Hon. Viola Léger: Honourable senators, World Theatre Day was created
in 1961 by UNESCO and is celebrated annually on March 27. Various theatre events
are organized to mark this occasion, and one of the most important of these is
the circulation of the International Message traditionally written by a theatre
personality of world stature. This year, 2004, it is Fathia El Assal, Egyptian
I would like to share with you, on behalf of my theatrical colleagues around
the world, a few excerpts from her message.
Theatre is the father of all arts. This is a truth none can contend, and
for this reason it is my one and only passion.
I have always believed that playwrights distinguish themselves by their
noble human feelings. Their message can thus help people to rise above
themselves, to free themselves from their frustrations, from exploitation, and
thus be able to gain a sense of dignity.
[...] For in every work of art, the message of the artist has always been
geared towards human justice, maturity of expression, and authenticity [...]
I have refused to set down on paper a single phrase that did not emerge
from my deepest soul. Not one line that did not express the truth about woman,
and about her power of giving. This is why I have asked my pen to take the
oath of refusing to write a single line if it were to express weakness or
frustration, as well as to refuse to obey me if it felt me cowardly before
truth. I then asked it to help me bring to the fore the greatest number of
women whose lives I share, by drawing nearer to them and becoming their
mouthpiece. We would thus bare ourselves completely before each other, by
ridding ourselves of the rust accumulated with the passage of time. We would
cry out against all the circumstances and events that have deprived us of the
bursting forth of our human powers.
Lastly, I believe that theatre is the light that illuminates the path of
mankind. A light that ensures an organic link with the spectator by creating
warmth between us.
Hon. Joseph A. Day: Honourable senators, on Tuesday of this week, in
Florenceville, New Brunswick, businessman Harrison McCain was laid to rest. His
life was celebrated by his family, friends and many business and political
associates. This chamber was represented at the funeral by former
lieutenant-governor and now senator, the Honourable Marilyn Trenholme Counsell.
To say Harrison McCain was only a sharp businessman would be doing him a
genuine disservice. He was also a well-known philanthropist, community leader
and prominent citizen in the province of New Brunswick.
After working for the Irving family for a number of years, Harrison McCain
and his brothers Wallace, Andrew and Robert invested $100,000 into the frozen
french fry business having investigated a frozen vegetable plant in the
neighbouring state of Maine. Although nobody believed they could compete with
food industry giants, nor that frozen french fries would be popular outside of a
limited geographic area, the brothers plowed ahead, opening their first plant in
Florenceville, New Brunswick, on February 25, 1957. The following day,
newspapers in the province carried advertisements boasting: "McCain French
Fried Potatoes are the World's best, 8-ounce package, 39 cents."
Since that time, due to the determined efforts of all members of the McCain
family, the company has expanded into a global empire. Annual sales for 2003
reached $6.4 billion. The company now employs over 18,000 people in 55
facilities throughout the world. McCains produces one out of every three frozen
french-fried potatoes sold in the world.
As evidence of the depth of his influence in the global business world, the
Consul General of France in Moncton, New Brunswick, recently presented Harrison
McCain's family with France's Legion of Honour in a private ceremony at the
McCain residence in Florenceville. As many honourable senators may know, this
honour was created by Napoleon Bonaparte in 1804. It is the highest award France
can bestow on a foreign citizen. It is given to those who play a significant
role in strengthening ties between that European nation and other countries.
Although there were undoubtedly pressures to move the company headquarters to
a larger urban centre outside of Florenceville, he and his family were faithful
to their hometown of Florenceville, New Brunswick, and to their home province.
In addition to putting New Brunswick on the map through his business
dealings, Harrison McCain was a generous benefactor to a number of communities
throughout New Brunswick. Stories abound about Mr. McCain calling the family of
a sick child and telling them not to worry about their medical bills, or how he
would make his private jet available to those requiring treatment in other
In addition, he was very supportive of the arts in New Brunswick,
contributing to a number of projects at the Beaverbrook Art Gallery in
On behalf of all honourable senators and the people of New Brunswick, I would
like to express our deepest sympathies to the McCain family.
Hon. Lucie Pépin: Honourable senators, pursuant to rule 23(6) of the
Senate, I have the honour to present to the Senate, in both official languages,
the report of the Canadian delegation of the Canada-Europe Parliamentary
Association on the fourth part of the 2003 ordinary session of the Parliamentary
Assembly of the Council of Europe, held in Strasbourg, France, from September 25
to October 2, 2003.
Hon. Mobina S. B. Jaffer: Pursuant to rule 4(h), I have the honour to
table petitions signed by another 24 people, asking that Ottawa, the capital of
Canada, be declared a bilingual city and the reflection of the country's
The petitioners pray and request that the Parliament consider the following:
That the Canadian Constitution provides that English and French are the two
official languages of our country and have equality of status and equal rights
and privileges as to their use in all institutions of the government of
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, is officially bilingual,
pursuant to section 16 of the Constitution Act, from 1867 to 1982.
Hon. Lowell Murray: Honourable senators, I inadvertently gave notice
of this question yesterday by asking it at the wrong time. I will ask it now.
I want to know what the RCMP was doing supplying two constables in red serge
to a Liberal nominating meeting at Portneuf, Quebec, on March 19.
Hon. Jack Austin (Leader of the Government): Honourable senators, in
spite of the notice, I have not been able to obtain any information that assists
me in answering Senator Murray's question.
Senator Murray: Naturally, I will await with pleasure the honourable
I can tell honourable senators that the reference is to an article in Le
Soleil of March 23. The article was reprinted in the Library of Parliament
issue of "Quorum" of that day. It is stated therein that there were two
uniformed policemen from the RCMP at the Liberal nominating convention. The
out-going member of Parliament, Mr. Claude Duplain, had asked the RCMP to
arrange this. He paid $640 out of his own pocket for it. The money seems not to
have gone to the individual constables but, rather, to the force. Someone
speaking on behalf of the force is trying to defend this practice. With the
indulgence of the house I will read, in French, the relevant paragraph:
The officer in charge of the detachment, Corporal Marie Damian, explained her
decision to delegate two constables by the need "to make ourselves known in
Quebec City," through a kind of visibility program.
Normally, for such participation to take place, an event must come under one
of the RCMP's five priorities; namely, terrorism, youth, organized crime,
international police services and Aboriginal communities.
The article does not say in which of those categories the Liberal nominating
convention would come.
It seems to me that what is happening here is that it is possible, at least
in Quebec, to hire a couple of red-suited RCMP constables to decorate your
occasion, be it a Liberal function or something else. While I think it is
outrageous that they should be at a partisan meeting, I think it is even more
outrageous that they should be used only for decorative purposes.
It occurs to me that now that every second Liberal MP in the House of Commons
is a Privy Councillor, you might consider bringing back the Privy Councillor's
uniform. There are old photographs of Mackenzie King and others in that uniform.
There is probably a warehouse full of them somewhere. You could bring back the
Privy Councillor's uniform and decorate these fellows in the House of Commons
and send them out to Liberal nominating conventions, rather than compromising
the RCMP in this way.
Senator Austin: Honourable senators, may I remind Senator Murray that
he is a Privy Councillor.
Senator Murray: Not one invited to Liberal nominating meetings.
Hon. Eymard G. Corbin: Honourable senators, I rise on a point of
order. In yesterday's Debates of the Senate, column one on page 624,
following suspension of the sitting and following Senator Bryden's motion, His
Honour put to the house the question in the following terms:
It is moved by the Honourable Senator Bryden, seconded by the Honourable
On page 620 in column one, the Honourable Senator Bryden, in moving his
Honourable senators, I move, seconded by the Honourable Senator Sparrow...
Senator Sparrow's name, when the motion was put to the house by His Honour
was changed to Senator Cools. I believe His Honour said at that time that
Senator Sparrow was not in the house.
I think the usual form is that the original seconder's name is the one that
should stand, whether or not that senator is in the house. If I remember
correctly from my occasional days of service in the Chair, the name of the mover
stands and the formula ought not to be, "It is moved by the Honourable
Senator Bryden, seconded by Senator Cools," but, "It was moved by the
Honourable Senator Bryden, seconded by the Honourable Senator Sparrow..."
