Hon. Lowell Murray, Chairman of the Standing Senate Committee on
National Finance, presented the following report:
Thursday, May 6, 2004
The Standing Senate Committee on National Finance has the honour to
Your Committee, in accordance with subsection 3(5) of the Act
respecting employment in the Public Service of Canada, chapter P- 33 of
the Revised Statutes of Canada, 1985, that the Senate approve the
appointment of Maria Barrados, of Ottawa, Ontario, as President of the
Public Service Commission for a term of seven years, has, in obedience to
the Order of Reference of Tuesday, April 27, 2004, heard from the Honourable
Denis Coderre, P.C., M.P., President of the Queen's Privy Council for
Canada, and from Ms. Maria Barrados, and recommends that the Senate approve
her appointment as President of the Public Service Commission.
The Hon. the Speaker: Honourable senators, when shall this report be
taken into consideration?
On motion of Senator Murray, report placed on the Orders of the Day for
consideration at the next sitting of the Senate.
Hon. Marjory LeBreton, Deputy Chair of the Standing Senate Committee
on Social Affairs, Science and Technology, presented the following report:
Thursday, May 6, 2004
The Standing Senate Committee on Social Affairs, Science and Technology
has the honour to present its
Your Committee, to which was referred Bill S-17, An Act to amend the
Citizenship Act, has, in obedience to the Order of Reference of
Thursday, April 1, 2004, examined the said Bill and now reports the same
The Hon. the Speaker: Honourable senators, when shall this report be
taken into consideration?
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, with leave, later this day.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
On motion of Senator Kinsella, report placed on the Orders of the Day for
consideration later this day.
The Hon. the Speaker informed the Senate that the following
communication had been received:
Thursday, May 6, 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 6th
day of May, 2004, at 10:00 a.m.
Secretary to the Governor General
of the Senate
Bills Assented to Thursday, May 6, 2004
An Act to amend certain Acts of Canada, and to enact measures for
implementing the Biological and Toxin Weapons Convention, in order to
enhance public safety (Bill C-7, Chapter 15, 2004)
An Act to amend certain Acts (Bill C-17, Chapter 16, 2004)
An Act to give effect to the Westbank First Nation Self-Government
Agreement (Bill C-11, Chapter 17, 2004)
The Hon. the Speaker informed the Senate that a message had been
received from the House of Commons with Bill C-30, to implement certain
provisions of the budget tabled in Parliament on March 23, 2004.
Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the second time?
On motion of Senator Rompkey, bill placed on the Orders of the Day for second
reading Monday next.
Hon. Jane Cordy: Honourable senators, I have the honour to table, in
both official languages, the report of the Canadian NATO Parliamentary
Association, which represented Canada at the joint committee meetings of the
NATO Parliamentary Assembly and at the annual consultation between the Economics
and Security Committee and the OECD held in Brussels and Paris on February 15 to
Hon. Jean-Claude Rivest: Honourable senators, my question is for the
Leader of the Government in the Senate, and it concerns the fiscal imbalance.
Everyone knows that in Canada the needs of the provinces, particularly with
regard to health and education, are growing exponentially, while public revenue
is piling up in the coffers of the Canadian government. In Canada, as everyone
except the current government recognizes, there is a fiscal imbalance.
For the enlightenment of the Leader of the Government in the Senate, I will
quote the words of the Right Honourable Pierre Elliot Trudeau who, in the late
1950s, saw this emerging fiscal imbalance as one of the factors weakening
Canadian federalism. Mr. Trudeau wrote in Cité Libre:
When a government has such an overabundance of revenue, the suspicion
arises that such a government has taken more than its share of the fiscal
capacity of the Canadian taxpayer.
Last week, the current Prime Minister of Canada wrote to the Speaker of the
National Assembly of Quebec in response to a unanimous motion by all political
parties in Quebec asking that the Government of Canada recognize the reality of
the fiscal imbalance in Canada, echoing the concerns of the provincial premiers
representing all regions of Canada.
In a rather curious answer, the Prime Minister of Canada indicated that if
the provinces — Quebec in this case — had any additional needs — and God knows
such needs exist — in the field of health, then they should simply increase
My question is very simple: When will the current federal government
recognize Canada's fiscal imbalance and when will it take the necessary steps to
enable the provinces to assume their constitutional responsibilities and, in
particular, to restore their health systems to a state where they can meet the
pressing needs of Canadians?
Hon. Jack Austin (Leader of the Government): Honourable senators,
Senator Rivest has posed a question of great interest. I can remember back some
25 years ago, when the fiscal imbalance seemed to be very much in favour of the
provinces, the provinces were demanding that the federal government get its
economic house in order. This is an argument that flows back and forth in a
cycle. It has no science attached to it; no objective tests can be applied to
it. It is the continuing dialogue that manages the federation.
Senator Rivest's question assumes there is a fiscal imbalance. That is
actually the issue to be discussed. That assumption cannot be made. The federal
government has a substantial debt remaining, in the nature of $510 billion,
whereas the total provincial debt is $281 billion. With such numbers, one begins
the argument by asking: What is the definition of a fiscal imbalance?
Senator Rivest: Honourable senators, if there is no fiscal imbalance,
how can the minister and his government accept that thousands of Canadians have
to wait weeks, even months, to receive the medical treatment they need? We could
discuss the history of taxation in the Canadian federation, but do the minister
and his government realize that in addition to being used to reduce the debt,
the Canadian government's current surplus could meet the urgent needs of
thousands of sick Canadians who do not have access to medical services?
It is not that the provincial governments are not assuming or do not want to
assume their responsibilities, but simply that they do not have the financial
resources to productively invest the necessary funds for improving health
This is a tangible and urgent problem that all stakeholders across the
country are reporting and to which the government remains insensitive. When will
the government change its policy? What was the use in electing a new government
leader if the current Prime Minister, Mr. Paul Martin, applies the same fiscal
policy as former Prime Minister Jean Chrétien?
Senator Austin: The honourable senator is arguing from a premise that
has yet to be demonstrated. The argument that there are fiscal imbalances is far
from proven. Of course, as I have said, the federal-provincial debate will go on
and on as long as Canada is here.
Let me point out some facts that may help the debate. In 2002- 03, the
provinces' total tax revenues were $201 billion, including $34 billion in cash
transfers from the federal government. By comparison, federal fiscal revenues
were $178 billion before subtracting the cash transfers to the provinces.
Therefore, the total provincial tax revenue is higher than the total federal tax
revenue. The point is that the federal government does not see a fiscal
imbalance when the provinces have higher revenues than the federal government.
It is admittedly a subjective argument, as are all these arguments.
I point out that nearly all of the provinces have chosen to reduce their tax
revenues in 2003-04. Provincial tax decreases added up to $21 billion since
1995. Let us have the provinces explain why they are not providing the services
that their public requires and demands when they can enjoy the pleasure of
reducing their revenue base.
Senator Rivest: The minister's response is very clear. The election
promise of the current Prime Minister, Mr. Paul Martin, to take care of health,
is nothing more than window dressing.
The Leader of the Government in the Senate has just indicated to us that
everything that needed to be done was done in the past and that the Canadian
government, under Mr. Martin's leadership, will remain totally insensitive to
Canadians' concerns about health.
It is extremely dangerous for a government to take that road on the eve of an
election, to be so insensitive, unable and unwilling to meet the needs of the
The provinces are not concerned about federalism; they are concerned about
the men, women and children who need health care. That is the reality.
Senator Austin: Honourable senators, there are people all over the
country who need services. I am delighted to hear from Senator Rivest,
representing his party, that there is recognition of the importance of
government in supplying services to Canadians.
It is very reassuring because a number of Canadians were beginning to wonder
about the position of the Conservative Party.
I also want to say that my honourable friend is following very closely the
Bloc Québécois line. I wonder whether that has become the line of the
Conservative Party. The Bloc Québécois accused the federal Liberal government of
strangling Quebec by deliberately maintaining a fiscal imbalance. They propose
an immediate $2.3 billion increase to the Canada Health and Social Transfer for
Quebec alone. They also want mechanisms for debt retirement where half of all
the federal government surpluses, if any, would be transferred to the provinces.
Senator Lynch-Staunton: What is wrong with that?
Senator Austin: It is interesting to see the comparison and the
accommodation of policy in this area between the Bloc Québécois, who are
interested only in Quebec and have no investment in the stability or growth of
the nation, and the Conservative Party adopting the same line. It is very close
to the old Stephen Harper, is it not?
Senator Rivest: I would simply point out to the minister that,
tomorrow, in Lac Saint-Jean, the premier of Quebec, Jean Charest, will join the
Prime Minister of Canada to renew an announcement. As far as I know, Jean
Charest is not a member of the Bloc Québécois. Anyway, political allegiances do
not matter, since all provincial leaders — Jean Charest no less than others —
want the federal government to be more sensitive and aware of the urgent needs
in health care and to realize that it is time for action and not just words and
that it needs to put its money where its mouth is. Many Canadians expect action
from the government.
Senator Austin: It is interesting that a Quebec leader would
aggressively represent the Quebec interest and Quebec interest only. I suppose
that would be the case for any provincial leader, but the responsibility of a
federal political party is for the nation as a whole.
Hon. Consiglio Di Nino: Honourable senators, I have been listening
attentively to this exchange. Where would we be if the current government knew
how to manage our citizens' money instead of blowing it on the HRDC scandal,
instead of wasting billions on the gun control registry, instead of wondering
where $161 million went from the RCMP, instead of being involved in the
sponsorship scandal? If this government knew how to manage our money, would the
exchange between my two honourable friends not be easier?
Senator Austin: Honourable senators, we have never had a better fiscal
manager than the present Prime Minister. Canadians recognize his contribution to
the economic stability of this country.
Senator Di Nino has a very short memory if he cannot remember what his
political party, when it was the Progressive Conservative Party, did to the
fiscal stability of this country. The Chrétien government inherited billions and
billions of dollars in debt in 1993.
Senator Di Nino: This is great. I love a good debate. I think my
friend the Leader of the Government in the Senate has one problem. It is called
If it were not for the previous Conservative government having the courage to
introduce free trade and the GST, your government, my dear friend, would not be
able to pay the bills.
Senator Austin: Honourable senators, no matter how much we argue, a
debt-to-GDP ratio of 70 per cent is seen by the world economic community as a
dangerous situation for any country. That is where we were in 1993.
Senator Di Nino: Most of that debt can be directed to the
mismanagement of the previous Liberal government that left us with interest
rates at 21 and 22 per cent. The country was essentially bankrupt until the
Conservatives came to power.
Senator Austin: It is clear that the public will shortly be asked to
pass its judgment.
Hon. Donald H. Oliver: Honourable senators, my question is for the
Leader of the Government in the Senate and concerns BSE.
On the heels of Paul Martin's visit with President Bush last week, news has
come out that a Montana ranchers' group has won its fight to halt several types
of Canadian beef imports, effectively reversing a U.S. government decision last
month to open the border to an expanded list of Canadian meat, including ground
beef and bone-in beef. Could the Leader of the Government explain what measures
his government is taking in response to this re-imposition of a trade ban on
this type of beef?
Hon. Jack Austin (Leader of the Government): Honourable senators, as
Senator Oliver states, we have had reports of a decision taken by the Department
of Agriculture in the United States with respect to the import of cuts on the
bone and other exports from Canada that are not currently being permitted but
which we expected, following May 7, would be permitted. Of course, the
Government of Canada is making vigorous representations with respect to the
decision and expects that the U.S. will base its decision, after review, on
Senator Oliver: Are those representations being made at the prime
ministerial and presidential level?
Senator Austin: Honourable senators, there is an understanding between
the Prime Minister and the President of the United States with respect to a
renewed common market for beef.
As honourable senators know, the United States has a body of laws that allows
various parts of the administration to make decisions, which are their own
responsibility, but those decisions are, of course, reviewable at other levels.
That is the process that is taking place.
