Debates of the Senate (Hansard)
3rd Session, 37th Parliament,
Volume 141, Issue 22
Monday, March 29, 2004
The Honourable Dan Hays, Speaker
Monday, March 29, 2004
The Senate met at 8 p.m., the Speaker in the Chair.
The Hon. the Speaker informed the Senate that the following
communication had been received:
March 26, 2004
I have the honour to inform you that the Right Honourable Adrienne
Clarkson, Governor General of Canada, signified royal assent by written
declaration to the bills listed in the Schedule to this letter on the 26th day
of March, 2004 at 11:01 a.m.
Secretary to the Governor General
The Speaker of the Senate
Bills Assented to Friday, March 26, 2004:
An Act respecting assisted human reproduction and related research (Bill
C-6, Chapter 2, 2004)
An Act to amend the Criminal Code (capital markets fraud and
evidence-gathering) (Bill C-13, Chapter 3, 2004)
An Act respecting equalization and authorizing the Minister of Finance to
make certain payments related to health (Bill C-18, Chapter 4, 2004)
The Hon. the Speaker: Honourable senators, I have received a letter
from the Leader of the Opposition in the Senate, the Honourable Senator
Lynch-Staunton, pursuant to rule 22(10), requesting that the time provided for
consideration of Senators' Statements be extended today for the purpose of
paying tribute to the Honourable Senator Beaudoin, who will be retiring April
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, Senator Beaudoin is one of the four Quebecers who were appointed to
the Senate in the spirit of the Meech Lake Accord, in other words, in
consultation with the premier of their province. The success of this formula is
evident when we look at the names of our colleagues who took office at the same
time he did: Senators Bolduc, Chaput-Rolland and Poitras. We were sorry to say
goodbye to each member of this veritable pantheon, and we will be just as sorry
to say goodbye to our friend Gérald.
His departure will leave a void that will be most difficult to fill. He will
be missed for his knowledge of the law, especially constitutional law, and also
for the way he shared that knowledge with his colleagues, regardless of their
political affiliation. He was an experienced professor and I often had the
impression, both in this house and in committee, that he was addressing students
who were unruly at first, but whose attention was soon captured by his clarity
of thought and his ability to explain the most complicated rulings.
Very few senators have brought such a wealth of experience to the Senate.
Lawyer, counsel for the Department of Justice and the House of Commons, law
professor, dean and author, he quickly became co-chair of two special committees
on the Constitution and was very active on numerous Senate committees.
As a caucus member, Senator Beaudoin was not at first always at ease as he
found it difficult to understand why a bill that in his mind deserved support
had, as an opposition member, to be opposed. Being an academic, he professed
being above the fray, but he always — nearly always — abided by caucus
When Senator Beaudoin became animated, his favourite expressions were "in my
opinion," and "on the one hand and on the other hand." I can say that in
everyone's opinion, and on both hands, Senator Beaudoin's remarkable intellect,
profound knowledge of the law and an ability to explain the most complex of
legalities in the most clear fashion will be sorely missed, as will his engaging
personality and strong attachment to the parliamentary system that has
benefitted all those who have had the privilege to sit with him.
Many thanks, Gérald, for your exceptional contribution to the parliamentary
process. Best wishes to you and your charming wife Renée on the eve of a
well-deserved retirement. You will be sorely missed.
Hon. Jack Austin (Leader of the Government): Honourable senators, when
I first saw Senator Beaudoin's name in writing, it had so many letters after it
that I thought the computer had gone awry and had printed the entire alphabet.
By which, of course, I mean that he has received so many honours, distinctions,
honorary degrees and other awards that there are more letters after his name
than there are in his name.
Today I should like to express my admiration for the accomplishments of
Senator Gérald Beaudoin, a man whose prodigious career in law and politics is
difficult to distil in a few words. He is an Officer of the Order of Canada, a
fellow of the Royal Society of Canada and professor and dean of civil law.
Senator Beaudoin is also a prolific writer on constitutional matters and on our
Canadian Charter of Rights and Freedoms. His books serve as seminal references
in our law libraries, and two of his texts are currently in their third edition.
The latest edition of La Constitution du Canada was launched with great
celebration in our Senate foyer earlier tonight.
He has received numerous honours, both national and international, in
recognition of his expertise in law and its implications for how we govern
ourselves. Among the most notable are the Ramon John Hnatyshyn Award for Law,
1997, and the Walter S. Tarnopolsky Human Rights Award, two years ago, both of
which recognize his contribution to the advancement of law.
Since his appointment to the Senate he has been an active participant on
committees and has co-written a number of reports. The report of the Special
Joint Committee on a Renewed Canada was an exceptional achievement, due in no
small measure to Senator Beaudoin's leadership, even though he became co-chair
only two months before the deadline.
The report covered Native issues, Senate reform, intergovernmental relations
and many other subjects that we continue to discuss in our parliamentary
debates. His impact became obvious when a number of his sections found their way
into the Charlottetown Accord.
Senator Beaudoin's reputation as an expert in constitutional law has had on
impact on my current office since my assistant, Ms. Deborah Palumbo, contributed
to one of the texts in the anthology, The Challenges of Constitutionalism:
Essays in Honour of Gérald-A Beaudoin, published two years ago.
In the foreword to this book, Pierre Thibault, a long-time assistant to the
senator, describes constitutionalism as "the blossoming of a culture of rights
I will quote Mr. Thibault's words, because it is pure Beaudoin:
Belief in the primacy of a constitution as an essential tool for defining,
protecting and preserving the rights of Canadians within their young
Teachings like that are the legacy Senator Beaudoin will be leaving for our
judicial system, our Parliament, the Senate and Canadians of the future.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, I rise this evening to pay tribute to our friend and colleague, the
Honourable Senator Gérald Beaudoin, and to speak of the importance of the law
itself for society, because he has made an invaluable contribution to Canadian
and international law.
Honourable senators, it was Saint Thomas Aquinas who defined the law in his
Summum Theologica, in item 4, question 90, of the Prima Secunda:
"a dictate of practical reason, ordered toward the common good, made by one who
has care for the community, and promulgated."
These essential elements of law are equally descriptive of Gérald Beaudoin, a
jurist "par excellence." Reason, the rule of law and the common good are always
characteristic of his analysis of legal questions. In many ways, Senator
Beaudoin's explanations of different sides of an issue expressed, as my
colleague Senator Lynch-Staunton has pointed out, "on the one hand" and then "on
the other hand" resembled the approach of St. Thomas, who would use the
question-and-answer technique in laying open an issue.
Honourable senators, our colleague has been a beacon for this chamber as we
navigated the shoals of constitutional matters. It was always comforting when he
would be able to conclude with a precision and univocal judgment that a Charter
determination on an issue was "clear-cut."
This chamber and our country have been well served by this man of law, this
teacher, this dean of law and this distinguished senator. We will all remember
his exceptional contribution and, particularly, his unique teaching: laws must
be useful to the common good and any law that is a fortiori useless or
harmful to the community is not a real law.
Like Thomas Jefferson, Gérald Beaudoin recognizes that we have a right to
freedom and, like Jefferson in his time, Senator Beaudoin has, in our time, had
a great influence when it comes to the protection and promotion of our freedom.
Hon. Jean-Robert Gauthier: Honourable senators, I cannot claim to do
justice to the impressive career of our colleague and friend Senator Gérald
Mr. Beaudoin is a prominent expert in legal and constitutional affairs. He is
known across Canada and he is one of the most respected jurists in this country.
Gérald has always vigorously defended the equal status of Canada's two official
I have known the professor, the dean, the author and the counsel. In short,
he is a Canadian who is accessible, respectful of cultural freedom and, above
all, a champion of our linguistic duality.
In the 1960s and 1970s, I was very involved in education in the Ottawa region
as a school board trustee. I was looking for support to help us explain to the
majority that official language minority communities should manage their own
French-language schools, in Ontario and elsewhere. In 1966, a study done by
OISE, the Ontario Institute for Studies in Education, showed that 84 per cent of
French Canadians living in Ontario dropped out of school before completing grade
I had the pleasure of meeting Senator Beaudoin at the University of Ottawa. I
believe he was the dean of the faculty of law and he had just published a book.
He encouraged me and he gave me good advice. He said: "Above all, do not give
Senator Beaudoin has always supported initiatives to improve the lot of
linguistic and cultural minorities. While he could be critical at times, he
always knew how to find the necessary compromise to make peace and advance
I am pleased to have this opportunity today to speak of my friend Gérald
Beaudoin. He will soon be facing a new challenge, a well-deserved retirement
that will likely be as busy as it is deserved. I will be following him in six
months, but Gérald will not stop writing, and I will not stop talking.
Have a great retirement, my dear Gérald!
Hon. Lowell Murray: Honourable senators, long before meeting Professor
Gérald Beaudoin personally, I was well aware of his brilliant reputation as an
intellectual, a constitutionalist and an author. Having assumed certain
responsibilities in the area of federal-provincial relations, I was anxious to
meet him and, if possible to draw upon his vast knowledge on the subject. On
January 20, 1987, he accepted my invitation to lunch with me in the
parliamentary restaurant and there began a dialogue and teacher-student
relationship that has lasted to this day and will, I hope, continue.
On January 27, a week after that conversation, Professor Beaudoin sent me a
letter in order, as he put it, to put down on paper:
... a few proposals relating to the hypotheses we discussed last Tuesday.
He then went on to address, with his customary rigour and clarity, six
proposals aimed at the abolition of our Senate, or at the least its radical
reform. These subversive ruminations came to an abrupt end with Professor
Beaudoin's appointment to that Senate 20 months later.
As Lyndon Johnson and Brian Mulroney are supposed to have said, "Better to
have him inside the tent looking out than outside the tent looking in."
Nevertheless, I am absolutely certain today that Senator Beaudoin is as
embarrassed at having made such proposals as I am of having solicited them. When
he was appointed to the Senate, Professor Beaudoin, having never had any party
affiliations, spoke of his concern, hesitation even, about the invitation he had
received to join the Progressive Conservative caucus. He was even contemplating
sitting as an independent.
Fortunately, I managed to persuade him to come onside with the Progressive
Conservatives, and to ensure that it was a profitable experience, we had to
reverse the teacher-student relationship that had characterized our
What an extraordinary and motivated student he became. I particularly
remember the great frustration in the Liberal government when Senator Beaudoin
managed, on two occasions, to derail its attempts to manipulate the electoral
map. Today, if he is not seen as a partisan, he is universally recognized as a
convinced and convincing activist.
Senator Beaudoin's retirement means that the Senate is losing one of its
illustrious parliamentarians. I sincerely thank him for his contribution to
Parliament and to Canada over the past 17 years.
Hon. Viola Léger: Honourable senators, during my brief time here in
the Senate, I have had the opportunity to meet some extraordinary people, one of
whom is without a doubt Senator Beaudoin. He is a formidable constitutional
expert, an artist skilled in the Constitution, which puts him above all the
parties and above all frivolous and futile discussions. His message is always
Senator Beaudoin, I thank you for teaching me so clearly and simply that both
the official languages of Canada are equal. Your presence and, often, your
company at various artistic activities, be it theatre, music or the arts in
general, has brought me great joy. One is never alone in your company. As a
parting gift, I want to offer up a poem by Gilles Vigneault, Prenez soin des
Beware the spoken WORD —
a breeze and it is gone
with a promise to return.
Beware the word SILENCE
from which spring words of
memory in turn.
Beware the word MEMORY —
in the dead of night it might
a secret become
and in trying so to hide it
we would lose the word MYSTERY,
Between sand and stone
trout await their river,
the river, its stream...
the LAKE... what of it?
And the clouds and the rain?
Drink we dare not...
Between BEING and DESIRE
MAN, usurping the word SIRE,
keeps the WOMAN
but time knows success
and now my mistress
says NO... and YES.
A tree become BOOK
One LEAF brings to life
a season of birds...the soul
and crumbles away
at the very first blows.
Beware the INVISIBLE
And again become the target,
the bow... the arrow and
the silence and the river
and the points of light that glow in the
Hon. Senators: Hear, hear!
The Hon. the Speaker: Honourable senators, I regret to advise that the
extended time for tributes has expired. I still have on my list Senator
Beaudoin, Senators Keon, Jaffer, Joyal, Bacon, LaPierre and St. Germain. I will
continue under Senators' Statements with those names.
Is it agreed, honourable senators?
Hon. Senators: Agreed.
Hon. Wilbert J. Keon: Honourable senators, it is a wonderful honour
and pleasure to join you in paying tribute to a truly great Canadian, Honourable
Senator Gérald-A. Beaudoin, who has made the well-being of Canada his business.
In 1997, the President of the Canadian Bar Association, Russell Lusk, during
the presentation of the Ramon John Hnatyshyn Award for Law, recognizing
outstanding contributions to the law or legal scholarship in Canada, said that
Senator Beaudoin's contribution to the practice and understanding of law was
truly exceptional. He has consolidated the relationship between practitioners,
academics, francophones and anglophones. He is a true example for the
I have known Senator Beaudoin for some 35 years. We were both professors at
the University of Ottawa in our respective disciplines. He went on to become
Dean of the Faculty of Law. We both served on the board of governors at the same
time. Senator Beaudoin was a great promoter of the University of Ottawa. His
contributions in that realm have elevated the university to what I believe is
the only true bilingual university in our country. In addition to being a
lawyer, a law professor, dean and senator, he is a prolific author, having
published more than 100 articles, dozens of books and a number of elaborate
volumes on constitutional issues.
When I came to the Senate in 1990, I was very relieved to see my old friend
by my side. I found myself at that time sitting on the Standing Senate Committee
on Legal and Constitutional Affairs, sadly lacking in expertise. I treasured the
support and counsel of Senator Beaudoin and went to him very often.
Today, I find myself again in the presence of members of the Standing Senate
Committee on Official Languages.
During our debates, his remarks are always judicious and to the point.
He is always able to bring clarity, with ease, to the constitutional
perspectives of our discussion.
Senator Beaudoin, in the name of all Canadians, I thank you for your fervour
and commitment. You are, indeed, an institution within an institution. It has
been a great privilege to work with you here and elsewhere. I will miss you. We
will all miss you.
Hon. Mobina S. B. Jaffer: Honourable senators, I, too, rise to pay
tribute to Senator Beaudoin.
Senator Beaudoin, I have served with you on many committees — Bill C-36, the
Human Rights Committee and the Legal and Constitutional Affairs Committee. I
learned so much. Thank you.
You had a passion for laying the foundation by seeing that everything was
constitutionally sound. Yes, often your questions were predictable, but it
certainly helped us all to focus on the Constitution and the Charter.
You will be difficult to replace on our committees. Your work will be missed,
but most of all your presence in the committees will be missed.
We will miss you greatly. Thank you.
Hon. Serge Joyal: Honourable senators, it is with much gratitude that
I rise to mark the retirement of Senator Beaudoin, a personal friend since 1969,
when he tried to recruit me in London to teach administrative law at his
university's law school.
Senator Beaudoin is a man of integrity, dignity and complete devotion to his
work as a lawmaker and parliamentarian. Present at all debates of a legal
nature, he has generously shared the resources of his experience in law and the
enthusiasm of his conviction that the Canadian Charter of Rights and Freedoms
has become the pivot point, even the centre of gravity, of the country's
Constitution. Through his considerable writings and his many public
interventions, he has contributed to making the Charter known and appreciated as
a key feature of the Canadian identity. In every Senate debate or meeting of the
Standing Committee on Legal and Constitutional Affairs, he has demonstrated his
prodigious mastery of case law and I might say, his phenomenal memory of the 430
or so cases that have invoked the Charter since it was adopted 22 years ago.
Senator Beaudoin was right to foresee the fundamental changes that have
occurred in public debate since the Charter. Relations between the executive
powers and the Houses of Parliament, and between Parliament and the courts have
all been redefined. In the Charter, Canadians have seen a bulwark against the
arbitrary and the tyranny of the majority.
Finally, official language minority groups have seen in it the effective
guarantee of their rights and the confidence of being able to continue to exist
in the future, with their own characteristics.
In your always clear and correct language, Senator Beaudoin, you have
exemplified probity and have proved, beyond any doubt, that the Senate can make
a difference. Would you continue to contribute the immense resources of your
experience to our modest efforts so that the Canadian parliamentary system can
continue to grow at home and abroad?