Of course, I could be wrong. I am sometimes wrong, like everyone else. It is
important to know. There is an element of prestige, oftentimes, attached to the
mover and seconder. Not everyone wants to move a certain motion for personal
reasons, political reasons or partisan reasons. In this instance, it had been
specifically determined; Senator Bryden had definitely checked with Senator
Sparrow and he agreed, indeed wanted to be the seconder of that motion. I do not
believe we should change what has been a long-standing practice in the way of
The Hon. the Speaker: Are there other comments?
The clarification from the Chair is as follows: The record indicates
correctly that Senator Bryden identified as seconder for his motion in amendment
Senator Sparrow. However, in the time intervening between moving the motion and
the Chair standing to put the motion, Senator Sparrow, unfortunately, was absent
from the chamber.
As presiding officer, I took the position that the relevant point in time in
moving the motion is when the Chair puts the motion, at the request of the
senator moving the motion. That is the answer to the question of why I, as
presiding officer, referred to Senator Cools rather than Senator Sparrow.
Senators Bryden, Sparrow and Cools are not here. I am not sure whether this
is appropriate, but I do agree with Senator Corbin that Senator Bryden knew
Senator Sparrow was in the chamber when he put the motion and that Senator
Sparrow should be the seconder. If it was his desire that he be the seconder,
perhaps we could make that change with leave. We have often done that.
The mover and seconder must be present at the relevant point in time the
presiding officer puts the motion. Sometimes there is no intervening time, and
we deal with the motion when it is put by the Chair or the Speaker.
We have dealt with this question as a point of order. If an honourable
senator would like to request leave to change the seconder to Senator Sparrow, I
think we all would understand why that might be a good idea.
Hon. Anne C. Cools: Honourable senators, I would be quite happy, if
there is a way to do it, to let Senator Sparrow's name stand, as opposed to
mine. As is frequently the practice, His Honour will pull a name from among
those he sees present, and in this case he chose me However, I do not feel
wedded to the motion at all, and if there were a way to attach Senator Sparrow's
name, I would happily agree to it.
The Hon. the Speaker: I think it goes without saying, honourable
senators, that we have both Senator Bryden and Senator Sparrow's agreement, even
though they are not here. I will take it that Senator Cools is asking for leave
to change the name of the seconder from Senator Cools to Senator Sparrow. Is it
agreed, honourable senators?
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, with regard to Bill C-4, we heard the oral notice of motion given
yesterday. We have in the Orders of the Day an indication that the government
will apply that often-used technique of closure —
Senator Lynch-Staunton: Shame.
Senator Kinsella: — on a matter that speaks to something that directly
affects each and every honourable senator of this house. It is a shame that the
government side felt they had to bring in closure because, in doing so, their
notice of motion effectively imposes closure not only on the opposition but also
on all honourable senators.
We on this side are interested because of the nature of this particular bill
and the fact that it affects each and every honourable senator. We want to
ensure that every senator has advance notice and that it is clear when the final
decision will be taken on this bill.
Therefore, this side agrees with the government side that a certain time,
pursuant to rule 38, should be given. Since we do have this agreement, my
colleague Senator Rompkey may wish to put it forward in a formal sense.
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable
senators, I thank Senator Kinsella for his remarks. Indeed, there have been
discussions. If it is agreeable, I move, seconded by Senator Austin:
That, pursuant to rule 38, in relation to Bill C-4, to amend the Parliament
of Canada Act (Ethics Commissioner and Senate Ethics Officer), no later than 5
p.m. Tuesday, March 30, 2004, any proceedings before the Senate shall be
interrupted and all questions necessary to dispose of third reading of the
Bill shall be put forthwith without further debate or amendment, and that any
votes on any of those questions be not further deferred; and
That if a standing vote is requested, the bells to call in the Senators be
sounded for thirty minutes, so that the vote takes place at 5:30 p.m.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Hon. Bill Rompkey (Deputy Leader of the Government): Your Honour, I
should like to call the orders in the following sequence. First, No. 2, Bill
C-26; second, No. 5, Bill C-24; and third, No. 1, Bill C-4. The other Orders of
the Day, when we get to them, will stand.
Hon. Joseph A. Day moved the third reading of Bill C-26, for granting
to Her Majesty certain sums of money for the public service of Canada for the
financial year ending March 31, 2004.
He said: Honourable senators, I shall be brief. I spoke on this matter
yesterday at second reading. This bill deals with Supplementary Estimates (B)
for the fiscal year ending at the end of this month, and it deals with the
expenditure of $1.9 billion of voted expenditures, all within the planned
spending set out by the Minister of Finance. I would urge honourable senators to
support the bill.
The Hon. the Speaker: Are honourable senators ready for the question?
Hon. Senators: Question!
The Hon. the Speaker: I will put the question, seeing no senator
rising to speak.
It was moved by the Honourable Senator Day, seconded by the Honourable
Senator Phalen, that the bill be read the third time now. Is it your pleasure,
honourable senators, to adopt the motion?
Motion agreed to and bill read third time and passed.
Resuming debate on the motion of the Honourable Senator Austin, P.C.,
seconded by the Honourable Senator Rompkey, P.C., for the third reading of
Bill C-4, to amend the Parliament of Canada Act (Ethics Commissioner and
Senate Ethics Officer) and other Acts in consequence,
And on the motion in amendment of the Honourable Senator Bryden, seconded
by the Honourable Senator Sparrow, that the Bill be not now read a third time
but that it be amended,
(a) on page 1, in the English version, by replacing the long title
with the following:
"An Act to amend the Parliament of Canada Act (Ethics Commissioner and
Senate Ethics Counsellor) and other Acts in consequence";
(b) in clause 2,
(i) on page 1, by replacing lines 8 to 27 with the following:
"20.1 (1) Subject to subsection (2), the Senate shall, by
resolution and with the consent of the leaders of all recognized parties
in the Senate, appoint a Senate Ethics Counsellor.
(2) If the position of Senate Ethics Counsellor is vacant for 30
sitting days, the Senate shall, by resolution and after consultation with
the leaders of all recognized parties in the Senate, appoint a Senate
20.2 The Senate Ethics Counsellor shall be a member in good
standing of the bar of a province or the Chambre des notaires du Québec.
20.3 (1) The Senate Ethics Counsellor holds office during good
behaviour for a term of seven years and may be removed for cause, with the
consent of the leaders of all recognized parties in the Senate, by
resolution of the Senate.
