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Debates of the Senate (Hansard)

3rd Session, 37th Parliament,
Volume 141, Issue 22

Friday, March 26, 2004
The Honourable Dan Hays, Speaker



Friday, March 26, 2004

The Senate met at 9 a.m., the Speaker in the Chair.




World Theatre Day

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 playwright.

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.


The Late Harrison McCain, C.C.

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 areas.

In addition, he was very supportive of the arts in New Brunswick, contributing to a number of projects at the Beaverbrook Art Gallery in Fredericton.

On behalf of all honourable senators and the people of New Brunswick, I would like to express our deepest sympathies to the McCain family.




Canada-Europe Parliamentary Association

Fourth Part of 2003 Ordinary Session of Parliamentary Assembly of Council of Europe, September 25-October 2, 2003—Report Tabled

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.


Official Languages

Bilingual Status of City of Ottawa—Presentation of Petition

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 linguistic duality.

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 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, is officially bilingual, pursuant to section 16 of the Constitution Act, from 1867 to 1982.

Some Hon. Senators: Hear, hear!


Solicitor General

Royal Canadian Mounted Police—Presence of Constables in Dress Uniform at Liberal Nominating Meeting

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 senator's research.

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.


Point of Order

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 Senator Cools...

On page 620 in column one, the Honourable Senator Bryden, in moving his motion, said:

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 proper form.

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. Senators: Agreed.


Parliament of Canada Act

Bill to Amend—Third Reading—Motion to Defer Vote Adopted

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?

Motion agreed to.


Business of the Senate

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.

Appropriation Bill No. 4, 2003-04

Bill to Amend—Third Reading

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.

Parliament of Canada Act

Bill to Amend—Second Reading—Order Stands

On the Order:

Resuming debate on the motion of the Honourable Senator Morin, seconded by the Honourable Senator Downe, for the second reading of Bill C-24, to amend the Parliament of Canada Act.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Stand.

Hon. Bill Rompkey (Deputy Leader of the Government): I indicated, Your Honour, that I wanted to call No. 5 as the second order of the day.

Senator Kinsella: He just called it.

The Hon. the Speaker: It was called, and a request has been made to stand it. Is it to stand?

Senator Austin: Senator Kinsella said "stand."

Senator Rompkey: I believe Senator Morin wants to speak to it.

Senator Kinsella: He spoke yesterday.

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

Hon. Senators: Agreed.

Order stands.

Parliament of Canada Act

Bill to Amend—Third Reading—Motion in Amendment—Debate Continued

On the Order:

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 Ethics Counsellor.

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.", and

(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 following:

"(d) the Ethics Commissioner";

(e) in clause 7, on page 12, by replacing lines 7 and 8, with the following:

"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:


(h) in clause 10, on page 13,

(i) by replacing line 7, with the following:

"ment", and

(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 following:

"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:

"Parliament", and

(B) by replacing line 36, with the following:

"Parliament", and

(ii) on page 14,

(A) by replacing line 3, with the following:

"ment or",

(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:

"ment or",

(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:

"ment or",

(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:

"ment or";

(n) in clause 16, on page 17, by replacing lines 11 and 12, with the following:

"mons, Library of Parliament or office of the Ethics";

(o) in clause 17, on page 17, by replacing lines 20 and 21, with the following:

"Library of Parliament or office of the Ethics Commis-";

(p) in clause 18, on page 17, by replacing line 30, with the following:


(q) in clause 25, on page 20, by replacing lines 26 and 27, with the following:

"Library of Parliament or office of the";

(r) in clause 26, on page 20, by replacing lines 36 and 37, with the following:

"(c.1) the office of the Ethics";

(s) in clause 27, on page 21, by replacing line 9, with the following:


(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 following:

"Commons, Library of Parliament and office of the Ethics";

(v) in clause 30, on page 22, by replacing lines 24 and 25, with the following:

"Library of Parliament or office of the Ethics Com-";

(w) in clause 31, on page 22, by replacing line 33, with the following:


(x) in clause 32, on page 22, by replacing lines 38 and 39, with the following:

"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 following:

"(c.1) the office of the Ethics Commissioner";

(z.1) in clause 36, on page 24, by replacing lines 11 and 12, with the following:

"Commons, Library of Parliament and office of the";

(z.2) in clause 37, on page 24,

(i) by replacing line 22, with the following:

"Parliament", and

(ii) by replacing line 31, with the following:

"ment or";

(z.3) in clause 38, on page 25, by replacing lines 12 and 13, with the following:

"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:

"ment or",

(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 route.

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 Prime Minister.

Having said that, I should like to reserve the balance of my time for next week.

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 agreement.

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 trouble me.

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 following:

... 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 profession.

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 same formula.

Senator Smith: He is gone.

Let me point out something that may not have registered in the minds of my friends opposite.

The Prime Minister is accountable. The Prime Minister, regardless of who occupies that office and regardless of what party is in government, is accountable.

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 approval.

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 culture there.

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 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 likewise.

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 friend's question.

Hon. Senators: Agreed.

Senator Lynch-Staunton: I should like to ask an uninterruptible question.

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 mob scenes.

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 hurts everyone.

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 is.

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 an issue.

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 colleagues.

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 representative of.

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 credibility.

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 me.


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 your question.


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 ethical.

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 thing.


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.


Some Hon. Senators: Hear, hear!

The Hon. the Speaker: Are there other speakers?

On motion of Senator Rompkey, debate adjourned.

Business of the Senate

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. Senators: Agreed.

Criminal Code

Bill to Amend—Third Reading—Debate Adjourned

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 sexual orientation.

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 capital.

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 group affiliation.

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 way:

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 available.

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 states:

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 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 clash.

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 text.

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 this dialectic.


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 Queen's University.

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 human sexuality.

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 section 318(3):

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 ago?

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 accusations.

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 is correct.

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.

On motion of Senator Beaudoin, debate adjourned.

Banking, Trade and Commerce

Budget and Authorization to Engage Services—Report of Committee on Study of Charitable Giving Adopted

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?

Motion agreed to and report adopted.

Social Affairs, Science and Technology

Committee Authorized to Meet During Sitting of the Senate

Hon. Yves Morin, for Senator LeBreton, pursuant to notice of March 23, 2004, moved:

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 thereto.

Motion agreed to.


National Security and Defence

Committee Authorized to Meet During Sitting of the Senate

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.

Motion agreed to.

Aboriginal Peoples

Committee Authorized to Study 2004-05 Budgeted Expenditures for Communal Programs and Services Delivered by Department of Indian Affairs and Northern Development

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.

Motion agreed to.


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

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

That when the Senate adjourns today, it do stand adjourned until Monday, March 29, 2004, at 8 p.m.

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

Hon. Senators: Agreed.

Motion agreed to.

The Senate adjourned until Monday, March 29, 2004, at 8 p.m.