Senator Oliver: Honourable senators, if one looks at the fine print of
what was actually said between the Prime Minister of Canada and the President of
the United States on the reopening of the border to Canadian beef, Mr. Bush said
that it was merely a restating of what his administration had already said about
this issue before the Prime Minister's visit. There seems to be a disconnect
between the Prime Minister's rhetoric heralding his visit as a triumph for
Canadian beef producers and the reality of the situation, where really not much
has changed. As we saw with yesterday's American decision on ground beef and
bone-in beef, things have really gotten worse for the farmer.
In light of this, my question to the Leader of the Government in the Senate
is this: Could he explain what, if anything, the Prime Minister accomplished on
the beef trade ban issue in his visit to Washington? After all, if the effect of
Mr. Martin's visit was merely to find out what the American administration had
already stated on the issue, then we must conclude that very little, if
anything, was in fact accomplished.
Senator Austin: On the contrary, honourable senators, an understanding
on a common policy between the President of the United States and the Prime
Minister of Canada is a very important step forward.
Senator Oliver: What has that to do with the opening of the border to
Senator Austin: Honourable senators, nothing happens in an instant in
either country. As I have already explained to Senator Oliver, by statute,
processes are required to be taken. There are opportunities for the public to
make interventions. Those are reviewable. We must follow process. This is common
with respect to the United States, and it is common with respect to Canada.
Prime ministers and presidents are not absolute rulers.
Hon. Wilbert J. Keon: Honourable senators, I have a question for the
Leader of the Government in the Senate.
Media reports indicate that the location for the national public health
agency will finally be named next week. While this is moving forward, there has
been some confusion in the last week surrounding the head of the agency, the
chief public health officer. Public Health Minister Carolyn Bennett has said
that the process to search for the chief public health officer has not yet
begun, even though it was to have started two or three months ago. Minister
Bennett had also stated that, regardless of the agency's location, the officer
would be based in Ottawa; however, she was forced by the PMO to retract this
statement when it raised questions over the officer's ability to remain
independent from political interference.
Could the Leader of the Government in the Senate tell us when the federal
government expects to appoint the chief public health officer?
Hon. Jack Austin (Leader of the Government): Honourable senators, I
have no information about a specific deadline for that appointment, nor about a
specific announcement with respect to the proposed Canadian public health
Senator Keon: To the best of the minister's knowledge, will this
officer be located in Ottawa, where I think the officer should be located?
Senator Austin: Honourable senators, I do not have that information
because the decision has not as yet been taken. I would be very happy, as Leader
of the Government in the Senate, to make a representation for Senator Keon, if
that is his representation.
I do want to advise the chamber, not to the surprise of any here, that I have
been an advocate for placing the chief public health officer and the Canadian
public health agency in Vancouver.
Senator Keon: Honourable senators, I can understand that.
If I may be allowed a supplementary question, public health emergencies
happen when we are not prepared for them, as we all well know. The World Health
Organization announced yesterday the number of new diseases that leap from
animals to humans is growing at a rate that scientists are ill-equipped to deal
with. The WHO has made several recommendations, including encouraging greater
research into surveillance data and non-traditional systems in an effort to
predict these kinds of outbreaks.
I would ask the Leader of the Government in the Senate if he and his
government are satisfied at this time, particularly with the political
uncertainty that lies ahead of us. This is not anyone's fault, but we will be
having some political uncertainty, and we could be into an extremely dangerous
Could the Leader of the Government in the Senate tell me whether any
discussion has taken place about some interim appointments or adjustments to
carry us through this transitional time?
Senator Austin: I thank the honourable senator for that question. As
he is well aware, more than any of us here, Health Canada has a standing
capacity to deal with the threats that the honourable senator has described.
Having had the experience of SARS as a potential pandemic, there has been a
substantial gearing up in many centres of Canada. We have also had public
reports that have indicated where systemic problems lie, and all of this
material is under active consideration.
There is, as the honourable senator indicated in questions quite recently, a
high alert with respect to the present recurrence of SARS in China, with at
least one death and a number of other cases reported there. There is a great
watchfulness with respect to travellers.
Having said all of that, to partially answer the question, I do have to agree
with the implied premise that if we had a central agency, with its instant
connections transferring information amongst a series of centres of excellence
or expertise, we would reach an even better stage of capacity. I am saying, in
summary, that the existing system is one that certainly deserves the confidence
of Canadians, and we are working very aggressively to improve it by creating the
public health agency.
Hon. Wilbert J. Keon: Honourable senators, as you know, I was a full
member of the Ontario committee, which just turned its report in a short time
ago. I am satisfied that Ontario, in the interim, is in fairly good shape with
the new appointment of their chief public health officer, who is an outstanding
woman and an outstanding individual. I have the greatest respect for the
officers in Health Canada, having worked with them over the last 30 years.
However, I think we all realized in the preparation of these reports that we
have a serious problem in Canada. The problem will be corrected, I think, with
our new public health agency and our new public health officer, but we are
caught in a situation right now where there is high risk of a serious public
I am concerned that this matter is not getting the attention it deserves,
given that it is not as high-profile an issue as others at this politically
charged time. My concern is that I am not sure that we have the machinery in
place to take care of ourselves if something really goes wrong. In that respect,
I would ask the Leader of the Government in the Senate to raise my concerns in
cabinet with a view to perhaps making some interim arrangements.
Hon. Jack Austin (Leader of the Government): Honourable senators, this
is a topic on which there is high activity in the government. I personally have
spent and am spending considerable time on the issue. The advice that I have
been given is that the system is capable of responding, and I am quite aware of
the Ontario-based report to which Senator Keon referred. There are linkages
today that did not previously exist among the various areas of expertise in
Canada. I doubt if an interim step is required because it is my hope and
expectation that an announcement will be made before we could organize any
Hon. J. Michael Forrestall: Honourable senators, can the Leader of the
Government in the Senate tell the chamber what the process will be for the
purchase of the Stryker Mobile Gun System?
Hon. Jack Austin (Leader of the Government): Honourable senators, I
have an answer with respect to what the mobile gun system is, what it does, and
why DND thinks it is a good system. However, to answer the question
specifically, namely, the process for acquiring the system — in other words,
when the bids will be available, who will be asked to bid and what deadline the
Department of National Defence is setting for procurement — those are questions
I shall have to pursue for Senator Forrestall.
Senator Forrestall: Honourable senators, perhaps it would have been
easier had I said do not talk to me any more about non- partisanship during
Question Period in the Senate of Canada. Having listened to the minister,
Senator Rivest and Senator Di Nino, I thought Senator Rivest won that debate.
Let me put the question this way, honourable senators: Can the minister tell
the chamber whether the purchase of the Stryker vehicles will be an open process
or a directed-contract process? If it is to be a directed-contract process, to
whom will it be directed? If that decision has not been taken, could the
government leader indicate when it will be taken? For example, will the decision
be taken just before, during or shortly after the election, or some time next
Senator Austin: Honourable senators, I shall take the question as
With respect to Senator Forrestall's preliminary statement, I do not concede
that Senator Rivest won any argument, but I will concede that Senator Di Nino
lost it for him if he did win it.
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable
senators, I have the honour to present three delayed answers to oral questions
posed in the Senate. The first delayed answer is to a question posed by Senator
Carney on April 20, 2004, regarding the Canada Revenue Agency, concerning
redress to citizens given incorrect information. The second delayed answer is to
a question posed by Senator Lynch- Staunton on April 28, 2004, regarding the
process of selection respecting appointments to Crown corporations. The third
delayed answer is to a question posed on March 30, 2004, by Senator Andreychuk
regarding the United States airline passenger pre-screening system.
(Response to question raised by Hon. John Lynch-Staunton on April 28,
- The Government announced a new merit-based appointment process for top
executives of Crown corporations on March 15th. The President of Treasury
Board sent letters to Chairs of Crown corporations confirming that they are
now required to follow this process in the future appointment of their chief
executive officer (CEO), chairperson and board of directors unless their
enabling statute for their organization provides otherwise.
- It remains to be determined which Crowns would be included in the
parliamentary committee review. The Leader of the Government in the House of
Commons and the Minister responsible for Democratic Reform, the Honourable
Jacques Saada sent a letter on March 16th to the Chair of the House of
Commons Standing Committee with a list of all Crown corporation
appointments. The Chair will provide the Committee's recommendations to
Minister Saada and the House of Commons as to which of these positions
should be subject to prior parliamentary review in due course.
- At this time, each Crown corporation has been asked to provide their
selection criteria for the CEO and chairperson based on the needs of the
organization; names of the nominating committee; and the competency profile
for the board of directors. Their selection criteria and completed board
competency profiles would then be discussed with the responsible minister's
office, the director of Appointments in the Prime Minister's Office and the
Senior Personnel and Special Projects Secretariat in the Privy Council
- Once the Crown has finalized its discussions with PMO and PCO, their
selection criteria would be in place for the future appointments of their
CEO and chairperson. In general, selection criteria would consist of the
following elements: education, experience, knowledge, abilities and personal
suitability required for the positions. Abilities could include
characteristics such as corporate vision, leadership and the ability to
communicate effectively with stakeholders. Personal suitability could
include attributes such as ethical character and sound judgment.
- Timing of putting `in place' specific selection criteria for each Crown
corporation will depend on how quickly they respond. It is anticipated that
all replies should be received soon. In the meanwhile, proposed criteria
would be assessed by a checklist established by the PCO in consultation with
the PMO, to ensure that all strategic elements are considered by each Crown
(Response to question raised by Hon. A. Raynell Andreychuk on March 30,
THE MINISTER OF TRANSPORT ADVISES, THAT:
The United States' proposed CAPPS II requirements for provision of
information would apply equally to its citizens as well as other
nationalities entering or flying within the United States. The information
provided would be a condition of entrance into, or boarding a flight within,
the U.S. and would include date of birth, full name, address and phone
The CAPPS II program would require that air carriers provide this
information to the U.S. government (CAPPS II office). The Government of
Canada is not being requested to provide data to CAPPS II.
Under current Canadian law, an airline flying from Canada into the United
States can provide to U.S. authorities only that information which it
already has in its possession and which is contained in the list of 34 data
elements specified under the current Aeronautics Act as a result of Bill
C-44. The same list of 34 data elements appears in the Schedule to the
proposed Bill C-7. There have been no requests from US authorities for any
changes to Canadian laws or practices.
For clarification on the European stance, the European Union is engaged
in discussions on what information European companies could provide directly
to the United States for the purposes of CAPPS II. They have already reached
an agreement for the purposes of Customs and for Immigration. Furthermore,
the European Union Council has announced a draft Directive on the obligation
of air carriers to communicate passenger data. As proposed by the Spanish
government in March 2003, airlines operating within the EU would be required
to provide passenger data to governments in the EU country of arrival.
The European Parliament, which has no jurisdiction in these matters, does
not wish to share data with the United States. Also, a parliamentary
committee has rejected the draft Directive referenced above.
As you can see, the situation on passenger information is under
development. CAPPS II, itself, is not yet underway.
To reiterate, the United States proposed CAPPS II requirements for
information would apply equally to its citizens as well as other
nationalities entering or flying within the United States.
The Hon. the Speaker: I wish to draw the attention of honourable
senators to the presence in the gallery of Mr. Mario Garcia Delgado, Minister
Counselor and Deputy Chief of Mission of the Cuban embassy in Canada. Mr.
Delgado will be leaving Ottawa to assume a post as Director of Protocol for the
Ministry of Foreign Affairs. He is accompanied by his wife, Ms. Deborah Ojeda,
Secretary and Consul at the embassy.
Leave having been given to revert to Presentation of Reports from Standing or
Hon. George J. Furey, Chair of the Standing Senate Committee on Legal
and Constitutional Affairs, presented the following report:
Thursday, May 6, 2004
The Standing Senate Committee on Legal and Constitutional Affairs has the
honour to present its
Your Committee, to which was referred Bill C-20, to change the names of
certain electoral districts, has, in obedience to the Order of Reference of
Tuesday, March 9, 2004, examined the said Bill and now reports the same
without amendment but with observations, which are appended to this report.
to the Eighth Report of the Standing Senate Committee
on Legal and Constitutional Affairs
Bill C-20 changes the names of 38 electoral districts, all of which
were established by the 2003 Representation Order under the Electoral
Boundaries Readjustment Act. This is not the first time a bill to
change riding names has come before us; nor is it the first time we have
made substantial observations on such bills.