Hon. Lise Bacon: Honourable senators, I would like to speak today on
the remarkable contribution made by our colleague Senator Beaudoin to the work
of the Senate. Appointed to this chamber in 1988, he has given us the benefit of
his erudition with respect to constitutional rights, his passion for
parliamentary debate and his lively interest in the work of committees. Most of
us know the parliamentarian Gérald Beaudoin, but he has also been a lawyer, a
law professor, a dean and a prolific author.
During his 20 years as a professor, he helped to train a generation of legal
experts. He was also Dean of Civil Law for 10 years, from 1969 to 1979.
His contribution to the teaching of law has been quite remarkable, especially
for those who attended the University of Ottawa.
He published many reference works for students and law practitioners. Texts
such as Le partage des pouvoirs, Canadian Charter of Rights and Freedoms,
and La Constitution du Canada, a new edition of which has just been
released, are all examples of the quality of his work. His acute sense of
analysis and his encyclopaedic knowledge of the law make Senator Beaudoin a key
reference when it comes to the Canadian Constitution.
Throughout his years in the Senate, Senator Beaudoin was very active on many
fronts, especially on committees, filling roles such as co-chair of the joint
committee on the amending formula, co-chair of the committee on a renewed
Canada, not to mention Chair of the Standing Committee on Legal and
Constitutional Affairs for nearly three years.
I must acknowledge Senator Beaudoin's particular contribution over the past
few years to the activities of the Canada-France Interparliamentary Association,
of which he was vice-president.
His constant interest in and enthusiasm for the association certainly
deserves to be mentioned.
Senator Beaudoin dedicated his life and entire career to the study of
Canadian constitutional law, and I am sure he will remain a keen analyst of this
subject for a long time. Perhaps he will find even more time to write and share
with us his considerable knowledge.
Hon. Gerry St. Germain: My neighbour, why are you leaving? You are too
young to go. Still, I would like to say a few words. For a professor from the
East who sat next to a cowboy from the West, you did a good job.
Senator Beaudoin, we worked together on many issues. You worked tirelessly
for the Metis and the Aboriginals. For that I thank you very much.
My friends, I have worked with Senator Beaudoin on a litany of files. As
Senator Lynch-Staunton said, I used to ask him questions. I would say, "Look, I
am a contractor, a commercial pilot, a former air force pilot; I do not
understand all this constitutional stuff. What is your version of this, Senator
Beaudoin?" He would say, "Well, it could be constitutional or maybe it is not
constitutional." I would say, "Which one is it?" He would say, "It could be and
it could not be." I would leave, shaking my head, but finally he would come to
me and say, "St. Germain, I would like to tell you the way it is." He always had
We worked together on Bill C-68, a bill nearly as controversial as Bill C-250
that is before us now. It was an interesting process to work with Senator
Beaudoin because he was torn on this issue. It was an area on which he had never
worked before. He knew it was a constitutional question. In the final analysis,
he voted with the other side. Having said that, I have to give him a lot of
credit because since then he has come back to me and said, "St. Germain, if I
had to do that all over again, I might do something different."
The greatest tribute I can pay to Gérald is to repeat a story from a recent
caucus meeting. I cannot divulge what happened in the caucus — as much as
honourable senators would like to know — but I can say this. The members of the
Canadian Alliance from Western Canada who are now part of the Conservative Party
said that the retirement of Senator Beaudoin is most sorrowful. They were so
impressed by the presentations he made at caucus that they wish he could stay.
Gérald, you always brought your intellect to the debate, but you always had
your practical side. Good luck, best wishes and enjoy your retirement.
Hon. Sharon Carstairs: Honourable senators, what we have not mentioned
tonight is the twinkle in the eye. I think we have missed talking about the fun
times with Senator Beaudoin because there is indeed a fun side to Senator
I will never forget going up in a gondola, in the middle of China, arriving
at the top with Senator Beaudoin, Senator Murray and Senator Molgat. As we
arrived we could hear singing, but we could not see the singers. We kept hearing
the music. Senator Beaudoin was the one who discovered them, up in the trees,
singing down at us. That was a wonderful example of the sparkle that comes into
his eye when a good thing happens.
He had a little trouble with some of the food in China, as I recall. Senator
Beaudoin loves his food, but there were many items on those menus that none of
us could identify.
Senator Keon will remember another time when we were studying the issue of
assisted suicide. Senator Beaudoin was having a lot of trouble with the idea
that someone who is nearing the end of his or her life would not be fed, that no
artificial hydration or nutrition would be administered. He was concerned that
the dying person would be hungry. I remember both Senator Keon and I agreeing
that, when Senator Beaudoin's time came, he would not be hungry.
Honourable senators, I remember so much about Senator Beaudoin. He was the
chair of the Standing Senate Committee on Legal and Constitutional Affairs when
I first came here, and we were working on Bill C-68, which Senator St. Germain
recalls. That was a tough one, because Senator Beaudoin, in chairing the
committee, in that fair and honourable and honest way of his, was not
necessarily sure the majority was right, at least not in the committee. Senator
Beaudoin was with me again — he as deputy chair, me as chair — when a
subcommittee of the Social Affairs, Science and Technology Committee, in June
2000, produced a report entitled, "Quality End-of-Life Care: The Right of Every
This is a man who has many interests, a man who, as we have heard tonight,
has many things of which he should be proud. Most of all, he should be proud of
the fact that he has remained a very human man.
The Hon. the Speaker: Senator LaPierre and Senator Prud'homme, I
regret that the time for Senators' Statements has expired.
I shall now call on Senator Beaudoin for a response.
Hon. Gérald-A. Beaudoin: Honourable senators, I have had several
careers in my life: 10 years in justice, 20 years in university and 15 years in
the Senate. I quite liked the Senate.
I had the opportunity to say what I think in the Senate and I chaired very
interesting committees, such as the two joint committees on the Constitution,
Beaudoin-Edwards and Beaudoin-Dobbie, during the days of Prime Minister
Mulroney. I quite liked the Standing Senate Committee on Legal and
Constitutional Affairs, on which I sat as chair and co-chair.
The Standing Senate Committee on Legal and Constitutional Affairs was
attractive. I worked with Senators Stanbury, Carstairs, Milne, Furey and, on my
side, Andreychuk, Nolin and Buchanan — not to mention Senators Lynch-Staunton,
Kinsella and Stratton.
I had the chance to work on committees such as the Special Senate Committee
on Euthanasia and Assisted Suicide, chaired by Senator Neiman, and on the
committee chaired by Senator Carstairs that produced the report entitled,
"Quality End-of-Life Care: The Right of Every Canadian." I sat on the Human
Rights Committee, an interesting committee created and presided over by Senator
Andreychuk, and later by Senator Maheu. I also sat on the Standing Senate
Committee on Official Languages, where Senator Gauthier was and is so active —
an essential committee.
It is through these committees that the Senate is most effective and
productive. We should be proud of what we accomplish in the Senate. The Senate
performs an essential legislative function. This is the reason for its
existence, as Senator Joyal has often pointed out. I do not know if I said that
I was in favour of abolishing the Senate, but I was certainly in favour of a
comprehensive reform of our institution and I have not changed my mind.
The Senate has more time to examine major issues. The Senate costs less than
royal commissions and, in many cases, it reports much more quickly. Abolishing
the Senate would be a very serious mistake and the negative impact on
legislation would be considerable.
My true passion is, of course, constitutional law and the Canadian Charter of
Rights and Freedoms. This seems obvious. I remain attached to the Senate. I am
even prepared to come as an expert to give my opinion to committees, if you so
The Senate must be reformed; it must be elected. Of course, we should respect
the vested rights of those who are already here, but senators should be elected.
However, an indirect election is sufficient. We should do what the Americans did
in 1913. Today, they have the greatest senate in the world. The Canadian Senate
is indispensable. How many bills are improved through amendments proposed by our
committees? We should be congratulated instead of being criticized. It is up to
us to find a way to be more visible.
People ask, what am I going to do now. A new career will begin the day after
I leave here. I will continue to write. I have written several books in my
lifetime. I have two books on the go, one of them my memoirs. I will be
lecturing in Canada and elsewhere. I am a member of a number of international
Primarily, I will be giving legal opinions and carrying out in-depth studies
on constitutional law. That is what I was doing before I came to the Senate. I
am now returning, 15 years after my appointment, to my former life.
The Senate has changed. It reflects our modern times and it must continue
along that path. Artists, actors, people from the theatre have been appointed,
and that must continue. The Senate must represent all walks of life. Its role is
to be a good legislative chamber.
Men and women are equal. Languages are equal. Equality is important in the
Canadian Charter of Rights and Freedoms. The principle of gender equality is one
of the products of the 20th century.
The finest section in the Charter is section 28.
I have been happy in the Senate. It has been a pleasure to cross the Ottawa
River each day, to have the opportunity to be in two beautiful provinces. The
Centre Block is like a castle, with its neo-Gothic style. I have been in the
Senate for 15 years, and at the beginning of my career I was an assistant
parliamentary counsel for the House of Commons. Hence, I have worked in a castle
for 20 years.
My thanks to all who have helped me in the Senate: officers, colleagues,
senior staff and all the personnel. I also want to thank my wife, who is in the
gallery, and who has always been at my side. She has played a very large role
for close to 50 years now. I would also like to thank my four daughters. Viviane
is a public servant, Louise an artist, Denise a veterinarian, and Françoise a
lawyer. I owe so much to my nearest and dearest.
A jurist I am born, and a jurist I will probably die.
Life changed in the Senate. We travel the world more, which is a fantastic
advantage. We learn so much. We are more involved in diplomacy. The legislative
branch of the state is much better than it was, and we have better researchers.
I have not forgotten the press, which is so fundamental. I am much in favour
of televised sittings. I am concerned with the unity of my country. I love
Quebec is lucky to be in Canada. Canada is lucky to have Quebec.
Hon. Senators: Hear, hear!
Senator Beaudoin: Canada is a great federation. The author of the
Quebec Act of 1774, the great British Prime Minister Lord North, who is not well
known but who was, nevertheless, a great Prime Minister, saved Canada at the
time of American independence. He gave back to Quebec the French laws of
previous times and he successfully kept Quebec in Canada. Lord North was a Prime
Minister of great vision. That is the kind of politician I like — a politician
with great vision who makes momentous decisions.
I am leaving content with what I have accomplished here. My thanks to you
Hon. Peter A. Stollery: Honourable senators, I have the honour to
table the third report of the Foreign Affairs Committee, which was authorized to
examine and report upon the Canada-United States of America trade relationship
and the Canada-Mexico trade relationship. It is an interim report entitled
"Mexico: Canada's Other NAFTA Partner (Volume 3)."
I ask that it be placed on the Orders of the Day for consideration at the
next sitting of the Senate.
The Hon. the Speaker: Honourable senators, when shall this report be
taken into consideration?
On motion of Senator Stollery, report placed on the Orders of the Day for
consideration at the next sitting of the Senate.
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable
senators, with leave of the Senate and notwithstanding rule 58(1)(i), I move:
That television cameras be permitted in the Senate chamber to record the
Royal Assent ceremony on Wednesday, March 31, 2004 at 3:45 p.m. with the least
possible disruption of the proceedings.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Hon. Marcel Prud'homme: Honourable senators, I want to bring to the
attention of the leadership of both parties that someone will have to ensure
that very clear rules apply. We have given permission for this before, and I
agreed to it. However, the permission was abused when the cameras showed
absenteeism and exceptional events that did not reflect well on the Senate.
I hope that the leadership will consider my observation carefully and ensure
that precise rules apply.
I was an initiator of CPAC in the House of Commons. It was a year and a half
before I, as chairman of the committee, gave my consent. I wanted to ensure that
the rules will be very clear, unlike those that apply in the Congress and the
Senate of the United States of America. I do not say this to criticize them, but
what they allow gives a very bad impression, and it does not reflect the work
I will give my consent with great pleasure, if I have this commitment.
Senator Rompkey: Honourable senators, Senator Prud'homme's comment is
well taken. It is one that I support, as I am sure does the entire chamber.
Although CPAC will televise the events, as we agreed earlier, I fully agree that
there must be clear rules and that we must avoid the mistakes of the past.
The Hon. the Speaker: Are honourable senators ready for the question?
Hon. Senators: Question!
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Hon. Senators: Agreed.
Motion agreed to.
Hon. Mobina S. B. Jaffer: Honourable senators, I give notice that at
the next sitting of the Senate I will move that this house call upon the
Government of Canada to recognize the genocide of the Rwandan people and to
condemn any attempt to deny or distort a historical truth as being less than
genocide, a crime against humanity.
Hon. Jack Austin (Leader of the Government): Honourable senators, on
Wednesday, March 24, Senator LeBreton asked me a question regarding the national
unity reserve fund, to which I made the following reply:
Honourable senators, the Prime Minister was not aware of a fund called the
national unity reserve until the time he became Prime Minister, and that fund
has in no way been used by Prime Minister Martin.
Honourable senators, I was given to understand that the Prime Minister did
not know about a segregated fund known as the national unity fund. As it turns
out, my information was incorrect and I wish to apologize to the chamber.
Hon. J. Michael Forrestall: Honourable senators, my question is
directed to the Leader of the Government in the Senate.
In a written response to an earlier question about an untendered contract to
General Dynamics Canada for extra scope on the data management system for the
Aurora Incremental Modernization Project, I received the answer that the
contract was tendered properly but had merely been amended repeatedly.
Will the Leader of the Government please table the number of amendments, the
date these amendments were made and the corresponding changes in the value of
the contract to date? I realize he will not have that information at hand, but I
would appreciate his undertaking to obtain it.
Hon. Jack Austin (Leader of the Government): Honourable senators, I
shall take notice of the question.
Hon. J. Michael Forrestall: I have a supplementary question along the
same vein. The written response also stated that the data management system
would not be ready for production prior to the year 2008. This is the same data
management system that is supposed to go into the new maritime helicopter if
Sikorsky's H-92 is successful in the competition. According to Treasury Board
guidelines, in a lowest-priced compliance competition, which we understand this
to be, a competitor must be absolutely technically compliant to be awarded the
project. My recollection is that the competitors had to be certified prior to
the awarding of the contract. The contract is expected to be awarded some time
Can the Leader of the Government tell this chamber why, after HN-90's
disqualification, Sikorsky's H-92 is still in the Maritime Helicopter Project
competition if its data management system will not be ready, by the government's
own admission, until 2008? How can they be there if, to be eligible, they must
Hon. Jack Austin (Leader of the Government): Honourable senators, I
shall seek an answer for Senator Forrestall.
Hon. A. Raynell Andreychuk: Honourable senators, last week the Leader
of the Government indicated that development aid had been cut due to an
overwhelming deficit and debt that this government had "inherited" — I believe
that is the word that was used. I would point out that much of that deficit
started in the 1970s when in fact we had aid and development assistance that was
Aid and development assistance has never been an issue of party politics in
Canada. It has been an overwhelming concern of Canadians to ensure that we have
full and adequate resources to work with other countries.
Is the Leader of the Government indicating that aid will now be dependent on
our personal status in this country? In other words, is the government leader
saying that, if we find certain priorities to be higher, Canada will again cut
development aid, or will we attempt to meet the goals set by Mr. Pearson some 30
years ago in a consistent and coherent way?
Hon. Jack Austin (Leader of the Government): Honourable senators, as
the Minister of Finance has indicated in the budget, and in statements
subsequent to the budget, it is the intention of this government to increase
foreign aid year by year. As the honourable senator knows, the current budget
contains a substantial increase in foreign aid for fiscal 2004-05. I mentioned
the sum last week.
I would be very happy to draw to the attention of Senator Andreychuk the
statement of the Minister of Finance.
Senator Andreychuk: I would ask the Leader of the Government in the
Senate to bring to the attention of the government my suggestion that it is time
that we clearly delineate what is humanitarian assistance for man-made or
natural disasters, what we spend in peacekeeping and what we allocate for true
development. While there is a willingness by Canadians to support all three,
often it is the development aid budget that suffers in times of humanitarian
assistance and peacekeeping.
A commendable article by David Malone in the weekend newspaper argued that to
be successful in development we must be there in a sustained and continued way.
Therefore, the development assistance budget must increase, not by putting
everything together globally, but by having the actual development budget
continue to rise to meet the goal that was set 30 years ago.