(2) The Senate Ethics Counsellor, on the expiration of a first or
subsequent term of office, is eligible to be re-appointed for a further
term not exceeding seven years.",
(ii) on page 2, by deleting lines 1 to 49,
(iii) on page 3,
(A) by deleting lines 1 to 12,
(B) by replacing lines 13 to 18, with the following:
"20.4 (1) The Senate Ethics Counsellor shall assist members of
the Senate by providing confidential advice with respect to any code of
conduct adopted by the Senate for its members and shall perform the duties
and functions assigned to the Senate Ethics Counsellor by the Senate.",
(C) by replacing line 43, with the following:
"20.5 (1) The Senate Ethics Counsellor, or any",
(iv) on page 4, by deleting lines 16 to 24, and
(v) in the English version, by replacing the expression "Senate Ethics
Officer" with the expression "Senate Ethics Counsellor" wherever it occurs;
(c) in clause 4, on page 7, by replacing line 8, with the following:
"72.06 For the purposes of sections 20.4,";
(d) in clause 6, on page 11, by replacing lines 37 and 38, with the
"(d) the Ethics Commissioner";
(e) in clause 7, on page 12, by replacing lines 7 and 8, with the
"any committee or member of either House or the Ethics Commis-";
(f) in clause 8, on page 12,
(i) by replacing lines 14 and 15, with the following:
"(c) with respect to the Senate, the", and
(ii) by replacing lines 28 and 29, with the following:
"Commons, Library of Parliament and office of";
(g) in clause 9, on page 13, by replacing the heading before line 1,
with the following:
"SENATE, HOUSE OF COMMONS, LIBRARY OF PARLIAMENT AND OFFICE
OF THE ETHICS COMMISSIONER";
(h) in clause 10, on page 13,
(i) by replacing line 7, with the following:
(ii) by replacing lines 14 and 15, with the following:
"Parliament or office of the Ethics Commis-";
(i) in clause 11, on page 13, by replacing lines 21 and 22 with the
"brary of Parliament and office of the Ethics Com-";
(j) in clause 12,
(i) on page 13,
(A) by replacing line 30, with the following:
(B) by replacing line 36, with the following:
(ii) on page 14,
(A) by replacing line 3, with the following:
(B) by replacing lines 6 and 7, with the following:
"of Commons, Library of Parliament or office of the",
(C) by replacing line 12, with the following:
(D) by replacing lines 16 and 17, with the following:
"House of Commons, Library of Parliament or office of",
(E) by replacing lines 25 and 26, with the following:
"mons, Library of Parliament or office of the Ethics",
(F) by replacing line 33, with the following:
"ment or", and
(G) by replacing line 38, with the following:
(k) in clause 13,
(i) on page 14, by replacing lines 47 and 48, with the following:
"Commons, Library of Parliament or office of", and
(ii) on page 15,
(A) by replacing lines 13 and 14, with the following:
"of Parliament or office of the Ethics Commis-",
(B) by replacing lines 22 and 23, with the following:
"of Parliament or office of the Ethics", and
(C) by replacing lines 35 and 36, with the following:
"ment or office of the Ethics Com-";
(l) in clause 14,
(i) on page 15, by replacing lines 43 and 44, with the following:
"brary of Parliament or office of the Ethics Commis-", and
(ii) on page 16, by replacing lines 6 and 7, with the following:
"Parliament or office of the Ethics Commission-";
(m) in clause 15,
(i) on page 16,
(A) by replacing lines 14 and 15, with the following:
"House of Commons, Library of Parliament or office of ",
(B) by replacing lines 20 and 21, with the following:
"Library of Parliament or office of the Ethics Commis-",
(C) by replacing line 29, with the following:
(D) by replacing lines 34 and 35, with the following:
"House of Commons, Library of Parliament or office of", and
(E) by replacing lines 41 and 42, with the following:
"brary of Parliament or office of the Ethics Commis-", and
(ii) on page 17, by replacing line 1 with the following:
(n) in clause 16, on page 17, by replacing lines 11 and 12, with the
"mons, Library of Parliament or office of the Ethics";
(o) in clause 17, on page 17, by replacing lines 20 and 21, with the
"Library of Parliament or office of the Ethics Commis-";
(p) in clause 18, on page 17, by replacing line 30, with the
(q) in clause 25, on page 20, by replacing lines 26 and 27, with the
"Library of Parliament or office of the";
(r) in clause 26, on page 20, by replacing lines 36 and 37, with the
"(c.1) the office of the Ethics";
(s) in clause 27, on page 21, by replacing line 9, with the
(t) in clause 28, on page 21,
(i) by replacing lines 20 and 21, with the following:
"Library of Parliament or office of the Ethics Commis-", and
(ii) by replacing lines 28 and 29, with the following:
"Commons, Library of Parliament or office of the";
(u) in clause 29, on page 22, by replacing lines 14 and 15, with the
"Commons, Library of Parliament and office of the Ethics";
(v) in clause 30, on page 22, by replacing lines 24 and 25, with the
"Library of Parliament or office of the Ethics Com-";
(w) in clause 31, on page 22, by replacing line 33, with the
(x) in clause 32, on page 22, by replacing lines 38 and 39, with the
"of Parliament or office of the Ethics Commissioner,";
(y) in clause 33, on page 23,
(i) by replacing line 3, with the following:
"word "or" at the end of paragraph (b), by adding the word
"or" at the end of paragraph (c) and", and
(ii) by replacing lines 6 to 8, with the following:
"(d) the office of the Ethics Commissioner";
(z) in clause 34, on page 23, by replacing lines 15 to 17, with the
"(c.1) the office of the Ethics Commissioner";
(z.1) in clause 36, on page 24, by replacing lines 11 and 12, with
"Commons, Library of Parliament and office of the";
(z.2) in clause 37, on page 24,
(i) by replacing line 22, with the following:
(ii) by replacing line 31, with the following:
(z.3) in clause 38, on page 25, by replacing lines 12 and 13, with
"any committee or member of either House or the Ethics Commis-";
(z.4) in clause 40,
(i) on page 28,
(A) by replacing lines 4 and 5, with the following:
"communes, à la bibliothèque du Parlement ou",
(B) by replacing lines 17 and 18, with the following:
"ment ou au commissariat à l'éthique par",
(C) by replacing lines 28 and 29, with the following:
"House of Commons, Library of Parliament or office of",
(D) by replacing lines 34 and 35, with the following:
"Library of Parliament or office of the Ethics Commis-", and
(E) by replacing line 43, with the following:
"ment or", and
(ii) on page 29,
(A) by replacing lines 2 and 3, with the following:
"House of Commons, Library of Parliament or office of",
(B) by replacing line 13, with the following:
(C) by replacing lines 19 and 20, with the following:
"brary of Parliament or office of the Ethics Commis-",
(D) by replacing line 26, with the following:
"ment or", and
(E) by replacing lines 38 and 39, with the following:
"Commons, Library of Parliament or office of the Ethics", and
(iii) on page 30,
(A) by replacing lines 5 and 6, with the following:
"Library of Parliament or office of the Ethics Commis-",
(B) by replacing lines 20 and 21, with the following:
"Library of Parliament or the office of the",
(C) by replacing lines 25 and 26, with the following:
"Commons, the Library of Parliament or the",
(D) by replacing lines 36 and 37, with the following:
"Commons, the Library of Parliament or the", and
(E) by replacing lines 42 and 43, with the following:
"Parliament or the office of the Ethics Commis-"; and
(z.5) in clause 41, on page 31,
(i) by replacing lines 23 and 24, with the following:
"Commons, Library of Parliament and office of the", and
(ii) by replacing lines 43 and 44, with the following:
"Commons, Library of Parliament and office of the".
Hon. Terry Stratton: Honourable senators, although Senator Bryden is
not in the chamber, I commend him on the work that he did with respect to this
amendment. It was quite comprehensive.
Senator Austin: Is this the 45-minute speech?
Senator Stratton: No. That was reserved for Senator Oliver. However,
the government leader is taking time away from my 15 minutes.
I shall be brief, honourable senators, because I should like to continue on
Monday, given the comprehensive amendment before us. A tremendous amount of work
went into it.
My concern with this bill is that it is fundamentally a continuation of the
Howard Wilson syndrome — that is, that once appointed by the Prime Minister,
this individual, the ethics officer in this chamber, will be seen as such. My
other concern is that if this chamber appoints such an officer, then the same
perception will be in the minds of the public. Therefore, I have two problems,
which I would like to expand upon in my speech Monday evening or Tuesday.
The only way I can see the public accepting or comprehending this office as
being transparent is to have an outside resource. In other words, perhaps a
couple of retired judges or individuals who command respect in the country could
be used as a reference by the ethics officer appointed by this chamber, because
if appointed by this chamber, then those individuals could be used as a
reference with respect to any case.
I rather admire the way that Britain is moving with respect to the
appointment of judges, for example. They are actually examining ways of getting
the public involved in vetting appointments. I think we should follow that
During the hearings on Bill C-4 in the Standing Committee on Rules,
Procedures and the Rights of Parliament, we heard that the easiest way for us to
provide the transparency demanded by the public would be to have that individual
appointed not by the Prime Minister but by this chamber. That would allow a
greater degree of flexibility in making those changes occur. As I said during
the hearings, this is really just the first step. This step alone is not
sufficient. The public will demand and is demanding more.
Why clone the Howard Wilson syndrome for this chamber on the basis that the
public will believe in the credibility of that individual simply because he or
she is appointed by the Prime Minister? The appointment must be made by this
chamber, and the process must be made more transparent by having as references
lay people or experts in the field of law to whom we can go in particular times.
I believe strongly that the public will not buy either of the solutions that
we are proposing. I fundamentally do not believe it. The one they will buy least
of all is the one proposed by the government, involving the appointment by the
Having said that, I should like to reserve the balance of my time for next
The Hon. the Speaker: Honourable senators, this is a little unusual,
but is it agreed that Senator Stratton speak again, for the balance of his time,
at the next sitting?
Hon. Senators: Agreed.
Hon. Eymard G. Corbin: Should we interpret this as an adjournment of
the debate or not?
Some Hon. Senators: No.
Senator Corbin: I have never seen this before.
The Hon. the Speaker: I am not interpreting this as an adjournment of
the debate, because I know, since I have been told, that other senators wish to
speak today. Senator Stratton did not move adjournment. Senator Stratton
obviously wishes to use the balance of his time next week, which is why I asked
honourable senators if it is agreed that he be entitled to do that.