Since February 27, 1996, when the second session of the 35th
Parliament commenced, there have been 15 bills to change the names of
electoral districts, of which 6 have become law.
The Electoral Boundaries Readjustment Act establishes the
independent process by which constituency boundaries, and their names,
are established following each decennial census. A three-person
commission in each province prepares a report, following which there can
be public hearings and representations. Once the commission's reports on
the new boundaries and names are completed, they are tabled in the House
of Commons, where Members may file objections. The House Committee that
studies the reports then reports back to the commissions, which make the
Members of Parliament, however, often remain unsatisfied with the
final decisions of the commissions and may introduce a bill to change
the names yet again. Members also introduce such bills at times
unrelated to a Representation Order. In June 2000, when studying a
similar bill, Bill C-473, your Committee objected to changing boundary
names in this fashion. Such a process was not as open and transparent as
the one described above. We noted then that it was confusing and costly,
and that there should be a degree of permanency to constituency names:
8. While there are many valid reasons for wanting to change
constituency names, your Committee believes that the ad hoc and
frequent nature of such changes must be discouraged. It is confusing
and there are costs associated with it. There needs to be a degree
of permanency to the names of the constituencies: they should not be
changed whenever there is a newly elected Member or representation
from part of a constituency. A clearly established procedure exists
under the Electoral Boundaries Readjustment Act, which should
be followed. This also has the advantage that the decision rests
with the neutral three-person commission, and there is opportunity
for public notice and input. ...
9. Your Committee understands that extraordinary situations can
arise at other times that may require constituency name changes.
Your Committee also believes that the process in such cases must be
much clearer and more transparent. Your Committee received
submissions that reinforced the need for public consultation and
input, to respect the fact that residents of a constituency strongly
identify with its name. There should be a requirement for some form
of public notice in the constituency, and provision for public
comments. Guidelines to this effect could be adapted from the
procedures set out under the Electoral Boundaries Readjustment Act.
Those observations are as valid today as they were four years ago.
With respect to the costs associated with boundary name changes, on
April 2, 2004, Mr Jean-Pierre Kingsley, Chief Electoral Officer, and Ms.
Diane Davidson, Deputy Chief Electoral Officer and Chief Legal Counsel,
testified before this Committee concerning Bill C-20. They informed your
Committee that if the bill becomes law and an election is called after
September 1, 2004 (the date the Act comes into force), the costs arising
from the name changes would amount to some $500,000. Even if the
election is called before that time, there will be significant costs as
a result of the bill. This is not to say that these costs are
unacceptable; it is just to recognize that they exist.
Your Committee notes that on April 2, 2004 the House of Commons
Standing Committee on Procedure and House Affairs presented its
Sixteenth Report to the House. The report related to the electoral
boundaries readjustment process and the experience of the Subcommittee
established to deal with objections of Members of Parliament to the
reports of the electoral boundaries commissions. The report also dealt
with riding names, and echoed your Committee's reluctance to deal with
bills to change the names. As the report noted:
45. As a final point, as the commissions themselves recognized,
if a riding name remains unchanged despite an objection, a Member
can always use the option of a private Member's bill to change the
name of the riding. It seems pointless to us for House business to
be needlessly taken up with name changes from the commissions.
Changes after the fact also lead to additional costs and work for
Elections Canada. Therefore, we would alter the commissions' power
in the case of riding names: when the responsible parliamentary
committee unanimously supports an objection on a name change, the
recommendation of that committee should be binding on the
The Committee recommends that:
Section 23 of the Electoral Boundaries Readjustment Act
be changed so that in the case of an objection to a proposed
electoral district name, and where there is a unanimous
recommendation of the relevant committee of the House that
considers the objection, that the electoral boundaries
commission shall follow the recommendation of the committee.
This would simplify the business of the House of Commons and the
Senate, which has already expressed dissatisfaction with private
Members' bills to change riding names.
Your Committee finds this to be a sensible recommendation and
supports the amendment to the Electoral Boundaries Readjustment Act
proposed by the House of Commons committee.
Your Committee reiterates that there should be a revised process with
the support of Guidelines provided by the Chief Electoral Officer to
govern the changes of names at other times should extraordinary
situations arise that may require constituency name changes.
The Hon. the Speaker: When shall this bill be read the third time?
On motion of Senator Rompkey, bill placed on the Orders of the Day for third
reading at the next sitting of the Senate.
Hon. George J. Furey, Chair of the Standing Senate Committee on Legal
and Constitutional Affairs, presented the following report:
Thursday, May 6, 2004
The Standing Senate Committee on Legal and Constitutional Affairs has the
honour to present its
Your Committee, to which was referred Bill C-3, to amend the Canada
Elections Act and the Income Tax Act, has, in obedience to the Order of
Reference of Thursday, April 22, 2004, examined the said bill and now
reports the same without amendment.
The Hon. the Speaker: When shall this bill be read the third time?
On motion of Senator Mercer, bill placed on the Orders of the Day for third
reading at the next sitting of the Senate.
Leave having been given to revert to Reports from Inter- Parliamentary
Hon. Jerahmiel S. Grafstein: Honourable senators, I have the honour to
table in both official languages the report of the Canadian delegation of the
Canada-Europe Parliamentary Association, OSCE, to the third winter session of
the Parliamentary Assembly of the OSCE, the Organization for Security and
Co-operation in Europe, in Vienna, Austria, February 19-20, 2004.
Hon. Jack Austin moved second reading of Bill C-28, to amend the
Canada National Parks Act.
He said: Honourable senators, I am pleased to present to the Senate Bill
C-28, to amend the Canada National Parks Act. This bill has two objectives. The
first is to ameliorate an error in a land description in legislation passed in
the year 2000, which deprived the Keeseekoowenin Ojibway First Nation of a
five-hectare strip of land to which they were entitled by agreement through a
1994 specific land claim settlement. For reasons I shall explain, the error can
only be rectified by an amendment to the Canada National Parks Act.
The second objective is to correct an error in land planning of the
establishment of the Pacific National Park Reserve on the west coast of
Vancouver Island, in 1970. Adequate land space was not then reserved for the
Tla-o-qui-aht First Nation, which is settled on the Esowista Reserve adjacent to
the Pacific Rim National Park Reserve. It is proposed to remove 86.4 hectares of
land from the Pacific Rim National Park Reserve and transfer that land to the
Esowista Reserve, which will allow problems of living space, housing, health and
infrastructure to be dealt with. Simply put, the purpose of this bill is to meet
legal and moral obligations to those respective Aboriginal communities and in
general improve trust and understanding with the Aboriginal community.
Now let me provide honourable senators with some relevant background. With
respect to the Pacific Rim National Park Reserve, which was established in 1970,
it completely surrounded the seven-hectare reserve of the Tla-o-qui-aht First
Nation. At the time, Esowista was being changed from a seasonal fishing camp to
a permanent residential community. The Government of Canada at that time
recognized that a larger site would eventually be required to meet the needs of
the Esowista community, and it committed itself to finding a long-term solution.
The land to be removed from the park — 86.4 hectares — will address acute
overcrowding, allow infrastructure improvements to remedy sewage disposal and
water quality concerns, and support the development of a model community that
will exist in harmony with the national park reserve. This parcel of land
represents less than 1 per cent of the park's total land base. Its removal from
the park will have the least possible impact on Pacific Rim's ecological
integrity and will accommodate the Tla- o-qui-aht First Nation community needs.
With respect to Riding Mountain National Park, which was created in 1929, it
included Indian Reserve 61A of the Keeseekoowenin Ojibway First Nation. The
First Nation, at that time, was relocated outside of the national park. A
specific land claim settlement agreement, concluded in 1994 between Canada and
the Keeseekoowenin Ojibway First Nation, re- established Reserve 61A. Most of
the associated lands were removed from Riding Mountain in 2000 with the passage
of the Canada National Parks Act. Due to an error in the preparation of the
legal description for the land removal, a five-hectare strip of land was omitted
and remained within the park.
There is only one legal way to remove lands from a national park, as
honourable senators know, and that is by legislation. The amendments now
proposed to the Canada National Parks Act will fully re-establish the
Keeseekoowenin Ojibway First Nation Reserve 61A and rectify the error that
I would like to speak for a moment about environmental considerations. The
removal of the 86.4 hectares of land from Pacific Rim will not unduly compromise
the park's ecological integrity. The Tla-o-qui-aht First Nation has made a
commitment to cooperate with Parks Canada to provide for the long-term
protection of the natural and cultural resources of the parklands surrounding
the Esowista Indian Reserve. Both the Tla-o-qui-aht First Nation and the
Department of Indian Affairs and Northern Development have made commitments to
develop and maintain the lands in ways that respect the ecological integrity of
the park. In addition, a number of measures will be in place to ensure a
sustainable community in harmony with the park. The development of the lands to
be removed from Pacific Rim will be based on the Canada Mortgage and Housing
Corporation's model community guidelines.
There will be an overall site development plan that Parks Canada will review
and recommend for approval to the Department of Indian Affairs and Northern
Development. In addition, each development project will be subject to assessment
under the Canadian Environmental Assessment Act. Finally, to provide for
appropriate protection of adjacent parklands, a $2.5 million mitigation fund
will be provided to Parks Canada from the Department of Indian Affairs and
I should also mention that that department will not require any additional
funding for the Esowista expansion. It is expected that a total of 160 housing
units will be required over the next 25 years, of which 35 are required in the
As for the five-hectare strip of land to be removed from Riding Mountain, it
is a requirement, as I have said, of a 1994 specific land claim settlement
agreement. Honourable senators will recall in the last session Bill C-6, which
was presented here for the purpose of creating a statutory capacity for the
present Order in Council Indian Claims Commission. This was, of course, a
decision of the Indian Claims Commission. I want to reassure honourable senators
that there are no environmental consequences associated with this amendment to
the Canada National Parks Act.
With respect to public support, consultations have been undertaken around
these initiatives and they indicate broad public support. For example, the
following bodies have indicated their support for the proposed land withdrawal
from Pacific Rim. Environmental non-government organizations include Green
Peace, the Sierra Club, the Western Canada Wilderness Committee, the Friends of
Clayoquot Sound, and the Canadian Parks and Wilderness Society, as well as
provincial, regional and district governments, and the provincial level First
As a senator from British Columbia, I want to express my thanks to the
Government of British Columbia for their support in this initiative to expand
Esowista. Of course, the cooperation of the provincial Government of British
Columbia is essential in ensuring that lands removed from Pacific Rim can be
transferred to the Department of Indian Affairs and Northern Development for
Indian reserve purposes. All of these parties consider Esowista to be a unique
situation and are supportive of the need to keep the members of the community
together, and to provide land from Pacific Rim for residential and related
I would like to turn briefly to the work being done in Canada's special
heritage places, national parks and national historic sites, as it relates to
the Aboriginal community. Parks Canada has over 170 different locations to
manage in Canada. Many of these places contain evidence of the first peoples of
Canada and are associated with events that have shaped Canada. Therefore, it is
only fitting that Parks Canada created an Aboriginal Affairs Secretariat in
1999, coinciding with the statutory creation of the Parks Canada Agency.
That secretariat reports to a chief executive officer, who works closely with
a network of staff in units across Canada. The broad objective of the
secretariat is to facilitate the participation of Aboriginal people in Canada's
national parks, national historic sites and national marine conservation areas.
With a view to continuing to strengthen productive and mutually beneficial
relationships with Aboriginal peoples, Parks Canada has developed five priority
areas flowing from that objective, and I would like to give honourable senators
some brief examples of how those priorities are being put into operation at the
Many national parks have created a full-time staff position dedicated to
liaison with Aboriginal communities. This gives the Aboriginal people a direct
line to decision makers at the operating level of the parks. That staff advises
the Aboriginal communities of any operational plans or decisions that may be
taken with respect to the park. Special arrangements are sometimes made for the
whole community, or specifically for the youth and elders, to engage in cultural
gatherings in the park which gives them an opportunity to reconnect with their
land and their stories.