Senator Austin: Honourable senators, on the assumption that that was a
question, I have indicated repeatedly that this government intends to improve
its development budget. I have mentioned already the statements of the Minister
However, in listening to Senator Andreychuk, a question comes to mind —
which, unfortunately, she cannot answer. When I look at her leader's statements
with respect to reducing taxes, I wonder whether she can assure this chamber
that the development budget she is urging on this government will not be
impaired by her leader and that he will support this government's development
budget fully and without qualification.
Senator Andreychuk: Honourable senators, I am glad the Leader of the
Government in the Senate put that question to me. I should tell him that there
is only one policy statement out on behalf of the Conservative Party of Canada.
It is only the first building block. If one looks at it carefully, it indicates
that the Conservative Party is committed to increasing aid.
As the government leader is well aware, the party is very new and hence the
platform is yet to be developed. The government leader may wish to delay an
election sufficiently so that we can flesh out the chapter and verse on
Senator Austin: Honourable senators, I am not quite that curious.
However, I will look to future events, with the assurance that Senator
Andreychuk and I will make equally aggressive representations to our respective
Hon. Gerry St. Germain: Honourable senators, my question is to the
Leader of the Government in the Senate. It relates to the outbreak of influenza
in the poultry operations in British Columbia. I received several calls on this
subject this weekend. I tried to contact Honourable Senator Austin on Friday,
but his calls were being screened. The woman asked me if I was calling about
Bill C-250. I said, "We could make it apply to chickens, but that is not what I
am calling about."
Two zones have been created on British Columbia's Lower Mainland: a high-risk
zone, five kilometres from the original outbreak, and a 10-kilometre
surveillance zone outside of that. The entire Lower Mainland has been
established as a control area — which means that no poultry products can be
shipped out of there. This includes chicken and turkey. The cost to the poultry
producers there is $400,000 a month due to the inability to ship out. Producers
cannot ship to Vancouver Island or to the interior. The only place these
chickens can be consumed is in the lower mainland. It is surmised that, if the
CFIA does not change its position, they will have to begin depopulating — I
think that is the word being used nowadays — or euthanizing about 800,000 birds
and hatching eggs per week.
Has the Leader of the Government any information for the poultry industry at
this time in regard to relieving the situation?
Hon. Jack Austin (Leader of the Government): Honourable senators, the
honourable senator has usefully outlined a difficult situation in the
agricultural sector in British Columbia. The avian influenza, which is type
H7N3, is rampant in the hot zone and is suspected to be contagious in the
chicken and turkey farms throughout the Lower Mainland of British Columbia. It
is for that reason that the Canadian Food Inspection Agency has determined that
all these flocks are high-risk and are to be depopulated, to use the phrase that
Senator St. Germain has used.
I would advise the Senate that there are no reported cases of the more
serious H5N1 avian influenza strain that has ravaged parts of Asia and is
thought to be of risk to humans. The avian influenza H7N3 is not so considered.
The Government of Canada is certainly considering and, as I understand it,
intends to assist with financial compensation the poultry breeders who are
affected. I do not have the details of that program at this time.
Senator St. Germain: It is encouraging to hear, honourable senators,
that the government is considering some financial assistance.
I would ask the honourable minister if he would present the case to cabinet
because, in many instances, those who will be affected are young farmers who
have extended themselves to finance poultry operations, both turkey and chicken.
If assistance is not forthcoming immediately, it will financially jeopardize
their operations. If he would be so kind as to take that message forward,
honourable senators, the people in British Columbia, who are the only ones
affected, would be most appreciative.
Senator Austin: The situation with respect to financial costs to the
poultry breeders is recognized and, as the honourable senator knows, the owners
of birds that are being destroyed will receive compensation under the Health of
Animals Act. However, as yet, I have no details. I will convey the honourable
senator's representations along with my own.
Hon. David Tkachuk: Honourable senators, my question is for the Chair
of the Standing Senate Committee on Legal and Constitutional Affairs. Has the
chair ever invited witnesses to swear an oath before commencing their testimony
Hon. George J. Furey: Honourable senators, it is not the usual
practice of the committee to do that.
Senator Tkachuk: I was unable to attend Wednesday's meeting of the
Standing Senate Committee on Legal and Constitutional Affairs. However, I did
read the testimony, and in particular, the ruling of the chair on a question of
privilege that I raised. For the benefit of the chamber, I had asked for a
ruling because, during the committee meeting that I attended, MP Svend Robinson
gave testimony that I suspected to be untrue. We asked the witness for
clarification, but he did not withdraw any of his statements, even though I am
aware that he has been fighting this issue for quite a number of years and would
most certainly have been aware of all those who supported and who opposed his
private member's bill. When a member of the committee is persuaded that the
committee has received deliberately deceptive testimony and raises a question of
privilege, what procedure is the chair to follow?
Senator Furey: On the question of whether or not it was a point of
order, Senator Tkachuk raised the issue himself. He said he was not sure it was
a point of order, a question of privilege or either of the above.
Honourable senators, I do not have the ruling in front of me but I will
provide you with a copy if you do not have it. The ruling was that it was not a
point of order, and if it was a question of privilege, the place to raise it was
here in the chamber.
Senator Tkachuk: Honourable senators, we were asked if there were
witnesses that we thought should appear before the committee. One group called
me requesting to be heard, and I met with them early last week. They represent a
national organization and I was persuaded that the committee had not heard their
position and they should be called to appear. I forwarded the name of the
organization to Senator Beaudoin who passed it along using the appropriate
channels. Could the chair explain why, instead of hearing from this group, the
bill was reported from committee? Does the chair have a problem with this group?
Senator Furey: Honourable senators, I do not believe the committee had
a problem with hearing from any group. The question was answered at committee,
but the honourable senator did not attend the last meeting of the committee. I
shall provide him with the response, if he does not have it in front of him.
Senator Tkachuk: I do not have it in front of me. I am not a member of
the committee, and I would like to know the response.
Senator Furey: I shall provide that to the honourable senator.
Hon. Douglas Roche: Is the Leader of the Government in the Senate
aware that, within recent days, two important statements by high ranking United
States figures have been made cautioning Canada not to join the U.S. ballistic
missile defence system? First a group of 49 former U.S. generals, admirals and
senior officers, including a former chairman of the Joint Chiefs of Staff under
Presidents Ronald Reagan and George Bush, Sr., warned Canada to reject the Bush
administration's proposed system because the program is unproven and too
expensive to make it worth while. Second, Philip Coyle, a former senior Pentagon
official, said the system is likely to fuel the global arms race and will lead
to the weaponization of space.
Will the leader draw these comments to the attention of his colleagues in the
Hon. Jack Austin (Leader of the Government): Honourable senators, I
thank Senator Roche for the question. I did see that report and I read it with
great interest. I know that what appeared in the press, to which Senator Roche
has referred, is being considered in government halls.
Senator Roche: I will interpret that answer as being favourable to my
position. I hope I will not be proven wrong at some future date, honourable
Honourable senators, the House of Commons recently voted on this matter, as
the government leader knows, and nearly three weeks ago, I introduced a motion
in the Senate opposing Canadian participation in the U.S. missile defence
Does the leader agree that the time has come for the Senate to vote on this
Senator Austin: Honourable senators, what I do agree with is that the
inquiry initiated by Senator Roche on this topic should go forward when he is
ready to speak to the chamber, and I look forward to his address.
Hon. Douglas Roche: Honourable senators, I spoke on this matter on
March 9 and I have been waiting for any other senator who wished to speak to do
so. I have not noted that any senator wishes to participate in this debate.
Therefore, it is time for a vote.
My question to the leader is: Is it not time, after three weeks, that we vote
on a subject of extreme importance to the future of Canadian foreign policy?
Hon. Jack Austin (Leader of the Government): Let me apologize for the
second time tonight and say to Senator Roche that I am sorry that I misstated
the initiation of the debate.
I will certainly go back and consider what he had to say in this chamber. It
seems to me I have been a bit overly preoccupied with a particular bill. I know
that Senator Cordy has taken the adjournment, and I will make inquiries to
determine her intentions.
Hon. John Lynch-Staunton (Leader of the Opposition): If I may comment
on delayed answers, I have had a question on the Order Paper since February 10.
Could the deputy leader assure me or give me some hope that I will have an
answer before Easter?
Hon. Bill Rompkey (Deputy Leader of the Government): Easter is a time
of hope, Your Honour. I do not mean to treat the issue facetiously. It has been
a while since the question was posed, so I will ensure that the answer is
The Hon. the Speaker: Does the Honourable Senator Forrestall have a
question relating to a delayed answer?
Hon. J. Michael Forrestall: Honourable senators, I have a question
that has been outstanding for 10 years. All we want are the helicopters.
Senator Rompkey: Honourable senators, I will consult with the deputy
leader of 10 years ago to see that the answer is expedited.
The Hon. the Speaker informed the Senate that a message had been
received from the House of Commons returning Bill C-212, respecting user fees,
and acquainting the Senate that they have agreed to the amendments made by the
Senate to this bill without further amendment.
Hon. Bill Rompkey (Deputy Leader of the Government): Your honour, I
should like to call the government orders in the following sequence: Bill C-8,
Bill C-24, Bill C-4, Bill C-22, Bill C-16 and Bill C-21.
On the Order:
Resuming debate on the motion of the Honourable Senator Morin, seconded by
the Honourable Senator Gauthier, for the third reading of Bill C-8, to
establish the Library and Archives of Canada, to amend the Copyright Act and
to amend certain Acts in consequence, as amended.
Hon. David Tkachuk: Honourable senators, I would like to make a few
remarks on Bill C-8, to establish the Library and Archives of Canada, and its
predecessor, Bill C-36, under the same title from the last session of
Parliament, before we conclude third reading debate.
First, I would like to congratulate the official opposition in the other
place for their hard work and perseverance in committee and in the House. It
will be a distant memory now, but Bill C-36 was controversial from the moment it
was introduced and was mishandled at every step of the way. I hope that the
government learns something from the process.
The legislation was intended to create a new institution by merging two of
Canada's most venerable and historic institutions, the National Library of
Canada and the National Archives of Canada, since it was acknowledged that some
duplication of services existed but, more important, that both institutions
would benefit from the synergy created by operating under one roof.
What was controversial about the bill had nothing to do with the stated aim
of merging the two institutions. What was wrong with this bill was the addition
of a significant amendment to the Copyright Act through clause 21 that was truly
out of place and, I will add, out of line in Bill C-36.
From this point of departure, the tale becomes more twisted and complex with
decisions, agreements and reversals of decisions and broken agreements in the
other place. After much toing and froing and in response to the incredible
pressure the government members of the committee were feeling, Bill C-36 was
ultimately amended at third reading by shortening the period of time that clause
21 would protect deceased authors' unpublished works from until December 31,
2017 to until December 31, 2006.
The tale did not end here, since the session of Parliament ended before the
Senate passed Bill C-36. As Senator Morin explained in his committee report last
week, the bill was introduced in the other place in February at report stage but
without amendment, according to the rules for reintroducing legislation from the
previous session, at which point it was then referred to the Senate and renamed
Bill C-8. In essence, by delaying the passage of Bill C-36 until the new year in
a new session of Parliament, the intended extra copyright protection for the
works of deceased authors expired before the bill was reintroduced as Bill C-8,
thereby making clause 21 obsolete. This made amending the bill in your Senate
committee rather perfunctory, even if it satisfied many of the original critics
of that clause. The democratic victory did not occur in the Senate committee but
rather in the last session of Parliament when the original version of the bill
died on the Order Paper.
Honourable senators, I would like to inform this chamber that those vocal
critics of Bill C-36 and later Bill C-8 should thank their official opposition
in the other place for the initial work and the work of the opposition in the
Senate that was carried out late in the session last fall. It was only the
former Prime Minister's personal agenda that cut short that session, effectively
cancelling the true government intent of Bill C-36. All honourable senators
should ask why it was originally intended that Lucy Maud Montgomery's heirs
would receive special legislation that would translate into a form of special
compensation by this government.
The Hon. the Speaker pro tempore: Are honourable
senators ready for the question?
Hon. Senators: Question!
The Hon. the Speaker pro tempore: It was moved by the
Honourable Senator Morin, seconded by the Honourable Senator Gauthier, that this
bill be read the third time, as amended.
Is it your pleasure, honourable senators, to adopt the motion?
Motion agreed to and bill, as amended, read third time and passed.
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. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, Bill C-24 seems innocuous, but the way in which it sailed through the
House of Commons bothered me. That alerted me to look at it more carefully and
honourable senators should do that. It is the role of senators to question and
challenge proposed legislation from the other place, particularly that which is
rushed through as this one was rushed.
Bill C-24 was given first reading in the other place on March 12 shortly
after noon, and 10 minutes later, after unanimous agreement, second reading
debate began. The minister, a member of each of the recognized parties and the
member from Calgary Centre spoke. No other speaker rose and, within the next 20
seconds, pursuant to a House order, the bill was deemed read a second time; it
was deemed referred to a committee, even though it was not referred to a
committee; it was deemed reported without amendment, even though not a single
witness was called and no clause-by-clause discussion was held; it was deemed
concurred in at report stage, even though there was no report; it was deemed
read the third time without a single intervention by any member of the other
place; and it was deemed passed. All this process took less than 20 seconds.
Doing this so swiftly on a Friday afternoon can only raise suspicions, which
are not to Parliament's credit. If there are good and valid reasons for this
bill, why rush it through in record time on the eve of a weekend before a
near-empty chamber and gallery?
This is not the first time that we have been faced with such an accelerated
process. Honourable senators will remember Bill C-37, which came to the Senate
in June 2000. It sailed through the other place a few sitting days prior to the
summer adjournment. At least they slowed the process by deferring the vote to
the following day. In June 2003, Bill C-39, also a bill to benefit
parliamentarians, similar to the previous one I mentioned, sailed through at
third reading in 15 minutes.
Parliamentarians seem to have an inability to put their cards on the table
and to say to Canadians that they think they are entitled to a certain level of
remuneration and benefits that can be compared to others. We seem to have this
terrible reaction that Canadians do not feel that their parliamentarians or
representatives should be properly remunerated. I disagree with that. I think
most Canadians, while disagreeing with many of the things we do, respect the
fact that there are Canadians who are willing to sacrifice themselves. Most
parliamentarians, particularly those on the elected side, give up a lot to come
to Ottawa and serve Canadians and are entitled to proper remuneration — pay,
benefits, et cetera.
Honourable senators, we are faced with this bill, which I am told — and I
hope that at committee this will be explained — is designed to favour one person
only. There happens to be one person in the House of Commons who is suffering a
certain disability and who, should that person leave the House without the
benefit of this bill, will suffer some difficulty in meeting whatever expenses
are necessary to meet that person's medication and care.
I am sensitive to that situation, but I feel awkward and embarrassed that I
have to solve that problem by being asked to pass a bill to not only favour that
person but extend it to all of us. Let me tell honourable senators one thing
about this bill that is being argued both by the minister in the other place and
by Senator Morin in this place. The argument is that this bill will bring the
benefit package to the level similar to that of civil servants. That is not
true. No civil servant is entitled to a benefit package — meaning disability,
group insurance, et cetera — unless that person is receiving a pension. In this
case, the member of Parliament need not be receiving a pension and is still
entitled to the package. Now, if that is correct, why did the members of the
House of Commons not get up and ask for what they deserve? We should not pretend
that the argument for this bill is that it is equivalent to what civil servants
are receiving. The argument should be that members of Parliament are in a
special situation, a demanding situation, one greater than that of civil
servants and should be entitled to special treatment. I am saying that elected
members of the House are in a situation that is such that I would give them
every benefit possible, but I would do it in an open way.
My hope is that we will refer this bill to committee and discuss it openly.
There must be another solution. Three times since I have been in this place we
have been called on to pass general legislation to favour one or two individuals
in particular. That is wrong; not wrong for the individual being covered but
wrong that Parliament should be called on to do so. There must be a way, as
there is in private corporations and large businesses, so that the agreement
with employees covers an individual when he or she suffers a certain incapacity.
Why do we have to put Parliament in this awkward situation?
Honourable senators, the argument is not against the bill; the argument is
against the way our representatives are being treated and, unfortunately, as we
saw in the press when this bill was rushed through the other place, exposed to
unfair criticism. I hope that the Senate can correct that perception in front of
the committee and come up with a solution so we do not have to again endure
embarrassing, unfortunate and what should be unnecessary legislation as is
before us now.