Is it agreed?
Senator Corbin: Has this ever happened before? Is this an innovation?
The Hon. the Speaker: I have no idea; however, I see no reason why we
cannot do it.
Hon. Anne C. Cools: Honourable senators, if I might be of assistance
to His Honour, the Senate has already agreed that Senator Stratton could have
his whole 45 minutes, and he can —
Senator Stratton: Fifteen minutes.
Some Hon. Senators: No, no.
Senator Cools: Is he not the second speaker on Bill C-4?
The fact of the matter is that a senator may speak for a few minutes and then
take an adjournment and continue for his full time later. Because it is a
government bill, all it takes is for the floor to be yielded the next day, which
it is automatically, since it is government business. Therefore, no leave of the
Senate is required for him to be allowed to continue for his full time.
Hon. Bill Rompkey (Deputy Leader of the Government): Your Honour, we
had agreed that we would continue with the debate on Bill C-4 today. I did not
know that Senator Stratton wanted to speak today. We gave Your Honour a list of
speakers who wanted to speak on our side, and in my discussions this morning
there was no indication that Senator Stratton wanted to speak.
However, he has every right to speak, and he has spoken, and we on our side
had agreed that Senator Oliver would have the 45 minutes of the opposition time
reserved for him for Monday when he wants to speak, and we hold to that
Today, we have no objection that, when Senator Stratton speaks later, he
would have the rest of the time available to him, as long as the speakers on
this side have an opportunity to speak.
Senator Corbin: Honourable senators, I understand the situation. By
unanimous consent you can do everything. You can even throw the rule book in the
blast furnace, if you wish. I do not agree with what Senator Rompkey has just
said. He has given the Speaker a list of speakers. I do not think that should be
interpreted as an imposition on the Chair. The Speaker recognizes whoever rises.
The Hon. the Speaker: Of course, that is what happened here.
Is it agreed, honourable senators, that Senator Stratton be allowed to rise
again to speak to this matter at the next sitting for the balance of his time
and that we proceed now with other speakers?
Hon. Senators: Agreed.
The Hon. the Speaker: Are there other speakers?
Hon. David P. Smith: Honourable senators, I rise today to speak on
Bill C-4, and this is a bill that I support. I support it wholeheartedly,
without amendment. I want to go over the reasons why my head is where it is.
First, this bill represents good public policy because it is a balanced way
of responding to what I believe is a growing public desire for a structure that
is designed to ensure that there are the highest ethical standards for
parliamentarians. If anything, given the current climate that prevails, that
will be a growing desire.
Canada enjoys an international reputation as being a country that is
relatively free of corruption.
Senator Stratton: We just dropped 10 points.
Senator Smith: I know there are things happening at the moment and the
government in place wants to get to the bottom of them, and I think we will. The
reason there is concern about certain events is that, hitherto, we have had a
high standard. Michael Bliss, who is not noted for being a sycophant of this
government, recently stated in a National Post article that Canada is
near the top in all quality-of-governance rankings, and he says that the key is
the expectations of Canadians. Let me quote from what he said in that article:
It is precisely because of our very high expectations about government that
we keep raising the bar of political conduct. We expect higher and higher
standards of political behaviour.
At his recent appearance before the Rules Committee, the Minister of Justice,
Mr. Cotler, went further, stating that "ethics in governance" is itself a
"fundamental pillar of democracy."
Honourable senators, I believe that the government is raising the bar on
ethical political conduct and that Bill C-4 is an integral and essential part of
this process to ensure that Canada remains at the top of quality governance. We
must ensure that Canadians have the utmost confidence in their decision-makers,
and as the Senate, one of the chambers, we are key players in this. I regret to
say that, compared with the other place, we have not been leading in this
debate. We have been dragging our feet. I say that collectively; it is not
pointed at anyone. However, I do not think we have dealt with this issue and
tried to move forward in the same way that the other place has done.
I believe that the Canadian Senate does good work. I believe it is an
invaluable institution. That is why I decided to come here. If I did not feel
that way, I would not have bothered. However, this place will be less effective
than it could be if we do not come to grips with putting good ethics legislation
in place that covers the Senate. I believe the bill that is before us moves
toward doing that. All this bill does is provide for the appointment of a Senate
ethics officer to perform duties and functions assigned to that officer by the
Senate. Is that startling? Is that troubling? It does not startle or trouble me.
It would trouble me if we rejected that and could not live with it. That would
Some people have raised the issues of constitutionality and the privileges of
the Senate. With regard to the question of privilege, I do not believe it is an
issue here. The historic rights and privileges of the Senate are not negatively
prejudiced in any meaningful way whatsoever, in my view. On the issue of
constitutionality, which is linked to some extent to the question of privilege,
the Minister of Justice, when he appeared before the Rules Committee, stated the
... essentially, the question is whether or not Bill C-4 provides
privileges, immunities and powers that exceed the powers possessed by the
British House of Commons and its members in 1867 and now.
He was very convincing that Bill C-4 in no way contravenes or oversteps these
privileges, immunities and powers. Mr. Cotler is quite a serious constitutional
authority and law professor from McGill who is well respected within the
He also stated the following:
In a word, to the extent that Bill C-4 relates to these forms of ethical
conduct by senators, the subject matter of the bill falls within the
traditional jurisdiction of the British House of Commons over its members and
therefore is in accordance with section 18 of the Constitution Act, 1867. One
might also add that it clearly falls within the jurisdiction of the Canadian
Parliament, regarding the powers and privileges of its members as set forth
under section 44 of the Constitution Act, which confers on the federal
Parliament over the House of Commons and the Senate those appropriate powers.
That's good enough for me.
I am satisfied that there is not a constitutional issue here, and I do not
want to dwell on that.
What seems to have troubled senators, to the extent that some senators are
troubled, is the appointment process. The primary area of consternation has been
the appointment process of the Senate ethics officer, given that it will be a
Governor in Council appointment. Many are concerned that this appointment in one
sense will be made by the Prime Minister without regard to Senate input.
That is not a concern of mine. All we have to do is read the bill. What is
quite clear is that there is a double veto. I think that it is desirable to have
a double veto.
Senator Lynch-Staunton: Where? Where in the bill is that?
Senator Smith: It is at page 1, clause 20.1:
The Governor in Council shall, by commission ... 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.
Senator Stratton: Where does it say "double veto"?
Senator Smith: If you will relax, I will try to answer that.
Senator Stratton: Where does it say we have a word?
Senator Lynch-Staunton: There is no veto.
Senator Smith: You have to have both a Governor in Council appointment
and a Senate approval. Let me point out —
Senator Lynch-Staunton: Like the previous Privacy Commissioner? The
Senator Smith: He is gone.
Let me point out something that may not have registered in the minds of my
The Prime Minister is accountable. The Prime Minister, regardless of who
occupies that office and regardless of what party is in government, is
Senator Stratton: To whom?
Senator Smith: That is very relevant, and so I think —
Senator Stratton: Tell us about Howard Wilson.
Senator Smith: I seem to be troubling my friends opposite here, but I
think the concept is one of having what I would regard as a double veto. If my
friends opposite do not view it that way, they can stand up — and I will not
interrupt them — and describe how they view it. I happen to think it amounts to
a double veto; in other words, a Governor in Council appointment plus Senate
People say, "Oh, well, they'll just ram it through." I do not think anything
could be further from the truth, because that is not the culture of this place.
Some years ago, I sat in the other place, and there is very much a different
If anyone wants evidence that this chamber cannot be force-fed, the mere fact
that Senator Bryden's amendment passed in November with the support of more than
20 members of this side of the house, when the whip was on, is clear evidence of
a different culture here. I did not happen to agree with that amendment; I do
not happen to agree with the amendment now. However, I think the leverage that
is in there, by requirement of and after approval of the appointment by
resolution of the Senate, is very meaningful.
Now, why is that meaningful? It is meaningful because it establishes a
certain degree of independence that otherwise would not be there. The same
procedure is used for the House of Commons. If we do it by the amendment, by
resolution, it means that the Senate itself can hire and fire, unilaterally and
arbitrarily, in a way that the Commons cannot. I believe that would undermine
the credibility and any sense of independence of whoever occupies that office. I
firmly believe that.