Parks Canada Agency has also set a priority to increase the presentation and
interpretation of Aboriginal heritage within national parks and at national
Through a combination of oral traditions and archeological research, we are
learning to appreciate the ways in which Aboriginal people lived on the land in
a sustainable way.
As well, many parks invite Aboriginal people to demonstrate their traditional
ways of living, of preparing food, and of celebrating a sacred bond with the
land, all of which has in view the increase of understanding the contributions
made by Aboriginal peoples to the Canadian nation.
A third priority is placed on encouraging economic partnerships between
Aboriginal people and Parks Canada. This takes many forms. Local Aboriginal
businesses may be given, and are often given, standing contracts to supply
material and services to maintain trails or to monitor cultural resources.
Aboriginal communities run businesses in national parks and sell handicrafts,
art and traditional foods to park visitors.
In some parks, Aboriginal people who know the land intimately hold guiding
and outfitting licences. Economic partnerships may also take the form of
opportunities to practise and hone technical skills learned in the classroom.
One example of interest to me is firefighting in Jasper National Park, along
with archeology and techniques for collecting oral traditions.
Almost every park in the system has increased the number of Aboriginal people
working there and increased the percentage of Aboriginal people who make up its
staff. The representation of Aboriginal people within Parks Canada today is 8
per cent. Of the executive group, 10.3 per cent are of Aboriginal descent. In
2002- 03, 12.1 per cent of people newly hired in Parks Canada were Aboriginal.
Finally, Parks Canada Agency is working toward increasing the number of
people, places and events related to Aboriginal peoples' history that are
commemorated as nationally significant, and that are members of the family of
Canada-wide national historic sites. In the past five years, the Historic Sites
and Monuments Board of Canada has identified 22 such aspects of history
associated with Aboriginal people that are significant to Canada as a nation.
This brings to 192 the total number of Aboriginal commemorations of national
significance and more are contemplated.
Aboriginal communities own many of the most recent additions to the national
historic sites register. To support Aboriginal communities to present these
sites to the public, Parks Canada has an annual fund of $200,000 and has
assisted Aboriginal owners of sites to create multi-year management plans to
operate, present and protect such sites.
With respect to Pacific Rim National Park Reserve, significant strides have
been taken in recent years to promote Aboriginal initiatives and to involve
Aboriginal people in the cooperative management of the national park reserve,
and the results have been remarkable. The Pacific Rim National Park Reserve
worked with the Ucluelet First Nation to develop the new Channel Trail inside
the national park. Opened in 2003, this interpretive trail provides extensive
on-site interpretation of regional First Nations culture, history and language.
In June 2004, the Ucluelet First Nation will again honour the opening of the
trail by erecting the first totem pole to be carved and raised in the
traditional territory of this First Nation in 104 years. The welcoming pole will
greet Canadians and international visitors to the trail, and to Ucluelet First
Nation, to a new channel to traditional territory. It will symbolize the long
history and continuing presence of First Nations people in the region and in the
national park in particular.
Honourable senators, I have given you an extensive background of the work of
Parks Canada with the Aboriginal community to illustrate a series of activities
that perhaps should be well-known. While these activities are ancillary to the
purposes of this bill, which is purely a land transfer, I believe that
honourable senators and Canadians would like to know of the ongoing policies of
Parks Canada and its agreements with Aboriginal peoples, and of the value to
Parks Canada as well as to the Aboriginal communities of these activities.
This bill enjoys very broad support. I hope that honourable senators will
deal with it expeditiously.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, before moving the adjournment of the debate on this bill, I should
like to ask the honourable senator sponsoring the bill in the chamber several
questions for clarification.
First, am I correct in understanding that the piece of property that we are
speaking of is five hectares in size?
Senator Austin: With respect to Riding Mountain National Park, the
area, which is one of the two objectives of the bill, comprises five hectares
that belong to that Aboriginal community and which, by error, were omitted from
the last legislation in 2000.
Senator Kinsella: Could the honourable senator indicate whether that
particular parcel of land was the subject of a negotiation with the First Nation
community 10 or 11 years ago?
Senator Austin: Yes, a claim was brought against the Crown, which was
presented to the Indian Claims Commission. The result of that process was an
agreement that they had been improperly and illegally deprived of the five
hectares when Riding Mountain National Park was established in 1929.
Senator Kinsella: Is there a dollar estimate as to the value of that
Senator Austin: I could obtain such information. This is undeveloped
land and I do not believe it has any significant commercial value.
Senator Kinsella: The second parcel is in the Pacific Rim National
Park Reserve. How large a piece of property is this, and what is its value in
real estate dollars? Does the honourable senator have that information?
Senator Austin: As I said in my address, the Pacific Rim National Park
Reserve land proposed to be transferred to the First Nation is 86.4 hectares.
This is undeveloped land within a reserve. By definition, it has no commercial
value. There is no community or residential activity because, of course, it is
in a park. The land is located adjacent to the Tofino municipal airstrip.
Senator Kinsella: Honourable senators, when we examine this short bill
in committee, hopefully witnesses from the department will provide the committee
members with maps so that we can see what is proposed on Canada Lands Surveys
Records. That could only be done in committee.
Honourable senators, I move the adjournment of the debate. I will speak on
Hon. Eymard G. Corbin moved the second reading of Bill C-9, to amend
the Patent Act and the Food and Drugs Act (The Jean Chrétien Pledge to Africa).
He said: Honourable senators, I have the privilege today to introduce in
second reading the bill on the pledge by Canada and Jean Chrétien to Africa.
This is a truly historical document. It marks a significant step forward in
the world's efforts to stop the decimation of the developing world by AIDS,
malaria and other fatal diseases. It is based on hope and compassion, and a
desire to help those who are the least well off. I believe it merits our support
and, in fact, would go so far as to say that it must have that support, as a
The basis for this bill goes back to a decision reached on August 30, 2003 by
the World Trade Organization to review the Agreement on Trade-Related Aspects of
Intellectual Property Rights. That agreement defines the rules that must be
followed by WTO members to protect such elements of intellectual property as
patents, copyrights and trademarks. Although it tends to assign top priority to
patent holders, it also includes provisions authorizing members to waive the
effect of these rights when the public interest requires. In the case of
emergency drugs, for instance, this can comprise awarding a license to produce
patented drugs to generic drug companies who could produce them at a lower cost
to the public.
Fortunately, such emergencies are rare in Canada, and this provision is
therefore seldom used. Unfortunately, such is not the case in many developing
countries. As we know full well, diseases like HIV/AIDS, tuberculosis and
malaria are causing terrible devastation. Last year, nearly one quarter of all
deaths worldwide were attributable to these diseases. A number of these deaths
could have been prevented through access to appropriate drugs and treatment. For
example, in Africa, only some 5 per cent of those who need antiretroviral agents
to combat HIV/AIDS get any. The same is true of other critical drugs.
That is one area where the Agreement on Trade-Related Aspects of Intellectual
Property Rights is causing a problem. While these provisions allow member
countries to face situations of national emergency, they do not allow them to
react similarly to emergencies outside their countries.
The decision made on August 30, 2003, was to correct this situation by
waiving various prohibitions and allowing, under certain conditions, the export
of authorized copies of patented drugs to WTO countries that do not have the
capacity to manufacture their own. Despite all the fanfare around this decision,
there was no obligation on any country to take action in this respect. There was
no specific requirement.
Under the leadership of former Prime Minister Jean Chrétien and his
successor, the current Prime Minister, Canada was not content with a wait and
see approach. As Prime Minister Martin indicated, the government took action
because it was the right thing to do, ethically.
We can be proud of the fact that Canada was the first to answer this call for
help on the international scene. This bill has been praised as an example for
the world to follow, and the eyes of the world are focussed on Canada. This bill
innovates and clearly shows what the government, the business sector and the
volunteer sector can achieve together when they set aside profit considerations
to focus on humaneness, compassion and alleviating the suffering of others.
As you can imagine, the objectives of the bill were unanimously approved;
everyone made a contribution. However, some compromises had to be made to deal
with logistical details. On the one hand, we have our major humanitarian
objectives. We want to facilitate access to critical pharmaceutical products. On
the other hand, we must preserve the integrity of our intellectual property
regime and continue to respect our international obligations in this regard. I
think that Bill C-9 allows the government to strike a practical balance.
The proposed amendments to the Patent Act and to the Food and Drugs Act were
first tabled in November 2003 as Bill C-56. This legislation had passed through
second reading in the House of Commons when Parliament was prorogued in November
of last year. The bill was subsequently identified by the Prime Minister as a
key legislative priority and was reinstated as Bill C-9 on February 12, 2004.
From then on, the House of Commons Standing Committee on Industry, Science
and Technology reviewed the legislation and, in doing so, heard from dozens of
stakeholders, including representatives of the generic and brand name
pharmaceutical manufacturers, non-governmental organizations and medical
Over this period, stakeholders presented numerous suggestions on how to
improve the legislation. Their input was reflected in the government amendments
tabled in the standing committee on April 20, 2004.
These amendments reflect the balance that is necessary between Canada's
humanitarian objectives of facilitating the flow of life- saving pharmaceutical
products to developing countries while maintaining the integrity of its
intellectual property regime and ensuring that its international obligations in
this area are respected. They also improved the bill significantly and represent
the spirit of compromise that many of the stakeholders deployed throughout this
process. The role of Parliament was also enhanced through these amendments.
However, reading the bill in detail, I did notice that, once again, the
Senate was left out of the review process. I brought this to the attention of
ministers and officials. I have been told that this was, indeed, an error and
that it certainly was not the intention of the House of Commons to leave the
Senate out of the review process outlined in proposed section 21.18 of the bill.
I have received commitments to the effect that — even though, for what are
obvious reasons to most of us, it may not be possible to amend the bill at this
stage — there will, indeed, be a commitment made by a minister at the committee
stage to correct this error by way of legislation at the next earliest
opportunity so that the rights of the Senate are maintained in the review of
legislation and matters that flow from it.
Let me, for a moment, draw your attention to some of the highlights of the
amendments that have been made to the original bill. The requirement that patent
holders be given a right of first refusal on supply opportunities has been
eliminated. Generic pharmaceutical manufacturers will continue to be required to
seek a voluntary licence from the relevant patentees prior to making an
application for compulsory licence. They will not, however, be required to
notify the patentee prior to signing a contract with an eligible importing
The current bill utilizes a pre-approved list of drugs that the World Health
Organization has recognized as being essential to the health needs of citizens
around the world. The amendments that were made add a number of products to this
list that, for technical reasons, were previously excluded. The government is
also planning to include five additional products that are not on the WHO list,
but that are patented anti-retroviral products approved for sale in Canada. Two
of these are fixed-dose combination products. Do not ask me to explain, please.
I will leave that to Dr. Keon and Dr. Morin, who I believe will want to respond.
The bill expands the number of countries that may be eligible under the
regime. Safeguards will be put in place to ensure that non-WTO member countries
that use the system to import pharmaceutical products act in good faith in
meeting their public health needs as mandated by the WTO decision of August 30
of last year.
Under the legislation, the royalty rate is determined in a manner consistent
with Canada's international trade obligations and the humanitarian
non-commercial nature of this scheme, determined by means of a regulatory
formula based on the ranking system of the United Nations Human Development
Index for eligible importing countries. You will find the list of those
countries in an annex to the bill. Importantly, for the majority of eligible
importing countries, this formula will result in a royalty that is lower than
the previous proposal of 2 per cent.
The Government of Canada has always recognized the critical role that NGOs
play in providing health services throughout the developing world. In response
to their concerns, the government has clarified the language in the bill so that
a licensed product may be sold to ``the entity or person'' purchasing on behalf
of an eligible importing country. At the same time, it is recognized that a
country's government will need to be involved in this process, as a state has
the ultimate responsibility for coordinating the provision of health services
within its borders.