The Hon. the Speaker pro tempore: Are honourable
senators ready for the question?
Hon. Senators: Question!
The Hon. the Speaker pro tempore: It was moved by the
Honourable Senator Morin, seconded by the Honourable Senator Downe, that this
bill be read the second time. Is it your pleasure, honourable senators, to adopt
Motion agreed to and bill read second time.
The Hon. the Speaker pro tempore: Honourable senators,
when shall this bill be read the third time?
On motion of Senator Morin, bill referred to the Standing Senate Committee on
Social Affairs, Science and Technology.
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
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".
(Pursuant to the Order adopted on March 26, 2004, all questions will be
put to dispose of third reading of Bill C-4 at 5 p.m. on March 30, 2004.)
Hon. Donald H. Oliver: Honourable senators, I am pleased to rise
tonight to once more join in the debate on the vital issues and enduring
implications of Bill C-4. I consider this debate to be an important event in the
history of this Senate.
First, though, I would like to make a few general remarks on the importance
of the concept of integrity in our deliberations. As I am sure everyone here
would agree, much of this debate has been about integrity and its critical
importance both to us as individuals and to us as representatives of this great
and honourable Canadian institution.
Allow me to underscore that importance with an observation from a great
Canadian, the late Yousuf Karsh. He saw his work as "contemporary historical
documents." For more than 60 years he captured the essence of the world famous
in politics, theology, royalty, the arts and sciences, and the military. His
1941 portrait of a glowering, defiant Churchill taken in Ottawa came to
symbolize Britain's indomitable wartime courage and catapulted Karsh into
international fame. As a result of this and many other memorable encounters, he
had this to say:
I have found that great people do have in common an immense belief in
themselves and in their mission. They also have great determination as well as
an ability to work hard. At the crucial moment of decision, they draw on their
accumulated wisdom. Above all, they have integrity.
Based on my long experience with honourable senators, I know that we too
share an immense belief in our mission. We are determined. We do work hard. We
often draw on our collective and accumulated wisdom. Above all, we have
However, as others have also pointed out both in this chamber and in
committee, we cannot ignore what is happening around us. The erosion of public
trust in government institutions is a worldwide phenomenon. Gallup
International's 2002 Voice of the People survey asked 36,000 citizens across 47
countries to rate their level of trust in 17 different institutions "to operate
in the best interest of society." The survey showed that "around the world, the
principal democratic institution in each country," the Parliament or Congress,
"is the least trusted of the 17 institutions tested, including global
Closer to home, a survey conducted in 2002 by the Centre for Research and
Information on Canada, CRIC, showed that the trust of Canadians "in their
governments to protect the programs that they care about has slipped
significantly since the year 2000." It also showed that while confidence in
political leaders is rising, most Canadians rate political leaders lower than
the heads of major companies in terms of honesty and ethical standards.
Sadly, in the wake of the recent sponsorship scandal, the faith of Canadians
in the integrity of politicians and government has reached an all-time low. For
example, a survey of Canadian business leaders, conducted by COMPAS for the
Financial Post this last February, showed that 85 per cent of these leaders
rate the sponsorship scandal as "a very serious issue," far more serious than
the railway scandals that affected Sir John A. Macdonald's government and more
than the pipeline scandals that propelled John Diefenbaker to a landslide
victory. These leaders are convinced that the scandal has shattered public
confidence in the honesty of politicians and government.
The sponsorship scandal is indeed a disgrace, and I trust and hope that it
will be resolved soon. However, we should remember that Bill C-4 is not part of
that solution. It is simply a bill that is fundamentally designed to determine
the method of appointing a Senate ethics officer or counsellor.
Honourable senators, tonight and tomorrow and the next few days we have a
choice here — to do the easy thing and let this bill pass, or to do the right
thing and make sure that the process of selecting and appointing a Senate ethics
officer upholds the honour, dignity and independence of the Senate. Now is the
time for us to do what is right.
Doing the right thing is the essence of integrity and the foundation of
enduring trust. That is why I have advocated for a robust and meaningful code of
conduct for this august chamber for the last 12 years; but it all begins with a
counsellor who is independent, and the process in this bill is fundamentally
Honourable senators, even though it has been quoted to you on several
occasions by several speakers, one cannot help but go back to the main language
in Bill C-4, proposed section 20.1. The language is clear and unmistakeable.
"The Governor in Council shall..." Nothing could be clearer. In other words, not
the Senate. This is not a Senate initiative. It does not become a Senate
initiative until we read the amendment of Senator Bryden that I will deal with
in some length later on.
However, this much is clear: First, the proposed section contains the
mandatory "shall," which says this is how it will happen and no other way. Who
has the power? The Governor-in-Council has. Frankly, we do not have to read any
further to realize and understand the true intent of the government in relation
to this bill.
That is why I support, in large measure, the amendment tabled by Senator
Bryden last Thursday. Overall, this amendment would serve to rebuild public
trust in the integrity of parliamentarians and buttress the respect that society
places in Parliament as an institution. It would reassure the public that all
parliamentarians place the public interest ahead of their private interests and
provide the means by which the questions of parliamentarians relating to proper
conduct may be answered by an independent, not partisan, adviser.
Contrary to what some of our honourable colleagues stated in this debate last
week, I do not believe that we will jeopardize our integrity before Canadians if
we amend this bill, as proposed by Senator Bryden, to make it right. Let us
remember, after all, what the real problems are when the press and the public
have criticized the role and responsibilities of the current Ethics Counsellor.
They know that the Red Book spoke of an independent ethics counsellor. The
current Ethics Counsellor is appointed by the Prime Minister and serves at the
Prime Minister's pleasure. Therefore, the office is neither independent nor
impartial in deciding questions of ethical import with respect to the Prime
Minister or the members serving under the Prime Minister. As a result of this
fundamental flaw, the current Ethics Counsellor has been widely criticized in
the media for acting "like a lapdog rather than like a watchdog."
As Bill C-4 stands now, it not only continues to provide the Prime Minister
with this control and influence, but it suggests that he would also have similar
control over the ethics officer appointed to the Senate. I suggest to honourable
senators that if the Senate blindly accepts Bill C-4 as it now stands, then we,
too, would be seen as lapdogs, not watchdogs. We, too, would compromise our
That independence is crucial to preserving our integrity. The Senate, and not
the Governor in Council, must appoint the Senate ethics officer, and we should
do it by resolution of this chamber.
As McGill Professor Fabien Gélinas pointed out to the Standing Senate
Committee on Rules, Procedures and the Rights of Parliament, and as Senator
Bryden reminded us last week, the Governor in Council does indeed have the last
word under Bill C-4. I am aware that other honourable senators have quoted from
the professor at length. I would like to quote again his precise words. Here is
what he said:
...the last word here is not with the Senate.
Honourable senators, it is not with us. We do not have any last word. It has
been dictated, and it is coming over from the PCO and the PMO.
Mr. Gélinas said:
It seems to be that it is quite possible, under the bill, for the Governor
in Council to appoint someone and get the resolution passed in the Senate. In
terms of political realities, the last word is actually with the government
and not really with the Senate. What the Senate can do is stop it. This is
negative power, not a positive power.
Therefore, when the inevitable vacancy arises, the Governor in Council can
appoint an ethics officer for six months, and the Senate, as an independent
body, would have no recourse. That is what the bill says. However, if the Senate
establishes the process of consultation and appoints the counsellor, this would
be more binding on future governments.
I would like to go back to what was originally offered to us by the Leader of
the Government in the Senate, Senator Austin. When he spoke on February 24,
2004, I read his words very carefully. Honourable senators will recall that in
my remarks the next day I asked him a number of questions concerning them.
We on this side are approximately 20 senators. The government side is
approximately 80 senators. I said to myself, how can we possibly have something
that is fair given that four-to-one ratio. Senator Austin answered that question
in part when he spoke on February 24. He said:
What I will offer you — and I come here to make this commitment — I will
give you a double majority. What I am going to do is let each majority have
He did not elaborate, so I asked him what that offer meant. Does it mean that
the government side votes and that they must come up with a majority, and then
the opposition side votes? I did not get an answer. What does it really mean?
I said that if we are a small opposition of only 20 senators, that would be
fair. If each majority could vote and the decision could be taken that way,
there would be no pressure on the minority, which would bring some sense of
equality to the process.
The Leader of the Opposition in the Senate, Senator Lynch-Staunton, went to
the bible of this place — the Constitution of Canada — and read section 36. He
confronted Senator Austin and said that this is not the case.
First, I will read what Senator Austin said on February 24 when he attempted
to assuage fears about compromising the independence of the Senate. He said:
...on behalf of the government I now make a commitment that prior to
sending the Senate the name of any person to be proposed to the Senate to be a
Senate ethics officer, the Leader of the Government in the Senate shall be
authorized to consult informally with the leaders of every recognized party in
the Senate and with other senators and shall be authorized to submit to the
Governor in Council the names of such persons who shall, in the opinion of the
Leader of the Government in the Senate —
— which gives an absolute discretion —
— have the favour of leaders of every recognized party —
— and this is the key part —
— as well as the support of the majority of the senators on the government
side and the majority of the senators on the opposition side.
I did not understand that then, nor do I now understand exactly what that
I questioned Senator Austin the next day on the concept of a double majority.
I asked whether there would be a standing vote or a secret ballot, whether there
would be opportunities to interview the candidates and what would happen if
there were tie votes in the results.
Last Wednesday, Senator Lynch-Staunton also asked Senator Austin about his
suggested requirement of a majority on the government side and the opposition
side. Specifically, Senator Lynch-Staunton wanted to know whether this
commitment would contravene section 36 of the Constitution — and I quote:
Questions arising in the Senate shall be decided by a Majority of Voices...
There is no possibility of a double majority. There is no possibility under
the commitment made by the Leader of the Government in the Senate to the
opposition that we can have that protection. We are left out on our own.
Senator Austin then admitted that his undertaking would not require a vote.
Rather, it requires a consultation and the approval of both the Leader of
the Government in the Senate and the Leader of the Opposition in the Senate,
as well as the advice of each that a majority of our respective supporters
would support such a resolution.
No vote would be required. Some informal process would take place, but one
that provides absolutely no security or protection whatsoever to a minority of
some 20 or less in the opposition.
As I said last month — and I repeat it now — for something as important and
meaningful as having a proper code of conduct and an independent officer to
administer that code in the Senate, we need to have more than a commitment that
is not binding.
Professor Gélinas quoted the following from page 610 of Latham's landmark
parliamentary reference, The Law and the Commonwealth:
In domestic affairs, agreement rarely, if ever, creates constitutional
convention because the usual parties, namely ministers, members of Parliament,
the Houses of Parliament and the King, have no moral authority to bind their
successors by mere agreement apart from precedent, but in Commonwealth
relations, it has long been recognized that the agreement of the executive
government of a member binds its successors because it would be derogatory to
its autonomy if other members, in order to ascertain their rights and
obligations in relation to it, were compelled to examine its internal affairs.
As Senator Austin admitted last week, "no Parliament can bind a future
Parliament." However, he hopes "that that might take place."
We need certainty, honourable senators, not hope. Bill C-4 does not provide
that certainty. This bill as it is now presented is inherently flawed. It does
not uphold the Senate's independence from the House of Commons — and Senator
Joyal has aptly and ably made that point on more than one occasion. Although the
Senate may refuse the Governor in Council's nomination for the position, the
power to select or present choices about the possible counsellor still rests
with the Prime Minister. This is wrong. It makes the appointment process too
political, and it would taint the ethics counsellor before he or she ever came
The language of the bill creates too much uncertainty, especially with
respect to consultation with the Senate. It says that the Leader of the
Government in the Senate is authorized to consult informally with other senators
about suggestions for an ethics counsellor. Is that the basis upon which we wish
to choose the person to oversee conflicts of interest, and so on? However, there
is no obligation to do that — that is, to consult informally — according to
Professor Gélinas. A resolution of the Senate is still required for a permanent
appointment to the position. This roundabout process makes no sense whatsoever
to me. Why bother with having the Governor in Council vet the suggestions of the
Senate and vice versa?
Last week, Senator Austin also said the following:
The critical objective is to ensure that the Senate ethics officer both is
and is clearly seen to be independent.
Honourable senators, clause 20.1 of Bill C-4 reads, in part, as follows:
The Governor in Council shall, by commission under the Great Seal,
Honourable senators, where is the independence in that clear language?
Senator Austin went on to say:
Let us be clear what independence we are talking about. He or she must be —
and must be seen by Canadians to be — independent of us, the people whose
conduct he or she will be overseeing.
Honourable senators, which method would better ensure that the Senate ethics
counsellor both would be and would be seen to be independent: an ethics
counsellor chosen from a list complied by the Governor-in-Council with
suggestions by the Leader of the Government in the Senate culled through
informal chats with his or her fellow senators, or an ethics counsellor chosen
with the consent of all party leaders and ultimately appointed by resolution of
Last week, Senator Austin seemed to suggest that the primary role of the
Senate ethics counsellor is to oversee the conduct of the Senate in a policing
sense and not in a counselling sense. As I have said before repeatedly, this
position and the code of conduct are not about creating a criminal or
quasi-criminal regime. This is not about censuring senators for conflict of
interest. This is not about making us fall in line because we are doing whatever
we want. The fundamental purpose of this position and the code is to ensure that
the rules are clear, that they are understood by everyone and that, if anyone
has a question about the rules, he or she can turn to an independent, impartial
counsellor and obtain a reasoned response — not to an individual who has been
appointed by the Governor in Council.
Equally important, honourable senators, is that we remember that the Senate
has the right to govern its internal operations. There is an important
constitutional separation of powers between the judiciary and the legislative
branch. The current bill creates a considerable risk, in my opinion and that of
Senators Joyal, Grafstein and others, of judicial interference in the actions of
the ethics counsellor, directly interfering with the constitutional independence
of the Senate and the privileges, rights and obligations of each and every
By contrast, Senator Bryden's amendment addresses many of my concerns and, I
am sure, the concerns of Canadians as a whole. First, the amendment says:
...the Senate shall, by resolution and with the consent of the leaders of
all recognized parties in the Senate, appoint a Senate Ethics Counsellor.
What could be clearer and more correct, given the powers and the separation
of this chamber?
Resolution and consent are a far more fair, equitable and trustworthy way to
ensure that all of the right people have agreed on an appropriate appointee,
rather than simply authorizing someone to informally consult.
Second, Senator Bryden's amendment eliminates the possibility of a prolonged
vacancy in the appointment of a Senate ethics counsellor. In the absence of
concurrence on the appropriate appointee, Bill C-4 currently enables the
Governor in Council to appoint an interim counsellor for a six-month term. For
six months, a PMO appointment may make decisions under this bill. What
protection is that for anyone?
The proposed amendment, on the other hand, outlines a clear and
time-sensitive alternative in the event of a deadlock, and makes eminent good
sense. It reads:
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
It seems right and fair to me.
This clarity and this certainty ensures that ethical oversight in the Senate
will never be left in abeyance for an indeterminate time. It will provide the
members of this chamber with the peace of mind that their ethical questions can
be answered within a reasonable amount of time. Canadians will know that ethical
oversight of Senate affairs is one thing they never have to question.
Third, and most important, Senator Bryden's amendment maintains the
independence of the Senate. Honourable senators, that is something of which I am
proud. It is something which is important to me, and I know it is important to
certain other senators. As Senator Bryden pointed out last week, as it stands
now, Bill C-4 creates a framework for the institution "that is outside the
Senate as we know it."
Under his proposed amendment, however, it is stated that:
The ethics counsellor will accomplish what needs to be done, objectively
and helpfully, for this autonomous and independent chamber, which has been
that way for 137 years...
Soon, honourable senators, if we go along with Bill C-4, we will lose what we
have had for all those years. It will be swept away and taken over by the PMO.
The proposed amendment continues as follows:
...without creating a new creature that, once set on its feet and started
to run, there is some question as to where it will go...
Like Senator Bryden, I believe that the defence of this institution and its
rights, independence and autonomy, is a matter of fundamental principle.
In summary, I believe that Senator Bryden's amendment ensures that the
process for selecting a Senate ethics counsellor is fair and equitable. It also
provides clarity and certainty about when and how this counsellor will serve
this house, and it upholds the independence of the Senate. It will serve to
achieve the basic purposes of this new ethics framework, which include the
ethics counsellor and the code of official conduct.