Ted Hughes, who is the dean of ethics officers in this country, was quite
clear when he appeared before the committee. On March 18, 2003, in an appearance
before our Rules Committee, Mr. Hughes said this:
...when the time comes for you to select a conflict or integrity or ethics
commissioner or counsellor...you will find that you will work to come up with
an eminent nominee who will enjoy the confidence of the whole house.
Honourable senators, I believe that is exactly what will happen.
With regard to the convention introduced by Senator Austin — I was
comfortable before the convention was introduced, but, if anything, the
convention, in my opinion, reinforces that what will happen is that we will sit
down and do it by agreement and by consensus. There has been a lot of
unnecessary cynicism about this initiative. Of course, a convention has to start
somewhere, some time, some place, but I think that, if anything, that is the
right direction in which to move.
I am afraid that if this amendment does carry, and the Senate can just hire
and fire its own ethics officer unilaterally and arbitrarily on a whim, without
that double veto, it will not look too good.
My father was a minister and my grandfather was a minister — not cabinet
ministers but preachers. I am a preacher's kid. When you fall into that
category, whether you like it or not, you learn a lot of scriptures and hymns,
and they are always coming to mind. During the recent debate on this issue, one
verse has come to mind that has really troubled me, and that verse is, "Touch
not the Lord's anointed." If that is the vibe that this chamber gives off, and
if this chamber is incapable of dealing in a positive way with this issue of
ethics right now, it will, I believe, have a very negative impact on this
chamber's reputation and on this chamber's future.
Some Hon. Senators: Hear, hear!
Senator Smith: We would define this place in a negative way if we were
to do that. I fervently believe that. There are many cynics out there about this
place. This place will never be appreciated and understood by the general public
because of one very simple fact, and honourable senators all know what that is:
We are appointed.
If those who are appointed put in place something that does not have the
minimum requirements that the other place has passed twice — not only have they
passed it twice, they have passed it with the support of four of the five
parties — if we reject it again and obstruct the process, torpedo it, then
"Touch not the Lord's anointed" is the vibe we will give off, which will have
negative consequences for us, I believe.
I have spoken long enough, although I have more quotes in my notes.
Honourable senators, I believe the government wants to deal with the issue of
integrity. This is not an easy time to be in public life — and I do not say this
in a partisan way whatsoever. When things happen like what is going on right
now, it troubles all of us. We all want to get to the bottom of it. We all want
to see people who are accountable held accountable for whatever did happen. A
side effect of all of this will be a greater and stronger desire of Canadians as
a whole to be assured that parliamentarians are taking a lead in putting in
place a structure to ensure high ethics. If we are dragging our feet and not
taking the lead, we will pay for this. That is why I will be supporting this
bill without amendment, and I hope that most honourable senators will do
Some Hon. Senators: Hear, hear!
Hon. John Lynch-Staunton (Leader of the Opposition): Will my preaching
lawyer friend allow a question?
Senator Smith: Certainly.
The Hon. the Speaker pro tempore: I regret that the
Honourable Senator Smith's time has expired.
Senator Lynch-Staunton: In your opening remarks —
The Hon. the Speaker pro tempore: Is leave granted to
extend the time, honourable senators?
Senator Smith: I would ask for leave for extended time, to answer my
Hon. Senators: Agreed.
Senator Lynch-Staunton: I should like to ask an uninterruptible
In his opening remarks, Senator Smith emphasized the fact that the government
is eager to discover, as quickly as possible, the answers regarding the mess
that we read about each day. The House of Commons Standing Committee on Public
Accounts is sitting, a special counsel has been hired to recover as much as
possible any misappropriated funds, and a commission of inquiry has been set up.
Would my honourable friend agree with me and deplore the fact that the
commission of inquiry has announced its schedule and will not start hearing
witnesses until September? I find it extraordinary that a commission of inquiry
set up four or five weeks ago will not begin hearings as such until seven months
after its creation.
Would Senator Smith not agree with me that, if we want to get to the bottom
of things, a commission of inquiry independent of Parliament is the best way to
do so and that we should urge it to start its hearings much sooner? I am sure it
is equipped to do so.
Senator Smith: The purpose and rationale of a judicial inquiry is to
take it out of the political arena, where these things can sometimes turn into
I would have been quite surprised had the inquiry decided to commence its
hearings any sooner, because there will be many top-tier lawyers who have
clients whose futures are very much at stake and who will want answers to
certain complex legal questions before any of them take the witness stand. The
judge will want to review a lot of documents in a considered, thoughtful and
fair legal manner with respect to due process. I appreciate how frustrating that
may be, but it will take a long time if it is done right.
The honourable senator just reminded me about another concern with the
amendment; that is, its requirement that the ethics counsellor be a lawyer. I am
a lawyer, but I certainly do not agree with that requirement. The other day, I
was thinking of some of the people who have sat in the other place who had very
high ethical standards. I looked at the list of Privy Councillors and saw Lloyd
Axworthy, Perrin Beatty, David Crombie, Ed Broadbent and the late Tommy Douglas
and Stanley Knowles. None of those people were lawyers and would not have been
eligible for this position. That, in itself, is a good reason to defeat the
amendment that requires that the position be filled by a lawyer.
I understand my friend's frustration. At the moment, a judicial inquiry is
being conducted by a judge of the Superior Court of Ontario into the MFP
scandal, a computer leasing matter in the city of Toronto. It has been going on
for 18 months. It seems that it has become an annuity for some of the lawyers
involved. I hope that this will not occur here, but these are complex legal
issues that must be dealt with. People must be given due process, and that takes
time, as frustrating as it may be.
Senator Lynch-Staunton: That confirms what many of us suspect; that
the commission of inquiry takes the issue out of the political arena and allows
as much time as possible for it to come to a conclusion, which could be in one,
two or three years, which serves this government very well. That is the purpose
of setting up the commission of inquiry, as I understand it, and the honourable
senator's remarks have confirmed that fact.
Senator Smith: There is a two-track procedure in place because the
Public Accounts Committee was sitting even when the House of Commons was in
recess a couple of weeks ago. That process is underway, which is good. It is
healthy and it will continue.
Senator Lynch-Staunton: The Public Accounts Committee is doing what it
can with limited resources, but as soon as dissolution takes place, the Public
Accounts Committee will disappear. All we will be left with is a special counsel
working by himself, and the issue will be gone.
Senator Cools: In his remarks, Senator Smith referred to a mob scene.
He said that the judicial inquiry was set up to avoid a mob scene. It is always
difficult to hear parliamentary things described in those terms.
Incidentally, honourable senators, royal commissions are not judicial
inquiries. They may use judges, but a judicial inquiry is a different beast. A
judicial inquiry has powers to adjudicate, not only investigate, questions. That
is a small point.
Does Senator Smith agree that if Parliament and its committees were given
more resources, even the resources that royal commissions utilize,
parliamentarians would be better equipped to do a better job rather than
conducting what the honourable senator described as a mob scene?
We lived through the Somalia commission, and I had many problems with it. I
was told that at one point it employed about 50 lawyers at a cost of thousands
of dollars per day.
Does Senator Smith think that if members of Parliament were given more
resources situations like the one involving Groupaction could be avoided?
Senator Smith spoke with great sincerity. This bothers us all. It bothers me
deeply every time I see something about it on television. I continually muse
about how we can avoid this kind of thing because, at the end of the day, it
Does the honourable senator not think that the resources that go to royal
commissions would be better allocated to members of Parliament?
The Department of Justice has approximately 3,000 lawyers. We here in our
offices have tiny little staffs and tiny little budgets. Keeping in mind the
tendency for things to balloon and the tendency for human beings to build
empires, does the honourable senator not think that money that would go to a
Senate ethics office would be better allocated to Senate inquiries and
investigations so that such situations as this can be dealt with early on?
Senator Smith: I will try to answer this question fairly. The
political process in this country, as in all democratic countries, is, by
definition, partisan. There is nothing wrong with that; that is just the way it
If my reputation and my future were on trial, I would not want that trial
conducted in a partisan arena. I would want to be dealt with in an arena where
the rule of law is upheld and where my rights under the Bill of Rights or the
Charter are respected and enforced.
I do not disagree that it would be nice if parliamentary committees of both
Houses had more resources. I also think that a judicial inquiry will find out a
lot more about what happened and who did what than will the committee of the
House because it is inevitable that people will be trying to score partisan
points. However, when your future, your reputation and your career are at stake,
you want an inquiry conducted in an impartial venue.