A new provision was also added to the legislation to ensure that the regime
is used in good faith by participating companies in order to respond to public
health problems, in accordance with the WTO general council chairperson's
statement accompanying the August 30, 2003 decision. This provision will afford
patentees the right to contest an authorized compulsory licence, if they can
establish that the product is being sold above an established price threshold.
Therefore, honourable senators, I believe that Bill C-9 allows the government
to strike a practical balance.
The bill includes a number of schedules that list various pharmaceutical
products and the countries to which they apply. Should one of these countries
feel that it needs one of these products to face a public health emergency, its
government or an official may contact a Canadian manufacturer of generic drugs
to negotiate a supply arrangement. These schedules are very inclusive and they
can be quickly amended in case of an urgent need. The government intends to set
up an expert advisory committee that will make recommendations on the drugs that
should be added to the list and on the appropriate time to do so.
Under the terms of the bill, generic drug manufacturers can enter into supply
agreements with foreign governments or their representatives at any time. The
only obligation on the generic drug company is that before applying to the
Canadian Intellectual Property Office for an export licence, it must first
approach the brand name company holding the patents for that product to see
whether the latter is willing to accord a voluntary licence on reasonable terms
If the patent holder is unwilling to do so, the generic company is free to
proceed with its application to the CIPO for a licence and, assuming the
requisite health, safety and administrative conditions are met, a licence will
be issued and the product can be exported.
As I was saying, the government believes it has found the right balance
between the rights and the interests of the various stakeholders. I should also
add that there are other provisions in the bill, for example, to guarantee
respect for its humanitarian aspect. After all, its goal is not to help
companies make a profit, but rather to save lives.
For example, after the review by the House of Commons Standing Committee on
Industry, Science and Technology, a ``good faith'' provision was added whereby
patent holders may apply to the Federal Court to block a licence, if they
believe that the reasons for the application are not humanitarian, but
Some stakeholders have said that this provision could lead to abuse or slow
down drug delivery by bogging things down in endless legal formalities.
According to the government, that will not be the case. First and foremost, the
provision only comes into play if the licence holder charges a price that casts
obvious doubts on the humanitarian intention of his request. The bill sets the
maximum price for generic drugs at 25 per cent of the average cost of the
corresponding patented drug in Canada or at the direct supply cost plus 15 per
cent. In my opinion — and according to experts — this is very reasonable and it
is based on international precedents.
I want to point out that even if the provision is successfully invoked and
the court deems the licence application to be commercial in nature, there is
great flexibility with respect to the type of corrective measures that could be
required. In other words, the courts will not automatically revoke contracts and
ultimately stop the delivery of drugs. This would be inconsistent with the
spirit of what we are trying to accomplish with this bill. That is only one of
the many guarantees included in the legislative enactment to ensure that its
humanitarian nature is respected.
It is worthy of mention that the legislator has incorporated into Bill C-9 a
number of administrative requirements to guarantee that the drugs will not be
steered into some other market or a country other than the one intended. The
reason for this is to protect our patents but also, and more importantly, to
prevent unscrupulous people from using these drugs for personal gain.
Honourable senators, these are the main points of the bill. What it proposes
is good. It would, of course, have been impossible to draft such a bill without
the good will, the skill and the commitment of a broad range of contributors,
and I must include in that list all of the political parties here in the
Parliament of Canada.
From the very beginning, the drug manufacturers and the patented and generic
drug makers have strongly championed this project. As well, NGOs such as Doctors
without Borders and OXFAM have made an appreciable contribution to ensuring that
what is proposed in theory will work properly in practice. Thanks to their
contributions, the bill has made great progress in recent months. I applaud
their efforts as well as those of the dedicated staff in the various government
departments and agencies. What they have managed to accomplish — in a relatively
short time — is truly impressive.
Honourable senators, I urge you to support this initiative. All the political
parties represented in the other place have supported Bill C-9, which has earned
Canada praise from the international community. It even earned us the approval
of activists and well- known public figures such as rock star Bono, who praised
the Prime Minister and Canada's leadership on this and other development issues.
This bill needs to be passed urgently. The sooner the legislation is enacted,
the sooner contracts can be negotiated and the drugs exported.
Ethically and from the point of view of our international obligations, I
personally and sincerely believe — to borrow the words of Marc Fumaroli of
l'Académie française — that our legislative ambition with respect to this bill
is inseparably linked to the compassion we must have for the misfortune of
Hon. Wilbert J. Keon: Would the honourable senator take a question?
Senator Corbin: I would be pleased, if it is not too technical.
Senator Keon: It will not be technical.
I will be speaking later to the details of the legislation, but from the very
beginning the one thing that has concerned me about this legislation is
diversion. I think diversion is here, whether we like it or not.
Senator Corbin: Could the honourable senator explain what is meant by
Senator Keon: I mean that drugs are being manufactured in the Third
World and in underdeveloped countries and then marketed in the developed Western
world. There is no question that is occurring with performance-enhancing drugs,
regardless of the kind of performance, athletic or otherwise.
Senator Corbin is a very experienced parliamentarian. He has looked at this
bill carefully, but I do not see how this phenomenon can be avoided. We are
supposed to have generic drugs manufactured in Canada. Then there will be a
connection between the NGOs and the target countries; they will sell the drugs.
However, the reality is much like the Chinese market for medical devices. They
buy one, take it apart and build another one like it for one tenth of the price.
It is so easy, given modern scientific technology, to take a compound, roll
it out on a chip, see what it is and just make another compound. That technology
is available all over the world.
How will we deal with this problem? The reason I am asking Senator Corbin is
that I do not know how to address the issue when I come to make my remarks. I am
asking the honourable senator to respond first.
Senator Corbin: Honourable senators, my first instinct is to suggest
that this bill does not relate to performance drugs or that sort of product.
That is not what this bill is all about. Those drugs are obviously excluded.
Some NGOs suggested in committee hearings in the other place that all drugs,
anything called drugs, should be on this list. Obviously, that is not a
With respect to the honourable senator's well-founded concern, which I take
seriously, the only place where one can deal with it is at the WTO and the World
Health Organization conjointly, with all countries cooperating in a positive
Senator Keon mentioned China. China wants to be part of the WTO. It seems,
then, that it is incumbent upon China, henceforth, to respect WTO trade rules.
If China does not respect those rules, we will do as we have done in other
instances — rule against them and post penalties or what have you. That is an
excessively long and painful process. It does not immediately address the
concern here, and I respect that fact.
I am sure the Government of Canada takes the honourable senator's concern
seriously and would not hesitate to address that matter in international fora.
That is the most I can tell him at this stage, and I invite the senator to
elaborate when he rebuts.
Hon. David Tkachuk: Honourable senators, I have questions to clarify a
number of things. I understand that this bill was studied by the House of
Commons Standing Committee on Industry, Science and Technology. Can Senator
Corbin verify that? Can he tell us which responsible minister introduced this
Senator Corbin: Technically, five ministers are involved in the bill
at this stage, in terms of the new cabinet restructuring. There is a lead
minister. This bill contains amendments that add to the Patent Act and add to
the Food and Drugs Act. The Minister of Industry is involved, as is the Minister
of Health. Some ministers of state are involved as well, in view of their
particular missions, such as CIDA. The Minister of Foreign Affairs, of course,
is involved in respect of the overall political thrust of the humanitarian
We had hoped that the Minister of Foreign Affairs would come to defend this
bill in committee, but I am told, at this stage, that the minister will be
unavoidably absent on important business in Europe. The Minister of Industry,
Madame Robillard, will appear before the committee with her officials, who have
been really at the heart of this bill. They have come forward with amendments
that have met the majority of the expectations of the parties involved in this
process, including the NGOs.
Senator Tkachuk: In case there is a new tradition under the efficiency
aspects of the new Martin government, this bill was introduced not by committee
but by the Minister of Industry, Trade and Commerce; is that not correct?
Senator Corbin: Yes.
Senator Tkachuk: That is very good. Thank you.
I have one more question. I noticed that the bill is called ``An Act to amend
the Patent Act and the Food and Drugs Act (The Jean Chrétien Pledge to
Africa).'' I do not know what the historical implications will be. I do not know
how many bills have been named after former Prime Ministers.
Senator Cools: None.
Senator Tkachuk: We are embarking on a new and groundbreaking
enterprise. I do not think it would be possible for me to convince Senator
Corbin that we should name it after a former Conservative Prime Minister. Mr.
Pearson, who had a stellar record and won the Nobel Peace Prize for
international affairs. Would the government be favourable to amending the bill
to call it, ``The Pearson Pledge'' or, perhaps, ``The Canadian People's Pledge
Senator Corbin: If the honourable senator introduced a bill that
emphasized the great contribution that the former the Right Honourable Prime
Minister Brian Mulroney made to the liberation of the South African peoples, I
would be more than delighted to support it.
Senator Tkachuk: Thank you for that. To follow up, is this the first
bill that is named after a former prime minister, or have there been others? Was
there a particular reason for this?
Senator Corbin: This is one of Jean Chrétien's crowning achievements
at the level of international humanitarian aid. This is Jean Chrétien's pledge,
and Canada's bill. It is a bill from all of us.
I take the bill as it is. I, personally, do not find anything out of order
with it. I know for a fact that, when Jean Chrétien was the leader of this
government, he pushed hard on the international scene for this program. I think
we ought to give him credit for it.
Senator Tkachuk: Honourable senators, from a legislative point of
view, the bill amends the Patent Act and the Food and Drugs Act. It concerns
itself with those two acts. When we are considering what committee this bill is
to be examined by, that can be taken into consideration. Will it affect any
other act of Parliament?
Senator Corbin: Could you repeat the last part of the question?
Senator Tkachuk: I want to be sure that no bills other than the Patent
Act and Food and Drugs Act will be amended by this bill. Is it just those two?
Senator Corbin: Yes.
Hon. Herbert O. Sparrow: When the honourable senator made his remarks,
he referred to the Senate being left out of the review process. Would he tell me
to what section he was referring?
Senator Corbin: I was referring to the proposed section 21.18(2) on
page 18. If the honourable senator wishes, I can give some background.
Senator Sparrow: Thank you. Senator Corbin mentioned that the Senate
should be referred to in that section and that the minister and the bureaucrats
agreed that it should have been. It was omitted by error. How many times have
we, in this chamber, fought over this very issue? The Senate is being excluded.
The honourable senator said that the minister promised that the change would be
made later. He also mentioned that five ministers are involved. Which minister
made the commitment that it would be changed? I understand that the bureaucrats
made the same statement. Would Senator Corbin tell me under what authority they
would have made that statement?
Senator Corbin: Honourable senators, the error occurred. I called it
an error. Can we call it a bone fide omission? It was an oversight. The proposed
subsections 21.18(1) and (2) were an amendment presented by the Conservative
Party in the House of Commons. I am not playing partisan politics; I am giving
you the facts. The Conservative members of the committee came forward with this
amendment, and the result was an oversight. No one picked it up — not the
minister, not the officials, and no one in the other parties. As I was going
through the bill and preparing myself for this debate, I picked it up, as I did
with a previous bill that I sponsored in the Senate. This is probably the
seventh or eighth occurrence of the Senate being left out of a review process or
a reporting process.
I brought it to the attention of my leader in the Senate, who told me to
speak to Madame Robillard. Madam Robillard had someone in her office call me to
explain the circumstances of this omission. They regret it tremendously. They
apologized for it. However, it was not their amendment. It came from somewhere
else. I did receive a commitment. That is what we are all about. Our job is to
pick up faults and parts and pieces that do not fit together. That is why the
The honourable senator wanted to know who will fix this and when. Time is of
the essence with respect to adopting this bill. If we make an amendment to this
bill, it must go back to the Commons. I hope, and I say that respectfully, we
will be able to adopt the bill without amendment sometime next week. The
following week, the House of Commons will not be sitting. As to what will happen
after that, the honourable senator's guess is just as good as mine. If we do not
move the bill forward, it could be delayed for some months. Who will suffer as a
consequence? Certainly not us, and not the House of Commons, but the people in
developing countries who need the drugs.
Hon. Senators: Hear, hear!
