
Honourable senators, a number of other amendments in this bill deal with both the French and English elements of the legislation pertaining to this aspect. They are synchronized in order to make it harmonious. I would ask for the support of honourable senators on this bill.
On motion of Senator Nolin, debate adjourned.
[Translation]
Business of the Senate
Hon. Fernand Robichaud: Honourable senators, if His Honour were to seek it, he might find agreement to stand the remaining items in their place on the Order Paper until tomorrow.
[English]
The Hon. the Speaker: It is proposed that all other matters on the Order Paper be adjourned to the next sitting of the Senate. Is it the pleasure of honourable senators to adopt the motion?
Hon. Senators: Agreed.
The Senate adjourned until Wednesday, February 25, 2004 at 1:30 p.m.