Hon. A. Raynell Andreychuk: Senator Smith said that there would be
consultation. That is the word used in the act. Will he define what consultation
means to him in the context of Bill C-4?
Senator Smith: I believe that, as Senator Austin said, it means
consensus and agreement. That is the way I interpret it. As long as I am in this
place, you can remind me of what I have said here in the event it ever becomes
I believe that what the convention articulates is what will and would have
happened anyway. In this chamber, we only have two recognized parties, although
there may at some time be a third. It would be crazy not to proceed by agreement
and consensus. That is not to say that some individual hold-out could not have a
veto, but I believe that it would proceed on consensus and agreement between the
government and opposition sides.
Hon. Maria Chaput: Honourable senators, as I prepared my speech for
the debate on Bill C-4, to amend the Parliament of Canada Act (Ethics
Commissioner and Senate Ethics Officer) and other Acts in consequence, I
reviewed various speeches by my honourable colleagues to refresh my memory.
I well remember last fall and a question that kept coming to mind as I
listened attentively to the debates — often quite passionate — of my honourable
Are our debates really geared toward producing a bill that will improve the
quality of our governance and boost the public's confidence in the Senate, or
are our arguments based on fears and worries? Or is it that we are not convinced
of the need for change?
I must say that the same questions occurred to me again as I reread the
documents, and for these questions I have no answers. Whether these questions
are legitimate or not, that is my perception and it is real to me.
It is a matter of the perception Canadians have of the Senate. There is no
lack of criticism about the Senate. It is not a matter of whether this is an
honest debate or whether the criticism about the Senate is founded; it is a
matter of perception. According to Rousseau, "All our perceptions or ideas are
born out of an active principle which judges."
Honourable senators, Canadians have judged us. Do we have a distinct
perception of the consequences for the Senate if we refuse to pass Bill C-4? In
my opinion, there is no more fundamental responsibility than that of adopting
and respecting the strictest possible ethics standards for those charged with
managing public affairs.
We require organizations, institutions and community and non-profit
associations to develop and implement a code of ethics, policies and performance
measures, all of which must be in place in order for them to receive financial
support from our government.
The Senate currently observes these basic principles of responsible conduct,
accountability and transparency. Consequently, some senators are not convinced
that a change is necessary since, to date, we have succeeded in respecting our
own ethics rules.
But the Senate is not perfect, and we must constantly seek ways to improve
it. Guided by these principles, we can enhance its effectiveness and credibility
by having a Senate ethics officer to ensure that our code of ethics is enforced.
The upper chamber is completely independent. Numerous senators have spoken
about their fear of losing, damaging or restricting this independence. However,
I believe that senators are truly independent because they are appointed and
representative of the people, not the people's representatives. The upper house
must maintain this independence, but such independence does not mean the Senate
can disregard ethics or accountability, that it can ignore the public we are
Honourable senators, integrity is the foremost issue right now, whether in
government, the private sector or elsewhere. An institution's work can be
discredited in the blink of an eye by the unfortunate conduct of just one
person. Parliamentarians are entitled to decide how to carry out their duties.
However, parliamentarians are also human and no one is exempt from human
weaknesses. Why not have a framework to help us be even more credible and to
strike a certain balance with the public's trust? Why not have the necessary
institutional structure to move forward?
As the Honourable Sharon Carstairs said on November 4, 2003:
... Bill C-34 is the culmination of over three decades of work by
honourable senators and members in the other place on conflict of interest
rules for Parliament. [The bill] is framework legislation. It neither changes
existing conflict of interest rules of the Senate nor enacts additional rules
in this area. Thus, it will be for the Senate alone to establish rules of
conduct that respect the privileges, immunities and practices of this house.
All confidentiality rules governing the declaration of conflicts of interest
and the registration or publication of assets would be established by the
Senate and the Senate alone. The Senate would be within its rights to limit
disclosure as the other place has done in the code of conduct report from
committee and as the Milliken-Oliver report has recommended. To those senators
who suggest that we need more time to study this issue, I would say that we
have been studying this issue for 30 years. We have, in Bill C-34, a balanced
approach that is the culmination of our work.
We are committed, honourable senators, to implementing a code of ethics.
However, we need an institutional framework as an essential component of the
process of renewing our commitment to integrity and ethics in this house.
In my opinion, one does not draft a law solely to right a wrong. Laws are
also drafted in order to prevent a wrong or ensure that good continues to
prevail. In the health sector, for example, diseases must be treated, but the
importance of prevention is now recognized as well. Creating the position of
ethics officer may be considered a preventive measure. "An ounce of prevention
is worth a pound of cure," said our grandparents.
We have before us a bill that could contribute to improving the quality of
governance in Canada, boosting public confidence in the Senate, respecting the
Senate's particular characteristics, and ensuring greater transparency and
Would it not be opportune to adopt it?
I support those who say that the foundation of an effective government is the
confidence of the people and that this confidence is undermined when ethical
standards waver or appear to waver. Simply a question of perception by
Canadians, some of you will say. But perception is reality. I do not think this
question can be put off any longer.
Honourable senators, the time has come to follow suit and create the position
of ethics officer, and I hope that the vast majority of senators will agree with
Senator Andreychuk: I am very much interested in the honourable
senator's emphasis on perception. I would like a clarification. I think she was
trying to assure honourable senators that there is nothing in this bill that
will change what is presently in the code and in the rules. Am I correct? That
is how I read it. What we have in our rules will continue. We are looking again
at those rules in relation to work that we are doing elsewhere, but this bill
will not change that. Does the honourable senator agree?
Senator Chaput: The message I wanted to get across was this: I see
this bill as one setting out the basic principles. The code of ethics covers the
implementation, that is the way we will comply with this legislation. The
senators are the ones who will determine the content of the code of ethics. I do
not see why there would be one without the other. I do not know if that answers
Senator Cools: I have listened carefully to what the honourable
senator has said. She seems to use the word "government" interchangeably with
"Parliament." That is what I heard. This happens often. It is a common thing.
To my mind, the ethics of Parliament is a different matter from the ethics of
governments. All should be ethical. I do not think there is any disagreement
that all behaviour in public life should be ethical. The honourable senator must
admit that that has obtained for centuries without these kinds of bills. I do
not believe for a moment that this bill will make a single person here more
My question to the honourable senator is the following: Does she not think
that the Senate, the government and, let us say, the cabinet, should have
different systems? After all, the Senate does not deal with such issues as
procurement, the letting of contracts, the granting commissions and that sort of
Does the honourable senator not agree that the system is supposed to be such
that parliaments keep governments ethical rather than governments using closure
to force ethical bills on Parliament? We have reversed the principles. I was
struck by the fact that the honourable senator spoke very sincerely.
Senator Chaput: I do not, of course, have your depth of knowledge of
the system and the proper terminology. As for your question, in my opinion, the
response is provided by the very fact that we each have our ethics officer. That
is the only answer I can give you.
Hon. Bill Rompkey (Deputy Leader of the Government): Your Honour, I
think there might be agreement to stand all other items of Government Business
and move on to non-government business. I want to make it clear that all I want
to stand are the items under Government Business and move on to deal with the
Order Paper items under Other Business.
The Hon. the Speaker: Is it agreed, honourable senators, that we move
on to Other Business on the Order Paper?
Hon. Serge Joyal moved third reading of Bill C-250, to amend the
Criminal Code (hate propaganda).—(Honourable Senator Joyal, P.C.).
He said: Honourable senators, I will try to be brief at third reading because
we had an extensive debate at second reading in the previous incarnation of this
bill and now in this session. I should like to take the few minutes that are
allocated to me to answer some of the criticisms that have been addressed with
regard to this bill.
Honourable senators will remember that Bill C-250 deals with the Criminal
Code hate propaganda provisions, which are sections 318 and 319. Those two
sections target the most extreme hate-mongers, namely, people who seek to
dehumanize all groups of people on the basis of a single characteristic like
race, colour, ethnic origin or religion.
The first criticism addressed to this bill is that it is not useful; there
are no cases implying discrimination based on hate, targeting people whose
sexual orientation seems to offend other groups in the population.
The statistics that have been offered in support of those two provisions are
astounding. Statistics Canada, in a report released in 1997 entitled "Hate
Crime Statistics: Challenges and Opportunities," provides that more than 18.4
per cent of the hate crimes that happened in 1997 dealt with crimes alleging
Last week, in a Calgary newspaper, Constable Doug Jones estimated that only
10 per cent of hate crimes against gays are reported. Honourable senators will
easily understand why. Someone who is the subject of an assault and violence
often prefers to go home and hide away than to go to a police station and report
the details, to be submitted to questions, to file a complaint and to be
involved in a trial. According to the witnesses that we heard at the committee,
only 10 per cent, on average, are reported.