Senator Sparrow: Thank you very much for that applause.
I heard Senator Corbin say that the minister and the bureaucrats said that
they would make the necessary changes. Now he is saying that he did not even
talk to the minister, that he talked to some bureaucrat who said that the
minister would change it. There is a big difference between those two
How many times have Senate committees and this chamber heard promises by
ministers that they will make changes if there is something wrong? We are not
talking about the value of the bill; we are talking about the actions of the
Parliament and the government in excluding the Senate. The honourable senator
can make any excuse he wants. Whether it was a Tory amendment or whatever, it is
in this bill. Now that we are facing an election, who knows that after the next
election the same ministers, any one of them, will be in the same position? The
Minister of Health was mentioned, but Senator Corbin did not talk to the
minister, he talked to some bureaucrat who said that the change would be made.
We have no indication of that. It may not even be feasible that, following the
election of a new government, the same minister will hold that portfolio. If
that minister is not reappointed, they will say, as has happened so many times
before, ``I am not the minister anymore; that is not my problem any more. A new
minister has the job.''
Can the honourable senator confirm that it was the minister he talked to? To
whom did he speak?
Senator Corbin: Yes, I talked to Minister Robillard. I brought this
matter to Minister Robillard's attention, and she said she would get back to me
herself or through someone in her office. They called and apologized. They said
it was an honest error and would be looked after. I was given that assurance.
This matter ought to be properly dealt with at the committee stage, if I may
respectfully suggest, and I am sure we will hear from the minister at that
I deplore this situation just as much as Senator Sparrow does.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable
senators, perhaps Honourable Senator Corbin could help me understand proposed
section 21.01 on page 1 of the bill, which states that the purposes of proposed
sections 21.02 to 21.17 are to give effect to Canada's and Jean Chrétien's
pledge to Africa. Is there a distinction between the pledge of Canada, as given
by the Prime Minister of Canada, and the pledge of Canada and a pledge by Jean
Chrétien? I laud the principle of this bill and will be supporting it, but I am
concerned that we make a disjunction between Canada, which is typically
represented by the head of the Government of Canada — the Prime Minister — and
inserting into the bill the name of an individual Canadian. Is it the pledge of
Jean Chrétien the individual as well as the pledge of the Prime Minister of
Canada? It is spoiling, in my opinion, a perfectly good piece of work by the
Government of Canada.
Senator Corbin: Honourable senators, this pledge to African leaders
was given at the Kananaskis G8 meeting; was it not? That is where Jean
Chrétien's pledge comes into play.
The honourable senator catches me by surprise when he asks me to respond. I
have not focused on this aspect of the bill. I take the title at face value, but
he will agree with me that a title like ``An Act to amend the Patent Act and the
Food and Drugs Act'' is not very sexy. Maybe I should withdraw those words.
I am trying only to be open and candid. If the honourable senator goes to
Fredericton and my hometown of Grand Falls and tells the people there that we
had an exchange on an act to amend the Patent Act and Food and Drugs Act, what
will be the reaction? However, if he tells them about the Jean Chrétien pledge
to Africa, that may turn on a few lights.
Senator Kinsella: I am more concerned that after the people of Grand
Falls, New Brunswick, read the Hansard of this debate, they will hear about a
sexy leader and performance-enhancing drugs.
Honourable senators, I do not want to delay the debate, but how many bills
can we point to that have this kind of title? I cannot find any. My concern is
the part of the title that is in brackets.
I will not raise a point of order, but honourable senators should read what
Erskine May says about long titles, at page 462, which is very clear.
With respect to the proposed section of the bill I mentioned earlier, I would
hope that my colleague would agree with me that the committee should take a peek
at its wording.
The Hon. the Speaker: Honourable senators, I have a number of
questioners rising, but I regret to advise that Senator Corbin's 45 minutes have
Hon. Anne C. Cools: Maybe I should raise a point of order. He should
ask for more time. This is a complicated debate.
The Hon. the Speaker: I will see Senator Cools on a point of order.
Senator Cools: It is not really a point of order. We can raise these
same questions on a point of order.
I appeal to Senator Corbin to ask for leave to continue this debate. I am
sure it would be granted so that some of these questions of deep constitutional
importance can be clarified. I, for example, want to put particular questions to
Senator Corbin because he is very informed on this matter.
Honourable senators, if we do not want to debate, then close the place down.
The Hon. the Speaker: Senator Cools, I understand your point. I have
on my list, in addition to yourself, Senator Fraser, Senator Tkachuk and, I
believe, Senator Sparrow, all who wish to ask more questions.
In any event, Senator Corbin's 45 minutes have expired. The rules are clear.
He has not asked for additional time. We have other speakers, and I will go to
Before I do, Senator Corbin spoke on the government side, and Senator Morin
wishes to be recognized. I believe that the principal speaker for the opposition
side will be Senator Keon. I take it we agree that the 45-minute time should be
limited to the first speaker, namely, Senator Keon. Is that agreed?
Hon. Senators: Agreed.
Hon. Yves Morin: Honourable senators, I would like to briefly comment
on Bill C-9 and on the excellent speech made by the Honourable Senator Corbin.
The health problems that exist in developing countries are unprecedented. The
legislation now before us will certainly provide a means of dealing with this
I would like, however, to raise one specific issue that has not, to my
knowledge, been addressed thus far in the debate surrounding this important
legislation. We all understand that this bill will render essential drugs
available to developing countries at a fraction of the cost we pay for them in
Canada. My question is, therefore, where does the money come from to account for
this difference in cost?
We are talking about large sums of money. The cost to treat a case of AIDS in
Canada is around $20,000. Under the new system, the cost to developing countries
would be around $200. Who will pay the difference? It is not the government. The
government has simply legislated the process without allocating any funding.
In fact, the cost of this generous legislation will be entirely borne by the
research-based pharmaceutical industry. The price of an innovative drug is not
that of the ingredients but that of the research that led to its discovery and
approval, which costs more than $1 billion, a sum that must be recovered in only
10 to 15 years before the patent protection expires.
What we are doing today is very unusual. For the first time, we are ordering
a private company to donate its products, admittedly to a most worthwhile cause
and health emergency.
Nonetheless, when the government commits other Canadian goods or services to
developing countries, for instance, through CIDA, it pays for them. Bill C-9,
however, is different. Its confiscation of a Canadian product is a precedent in
Canada; and we are the first country in the world to take this step.
The decision to take such a step is a measure of the importance we attach to
combatting AIDS throughout the world and the bill has received widespread
support to achieve that goal. We have, though, gone one step further. By
removing the right of first refusal that was in the first version of the bill,
we are preventing the research-based pharmaceutical companies from participating
fully in the provision of medicines.
First, that does a disservice to the industry's long history of humanitarian
involvement in developing countries, not only in the field of pharmaceutical
delivery, but also in setting up adequate medical facilities and ensuring that
proper diagnoses and adequate monitoring are carried out.
For example, six companies are participating with the World Health
Organization and UNICEF in efforts to improve access to anti-retroviral
medicines in 84 countries. In addition, Merck & Co., in cooperation with the
Bill and Melinda Gates Foundation, has taken the responsibility of developing a
comprehensive plan for the treatment of AIDS in Botswana. There are many more
examples of this type of comprehensive action by the innovative pharmaceutical
As a matter of fact, an article in the last issue of Health Affairs,
which is the most prestigious journal in the field, has shown that essential
patented drugs are deeply discounted in developing countries, so that the
original products and their generic counterparts are priced similarly. This is
important in the context of this bill.
Second, the fact that the innovation industry is not participating in the
program increases the risk of diversion, to which Senator Keon alluded earlier.
The diversion of medicines that have been supplied to the least-developed
countries is the plague of this type of undertaking, and there are many
documented instances of that taking place.
For example, in July 2002, a large proportion of anti-retroviral drugs that
had been sold at preferential prices to a number of African countries was
illegally diverted back to Europe and sold on the black market. Similarly, a
supply of vaccines sent to Nigeria was falsified and the original diverted. Two
thousand children died as a consequence.
We all agree that AIDS is a major public health problem in developing
countries. Over the last five years, global AIDS sufferers have increased from 9
million to 42 million. In addition, according to recent reports, notably in the
British Medical Journal, viral resistance is making some AIDS drugs less
effective and others virtually useless. Certainly, none of them is curative.
Making existing drugs more available is but a short-term solution. The
longer-term solution lies in research — research to develop new vaccines and
new, more effective drugs. Major companies such as Merck Frosst, Bristol-Myers
Squibb and GlaxoSmithKlein are spending more money on AIDS research than ever
before. For those who are concerned with the magnitude of the problem, this is
where hope lies.
Canada's research-based pharmaceutical companies have, since the introduction
of Bill C-9, wholeheartedly supported the principles of this compassionate
legislation, while insisting on transparency and on its humanitarian,
non-commercial nature. In return, however, we need to acknowledge their
realities, including the reality that, without their investment in innovative
research, we will not have the new drugs we need so badly.
I should like to conclude by quoting Dr. Mark Wainberg, past president of the
International AIDS Society, and one of Canada's leading AIDS experts. He said:
Pharmaceutical firms are to be commended for allowing the production of
low-cost, generic versions of their HIV drugs for poor nations. In fact, all
of the world's major companies have agreed to dual-price structures for
their anti-HIV drugs. The debate over drug access has largely ignored such
overtures by the pharmaceutical companies.
I believe it is also time for us to recognize this in relation to Bill C-9.
Hon. Shirley Maheu: Honourable senators, I am pleased to add my
comments to the debate on Bill C-9, the Jean Chrétien Pledge to Africa act.
Last summer, Canada was the first country in the world to support the
decision of the World Trade Organization to provide life saving and affordable
drugs to doctors and nurses working in developing countries.
Notwithstanding some concerns, this bill is a bold initiative. It will help
fast track medical relief to Third World countries on a humanitarian and
non-commercial basis. Generic drug makers will be able to produce low-cost
versions of patented drugs for export to developing countries. These drugs will
be for humanitarian, non-profit and non-commercial use.
I confess that I have a parochial interest in this bill. The constituency
that I represented in the other place for many years is the home of corporate
giants in pharmaceutical production. Many Canadian jobs are affected by public
policy in this field, especially in my part of Montreal. Drug costs, brand
names, generic labels, and the provision of diagnostic and prophylactic products
and other medical issues all intersect. A balanced public policy must prevail. I
believe that the provisions of this proposed legislation reflect such a balance.
Honourable senators, the pharmaceutical industry, non- governmental
organizations and the public broadly support this initiative. It is critical to
set aside any diverging views in order to increase the effectiveness of this
measure. Of course, in order to measure the degree of success of this
undertaking, we will have to determine whether diseases were diagnosed
accurately in these countries, whether treatments were applied properly, and
whether there was diligent follow-up.
As a humanitarian program, I believe this initiative is as important as any
public policy proposal in the field of foreign affairs being pursued currently
by the Government of Canada. It speaks to several issues and vulnerabilities
that are so mutually entangled and systemic as to defy solutions. It speaks to
human rights, poverty, education, equal opportunity, and especially public
health, as the elements of the foundation of societies wherein people can make
their own choices and govern themselves.
The whole African continent will have to rise to the challenge and move away
from tribalism, cronyism and dictatorship.
It speaks to the ultimate anarchy created by depopulation brought about by
disease, especially by the plague-like epidemics of tuberculosis, malaria and
Finally, it speaks to the dignity of the human spirit. Much has been said
over the years about the responsibilities, indeed about the mission, of those
who have in relation to those who do not have. I believe that we ignore at our
peril this message. Future generations, the descendants of the affluent, will
pay the price dearly for a refusal of duty, mission and vision now, directed to
those who do not have.
This bill has a lofty purpose. What makes it even more important is that it
is not tied to any conditions set out by the World Bank and does not come with
all the bureaucracy that tied assistance usually entails.
This proposed legislation is a grand gesture of stand-alone ability,
untarnished and unencumbered by the counterproductive conditions that are too
often imposed on Third World recipients.