These purposes are, first, to assure Canadians that the Senate and its
representatives place the public interest ahead of a parliamentarian's private
interest by establishing a transparent system by which the public may judge this
to be the case; second, to provide certainty and guidance to parliamentarians on
how to reconcile their private interests with their public duties; and, third,
to foster consensus among parliamentarians by establishing common rules and by
providing the means by which questions relating to proper conduct may be
answered by an independent non-partisan advisor.
Above all, I believe Senator Bryden's amendment will maintain the trust that
Canadians have in the integrity of the Senate. Honourable senators, that is of
paramount importance to me, especially in these times when many Canadians are
questioning the trustworthiness of government.
As Adlai E. Stevenson, Governor of Illinois, said more than 50 years ago:
Public confidence in the integrity of the Government is indispensable to
faith in democracy; and when we lose faith in the system, we have lost faith
in everything we fight and spend for.
Honourable senators, we must do our part to restore the faith of Canadians in
the system, in government, in the Senate and in democracy. We must support
Senator Bryden's reasoned amendment. We must do the right thing, not the easy
I thank honourable senators for their attention.
Some Hon. Senators: Hear, hear!
Hon. Richard H. Kroft: Honourable senators, it is no secret that I
have had concerns about the so-called ethics package for a very long time. I
have spoken formally in this chamber, principally on November 6, 2003. I
questioned and debated with other speakers and have been engaged with many of
you individually and in groups. Clearly, I have been preoccupied with the issue.
On November 27, 2003, along with 46 of you, including 20 of my Liberal
colleagues, I voted in favour of an amendment put forward by Senator Bryden that
led to Bill C-34 being referred back to the other place.
My commitment to the principles and beliefs set out in my speech of November
6 remain as strong now as they were then.
Like most in this chamber, I support the concept of an ethics officer for the
Senate. Having said that, I have serious concerns about some aspects of the
office and of the rules that will govern it. Indeed, I believe and have always
believed that the heart of the issue lies in the rules. It is in the rules, our
rules, that we will succeed or fail in further enhancing the outstanding ethical
standard we now have in the Senate.
I place more importance on the officer in the role of advisor or counsellor
than as auditor or enforcer. I believe the greatest value of the position,
operating on carefully constructed rules, will be to assist in strengthening the
existing culture of prudent behaviour in the Senate and thoughtful planning by
individual senators in their personal, professional and business affairs. It is
absolutely essential in order to gain the full benefit from this new office that
we use it to assure at all times that our conduct is personally and
institutionally correct, rather than to think of it primarily as a system to
investigate and expose what would be very rare cases of wrongdoing. This is a
matter of mindset that will be very important as we go about the making of our
Working with the ethics officer, senators would be able with more certainty
than now to determine if they have or are contemplating a situation that might
call for some action or be reportable. The interaction between the ethics
officer and a senator might result in various decisions. It could mean the
senator chooses not to undertake a contemplated activity; or, more likely, it
could mean that the senator, through whatever means are adopted under our rules,
simply reports or declares his or her position on the public record.
The central issue for me is the power of information. Our rules should be
designed to show the public in what activities senators are engaged, be they
directorships, businesses or not-for-profit service.
With this information clearly reported, the words and actions of a senator
can be fairly judged. In some cases it will be clear that a senator should not
participate in a debate, a committee or a vote, depending on the circumstances.
None of these measures is dramatically new or revolutionary. They exist in parts
of our present rules, in other legislative bodies and in ordinary commercial and
corporate practice. I have complete confidence that we can produce a regime that
is fair, sensible and constructive.
Let me now turn to the bill. Last November, I voted to send Bill C-34 back to
the other place because I felt strongly that it failed to meet our needs in some
important respects and that its immediate passage was not essential to the
government of the day. I believed there was no need for us to pre-empt important
thought and debate on the broad ethics issue that only more time could make
possible. That was my judgment then and I have seen no reason to revise it
Indeed, each day this issue is before us confirms the value of more
opportunity for reflection. Now is a different time, however. It is incumbent
upon all of us to give sober second thought and to make hard decisions. Thus, we
must ask what are the realities today.
For one thing, the broad political context is very different from what it was
last November. For a variety of reasons, including issues before the public,
changes of leadership of parties and, indeed, changes of parties themselves, the
macropolitical environment has been dramatically altered. I believe further
debate in the other place at this time would not serve the objective of building
a solid ethics regime in either House of Parliament. I am not shy about
admitting that our government has other priorities.
Equally, I am quite conscious of the opposition's situation in the other
place. While senators opposite might urge us to send the bill back so a few
modest changes the Senate wants can be made, I doubt very much their
counterparts in that place would take such a benign and constructive view, tidy
it up and quickly return it to us. It is hard to imagine a debate in the Commons
on an amended Bill C-4 that would be helpful in pursuit of new ethics regimes in
either House of Parliament.
Next, I should like to address the efforts the government has made, through
the Leader of the Government in the Senate, to help the Senate reach a
We know where Senator Austin has personally stood on this issue from the
beginning. He made that very clear in a public way. I am also satisfied that he
has made great efforts, as a member of the government, to close the gap between
the limited terms of the legislation and the real and practical meaning of it
for the Senate. The government, through his urging, has made some effort to
accommodate the needs of the Senate. The fact of that effort, and the
understanding that has been gained on all sides as a result of it, again
confirms my belief that we were correct last November when we acted to slow the
process. Had we not, we would clearly be in a lesser position than we are today.
Where are we now? Is it meaningful to say that we are going to create a
convention? That is a debatable proposition but, on the other hand, conventions,
like precedents, have to begin somewhere. I do accept as a minimum that it
raises the political threshold. A future government would be at some peril in
trying to turn back the clock on the Senate. How great the peril will depend on
many things, including the public's perception of the Senate at that moment.
Each time the process is utilized over the years, if it is, the threshold will
be raised yet again. The hope, over time, is to move from accommodation to
precedent to convention. That is the case the Leader of the Government in the
Senate has brought to us, and I believe it is one that merits our careful
I repeat, honourable senators: Had the Senate not exercised its independence
by amending Bill C-34, none of this thought, debate and government recognition
of the Senate's position would have happened. Even acknowledging that the
concept of a convention is fragile, had the vote been forced in November, the
proposed convention would not exist at all. None of the analysis, debate and
declaration of government intentions would have taken place or would have been
part of the record. The base that we have to work from, limited as it is, simply
would not exist.
All senators, especially those on the government side, should remember these
events when we are in the future faced with other difficult decisions about our
role and our responsibility, when we again have to choose between quick and easy
compliance and rigorous, challenging and sometimes painful exercise of our
constitutional duty to analyze, debate, listen and think.
I have reviewed the substance of the legislation carefully, again and again.
I have come to accept and, indeed, approve of the rationale for the balance
inherent in it that neither side, executive nor Senate, could act unilaterally
other than for short term to replace the ethics officer. I also recognize that
the Senate has not the power to appoint but the power to block the process by
not producing its resolution required under the act. Ill-founded action by
either the executive or the Senate in working within this fine balance would
carry a high political price. That is the ultimate sanction and the ultimate
hope for long-term success.
To bring these remarks to a conclusion, let me point to the obvious: If we
pass this bill, everything that flows from it, the appointment process and the
entire operation of the system, depends on rules that the Senate, and the Senate
alone, can create. Make no mistake: The essential elements to enable and to
require the Senate to fill its part of the proposed convention governing the
appointment of the ethics officer must be in our rules, ironclad and crystal
clear. That remains in our sole power, and a heavy weight rests on us to
exercise that power well.
To achieve this will require much wisdom, goodwill and good management. This
government must keep its promise, and future governments must follow what today
can only be characterized as a potential convention. In time, it can become
more. In turn, the Senate must do its part by creating a culture and practice
through the careful development of our rules and then living by them.
Honourable senators, I cannot emphasize enough that we have no deadline to
meet in drawing these rules and no pressure other than to do it right. All of
this is far short of the certainty I would like to see. It is a path that shows
promise if it works and guarantees political pain for future governments and
institutional challenges for the Senate if it does not.
Looking carefully at the entire situation before us today, balancing
aspirations with realities and hoping for wisdom and goodwill, I am prepared to
vote for the passage of Bill C-4 without amendment.
Hon. Senators: Hear, hear!
The Hon. the Speaker: For clarification, I know that Senator Harb
wanted to speak.
Senator Cools, were you going to put a question, or did you wish to speak?
Senator Cools: I want to ask a question.
Hon. Gerry St. Germain: Honourable senators, my question relates to
what the honourable senator said, namely, that his decision has changed because
the political landscape has changed from November to now. In looking around this
place, I see no change, of any great dimension. I have always been, and I will
always be, a Conservative. I just had to effect something that was better for
the country, namely, a viable opposition — something you people do not really
want, and I do not blame you.
Senator Austin: We want you to be a viable opposition.
Senator St. Germain: I find it strange that the political landscape —
and correct me if I am wrong — has changed your thought process on something
that is so fundamental to this institution that we should be the masters of our
own house instead of capitulating to a prime minister or a Governor-in-Council,
or whatever. Regardless of the leader — Stephen Harper, Joe Clark, or whoever —
I would not think you would find that acceptable, given that Senator Bryden has
brought forward such a thoughtful and reasonable amendment.
Senator Kroft: Two things have changed my mind. First, there is the
political landscape — which is highly relevant. When I voted in November, we all
knew the circumstances. As I said in my speech, my thought and my hope was that,
in the end, it would prove not to be an essential piece of legislation for the
government and that, either with that government continuing or with a fresh
government, there might be an opportunity for the introduction of the subject in
a fresh way in Parliament. I would only send it back there if I felt there was a
reason to expect we might get it back in better form. I no longer have that
More important, honourable senators, there is something more fundamental.
Probably the most fundamental thing in my change of mind is that, after a great
deal of study on the subject, I have come to the conclusion in the broad context
for this institution — and this is not my narrow wish, if I could necessarily
say what I would want to make a personal decision for me — and in the broad
context socially, there is greater strength in the end in achieving some of the
balance in the system that comes from the Senate playing a main role and the
executive branch playing a role and both being able to either stalemate or make
the case successfully.
When I look at both Senator Bryden's amendment and at my own thinking, back
when I was so taken with the presentation of the late Lord Williams and his
associate, I was then more persuaded with the idea of simply taking one of our
own. We were quite general in whether it would be a clerk or a staff member or
someone else. We would give that person whatever functions we wanted. Following
down the line of the British model, I was taken by that.
Over the months, however, as I have listened, studied, read and listened
again — and thank God we have had more debate — I have become more persuaded
that there is greater strength not only for the public and for Parliament but
also for the Senate itself in the balance that is achieved in this situation if
we are successful at that tricky act that we are trying to perform through the
creation of a convention. That is really another way of saying that the creation
of a convention in this case is a willingness to rely on good sense and
The Hon. the Speaker: Senator Cools wanted to put a question but
Senator Kroft's time has expired.
Senator Kroft is asking for more time. Is leave granted, honourable senators?
Hon. Senators: Agreed.
Hon. Anne C. Cools: I was listening to Senator Kroft with some care,
particularly on the question of conventions. Not recently, but in my lifetime, I
have done a fair amount of study on conventions. Frankly, just wishing to create
a convention does not instantly create one.
My question for Senator Kroft has two prongs. Conventions are a political
morality, so to speak, which guides governments to be ethical and true and
faithful to the principles of parliamentary independence and ministerial
responsibility. How can the government or anyone rely on a convention to
overcome the principles of independence of government? Particularly, we can look
at the clause in the bill that I call "the removal clause," which states that
the Senate ethics officer may be removed for cause by the Governor in Council on
address of the Senate.
I am asking Senator Kroft to clarify that there is no such thing as an
address to the Governor in Council. An address is the mode by which either of
the chambers speaks to Her Majesty the Queen. Most statutes say addresses to the
governor or to the Queen. How can a convention be used to overcome such a
fundamental notion as the independence of Parliament and the right of Her
Majesty as a member of the Parliament to be petitioned by the form of an
address? An address is a peculiar parliamentary instrument.
Honourable senators, the scripting of the removal clause does not dignify the
Senate enough to even say the Governor General. It says the Governor in Council.
It has not even disguised its intention. Could Senator Kroft help me comprehend
this almost dialectical problem?
Senator Kroft: With respect, senator, your speech stands for itself.
Hon. Mac Harb: Honourable senators, this is, in a way, my first speech
in this place.
I had a chance to make a statement to thank the former Prime Minister for
making the excellent decision to appoint so many wonderfully talented men and
women to this house. I had a chance to talk about one of the first projects that
I will be introducing in the Senate in order to deal with the democratic deficit
that our esteemed Prime Minister has been talking about; that is, to ensure that
Canadians demographically, whether young or old, can collectively choose their
elected officials, similar to the process that is found in Australia and around
the world in over 30 countries.
The second chance I had to speak in this Senate was on a bill that was
brought forward by the government to the Senate. I must admit, my remarks were
typed up, neatly done and prepared. Therefore, I did not have to use my brain.
When I first was appointed, I was asked what I thought about the difference
between the Senate and the House of Commons. I had to reflect a bit. There is
one thing: In the Senate, for the first time, I really had to use my brain. In
the House of Commons, I did use it but I really did not have to. In my case, I
had a government that was doing much of the thinking for me — an intelligent
government, a government with a vision, a government with a fantastic agenda. To
that extent, everything was like being on autopilot.
Suddenly, I come to the Senate and I see some of the fascinating proposals
that are coming from the other House, such as the ethics bill. I see some of my
intelligent colleagues here trying to block that bill. Suddenly, I am
second-guessing things. Really, what is going on here? We have a lot of
intelligence in this place. Why are we not letting this legislation go through,
despite the tremendous amount of intelligence?
Senator Oliver spoke earlier about the importance of having an ethics package
that reflected on and responded to public demand. I want to thank him because,
when I was in opposition about 12 years, it was Senator Oliver, along with
Speaker Milliken, who introduced the package to parliamentarians to respond to
the whole notion of ethics issues. It took about 12 years before we saw
something finally come before us as parliamentarians.
I want to say this to honourable senators. I have seen what the committee was
working on. I am not comfortable with it for many reasons. We have had a chance
to study the ethics package, and some feel it is not perfect in terms of the
rules that govern parliamentarians.
Do you know what? We are not dealing with the ethics package or the rules or
the regulations. We are dealing only with the establishment of the office of the
ethics counsellor. That is it — nothing more, nothing less.
What is the problem? I cannot see why we will not let it go. Look around.
Name one single person in this house who has not been appointed by the Prime
Minister of this land. Each one of us is a creation of a prime minister, be it
the present one or a former one.
Look at our officers in this house. The Speaker of the Senate is appointed.
Our clerk and our government leader are appointed. Look at the other House. Look
at our Governor General.
Senator Kinsella: She should be elected.
Senator Harb: All these are wonderful appointments. By and large, the
vast majority of these appointees have served us well. No one in this house can
tell me that the Auditor General of this land, who is an officer of Parliament,
is biased. No one in this house nor anywhere else can tell me that the Chief
Electoral Officer, an officer of Parliament, is biased. No one can tell me that
the Information Commissioner, an officer of Parliament, is biased. Each and
every one of these individuals has served this country well.
Honourable senators, let us calm down. Let us look at the bill before us and
let the legislation go through.
Senator Oliver said something extremely important: When we look at the
echelons, the ranking in terms of public trust and confidence, politicians are
at the bottom of the food chain. Frankly, honourable senators, if we do not let
this legislation pass, we will be feeding into that frenzy. We have to let it
go. When the time comes for us to select and establish the rules that govern,
the rules that this ethics officer will have to use to do his or her job, then
we can think things through and do the best possible job we can.
Between now and then, we have the possibility to study a mechanism whereby we
could ensure that we have a convention in place that is respected and carried
from one government to the next.
I agree with Senator Oliver when he indicates that the present Leader of the
Government in the Senate cannot oblige a future Leader of the Government in the
Senate to follow through. I also agree with the notion of some of our
colleagues, which has been mentioned in the past, that this government cannot
dictate to future governments what they can do and compel them to consult. As
long as it is not provided for in an act of Parliament, a future government is
not compelled to do anything. That is a fact.