For instance, February 2004 statistics published by the Ottawa Police
Services Department indicate that more than 13 cases involving sexual
orientation have been reported to the police station in our own national
I do not think, honourable senators, that there is any need for me to report
to you horror stories. We all know them. We read the newspaper and listen to the
news. We watch television and we know that those situations exist. We may not
want to see them, but they exist.
Honourable senators, what are we talking about when we refer to "hatred"?
What does "hatred" mean? Is it similar to the statement, "I hate broccoli" or
"I hate turnips"? Is this the kind of hate we are talking about in the Criminal
Code? The Criminal Code is at a much different level than those sentiments.
The Supreme Court of Canada has defined what we mean by "hatred" based on
sexual orientation. In the Keegstra decision in 1990, Chief Justice
Dickson defined hatred the following way:
Hatred is predicated on destruction, and hatred against identifiable groups
therefore thrives on insensitivity, bigotry and destruction of both the target
group and of the values of our society. Hatred in this sense is a most extreme
emotion that belies reason; an emotion that, if exercised against members of
an identifiable group, implies that those individuals are to be despised,
scorned, denied respect and made subject to ill-treatment on the basis of
Honourable senators, I repeat: "despised, scorned, denied respect and made
subject to ill-treatment." We are not just talking about sentiments where
someone says, "I do not like that kind of people." We all have sentiments,
beliefs and biases, unfortunately. We are all human beings. The concept of
hatred that is enshrined in the Criminal Code is at a level that is much higher
than the mere sentiment that we have in our daily life.
Another allegation has been made that this bill is the product of only a
small group of people, a small group of activists, and that it is not that
important. It is a lobby that is active within our society and one that has
succeeded, in some instances, to promote its status.
Honourable senators, the Canadian Bar Association, in a letter dated May 13,
2003 — less than a year ago — stated specifically that sections 718 and 318, if
amended, of the Criminal Code would form a comprehensive response to what is,
unfortunately, a widespread social problem. The Canadian Bar Association is not
a lobby group that would benefit from protection in the Criminal Code.
This bill is requested by another group of people that we cannot target as
being part of the lobby. The 10 provincial attorneys general and the three
territorial ministers of justice came to a consensus in November 2001, asking
the federal Minister of Justice to adopt legislation similar to Bill C-250. Here
we are dealing with the representatives of the administration of justice from
all of the provinces and territories across Canada. We are not talking about one
single individual in the other place lobbying to change the system.
Furthermore, there is another group that supports Bill C-250. It is the
Canadian Association of Chiefs of Police. At their annual meeting in Halifax in
August 2003 — less than a year ago — they passed a unanimous resolution asking
that the Criminal Code add sexual orientation to the list of identifiable groups
in section 318. Honourable senators, I insist that those stands are taken by the
chiefs of police, by the attorneys general of all provinces and territories and
federal government and by the Canadian Bar Association requesting those changes
because the problem is real.
The third argument raised in our discussion at the study level of the
committee was that concept of the term "sexual orientation" is imprecise. What
does "a group identifiable on the basis of sexual orientation" mean? Some
witnesses alleged that this term does not exist in our Criminal Code, that it is
a concept that is so vague that the prosecutors charged with implementing the
code will not know what it means to be in an identifiable group.
Honourable senators, this is a very fast reading of the Criminal Code. In
fact, the Criminal Code was already amended less than seven years ago to include
sexual orientation, but in a different section of the code entitled, "Purpose
and Principles of Sentencing." When a judge must decide upon a sentence after
someone has been found guilty of a crime, the judge must take into account
whether the crime has been committed on the basis of hate, prejudice or bias
based on, among other things, and I quote, "sexual orientation." Therefore, the
concept already exists in the code at the sentencing level of a crime.
Of course, honourable senators will remember that this issue of sexual
orientation has been occupying the Parliament of Canada in the last 10 years in
many instances. First, there was the decision of the Supreme Court of Canada in
a case called Egan in 1995. It was a seminal decision whereby the court
defined that sexual orientation is a prohibited ground of discrimination under
section 15 of the Charter. The Supreme Court of Canada defined "sexual
orientation" according to section 15 in its majority decision in the following
Sexual orientation is demonstrated in a person's choice of a life partner,
whether heterosexual or homosexual. It follows that a lawful relationship
which flows from sexual orientation should also be protected.
That decision of the Supreme Court of Canada led the Federal Court of Appeal,
in the next year, 1996, to come forward with the following decision on the
definition of sexual orientation:
Whether or not it is possible to say that the expression "sexual
orientation," as used in [the present context] may, as a pure matter of
language, refer to other than gays, lesbians and bisexuals, the expression has
been clarified in many decisions of the courts and is now well established as
to its particular meaning.
Honourable senators, I could pile on my desk cases and cases coming from each
provincial human rights commission dealing with complaints based on sexual
orientation discrimination. It has been recognized in all of the provincial
charters and in the federal Charter of Rights. We are not breaking ground here
in terms of the definition of the concept of sexual orientation. That allegation
that this concept is undefined does not stand the test of the case law that is
The fourth argument put forward in our debate is that we would endanger
freedom of religion. Those religions that do not accept — in fact, that condemn
— some sexual orientations will not be free to continue to promote their
beliefs. This is a very thorny issue: the delineation of freedom of religion and
Charter rights. That ground is probably one of the most challenging for a court
to bring forward. Every one of us is free to hold the religious beliefs that he
or she wants to hold. Of that there is no question, absolutely. The problem
comes when those beliefs contradict clearly the values enshrined in the Charter.
Let me give you an example, honourable senators.
There are many passages of scripture, of the New Testament, for instance,
that deal with the status of women. Let me quote 1 Timothy 2:11-15, which
A woman should learn in quietness and full submission. I do not permit a
woman to teach or to have authority over a man; she must be silent...
Let me read another one. 1 Corinthians 11:7-9 states:
For a man...is the image and glory of God; but woman is the glory of man.
For man did not come from woman, but woman from man; neither was man created
for woman but woman for man. For this reason, and because of the angels, the
woman ought to have a sign of authority on her head.
Honourable senators, if you want to hold those beliefs, you are absolutely
free to hold them. I do not question that. However, if you are telling me that
any religious beliefs must trump the equality section, section 28 of the
Charter, that provides absolute equality between men and women, then there is a
Who has the responsibility in our society to delineate where religious
beliefs do or do not trump the Charter values? I refer honourable senators to a
very important lecture given by Chief Justice McLachlin at McGill University at
the René Cassin Lecture in 2002. It is a 12-page lecture. I invite any one of
you who want to reflect about religious freedoms and Charter issues to read that
She said the following:
Conscientiously held religious beliefs and the resulting religious
practices can come into conflict with values reflected in the law as a whole.
That is the very point I have illustrated.
Equally, the synthesis of the rule of law with seemingly contradictory
religious belief systems has always been a matter for the courts... It is the
courts that are most often faced with this clash and charged with managing
Honourable senators, we are faced with a situation that exists, that is,
violence against an identifiable group. We are faced with a request from those
responsible for peace and order in our society to act. We are faced, too, with
supporting what we think is right. Beyond all the legislative texts, beyond all
the statutes, there is something that has to be right in society. An individual
who has dignity, who has an identity, has a fundamental right not to be
subjected to violence because of his or her characteristics. That is what we are
talking about with this bill, honourable senators.
I feel that this bill is totally Charter-proof. If there were any allegation
of questions in relation to religious beliefs, the court has enough precedents
at hand to make a wise decision.
I urge honourable senators to support this bill. It is needed, it is
requested, and it is time that the Statutes of Canada reflect the freedom and
the dignity that each and every Canadian is entitled to.
Hon. Senators: Hear, hear!
Hon. Anne C. Cools: Would the honourable senator take a question?
Senator Joyal: Yes.
Senator Cools: I thank Senator Joyal for his remarks. I have two
questions for the honourable senator.