This legislation is both a small and large ``L'' liberal initiative. I
believe this bill cries out for speedy approval. I urge all honourable senators
not to let the imminent election call derail this bill. I urge you to hasten the
progress of this bill. Let us pass this bill before the dissolution of our
This effort promotes security and prosperity and is a recipe for peace in the
developing world. Our planet has long ceased to be a globe of scattered and
remote diversity. Our planet is now our very own neighbourhood.
I believe everything we do to promote stability in the developing world
demonstrates that Canada is the best neighbour to have.
The Senate proceeded to consideration of the fourth report (interim) of the
Standing Senate Committee on Agriculture and Forestry entitled: The BSE
Crisis — Lessons for the Future, deposited with the Clerk of the Senate on
April 15, 2004.—(Honourable Senator Fairbairn, P.C.).
Hon. Donald H. Oliver: Honourable senators, this stands in the name of
Senator Fairbairn, and with her leave I should like to speak to this report of
the Agriculture and Forestry Committee.
Honourable senators, I am pleased today to address with you the findings of
the recent report entitled, The BSE Crisis — Lessons for the Future,
prepared by the Standing Senate Committee on Agriculture and Forestry.
As we know only too well, a single case of BSE was discovered last May in
Alberta, just under a year ago. The discovery immediately caused turmoil in
Canada's cattle industry and rural communities, a turmoil that continues to
affect us today.
The committee saw an urgent need to study the implications of the situation
and to explore potential solutions that could help prevent the recurrence of
such a disaster in the future.
The committee heard from stakeholders from the entire beef chain, including
individual farmers, farmers' organizations, packers and retailers, as well as
the Minister of Agriculture and Agri-Food, the Honourable Bob Speller, and
representatives from the Canadian Food Inspection Agency and Agriculture and
Agri- Food Canada. We also invited representatives from rural municipalities to
tell us about the impact on rural Canada.
The committee held seven meetings, sitting 14 hours in total, and listened to
This report gives an overview of the current situation and problems and
proposes a long-term approach to ensuring greater security and stability for the
Canadian beef industry.
Let me first note some of the key facts in this disastrous chain of events
that have affected our cattle industry since the discovery of the single case of
BSE in Alberta one year ago.
As soon as the discovery was announced, Canada's export of beef and cattle,
which totalled about $4 billion in the year 2002, dropped to nothing, as
countries immediately closed their borders to all our cattle and beef products.
Some two and a half months later, on August 8, 2003, the United States, by far
our major market, accounting for some 70 per cent of Canada's exports of beef
products and for nearly all of our export of live cattle, announced a partial
opening of its border, allowing imports of boneless meat from cattle less than
30 months old and boneless meat from calves 36 weeks or younger. Mexico, our
second market for beef, made a similar announcement on August 11, 2003.
Here is what happened, honourable senators: On December 23, 2003, a case of
BSE was discovered in Washington State, in the United States of America. This
discovery suspended actions that had been taken to reopen the U.S. border to
Canadian live cattle. It also reinforced the argument that this was more a North
American issue than a national one. In fact, the international team of
scientific experts that examined the U.S. investigation of the Washington State
BSE case concluded that — and this is the key, honourable senators — even though
the affected animal had originated in Canada, the U.S. case could not be
dismissed as simply imported. The experts stated that both the Alberta and the
Washington State case must be recognized as being indigenous to North America.
The Canadian reaction to the crisis has been exemplary. Canada undertook an
immediate and exhaustive investigation of the May 2003 case of BSE, an
investigation that was praised by recognized international bodies such as the
office international des épizooties, or OIE, the World Organisation for Animal
Health, and the Food and Agriculture Organization of the United Nations.
Adequate measures to increase the safety of beef were put in place, including
the removal of specified risk materials. That refers to tissues such as the
brain and spinal cord that, in BSE-infected cattle, contain the agent that may
transmit the disease. Finally, Canadians across the country showed tremendous
support to the cattle industry by increasing the domestic consumption of beef by
5 per cent from 2002, a world premiere in a country affected by an unforeseen
case of BSE.
Honourable senators, in spite of these measures and even though the safety of
beef is absolutely not in question in Canada, the industry has suffered and
still suffers from the closure of its export markets.
Why has there been such a disaster? The answer concerns, in part, the state
of Canada's domestic packing capacity. Prior to the BSE crisis, Canadian
ranchers had access to packing plants not only in Canada, but also in the United
States. They were thus able to benefit from competitive forces when they wanted
to sell their livestock. One entire year after the U.S. border was closed, live
cattle and meat from animals older than 30 months still have no access to the
This situation has created a huge oversupply of live cattle that cannot pass
through the bottleneck of Canada's domestic packing capacity even though
Canadian packers have been slaughtering at a rate close to their maximum
capacity during last fall and winter.
The Canadian cattle herd has, therefore, reached unprecedented levels. It
stood at 14.7 million head in January 2004. One report we read indicated that
there are 1.2 million more head of cattle than in January 2003.
With a huge oversupply of live cattle, the price of cattle and calves
dropped, almost 50 per cent between May and July 2003. In December 2003, average
prices for slaughter steers and heifers in Alberta were still 18.5 per cent and
15.5 per cent lower than in December 2002, respectively. Cow-calf and feedlot
operators have suffered a sharp loss of income and equity that has reduced their
cash flow and their access to financing. It is estimated that the cow-calf
sector lost $3 billion in equity due to the decline in the value of the breeding
Honourable senators, this crisis in the cattle industry has spread outward to
affect other Canadian businesses and communities. Other parts of the
agricultural sector such as hog, sheep and bison are feeling the effects of
border closures and depressed prices. Witnesses reported many layoffs in the
feedlot sector, as well as bankruptcies in the trucking industry and layoffs in
a number of service industries.
Rural Canada is being hard hit. The damage needs to be addressed as soon and
as broadly as is possible. There is no doubt that reopening the U.S. border in
order to remove the surplus of live cattle is our first priority in the short
term. Interim measures are also needed as a bridge between the current situation
and the time when the U.S. border will reopen to live cattle.
These solutions have been discussed at length. At this time, therefore, I
would rather address the long-term solutions that we, as a committee, have been
proposing. Our first recommendation calls on the Government of Canada to funnel
some of the venture capital funds that were announced in the budget specifically
into additional value-added capacities for the livestock sector in both Western
and Eastern Canada, and to develop, with the industry, a long-term vision for
future processing in that sector so that we can do more processing in Canada.
As I mentioned previously, it is Canada's domestic packing capacity or,
rather, the limitations of that capacity, that created a bottleneck, preventing
the movement of cattle and creating an oversupply. This fact underlies the risk
in being dependent on another nation's infrastructure to process our cattle.
As evidenced by the current trade situation with the United States, which
allows imports of beef but not live cattle, borders are more sensitive to issues
related to live animals. This is not to say that there is no risk in the meat
market, but there is evidence that the risk is more manageable with processed
products than with live animals.
We must not forget that, when the U.S. border reopens to live cattle,
Canadian cattle producers will have renewed access to U.S. packing plants,
turning an oversupply market into a competitive one for the packing industry. In
the long term, however, there are important opportunities to build and sustain
an increased capacity within Canada, notably in developing specific brands and
filling niche markets.
Our second and, perhaps, most important recommendation calls for increased
harmonization of sanitary standards between the United States and Canada, and a
mechanism to quickly address the trade flow between NAFTA partners when a
sanitary or a phytosanitary issue occurs.
In September 2003, honourable senators, you should know that the United
States and Mexico jointly requested the OIE, the World Organization for Animal
Health in Europe, to provide an internationally agreed-upon,
scientifically-based trade response to BSE. They got together and asked for a
proper response to this crisis.
After it conducted its research, the OIE issued a statement in January 2004.
indicating that science-based standards for resuming trade with BSE-infected
countries exists already. However, the problem is that countries do not follow
it. Specifically, the OIE said:
...the existence of valid up-to-date standards did not prevent major
trade disruptions due to a failure by many countries to apply the
international standard when establishing or revising their import policies.
In fact, international scientific standards already exist to deal with many
aspects of agriculture. The Codex Alimentarius develops standards with respect
to the safety of food products; the OIE establishes standards for a number of
animal diseases; and the International Plant Protection Convention has developed
standards to avoid the spread of plant diseases such as potato wart. These are
meant to facilitate the movement of products between countries with different
health and safety status.
Trade agreements such as the NAFTA and those under the World Trade
Organization require that any sanitary or phytosanitary measures that a country
adopts shall be based upon scientific principles and shall not be maintained
where there is no longer a scientific base for it. When a sanitary measure is
thought to be disrupting trade, the WTO uses standards developed by the OIE, the
International Plant Protection Convention and the Codex Alimentarius to
determine whether the measure is based on sound scientific principle.
For example, in the dispute that everyone will remember between Canada and
the European Union over the EU ban on beef products that had been subjected to
growth promoting hormones, the WTO based its rulings on the Codex Alimentarius
standard on the use of such hormones.
The fact that trade barriers related to BSE have never been challenged under
the WTO, however, is probably our biggest problem. It shows that there is a need
to develop a more practical approach to resuming trade when the disease appears
in a country. This is the focus of our committee's second recommendation,
enabling trade to resume in a timely manner in order to avoid the kind of dire
situation our beef industry is facing today. It has been 12 months since our
export of live cattle over the border was stopped.
Our second recommendation also urges the North American partners to enhance
the harmonization of their sanitary and phytosanitary standards. To this end,
the committee calls for the establishment of a new, permanent NAFTA agricultural
secretariat, with the mandate to apply harmonized standards and recommend
actions by NAFTA partners to regulate the trade flow when a sanitary or
phytosanitary issue occurs.
In the case of BSE, it quickly became clear that there was no scientific
basis for further restricting the movement of live animals and beef products in
relation to this disease. As an independent body operating under a legally
binding agreement, a NAFTA secretariat would have recognized this fact and made
the appropriate recommendations to the three NAFTA partners, Canada, Mexico and
the United States, thus providing leverage to remove undue trade barriers.
If this practical approach had been implemented within an approximate time
frame, the BSE crisis as we know it today in Canada would not have been so
damaging to our beef industry.
In conclusion, honourable senators, such a process could be helpful in any
situation where a disease affects the agricultural industry. We all remember the
difficulties experienced by potato farmers in Prince Edward Island when potato
wart was discovered in one corner of one field in the year 2000.
We must not make our farmers hostages to politics. We must give them the
assurance that there are proper mechanisms to ensure the safety of their
products and that normal trade flows will be re-established as soon as the
sanitary issue is under control.
Promoting rules-based trade and developing value-added processing in Canada
would reduce the vulnerability of our cattle industry. The committee hopes that
this study and its recommendations will help strengthen and stabilize Canada's
cattle industry, and thus benefit all related aspects of agriculture that
support the well-being of our rural communities and our national economy.
Resuming debate on the motion of the Honourable Senator Bacon, seconded
by the Honourable Senator Maheu, for the adoption of the sixth report of the
Standing Committee on Internal Economy, Budgets and Administration (document
entitled Senate Administrative Rules) tabled in the Senate on March 31,
2004.—(Honourable Senator Atkins).
Hon. Norman K. Atkins: Honourable senators, I adjourned debate on this
item when it was raised in the Senate for one purpose and one purpose only: to
give senators and their staff a chance to read the Senate administration rules.
I have now read them. I get the feeling that a number of senators have not and I
think that they should.
I have been dealing with Senator Furey, and my concerns regarding this report
have been satisfied. I congratulate him for his hard work on this file. As far
as I am concerned, the report can now be approved.
The Hon. the Speaker: Are honourable senators ready for the question?
Some Hon. Senators: Question!
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Resuming debate on the motion of the Honourable Senator Carstairs, P.C.,
seconded by the Honourable Senator Poy:
That the Standing Committee on Rules, Procedures and the Rights of
Parliament study the manner in which Private Members Business, including
Bills and Motions, are dealt with in this Chamber and that the Committee
report back no later than November 30, 2004.—(Honourable Senator Cools).