We all understand rules and procedures. The other House follows rules and
procedures as does this house. When the Speakers of both Houses of Parliament
rule on issues, they always look to and rely on precedents. If we can appoint
individuals, then, of course, we can remove an individual. We can also ensure
that there is a mechanism in the rules to trigger such an action in the event
that the wishes of this Parliament are not taken into consideration when the
appointment is made. I would suggest that the very capable lawyers in this house
can come up with ideas and suggestions to ensure that this house is consulted.
Honourable senators, do not for a moment believe that it would be serving the
public interest for us, as an unelected body of Parliament, to turn around and
deny the peoples' representatives in the other House the passage of this bill.
After all, they are the ones who will be going out to face the electorate. What
do we expect them to do? Should they go out and defend us and say, "The senators
are upset because we are not allowing them to appoint their own counsellors"? I
do not think that will wash, honourable senators. If anything, we will turn
public opinion against politicians of all stripes, not only against ourselves,
but also those in the other House.
I would suggest that those who are having difficulty with this bill should
swallow their pride and let it go. Notwithstanding all of the difficulty we
have, let it go, and bite on something more substantial when it comes to the
rules governing this proposed ethics counsellor. We can then put our energy and
intelligence towards developing rules with which everyone can live, rules that
reflect the wishes of parliamentarians in this house. For us to do otherwise
would, frankly, be undemocratic. We just do not have the right to block
something that comes from the other House.
I must admit that, perhaps, the other House should have divided the bill into
two. However, I am not here to second-guess what the other House is trying to do
or not do. I am simply saying that it is an opportunity for us to show we are
gentlemen and gentle ladies. Let this bill go through, and let us move on to the
next piece of work.
Senator Stratton: You can turn it off again now.
Senator St. Germain: Honourable senators, I have a question for the
senator who just spoke so eloquently. Is Senator Harb saying that we should not
block anything that comes from the other place — that is what I understood him
to say — regardless of whether it is right or wrong?
The honourable senator stands here and defends a bill based on the role of
the ethics commissioner who operated in the other place, one Howard Wilson. He
is prepared to stand here and expect us to swallow our pride. Does he realize
what we will swallow all over Canada if we do this? We will hear a hue and
outcry from the public that will resonate from the extreme east coast of
Newfoundland and to the far extremes of British Columbia and as far south and
north as you can go. Is the senator telling us that we should not block anything
that comes from the other place and swallow our pride?
Senator Kinsella: Good question.
Senator Harb: Absolutely not, honourable senators. I started by saying
this is a wise chamber. I said that this is the house of sober second thought. I
also said, honourable senators, that we received a bill from the other place,
that we had an opportunity to debate it and amend it. We made suggestions, and
it was returned to the other House. The other House dealt with it with as much
finesse and intelligence as possible and sent it back to us. We have to make a
decision or a choice now.
Frankly, honourable senators, it is not a secret that we may end up going to
the voters at some point in the near future. A parliamentarian going into the
streets of Ottawa Centre campaigning would use the fact that the Senate blocked
a bill from the House of Commons as a single issue to attack the credibility of
the Senate of Canada. That is certainly the one issue I would use if I were
campaigning. To that extent, I would say yes, we should let it go through; but,
no, we should not swallow our pride. We will have time to deal with the
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable
senators, I am very interested to hear that a former member of Parliament, who
was in the other House for so many years, is now finally allowed to speak for
himself, but having heard him, I wonder if perhaps he might want to reconsider
My question to Senator Harb is: Will he be a better senator with the passage
of this bill? What difference will it make in his life? Will he be more ethical,
more loyal, more honest, more committed? What is the importance to him of this
Senator Harb: Honourable senators, this is not only about me. This is
about parliamentarians; this is about public cynicism; and this is about
responding to public cynicism and dealing with issues of transparency. I agree
with my colleagues. You cannot legislate ethics. You either have them or you do
not. I do not second-guess any of my colleagues. Each and every one of them has
ethics and good morality.
We have here a bill that deals with the other House as well as with this one.
We cannot pick and choose. We do not have the luxury at this point in time of
saying, "I do not want this; I want that." At the end of day, we are all the
same creatures of the same animal. We are all appointed, each and every one of
us. We were all appointed by the Prime Minister of the land.
To that extent, I would say to my colleagues, in answering whether this
particular piece of legislation will make things better: Maybe for some, maybe
not for others. Is it needed? The answer is yes. Should it pass? Absolutely.
Should we vote for it? Yes.
Senator Lynch-Staunton: Honourable senators, my question was simply:
How will we be better parliamentarians with the passage of this bill? I can tell
the honourable senator, quite frankly, that I am against the bill, but not
because I am against ethics. I am against being offended by the fact that I have
to be challenged in my integrity and honesty. If this bill had been law at the
time that Brian Mulroney had asked me to become a senator, I would have had
second thoughts before accepting. Never in public life have I been so challenged
as this bill challenges me. It challenges me to divulge everything. It
challenges my wife to divulge everything. For what purpose? Is it to titillate
people? Is it to allow certain information to be leaked out?
Senator Kinsella: Voyeurism.
Senator Lynch-Staunton: Voyeurism, exactly. What else is being served
by this bill, particularly given its authorship? After 10 years of milking the
system, someone has said that we have to be pure. Senator Harb is part of that.
I would ask him now: Should this bill pass, how will he be a better senator, and
how will I be a better parliamentarian under its jurisdiction?
Senator Harb: Honourable senators, without exception, every Parliament
in Canada and every democracy around the world has some sort of an oversight. I
would want to suggest to my colleague that having an ethics counsellor does not
necessarily mean taking away or second-guessing his integrity. It does not mean
second-guessing his ethics or his morality. An ethics counsellor is a way of
responding to the institution, to public demand, dealing with issues in a
transparent way so that everyone understands what we are talking about, and
setting rules to govern the way we do things. Maybe he, I and every other
senator are okay at this time; however, there is one bad apple in every barrel,
and we must ensure that that one bad apple does not cast a shadow on the
integrity of other senators.
The Hon. the Speaker: I regret to advise that Senator Harb's time has
The next speaker on my list is Senator Mercer.
Senator Kinsella: I move that Senator Sparrow be allowed to speak
Hon. Terry M. Mercer: Honourable senators, I should first like to
thank Senator Harb for warming up the crowd.
The Hon. the Speaker: It is moved by the Honourable Senator Kinsella,
seconded by the Honourable Senator LeBreton, that the next senator to be seen
not be Senator Mercer but that it be Senator Sparrow.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Hon. the Speaker: Honourable senators, let me put the question as
Would those honourable senators in favour of the motion please say "yea"?
Some Hon. Senators: Yea.
The Hon. the Speaker: Would those honourable senators opposed to the
motion please say "nay"?
Some Hon. Senators: Nay.
The Hon. the Speaker: I believe the "nays" have it.
Senator Mercer: Honourable senators, as I said earlier, I should like
to thank Senator Harb for setting up my speech tonight.
Honourable senators, public confidence in government is essential if we, as
parliamentarians, are to ensure the validity of the political process. Ethics
and integrity are at the core of public confidence in government. The
institutions of government are required to set the highest objective standards
in order to strengthen the support and respect of Parliament.
When I was asked to become a senator, one of first things I did in looking at
legislation was to commit myself to support Bill C-4, and I still do.
Politics is about perception, honourable senators. People vote on
perceptions, not necessarily on realities. If we vote against Bill C-4, we are
voting against ethics and integrity — or at least that will be the perception. I
realize that this is not what motivates some of you to oppose the bill, but that
is what the Canadian public will perceive and that is what our opposition will
tell them — our opposition to those of us in the Senate.
I submit, honourable senators, that this is an opportunity to clearly define
the importance of this place in the eyes of those who would seek to destroy the
very foundation on which it stands. Bill C-4 is not a measure intended to weaken
this place. It is an opportunity to preserve the Senate's reputation for honesty
in public service. I can think of no better reason to support the principles of
We need to develop a code of conduct; we need an independent officer to
administer this code; and we need to restore the faith of the most important
people in government — its citizens. Bill C-4 strives to fulfill all of these
I am sure that opposition members in both places would savour the defeat of
this important piece of proposed legislation. However, I would remind those
honourable senators that the candidates in the upcoming election running for our
party will be confronting the candidates running for other parties and asking
one simple question: Why did you not support the ethics bill in the Senate?
Quite frankly, honourable senators, you cannot talk the talk unless you are
willing to walk the walk.
Elections are won or lost depending on how 308 candidates are perceived by
the public. Voting in favour of this bill is an opportunity for each of us to
send a message that government operates with the highest regard for ethics and
integrity. Not to do so would be a disservice to the Senate, a disservice to the
308 candidates in the other place and a disservice to Canadians.
Senator St. Germain: Honourable senators, I have a question for
Senator Mercer. The honourable senator implied in his speech that one can
legislate ethics and integrity. He made mention of establishing a code of
conduct and getting a commissioner, and extends this into the next election. I
do not know what that has to do with this place. We are not elected. If we are
doing it to hoodwink the public into believing we are doing something, that is
I have been in this place for 10 years; others have been here 20 years; and
Senator Lawson has been here for more than 30 years. I do not see anything
questionable in their integrity or their ethics.
I listened to the honourable senator's speech. I know he has been deeply
involved in political organization, but does he honestly believe that we should
be passing legislation for the sake of presenting to the Canadian public
something that possibly does not really exist?
Senator Mercer: Honourable senators, I thank the honourable senator
for the question. As I said in my speech, this is about perception. The
perception in public today is — and it has been this way for a number of years —
that people who participate in politics, whether in this place, in the other
place, in provincial legislatures or in other democratic institutions across the
country, are not ethical. I would contend that that is not the case. I do not
know anyone in this place or the other place who is unethical. I am fortunate
enough to know all honourable senators, and I am also fortunate to know a large
percentage of the people in the other place. I believe everyone in the business
is ethical, but the perception of some members of the public is otherwise. Our
job is to tell the Canadian public that not only are we ethical but here are the
standards by which we will be judged, if someone were to say that we are
As a professional, I have a code of conduct and ethical rules and practices
that I have to follow, and have done so for all of my professional life. It is
only right that this institution have the same.
Senator St. Germain: Honourable senators, we do have rules and
regulations in this place. We have a code. We have the rules and regulations
that we must live by.
Senator Lynch-Staunton: And the Criminal Code.
Senator St. Germain: The honourable senator talks about perception. In
my eyes, and in the eyes of most Canadians, it will be deception, not
Senator Austin at one time was opposed to the legislation. Now that he has
taken on the role of Leader of the Government in the Senate, God bless his soul,
he has to toe the party line.
Does the Honourable Senator Mercer actually believe that this will not be
perceived as deception as opposed to the perception that he is trying to
Senator Mercer: Yes.
The Hon. the Speaker: I did not see Senator Sparrow earlier. I thought
he was rising for a question, which is why I saw Senator Mercer.
Did you wish to speak, Senator Sparrow?
Hon. Herbert O. Sparrow: Honourable senators, no, thank you, but it is
very kind to ask. I was going to ask a question, which was refused by this side
of the chamber. I had hoped they would give me the opportunity to ask a
question. Perhaps another time I will be able to ask a question.
Senator Cools: Honourable senators, I rise to support Senator Bryden's
Honourable senators, the first principle is that Parliament and its members
are not to be subjugated or subordinated to the servants of the Crown, that is
the King's ministers, counsellors or judges, for any reason whatsoever. From
1689 on, Parliament set out in practice and statute to banish office-holders and
Crown servants from its bosom, both as its members and as its personnel. In
Canada, these acts were called the independence of Parliament acts. Our own
Parliament of Canada Act was created to do this. Its first planks were these
several independence of Parliament acts. These acts form the Senate and House of
Commons Act, the predecessor of the Parliament of Canada Act that Bill C-4 would
amend. These acts banned office-holders and Crown servants from sitting and
voting as members of Parliament. Until 1931, cabinet ministers had to resign as
members of the House of Commons and seek re-election. Ministers, Crown servants
and office-holders could not be members of the House of Commons without their
Honourable senators, the revolution and its settlement act, the Bill of
Rights in 1689, laid out these constitutional notions that are the
foundations of our Constitution, saying that the King used his Crown servants to
subvert the liberty of the realm. It said that the King:
...by the Assistance of divers evil Counsellors, Judges and Ministers
employed by him, did endeavour to subvert...the Laws and Liberties of this
Parliament and its members are to be free from coercion by the Crown
office-holders, in short, free from the pleasure or displeasure of the King,
today the Prime Minister's Office. Our Constitution bans office-holders from
Parliament except under severely proscribed conditions. The proscribed
conditions are ministerial responsibility and also the terms and conditions of
the appointment of Parliament's own officers.
Honourable senators, Bill C-4 is a corruption of the Parliament of Canada Act
itself. It is contrived to defeat that act and to defeat constitutional law from
1689 as embodied in Canada by the British North America Act, 1867. Bill C-4 also
contrives to defeat Parliament's own law, the law of Parliament.
Honourable senators, I wish to speak to the Senate ethics officer, its tenure
of office, its removal from office and its financial accountability.
First, financial accountability: Bill C-4, by clause 2, amending section 20
of the act, proposed sections 20.4(7) and 20.4(8), will place the determination
of the Senate ethics officer's budget and financial actions beyond the reach of
the Senate. This is most unparliamentary. The Senate will have no role, no
administrative supervisory or constitutional role, in determining the budget of
its own so-called ethics officer. This officer will be able to write a blank
cheque. In fact, this Senate officer's budget process wilfully shuts out the
Senate, unlike the budget process of the other Senate officers. The other Senate
officers' budget needs are proposed as part of the Senate's total budget, the
total appropriation. The Senate's sole option on this officer's estimates would
be an adverse vote and its political consequences. Such adverse votes are rare
and in this instance would not be practicable. Therefore, this ethics officer,
in practical terms, will have a blank cheque decided solely by the President of
the Treasury Board and the officer. Bill C-4 contrives the finances of this
officer to be beyond the reach of the Senate. This is objectionable, unusual and
it is not Parliament's control of the public purse.
Honourable senators, I come to the very important matter of the appointment
and tenure of this ethics officer. The Leader of the Government in the Senate,
Senator Austin, has told us that the Senate ethics officer is exactly the same
as the other Senate officers and that this new appointment is consistent with
constitutional principles. In fact, on March 24 I put questions to him directly
about the Senate ethics officer as compared to one of our Senate officers, the
chief one, the Clerk of the Senate. Senator Austin is quite wrong and I propose
to show honourable senators how and why. I propose to show that this position is
most unlike that of the other Senate officers and is a novel creation, totally
novel. I will also show that it is more lucrative and powerful than that of the
other Senate officers. It will be at the top of the heap. In fact, it is not a
Senate officer at all but some new constitutional creature that I choose to call
a parliamentary Godzilla.
Honourable senators, I shall compare the tenure of office, the salary and the
terms of the appointment of this new Senate officer with the Clerk of the
Senate. The Senate clerk is also the Clerk of the Parliaments, as the Clerk of
the Commons is the Under-Clerk of the Parliaments. Further, the Senate clerk is
the chief of all the Senate officers and has charge of all the Senate staff and
the day-to-day staff operations. He is also the custodian of our records and the
endorser of our proceedings. Whereas the proposed new position has a tenure of
seven years with a possibility for renewal and for removal from office by
address of the Senate, our Senate clerk's tenure is during pleasure with no
fixed term of appointment or renewal. Further, his removal from office is not by
address at all, as Senator Austin wrongly said a few days ago. Our clerk's
removal is at pleasure. He may be removed at a moment's notice without notice to
him or this house. This new position is quite unlike that of our clerk.
On the question of rank and salary, our Senate clerk, unlike the proposed new
position of ethics officer, does not have the rank of deputy minister. Neither
does he have a deputy minister's salary. The Senate clerk's salary is lower than
that of a deputy minister's salary. Further, our clerk's budget and financial
needs are prepared and submitted to the Standing Committee on Internal Economy,
Budgets and Administration and are processed and described as a part of the
Senate's total budget, which is voted on and approved by this house prior to
submission of the President of the Treasury Board, all quite unlike this new
proposed Senate ethics officer.
Honourable senators, I come now to the all-important terms of the appointment
of the Senate clerk. Parliament has no power to appoint its own officers. These
office-holders are appointed by the Queen using different royal instruments. The
Queen is the enacting power that gives statutes the force of law. So too it is
the Queen's commissioned power that gives appointments their legal force.