Some months ago, I pointed out to the honourable senator that in a previous
speech in September he said that former Supreme Court Justice Peter Cory served
on the Maxwell Cohen committee. Senator Joyal told me that he intended to make a
correction. He may wish to make that correction, because Peter Cory did not
serve on the Cohen committee; it was Dr. James Corry, who was a Principal of
The honourable senator has said something very profound. He has said that we
should do that which is right — I think the expression was that we should do
"what we think is right."
Senator Joyal has laid out quite clearly to the chamber the perceptions and
the expressions of those who support the bill, but, in my view, those who oppose
the bill are in far greater numbers than those who support it.
I want to come to the question of what people think is right and ask the
honourable senator about all of these Canadians, millions of them, who are
concerned that they will be exposed to malicious or menacing prosecutions. They
are in three groups. One group would be those who express moral opinions about
human sexuality. There are vast armies out there who are concerned.
The second group is professionals, including physicians and teachers, who are
concerned that they may face prosecution if they raise —
Some Hon. Senators: Question!
Senator Cools: I am asking a question.
The Hon. the Speaker: Senator Cools.
Senator Cools: I am identifying groups of people and asking Senator
Joyal for his response to them.
Professional people and physicians are caught in the situation of expressing
medical opinions about certain forms of human sexuality, especially dangerous
sexual forms. Right now, in the United States of America, a fierce battle is
taking place between two groups of psychiatrists. The third group is parents who
want to teach their children about avoiding or being cautious about dangerous
As Senator Joyal knows, some of these people, not many, but a few, appeared
before the committee. The honourable senator has answered the concerns of those
who support this bill — and I understand that because the honourable senator's
position is that he is supporting it, so of course he presents that view. I have
no quarrel with that. I wonder, however, if the honourable senator could respond
to these other concerns.
I know I am asking Senator Joyal to hold a lot in his head, but he is bright
so I know he can do it.
Senator Joyal began by saying that all the attorneys general of the
provinces, as well as the federal Attorney General, supported the bill. My
question is this: If there is so much support among the attorneys general, why
was this bill not brought as a government bill, where it would have had the
force of government behind it and would have been brought to us under the notion
of ministerial responsibility?
Senator Joyal: I thank the honourable senator for her questions.
I have not touched upon the possibility that the honourable senator has
described, that there may be futile accusations and that somebody would be
subject to prosecution. That fear that the honourable senator expressed is very
well answered in sections 318 and 319 of the Criminal Code, and I will tell the
honourable senator why. Section 318 provides that if there is an allegation that
the group targeted for genocide, or discrimination, is convinced that that is
the reality, then there is a major procedural obstacle to face. I will read
No proceeding for an offence under this section shall be instituted without
the consent of the Attorney General.
In other words, if somebody makes a futile allegation, it does not go
immediately into the system. An individual cannot simply file the paper and be
brought into court. That is not exactly how it happens. The complaint has to be
received and assented to by the attorney general, so there is a restraining
mechanism in the system.
If we read section 319, we find two sets of legal obstacles to launching a
complaint. Section 319 refers to incitement that is "likely to lead to a breach
of the peace." Section 319(2) reads as follows:
Every one who, by communicating statements, other than in private
conversation, wilfully promotes hatred against any identifiable group —
— that would "likely lead to a breach of the peace," as provided in 319.
The question is this: What is a breach of the peace? A breach of the peace,
honourable senators, has been defined — I am quoting from the decision in R.
v. Howell, in the English Court of Appeal, 1981. Breach of the peace has
been defined as follows:
...where harm is actually or likely to be done to a person, or in his
presence to his property, or a person is in fear of being so harmed through an
assault, affray, riot, unlawful assembly or other disturbance. The event
should be serious enough to necessitate police intervention to keep it from
escalating to an assault, mischief or disturbance.
That is a pretty high test. A breach of the peace is a criminal concept that
has been interpreted by the courts, and the threshold before the police come to
the conclusion that there is a breach of the peace is fairly serious.
There is another level of qualification for 318(3) that involves, again, the
consent of the attorney general. In other words, there are mechanisms so that no
one who is just ill-intentioned can go to the police station and make a
complaint, and the next day someone finds himself or herself in court. A
well-established mechanism is found in sections 318 and 319 that, in my humble
opinion, prevents futile allegations.
On the last point of the Honourable Senator Cools as to why the government
has not come forward with this bill, as I stated, in November 2001 the attorneys
general of the provincial and territorial governments met and asked the federal
government to proceed with similar legislation. It is clearly stated, and I see
the honourable senator nodding her head in assent.
The question is why the Minister of Justice has not proceeded with this. The
Department of Justice, as far as I am aware, is presently reviewing some
sections of the Criminal Code that need to be updated. Sections 318 and 319 are
part of that overall review of the code. I know the honourable senator has
personally expressed an interest in that review process, the structure of the
code, et cetera. It is under that review process that the government wants to
come forward with an overhaul of the code and those sections are part of that
study. Since Bill C-250 meets one of the elements of that overhaul, the
government is supportive of the bill.
Hon. Lowell Murray: For the record, does the honourable senator know
how many prosecutions have been launched and resulted in a conviction after
receiving the attorney general's fiat since the law came into force 34 years
Senator Joyal: I thank the Honourable Senator Murray for his question.
In fact, it is very few. It was mentioned at our hearings. It is in the area of
between four and six. Those are not provisions of the code that are lightly
used. They have more of a preventive nature, as Senator Carstairs said in her
speech on second reading. They have a dissuasive effect and are seen as being
the limits that we should have in our civilized society with respect to
differences. They are, as I say, very few in number on the basis of the argument
I have just mentioned. There are conditions before one launches those
I believe that only one or two have been successful. It is a very small
number. We are not talking about flooding the courts tomorrow or Monday morning
with a tremendous number of accusations, thereby jamming the courts. That is not
at all the reality.
Hon. Joan Fraser: I would like to pursue a line Senator Cools evoked
in one of her series of questions. As honourable senators know, I support this
bill. I was listening carefully, and I think I heard her say that some critics
of this bill had suggested that the bill would make it harder for medical
experts, teachers or parents to educate children about dangerous behaviour.
I am persuaded that this bill has nothing to do with sexual behaviour and
that high-risk sexual behaviour is not confined to any one sexual orientation at
all. Violence is violence and should be avoided. High-risk behaviour is
high-risk behaviour and should be avoided, sexual or otherwise. However, this
bill is not about behaviour; it is about orientation. That is what I think.
However, I would like the honourable senator to clarify for me if my impression
Senator Joyal: The Honourable Senator Fraser expressed the bill in
terms of its practicalities. No one will be barred from teaching about the risks
of some sexual behaviour. The education system tried to raise the consciousness
of youth about the risk of some sexual behaviour. That has nothing to do with
sections 318 or 319, the hatred provisions, which are essentially to incite
people to be violent toward other individuals on the basis of their sexual
orientation. It has nothing to do with that. It does not prevent any of the
research that the medical profession does in relation to sexual activities. That
has nothing to do with this bill. This bill is essentially to prevent violence
against individuals. That is the aim of this bill. All the rest stays as it is,
with the expectation that there will be better education, awareness and
consensus amongst society.
The Senate proceeded to consideration of the second report of the Standing
Senate Committee on Banking, Trade and Commerce (budget—study on charitable
giving) presented in the Senate on March 11, 2004.—(Honourable Senator Kroft).
Hon. Richard H. Kroft moved the adoption of the report.
He said: I do not feel any need to speak. If there are any questions, I would
be pleased to answer them.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Hon. Yves Morin, for Senator LeBreton, pursuant to notice of March 23,
That the Standing Senate Committee on Social Affairs, Science and
Technology have power to sit at 3 p.m. on Thursday, April 1, 2004, even though
the Senate may then be sitting, and that rule 95(4) be suspended in relation
Hon. Joseph A. Day, pursuant to notice of March 24, 2004, moved:
That the Standing Senate Committee on National Security and Defence have
power to sit at 5 p.m. on Monday next, March 29, 2004, even though the Senate
may then be sitting, and that rule 95(4) be suspended in relation thereto.
Hon. Nick G. Sibbeston, pursuant to notice of March 24, 2004, moved:
That the Standing Senate Committee on Aboriginal Peoples be authorized to
examine and report upon planned federal expenditures, as set out in the
2004-05 Main Estimates and the March 2004 federal budget, in relation to
programs and services delivered to First Nation communities by the Department
of Indian Affairs and Northern Development; and
That the Committee table its final report no later than June 30, 2004.