Hon. Anne C. Cools: Honourable senators, last Thursday, April 29,
2004, I indicated that it had been my intention to speak on this motion. I would
like to begin by recapitulating what happened last Thursday.
Last Thursday, in effect, a motion for the previous question was moved by
Senator Robichaud. It seems that Senator Carstairs — they say ``we,'' so I am
assuming we means the two of them — felt that it was necessary to move this
extremely high-handed draconian measure without any explanation, I would say, in
order to supposedly force her motion along. I would like to quote from the
record, page 987 of the Debates of the Senate of April 29, 2004, where
Senator Carstairs stated:
We are quite prepared to accept Senator Cools' word that she will speak
on Tuesday, and I am sure Senator Robichaud will be quite prepared to
withdraw his motion to put the question on the basis that she will speak on
Not only was a draconian measure moved, but it was also moved and acted upon
with conditions. I submit to honourable senators that this is most
unparliamentary and extremely improper. Senators should be giving long and
careful pause to supporting these kinds of measures because I often think that
senators do not really understand the implications of some of these initiatives.
Before continuing to the motion itself, I note that in moving his motion,
Senator Robichaud has a double standard. I would like to recount that and to
show that Senator Robichaud does not practise what he preaches. I would like to
look to the record of the last session, in fact debate on my marriage bill,
which was Bill S- 15. On June 12, 2003, I moved a motion to restore my Bill S-15
to the Order Paper. Immediately, Senator Robichaud pounced on it and moved
adjournment of debate on the motion. Senators must understand that there was not
a substantive motion. It was simply to restore something to the Order Paper.
For the next several months, Senator Robichaud did not speak to the item, nor
did he express any interest in the bill itself. He held the adjournment in his
name, standing the item daily until it died on the Order Paper when Parliament
was prorogued on November 12, 2003. I repeat, from June 12, 2003 to November 12,
2003, Senator Robichaud wilfully and deliberately ensured that my marriage bill,
S-15, would not proceed. In effect, Senator Robichaud killed the bill by not
allowing it to proceed.
Furthermore, I would like you to know that Senator Carstairs has used the
same procedure in respect of my initiatives in the past.
In addition to expressing that I believe these actions are deplorable, I
would like to proceed now to the substance of the question before us, which is
Senator Carstairs' motion for an order of reference to the Standing Committee on
Rules, Procedures and the Rights of Parliament. The motion is interesting. It
asks that the Rules Committee study the manner in which private members'
business, including bills and motions, is dealt with in this chamber and that
the committee report back no later than November 30, 2004.
I have many problems with that motion, the first of which is that the motion
is extremely vague. It is very unclear and imprecise. It does not indicate or
articulate clearly what the committee is being asked to do or what the committee
is being asked to study. An order of reference should be crystal clear, with the
instructions laid out in extremely unambiguous ways.
To learn what is being really asked by that motion, one has to look to the
content of Senator Carstairs' and Senator Poy's speeches. Those speeches reveal
that these two senators are desirous of having a process here in the Senate that
is similar to or identical to the process in the House of Commons in respect of
the reinstatement of private members' bills. I am saying that that fact is not
clear. What the committee is being asked to do is not clear from the motion
itself. One has to go to their speeches to discover really what is being asked
Essentially, it would appear that these senators are asking the committee to
provide a report to the Senate making proposals in respect of what they had
talked about in their speeches. I have problems with the manner and the framing
of such an order of reference. There is something fundamentally flawed and wrong
with it. It is so flawed, I think, as to be defective.
On the substance of the matter itself, I submit to honourable senators that
the wishes of these senators in respect of what they are asking the committee to
do are somewhat bizarre and unusual. Perhaps the first thing I should do is cite
the House of Commons rule that is purported to be wanted, to be followed or
likened or imitated in this house. That rule is 86.1 of the Standing Orders of
the House of Commons. It has been put on the record here before, but I would
like to say that such a process is not open to the Senate. The reason is that
part of the process according to 86.1, both the old and the new 86.1, relies
heavily on a certification from the Speaker of the House of Commons.
I shall read that part of rule 86.1.
...when proposing a motion for first reading of a public bill, states
that the said bill is in the same form as a private Member's bill that he or
she introduced in the previous Session, if the Speaker is satisfied that the
said bill is in the same form as at prorogation, notwithstanding Standing
Honourable senators, that process in the House of Commons relies on the
Speaker of the House of Commons making an attestation or certification that the
bill is in the same form as it had been previously. I would submit that the
Speaker of the Senate has no such power to perform that kind of function. My
basis for that is found in the differences of the offices of the Speaker of the
House of Commons and the Speaker of the Senate.
These differences can be borne out by looking at the BNA Act, section 34.
That section clearly sets out that the Speaker of the Senate is appointed by the
Governor General by instrument under the Great Seal of Canada. The appointment
of the Speaker is at pleasure. The manner and the mode of that appointment makes
the Speaker of the Senate the king's man or the Queen's man.
On the other hand, the Speaker of the House of Commons is chosen in a
different manner. The form of choosing the Speaker of the House of Commons is by
election by the members of the House of Commons. The election of the Speaker of
the House of Commons is provided for in section 44 of the BNA Act. That section
reads as follows:
The House of Commons on its first assembling after a General Election
shall proceed with all practicable Speed to elect One of its Members to be
Honourable senators, there is a reason why the Speaker of the House of
Commons is called ``Mr. Speaker'' and ours is not. That reason is the
constitutional process that makes the Speaker of the House of Commons the House
of Commons person, the voice of the House of Commons. That is not the case in
the instance of the Senate. The Speaker of the Senate is not the voice or the
representative of the Senate.
There have been many debates in this place about this subject. I remember
Senator Molgat once suggesting that the only way to remedy this was to ensure
that the Senate could elect its Speaker in the same manner as the House of
Commons. I do not know how that can be done constitutionally, but that is a
On two other points, I should like to say why such a measure is not really
available to us, the Senate. I should like to go to the question of the business
of a prorogation, which is what these measures are attempting to overcome. I
would submit to honourable senators that, in my view, the rule in the House of
Commons is not properly constitutional. We should not attempt to imitate it
because their standing order purports to defeat a prorogation.
I should like to quote George Bourinot on prorogation, from Parliamentary
Procedure and Practice in the Dominion of Canada, fourth edition.
The legal effect of a prorogation is to conclude a session; by which all
bills and other proceedings of a legislative character depending in either
branch, in whatever state they are at the time, are entirely terminated, and
must be commenced anew, in the next session, precisely as if they had never
I should also like to share with honourable senators what a prorogation is. A
prorogation, honourable senators, is a proclamation — an order, command — of Her
Majesty authorized under the letters patent constituting the office of the
Governor General of Canada. Section 6 is essentially the authority for the Royal
Prerogative of prorogation to go into effect.
I should like to submit to honourable senators that there is no rule of the
Senate and there is no standing order of the House of Commons that can have the
effect of defeating, overcoming or amending a prorogation. If I could find
someone to explain how it can be purported to be done, I would be quite
grateful. It is extremely improper and, I would say, contrary to the law of
Parliament and contrary to the law of the prerogative.
We are in an era where chambers feel they can do quite what they like without
ever articulating the principles or without ever telling us the basis in the
law. The law is not something that is invented every day. The law is something
that follows like a thread for centuries and centuries.
I just wanted to make the point that a prorogation cannot be defeated by any
order of the House of Commons or of the Senate. I have very strong feelings
There is another little bit of business of the law of Parliament that these
reinstatements are overcoming. This practice is so well established, honourable
senators, that it is not even in our rules — that is, the requirement that every
bill will be given three readings in each chamber.
For a bill to become an act of Parliament, it must be given three readings in
the House of Commons and in the Senate. The reinstatement process is improper
because it does not involve three readings. As a matter of fact, it displaces
and supplants the notion that every bill should have three readings in the
I would submit some authority for this, honourable senators. William Stubbs
told us, in his 1890 Constitutional History of England, fourth edition,
The three readings of the bills are traceable as soon as the form of bill
is adopted; the committees for framing laws find a precedent as early as
That fact that a bill must have three readings is an extremely ancient law.
It is simply not overcome by any mere rule or order of either chamber. This is
the law of Parliament. It is a body of law. It is the most understudied law in
the world. In my view, it has become moribund and unknown to most members of
I keep trying to do my little bit to bring out some of it every now and again
and put it on the record so that the students, scholars, lawyers and
constitutionalists can at least look to some reference to some of these great
systems on the floor of the chamber in debates.
Honourable senators, I have further authority for that. Sir Thomas Smith, a
famous Member of Parliament around 1576, wrote:
All bills be thrice, in three diverse days, read and disputed upon,
before they come to the question.
The Acting Speaker: I am sorry, Honourable Senators Cools, your time
Senator Cools: I would ask for leave to complete my thoughts,
The Acting Speaker: Is it agreed to give the honourable senator
further time to finish her thoughts?
Hon. Senators: Yes.
Senator Cools: Thank you.
Honourable senators, in essence, I am saying that there is no basis
whatsoever in our law of Parliament to be effecting these reinstatements. The
process that is being conducted and used in the House of Commons is not up to
scratch. I hope the Senate does not set out to imitate a process that is already
flawed. I have discussed these processes with authorities from other
jurisdictions. They are appalled when I tell them of the way in which we are
reinstating bills following prorogations. I should like to submit for the record
that the reinstatement process is an extremely improper one and should not be
imitated or followed in any way in this chamber.
In closing, honourable senators, deviations from the rules and standards are
usually only ever done for good and dramatic reasons. Returning to my original
point about using motions for the previous question, which is the original
closure motion, it is customary that when honourable senators move such motions
they are to be moved after a speech. They do not replace speeches; they displace
In those speeches, three items, three essences should be outlined. One is the
urgency for the measure — in other words, the measure is urgently needed; two,
that the measure is in the public interest; and, three, that there has been
prolonged and extended obstruction of the measure.
Honourable senators, I thank you for those extra minutes. As I said before,
my position is, fundamentally, that the order of reference here is unclear, it
is imprecise and it is not properly articulated. In fact, it is so unclear as to
be defective. That is my first point. My second point is that the order of
reference seeks a response and some actions from a committee, which the law of
Parliament forbids. I would remind His Honour that Beauchesne's and all
the authorities tell us that, at all times, the Speaker should refrain from
putting questions before the house that are irregular, out of order or improper.
Having said that, honourable senators, perhaps some of these issues seem
arcane, but I served in this chamber during a time when a minister on the other
side — it was another party — was trying to figure out how he could do away with
the need for three readings for a bill because he thought one reading was
enough. I know those who fought that. Honourable senators, it is most important
that we maintain a parliamentary tradition and resist any attempts to transform
this chamber into an assembly of some sort of a banana republic.
On motion of Senator LeBreton, for Senator St. Germain, debate adjourned.
Hon. Peter A. Stollery, pursuant to notice of May 4, 2004, moved:
That, notwithstanding the Order of the Senate adopted on February 10,
2004, the date for the final report of the Standing Senate Committee on
Foreign Affairs regarding its study of the Canada—United States of America
trade relationship and the Canada—Mexico trade relationship be extended from
June 30, 2004 to March 31, 2005.
Hon. Marcel Prud'homme: Honourable senators, I attach a great deal of
importance to foreign affairs. I always regret that this committee is not, in my
view, the most flamboyant committee of the Senate but, having said that, I will
attempt to do that in due course.
Can Senator Stollery, who has requested such a late date for the committee to
report, tell us what will happen if Her Majesty dissolves Parliament some time
before Christmas? Will he table it next session or will the committee start its
work again? I ask this question for information because, as the honourable
senator knows, I am not a member of the committee.
Senator Stollery: Honourable senators, of course, if there is
dissolution of Parliament, all items will die on the Order Paper. The committee
will cease to exist.
It would be totally improper for me to anticipate what the committee might do
in the next Parliament. That must be a decision of the committee of the next
Parliament. However, I am obliged to make certain assumptions, and so we have
asked for the terms of reference to be extended until the end of the fiscal
Some Hon. Senators: Question!
The Acting Speaker: Is it your pleasure, honourable senators, to adopt