Centuries ago, Parliament needed personnel with the legal force that only the
King could give, but Parliament was hostile to office-holders. This is a thorny
constitutional question. The power of the King was needed, but the personal
control of the King through his servants, office-holders, was unwanted.
Parliament needed officers who were legally viable to do its work, yet such
legal viability, then as now, could only be found in the King's appointment, in
the King's royal grant of power.
Parliament's need of legal power for its officers and its aversion to Crown
servants both needed to be satisfied. Both constitutional questions had to be
resolved, particularly in those days when house officers, our clerks, were
sometimes also members of Parliament.
Honourable senators, this constitutional resolution was achieved in the 1700s
by the modifications of the terms and conditions of the appointments of the
House of Commons officers and their prescribed oaths. These officers' oaths of
office are definite expressions of the law in which the King's intention in his
letters patent and the duties of the House officer are both joined. Parliament
for centuries has prescribed the oaths to be sworn by the great officers, who
include the Clerks of the Senate and of the House of Commons.
Honourable senators, Senate records show this. Specifically, on March 15,
1994, Speakers Roméo LeBlanc informed us that Paul Bélisle had been appointed
Clerk of the Senate and the Clerk of the Parliaments. On parliamentary usage,
Speaker LeBlanc said:
Honourable senators, I have the honour to inform the Senate that, by the
usage of Parliament, the Clerk of the Senate is required to take the oath of
office before the Honourable the Speaker of the Senate.
The Debates of the Senate tells us that same day that "The oath of
office was administered by His Honour the Speaker."
Honourable senators, our clerk's oath dates back to at least the 1700s. Its
origin is not the oath of the U.K. Clerk of the House of Lords, but it is that
of the U.K. Clerk of the House of Commons.
The Journals of the Senate that same day reported Paul Bélisle's oath,
Ye shall be true and faithful, and troth ye shall bear to Our Sovereign
Lady Queen Elizabeth the Second, ...
The Journals continued to the critical portion of the oath of the Clerk of
Ye shall also well and truly serve Her Highness in the Office of Clerk of
the Senate of Canada, to attend upon the Senate of Canada, making true entries
and records of the things done and passed in the same.
Honourable senators, the Clerk of the Senate attends upon the Senate. This
lengthy oath ended:
Ye shall well and truly do and execute all things belonging to you to be
done appertaining to the Office of Clerk of the said Senate. As God you help.
Honourable senators, the Clerk of the Senate swore an oath of the great
officers, which is a constitutional complement to his letters patent. His
appointment is a grant of office, which grant is modified to meet Parliament's
constitutional and representative role. The grant of office places a condition
on the Senate clerk. That condition is to serve the Senate; that is, to "attend
upon" the Senate. Our clerk is a Crown servant, but simultaneously he is a Crown
servant who is pledged to be the servant of the Senate. Our Senate clerk is the
Queen's grant of office. He is a royal gift to the Senate. This affirms the
Honourable senators, the origin of the oath of the Clerk of the Senate is a
constitutional accommodation between the King and the Commons. Our Senate
clerk's oath is exactly the 1700s House of Commons clerk's oath in the U.K. The
words are the same except that the "Senate of Canada" is substituted for
"Commons." The words of the oath of the 1700s Commons clerk were:
Ye shall also well and truly serve His Highness, in the office of "Under
Clerk of his Parliaments, to attend upon the Commons..."
The critical words are "attend upon," as distinct from "attend at" or simply
"attend." The literature shows the distinction.
Honourable senators, in musing that the Senate clerk is prescribed to swear
an ancient U.K. House of Commons clerk's oath, we must recall that by the
Constitution Act, 1867, section 18, both the Senate and the House of Commons
powers and privileges are those of the U.K. House of Commons. Our Senate clerk
is a peculiar Canadian constitutional entity. He is styled the Clerk of the
Parliaments after the U.K. House of Lords clerk, but his oath is an ancient U.K.
House of Commons clerk's oath.
The Senate and the House of Commons clerks of Canada were constituted as
gifts of the Crown to the Houses on the condition that they became the servants
of the Houses. It is not accurate to say that this appointment of the Senate's
ethics officer is the same as all other appointments and that it is the same as
this one. Clearly, it is not the same. Clearly, the mode of appointment and the
mode of the oath were developed over centuries to reflect the constitutional
development of the institutions.
Honourable senators, that is why I am prepared to say that Senator Austin is
wrong and that Senator Bryden is right. Senator Bryden's amendment to say
"counsellor," rather than the creation of an unknown officer, is truer in fact
to the constitution of the Senate and to the notion of the independence of the
Senate. I would support it because I believe that Senator Bryden's amendment is
truer. Given that it is inherently true, it lends itself to the promotion and
the support of ethical behaviour.
Honourable senators, there has been much talk about optics and appearance. I
find myself dismayed when told that Bill C-4 is needed because it will form part
of a communications package or part of a public relations package. That causes
me a great deal of concern because for centuries we had distinct ways of
obtaining ethical behaviour. One way, for example, was to uphold the notion of
the oath of allegiance, which used to govern most ethical behaviour. This bill
bothers me; and it bothers me that the concerns of the Senate have not been
Honourable senators, there is no bill and there is no piece of legislation
that could create one single ethical person. The question of ethics as a
question of morality and the question of integrity, to my mind, are the
cornerstones, if not the anchor stones, of public life. The methods by which we
create and sponsor ethical behaviour are by being true to the institutions, to
the principles, to the convictions and to our oath. If one were true, one would
find that from truth alone a certain kind and quality of ethical behaviour would
Hon. Michel Biron: Honourable senators, on behalf of the government,
the Honourable Jack Austin, the Leader of the Government in the Senate, has
officially given his commitment that the Prime Minister would consult the Senate
before appointing an ethics counsellor. However, a subsequent Prime Minister
could, if he so chose, decide not to honour that commitment. It might not be
Christian or kosher, but it would be legal.
In practice, this commitment recognizes implicitly that the Senate was right
to want to appoint its own ethics counsellor. If it was the government's firm
intention to engage such a counsellor, present or future, why not include this
in Bill C-4? Why has it not agreed to the Senate's majority amendment? Since the
Prime Minister is in favour of the division of powers, a decentralized
decision-making process and increased responsibilities for parliamentarians, why
not take this unique opportunity to apply this principle and agree to the
majority amendment adopted by the Senate? If it had done this, we would not be
here today discussing it.
The problem with Senator Austin's commitment is that it does not bind
subsequent governments and that is why I will support this amendment.
Senator Bryden's amendment in no way modifies or changes the way in which an
ethics counsellor will be appointed to the House of Commons. It merely
determines who will appoint the ethics counsellor to the Senate.
If, in selecting the ethics counsellor responsible for oversight of him, the
ministers and members, the Prime Minister takes his inspiration from the Holy
Spirit in making his choice, how can we, the senators here in this conclave, if
I may so put it, not make a choice that is equally informed?
Contrary to what some senators might think, having an ethics counsellor
chosen by consensus of the Senate rather than by someone at the other place only
raises the bar of security for an ethics counsellor. The appointment of an
ethics counsellor by the Prime Minister does not necessarily mean the latter
will interfere. However, appointment by the Senate certainly ensures the
independence of the counsellor and the Senate vis-à-vis the head of the
The Senate, I am convinced, clearly and firmly supports the government's
efforts to have an ethics counsellor and an ethics code. Following the concerns
expressed by Canadians, the government needs to implement clear rules of conduct
respecting public ethics in the other place. At no time does the amendment
affect this bill with respect to the other place. We must pay attention to
public perception of the Senate. Some have a negative perception of the fact
that we are appointed. Some even find that we are unnecessary. However, no one
perceives senators as dishonest or lawless people. Others, on the contrary,
recognize the need for and integrity of senators.
The amendment will not diminish this perception in any way. Perhaps it will
emphasize that the need for a very clear code of conduct stems from the actions
at the other place and does not result from bad governance in the Senate. The
fact that we have put forward an amendment whereby the consensus of the senators
will be required for choosing a counsellor raises the bar higher than if the
Prime Minister alone made the choice. The public will perceive this action by
the Senate as an improvement to this bill. It is up to honourable senators to
make this happen.
A Father of Confederation and a reformer, George Brown, defended the
usefulness of the upper chamber in these terms:
We wanted to make the upper chamber a perfectly independent body, an
organization that would be in the best position to review objectively the
measures of this House and to protect the public interest against any
premature or partisan legislation.
If the Senate is appointed and not elected, it is to allow it to judge
without being influenced by trends, partisanship and electoral considerations.
When I asked Senator Sparrow, "If my survey showed that those who support the
amendment are in the minority, what would you do" he immediately replied, "I
will support the amendment, because it is a matter of principle."
I told myself: Here is a senator who can stand up, a senator who is not
influenced by electoral considerations, partisanship, fear, scaremongering or a
concern that the public might misunderstand the amendment.
I know that, with a few exceptions, senators who supported the amendment last
fall will support it again, because there is nothing in Bill C-4 to make them
change their mind.
Do what you have to do and justice will prevail. Honourable senators, we are
talking about the principles of independence of the Senate and the rights of our
With this amendment, we senators are showing that we care about ethics and
that we are sensitive to this issue.
The professional qualifications and the integrity of the ethics counsellor
will be thoroughly examined before any appointment by the two leaders in the
I cannot see how, after these discussions and once the decision is made, the
leaders would revoke the appointment for trivial reasons.
In fact, Senator Bryden said that it would be impossible for the Senate to
fire the ethics counsellor for frivolous reasons, because he would be appointed
for a fixed term and his appointment could only be revoked with cause, with the
consent of the leaders of the parties recognized in the Senate, and through a
The Fathers of Confederation wanted an independent upper chamber where
senators could express themselves freely. They wanted a completely independent
Thus, I believe that from the time I accepted the appointment as a senator,
and because I now am a part of this political body, the upper house, I feel
obliged to protect its role and defend its rights. For these reasons, honourable
senators, I shall vote in favour of the amendment.
On motion of Senator Rompkey, debate adjourned.
Hon. Mobina S. B. Jaffer moved second reading of Bill C-22, to amend
the Criminal Code (cruelty to animals).
She said: Honourable senators, I am pleased to be able to speak to the
provisions of Bill C-22. Senators will no doubt remember this legislation that
was before us in the last session as Bill C-10, when it was combined with the
amendments in relation to firearms, and then Bill C-10B when the two portions
were split. What were the objectives of the bill?
The primary goal of the bill is to modernize and simplify the law by
establishing clearly and concisely the legal criteria for the two major
categories of offences: acts of wilful cruelty and acts of criminal negligence
causing pain, suffering or injury to animals.
The legal criteria have not changed. In fact, the drafters have been careful
to use the same language as the Criminal Code so that the legal questions of
responsibility remain unchanged, while modernizing the act. Another purpose was
to remove the distinctions that go back to another century and mean that the
protection varies with the type of animal.
For example, in terms of certain existing provisions in the Criminal Code,
the status of an animal as a chattel determines whether prosecutions will be
successful or not, although the provisions fundamentally aim to protect animals
against wilful cruelty and criminal negligence.
These distinctions are illogical and incompatible with the purpose of the
law, as it has existed since 1953, namely, that all animals must be protected
against pain, suffering and needless injury.
The second goal of the amendment is to increase the penalties for animal
cruelty offences. The way society traditionally recognizes the seriousness of
particular conduct is through the penalty that it prescribes for that conduct.
The current maximum penalty for animal cruelty, no matter how barbaric or
heinous, is six months in prison. Canadians have been loud and clear that this
penalty is simply too low. Bill C-22 will substantially raise the penalty for
intentional cruelty by making the offence a hybrid offence, and by raising the
maximum penalty for an indictable offence to five years and for a summary
conviction offence to 18 months.
This flexibility will permit the Crown to tailor the penalty to the
circumstances of the particular case, and will signal to judges, prosecutors and
the general public that cruelty offences are serious cases of violence.
In 1978, in the leading case of Ménard, Mr. Justice Lamer clarified
the policy of the law and the essence of what is animal cruelty. The law
recognizes that animals can be used for a variety of purposes to satisfy human
needs, but also requires that animals should be treated humanely and subject to
no more suffering than is necessary to achieve those purposes.
With respect to cruelty and the violence link even greater societal interest
would be served by the provisions of Bill C-22. There is increasing scientific
evidence of a link between animal cruelty and subsequent violent offences
against humans, particularly in the context of domestic violence.
Questionnaires administered to battered women in Canadian shelters indicated
that 75 per cent of battered women who had pets reported that their aggressor
had also injured or killed one or more of these pets.
Mistreatment of animals can have a devastating psychological impact on
children forced to witness brutality toward animals they love.
Our judges, health professionals and law enforcement officers are beginning
to recognize and address animal abuse as an aspect of a bigger problem of
violence in our society. Bill C-22 provides Parliament with the opportunity to
adopt legislation that recognizes the true nature of animal cruelty as a crime
These amendments represent the first major overhaul of cruelty to animal
sections of the Criminal Code in over a century. Let me remind senators about
some of the history of these amendments.
Parliament has had a bill to amend provisions on animal cruelty before it in
one form or another since December 1999. First there was Bill C-17, an omnibus
amendment of the Criminal Code, followed by Bill C-15, another omnibus bill that
got divided in the other place, with the provisions on cruelty toward animals
made into Bill C-15B.
These bills to amend died on the Order Paper and were reintroduced in October
2002 as part of Bill C-10, which contained amendments relating to firearms.
In November 2002, the two portions were divided between bills C-10A and
C-10B. The latter contained the provisions relating to animal cruelty. Bill
C-10B died on the Order Paper in November 2003, and here it is back as Bill
In the year these amendments were before this chamber, there has been much
unusual activity between this chamber and the other place. From December 2002
until May 2003, the Standing Senate Committee on Legal and Constitutional
Affairs held comprehensive hearings into this legislation, hearing from many
witnesses representing a range of interests.
In May 2003, this chamber approved four substantive changes to the
legislation on the recommendation of our committee. The other place approved two
of these amendments, making a modification to one of them. Honourable senators
should know that these two amendments satisfied the last remaining concerns of
animal industry organizations that had been opposing the legislation for several
The other place also did not agree with two amendments made by this chamber.
The first one would have replaced the offence of killing an animal without
lawful excuse with the offence of causing unnecessary death to an animal. The
second would have created a defence for Aboriginal practices.
When the message from the other place returned to this chamber, honourable
senators voted to send the message back to the committee. The Senate insisted on
its outstanding amendments, and that message was communicated to the other
place. The other place rejected the outstanding amendments a second time,
sending a message back to this place. Honourable senators had just voted to
refer the message back to the committee when Parliament prorogued last fall.
As honourable senators know, it is the practice of the other place that a
bill may be reinstated within the first 21 days of the new session. Bill C-10B
was reinstated in the House of Commons on March 1, 2004, as Bill C-22. The
reinstatement procedure followed by the House of Commons does not allow any
changes to be made to the form the bill was in prior to the prorogation of the
last session. Consequently, Bill C-22 is identical to the old Bill C-10B, as
agreed to by the other place, when the last session ended; and this includes the
two Senate amendments that were accepted.
Honourable senators, I should like to talk for a moment about the support
that exists for this legislation. The vast majority of Canadians overwhelmingly
and loudly support Bill C-22 and the previous versions of the bill. Over the
course of the many years that animal cruelty amendments have been before
Parliament, Canadians have consistently voiced their strong support for
legislative change in this area. Many organizations and sectors are also
extremely supportive, including law enforcement, animal welfare organizations,
provincial attorneys general and the veterinary associations.
Many of the groups that are actively involved in the protection of animals
and the prosecution of offences have spoken to the urgent need to pass this
legislation so they can carry out their mandates more effectively. The Canadian
Veterinary Medical Association, the Canadian Federation of Humane Societies and
the International Fund for Animal Welfare have all expressed their support for
the legislation without any further amendment.
Many thousands of Canadians have put pen to paper on this issue to let the
government know that this legislation is important to them.
The honourable senators might like to know that livestock groups, like
hunting associations, animal research groups and the agricultural industry, were
for a time very concerned about the impact of this bill. The two standing
committees sought out the viewpoints and concerns of these stakeholders.
Thanks to the excellent work done by our committee, amendments were made to
the bill that were not perhaps necessary from a legal standpoint but were
intended to clarify matters of interest to Canadians without compromising
protections to counter animal cruelty.
Two amendments moved by the Senate and agreed to by the other place responded
to all the remaining concerns of these sectors of society and the industry in
Consequently, I want to state that livestock groups now support the bill in
its current form.
Honourable senators, there is now an unprecedented level of agreement and
support for Bill C-22 as it is before us today. The fact that both animal
welfare and animal industry advocates are pressing for this legislation to be
passed demonstrates convincingly that, in its current form, Bill C-22 represents
an appropriate balance between protecting animals from unnecessary pain and
ensuring that lawful and humane practices will not be subject to punishment.
Those concerned about the welfare of animals, those whose livelihoods rely on
animals and thousands of Canadians unaffiliated with these groups are all eager
to see the bill pass without amendment.
Next are the amendments from the last session. Let me speak in more detail
about the amendments that were made by this chamber in the last session. The
first amendment was to limit the definition of "animal" by restricting it to
"vertebrates other than human beings." The original definition in the
legislation referred to vertebrates and also animals other than vertebrates that
had the capacity to feel pain. It was intended to bring clarity into the law and
also maximum respect of animals that are not invertebrates. Many animal industry
groups worried about the reach of the law requested in this amendment. The
amendment made by this chamber limited the definition to vertebrates and opted
to prioritize certainty or flexibility in the law. If science evolves in the
future, the law can be amended in the future. While this was not the choice that
the government made when it drafted the legislation, the government did not
oppose the amendment in the other place.
The second amendment made by this chamber went a long way toward bringing
animal industry groups to support the legislation. This amendment made explicit
reference to defences in subsection 429(2) of the Criminal Code, namely, the
defences of legal justification, excuse and colour of right. This amendment
replaced an express reference to subsection 8.3 of the Criminal Code that
preserves all the common law defences. That section was added by the Justice and
Human Rights Committee of the other place during its study of the former version
of the bill. Although the government believed that the defences contained in
subsection 429(2) were still available even without the amendment, it was
understood that certain sectors of the population were concerned about them. In
the House of Commons, the government did not object to the spirit of the
amendment but did change the wording in order to eliminate an unconstitutional
reverse onus. Again, the hard work of both this chamber and our committee was
much appreciated by Canadians.
Honourable senators, last session two other amendments that this chamber
passed need to be addressed by our committee. The last amendment that will again
need to be studied by committee created a defence for Aboriginal persons engaged
in traditional practices protected under section 35 of the Constitution.
One more issue caused some concern in the last session, namely, the issue of
ritual slaughter for religious communities and the concern that something in
this bill would put that practice at risk. This is not the case. Federal law
explicitly authorizes ritual slaughter in federally regulated slaughterhouses.
Section 77 of the Meat Inspection Regulations actually sets out how ritual
slaughter is to be carried out. That regulation is a clear statement of
government policy that ritual slaughter is lawful. That statement must be
understood as carving out an area of lawful conduct in relation to the offence
of cruelty. If the government authorizes ritual slaughter in one statute, it
cannot logically prohibit it in another. If it wanted to do so, it would take
very clear and precise language. Even so, ritual slaughter must cause immediate
loss of consciousness. This prevents the animal from feeling any pain. It is a
humane method of slaughter by law.
Ritual slaughter is, therefore, not cruel; it is exactly the opposite. It is
fully in compliance with animal cruelty laws. There is nothing explicit in the
current laws on animal cruelty and yet it is still lawful. Nothing in Bill C-22
turns ritual slaughter from legal to illegal activity or otherwise changes the
legal standard that applies. There is no validity to this concern.
To the degree that the concern relates to animal rights groups or others
starting private prosecutions against religious communities, honourable senators
should know there are many safeguards against vexatious or unwarranted private
prosecutions in the Criminal Code, including new ones that make prosecutions
even more difficult than they were just a few years ago. In every private
prosecution, there is an opportunity for a court to examine the case and decide
whether it has merit, and the attorney general has the right to intervene and
put a halt to it. All of this will happen before the accused person is ever
summoned to court, before there is any cost or publicity. There is simply no
reason to worry about private prosecutions getting out of control.
In conclusion, honourable senators, those are the main issues raised by this
legislation in the previous session. I am sure that these issues will get a full
airing when the bill is referred to committee. This legislation is as important
today as it was in 1999, when first introduced in Parliament. In recent weeks,
our newspapers have reported cases of dog poisoning in Toronto and a mutilated
kitten in Montreal. It is time for Parliament to stand up and declare this kind
of behaviour to be completely unacceptable. It is time for Parliament to
demonstrate that we share the concern of Canadians that animals deserve to be
protected from needless cruelty. This is what the overwhelming majority of the
population is expecting of us.
Thank you, honourable senators, for your attention today.
Hon. Anne C. Cools: Honourable senators, could Senator Jaffer
enlighten me on this business of this particular bill being reinstated? This
bill, Bill C-10B, did not originate in the House of Commons, so I am having
difficulty grasping how it could be reinstated. The honourable senator will
recall that Bill C-10 was divided here in the Senate. At that time I had a
number of concerns that the division was not executed properly and that it had
created two new bills. The honourable senator will remember that the motions all
referred to two new bills, complete with new bill numbers. Therefore, could
Senator Jaffer answer my question?
In addition, could the honourable senator respond to a related question that,
for me, was a thorny one? In response to the Senate dividing the bill into Bill
C-10A and Bill C-10B, she will recall that the House of Commons, in its motion
to accept the message on Bill C-10A, had a lot to say about the Senate breaching
House of Commons privileges in respect of creating the two bills. Perhaps the
honourable senator could explain this reinstatement to me and how this
reinstatement can then just wash away the House of Commons motion criticizing
the Senate for its actions.
Honourable senators, this is a troublesome question. If we live here, we live
close to the Ottawa River. If someone is drowning in the Ottawa River, we can go
and rescue him or her. However, if a person is in the St. Lawrence, we cannot
rescue him or her. I fail to understand how the House of Commons can keep
reinstating that which is not its and reinstating that which is not before it.
Honourable senators, I question this entire reinstatement process. As I said
before, it is unconstitutional and improper. The major problem — and Mr. Martin
has articulated it as the democratic deficit — is that all the constitutional
rules and systems are being ignored. I, for one, want to know how this bill can
be before us, claiming to be reinstated in these circumstances. It is a fraud.
Senator Jaffer: Honourable senators, the issues that the honourable
senator has raised were eloquently addressed during our debate on this bill. As
I pointed out today, the House has the option of reinstating a bill, which it
has done, within 21 days of opening the session. In this case, it is the bill
which is back before us. We will have an opportunity to debate all the issues
that the senator has raised in committee and report the bill before third
On motion of Senator Stratton, debate adjourned.
Hon. Pierre De Bané moved the second reading of Bill C-21, to amend
the Customs Tariff.
He said: Honourable senators, I have the honour of presenting Bill C-21,
amending the Customs Tariff, which will be examined in second reading today.
This bill would extend the general preferential tariff or GPT and the least
developed country tariff or LDCT for 10 years, that is, until June 30, 2014. The
GPT and LDCT are preferential tariff programs through which Canada provides
assistance to developing countries and the least developed countries.
These two programs are part of the customs tariff and are subject to a sunset
clause, such that they will expire on June 30, 2004. For decades, these programs
have been unilaterally providing preferential tariffs on imports originating in
beneficiary countries so as to stimulate exports and economic growth in these
During the mid-1960s, as honourable senators will recall, there was a growing
recognition that preferential tariff treatment for developing countries was a
means of fostering growth and the well-being of poorer nations. Following a
recommendation of the United Nations Conference on Trade and Development in
1968, most developed countries implemented unilateral non-discriminatory tariff
preferences for goods from developing countries.
This generalized system of tariff preferences was intended to assist
developing countries to increase their export earnings and to stimulate their
economic growth. The system was introduced under the framework of the General
Agreement on Tariffs and Trade, GATT, the predecessor to the World Trade
Organization. Members of the GATT agreed that developed countries would be
permitted to award more favourable treatment to products imported from
developing countries than to similar products from developed countries. It was
also agreed that the preferential tariff would be non-discriminatory and
It is under this program that Canada introduced the GPT on July 1, 1974, for
an initial period of 10 years. The GPT has been renewed twice since then, in
1984 and 1994.
Canada subsequently introduced the LDCT in 1983 in the context of an
international effort to provide even more generous preferential tariff treatment
to goods from the world's least-developed countries. The LDCT has also been
renewed since then.
As I indicated, both programs are now set to expire on June 30, 2004. The
objective of the bill before the house is to continue these important tariff
programs beyond that date for a further 10 years.
I would like now to take a moment to review some of the essential features of
Under the GPT, more than 180 countries and territories are entitled to zero
or low tariffs on a large variety of products that are covered under the customs
The main goods not covered by the GPT are agricultural products that are
subject to the supply management system, including eggs, dairy products,
poultry, refined sugar and most textiles, clothing and footwear.
Three quarters of the goods covered by the GPT can be imported to Canada duty
free. The other goods are subject to duties that are lower than the regular MFN
rate. Like other programs put in place by other industrialized countries, the
Canadian GPT is a unilateral program, which means that the Canadian government
can make changes at any time to the various GPT elements.
It may be of interest to know that, in 2003, the primary beneficiary of the
GPT was China, which provided 60 per cent of the imports covered by this tariff.
That country was followed by South Korea, Thailand, Brazil and India.
As for the LDCT, it is granted to 48 of the poorest countries in the world,
according to the UN definition, which is based on various criteria such as
national income, health and education.
Since January 2003, the government has followed up on a commitment made in
2002 at the G8 summit in Kananaskis and all imports from LDCT countries are now
duty free, with the exception of a few agricultural items such as dairy
products, poultry and eggs.
Honourable senators, the reasons that justify the introduction of the GPT and
the LDCT decades ago still remain. There are still many countries in the world
with low per-capita income levels. We were reminded again of this fact in a
recent report by the United Nations Commission on the Private Sector and
Development, co-chaired by Prime Minister Paul Martin. The report highlighted
that despite progress over the last 50 years, 4 billion people live today on
less than U.S. $5 per day in the developing world. Of those, 1.2 billion people
live on less than U.S. $1 per day. Hence, the promise that originally led to the
establishment of preferential tariff programs — that they would encourage an
increase in exports that stimulates economic growth and helps reduce poverty in
the developing world — still holds today. While many studies have pointed out
that preferential tariff programs have supported economic growth in many poorer
countries, they still see preferential access to the markets of the developed
world as an important instrument to help them improve their development
Therefore, extending the GPT and LDCT for another 10 years reaffirms the
government's commitment to promoting the export capability and economic growth
of developing and least-developed countries. Furthermore, improved market
opportunities are themselves important to attract much needed investment in the
Continuing these two long-standing preferential tariff programs will send a
positive message to beneficiary countries that Canada continues to see these
programs as an important tool for economic growth in developing and
As well, honourable senators, an extension would be consistent with Canada's
international commitments to help stimulate economic growth and reduce poverty
in the developing world. These commitments have been reiterated on many
occasions by Canada in such forums as the G8 and the World Trade Organization.
By extending these programs we will continue Canada's tradition of assisting the
developing world. Moreover, the evidence gathered in many studies, as well as
the example of certain countries and regions such as Southeast Asia, supports
the principle that export expansion contributes to general economic growth.
Finally, by extending the GPD and LDCT, Canada will be joining other
developed countries in their efforts to assist poorer nations. In this regard,
it is important to remind ourselves that all major industrialized countries,
without any exception, provide preferential access for the developing world, and
some of them, including the United States, Japan, and members of the European
Union, have recently extended their programs.
It is important to point out that the advantages associated with the GPT and
the LDCT are not limited to developing countries and the least-developed
countries. It is true that these two programs were initially designed as an
economic measure for developing countries, but they also present advantages for
In 2003, Canadian imports subject to the GPT and LDCT were worth an estimated
$9.7 billion. If these programs had not existed, Canadian importers and
consumers would have had to pay additional customs duties of roughly $273
million. It is obvious that Canadian consumers benefit directly from these
programs. Because customs duties applicable to goods from developing countries
are lower, Canadians can purchase imported goods at competitive prices.
Canadian producers benefit from the reduced duties on the inputs they import
from developing countries, which they use to produce goods in Canada. These
reduced tariffs on inputs help increase productivity for these producers. Thus,
these tariff programs contribute to the economic development of beneficiary
countries and also present advantages for Canadians.
Before closing, I should like to quote from the eloquent speech made by the
United Nations Secretary-General Kofi Annan before our Parliament, invited by
the Right Honourable Prime Minister, on March 9. In making reference to the
importance of the goals of the 2000 Millennium Declaration, a joint statement of
our ambitions for humanity in the new century, he said:
Reaching the millennium development goals will require a true global
partnership in which all developed countries play their parts through
increased and more effective official development aid, investment, advice, and
policies that ensure a just global trading system.
He went on to add:
...we must make certain that poor countries have a chance at development
and that they can benefit from globalization....
Developing countries should be given the chance to trade away their
His comments reflect the underlying principles behind the GPT and LDCT
programs, the extension of which is the focus of Bill C-21, introduced by our
government. They also highlight the importance of encouraging economic growth in
the developing world, including through expanded trade, as part of achieving
coherence between trade and development policy, an approach that Canada fully
Many of my colleagues in this house have been contributing to improve this
two-way trade between Canada and many countries of the world. I shall not name
names, but many colleagues have been very active in doing that. When countries
trade together, a solid foundation for better relations between them is built.
Honourable senators, as I highlighted earlier in my remarks, the economies of
many developing and least-developed countries still have to make great strides
if their people are to attain acceptable income levels, as evidenced by the fact
that one fifth of the world population lives on less than U.S. $1 a day. This
bill constitutes one substantive measure Canada can take to assist the
developing world in achieving the goals of poverty reduction. I strongly urge
honourable senators to support the bill and reaffirm Canada's continued
commitment to supporting economic growth in the developing world. As a member of
the international community of nations, Canada must continue to take an active
role in advancing international economic developing efforts. This bill is of
direct benefit to the people of the developing world, whose livelihoods are
partly dependent on the performance of the often limited export sectors of their
In case any of my honourable colleagues still have questions about extending
the GPT and the LDCT, let me simply say this: Both of these programs have been
in place for decades as part of Canada's commitment to providing more open
markets for and reducing poverty in the world's poor countries, a commitment the
government reiterated on many occasions in international forums such as the G8,
the United Nations and the World Trade Organizations. I am very proud that, in
the other House, all parties supported Bill C-21.
Let me remind honourable senators that Canada stands with all other major
industrialized nations, including the United States, Japan and members of the
European Union, in supporting the developing world through preferential tariff
programs. As I indicated earlier, the advantages to extending the GPT and LDCT
for an additional 10 years are many.
First, Canada will continue a long-standing international practice of
providing preferential tariff treatment to goods from the world's poorer nations
in order to support their economic growth and help reduce poverty.
Second, Canada's continued program for a fixed period of 10 years will
provide certainty and predictability to traders who use them in Canada and in
the developing and least-developed countries.
Third, continuing these two programs will complement Canada's foreign aid
policies by continuing to provide a balanced approach where it is recognized
that sustainable poverty reduction requires measures such as preferential market
access through tariff programs such as the GPT and LDCT to stimulate economic
Finally, while these programs were mostly conceived as economic assistance
measures to developing and least-developed countries, they also benefit domestic
importers of inputs and consumers of finished products by providing them with
goods that are subject to lower rates of duty.
Quite simply, a 10-year extension of the GPT and LDCT would be consistent
with past practice, provide a predictable and beneficial business environment to
users of the programs and reaffirm a long-term commitment by the government to
I urge all honourable senators to support this bill in order to allow for the
continuation of important Canadian measures that support economic growth and
poverty reduction in the developing world. Canada will continue to be an
inspiration for the developed countries to pursue those measures that not only
will improve the living conditions of the poorer countries but also will enhance
On motion of Senator Kinsella, debate adjourned.
The Hon. the Speaker: Honourable senators, it being twelve o'clock
midnight, pursuant to rule 6(1), I declare that the motion to adjourn the Senate
has been deemed to have been moved and adopted.
The Senate adjourned until tomorrow at 2 p.m.