The Hon. the Speaker: Honourable senators, before proceeding, I wish
to draw your attention to the presence in the gallery of our former colleague,
the Honourable Richard Kroft, his wife Hillaine, and members of his family.
The Hon. the Speaker: Honourable senators, I received notice earlier
today from the Leader of the Government, who requests, pursuant to rule 22(10),
that the time provided for consideration of Senators' Statements be extended
today for the purpose of paying tribute to the Honourable Senator Richard Kroft,
who resigned from the Senate on September 24, 2004. I remind honourable senators
of the time limits.
Hon. Jack Austin (Leader of the Government): Honourable senators, it
gives me very great pleasure to speak today in tribute to the service of Senator
Richard Kroft, who holds the Order of Canada.
Senator Kroft's political career has been a succession of solid contributions
made, for the most part, out of sight of the public. It is a career dedicated to
discovering the truth in order to reveal the best possible options, and is
always guided by personal integrity and an impressive work ethic.
The statement I have just made I reserve for those public servants I find
truly dedicated to improving the lives of their fellow Canadians. In my
assessment, that is a compliment of the highest order.
We have had the opportunity to work with Senator Kroft, and we immediately
noticed his incisive intellect, which he brought to bear on many policies that
affect the Canadian public. These professional abilities have earned him public
praise from members of the House of Commons, including from among opposition
Early in his political career, Senator Kroft was Executive Assistant to the
Honourable Mitchell Sharp, and they remained close friends throughout Mitchell
Sharp's lifetime. Appointed to the Senate in 1998 by Prime Minister Jean
Chrétien, Senator Kroft served here as Chair of the Standing Committee on
Internal Economy, Budgets and Administration, and later as Chair of the Standing
Senate Committee on Banking, Trade and Commerce. Under Senator Kroft's guidance,
the Banking Committee produced an influential report on bankruptcy and
insolvency that is now the basis for policy on this matter by the Department of
The internal administration of the Senate has greatly benefited from Senator
Kroft's business-like approach. As a lawyer and a businessman, he founded
Controlled Environments Ltd., an international company of a unique nature.
Senator Kroft also served as President of Tryton Investment Company, and as
Director of the Federal Business Development Bank and the Canadian National
Railway Company, in addition to a number of other positions.
Senator Kroft is a community leader and has promoted worthy causes in his
home province. He served on the Winnipeg 2000 Leaders Committee, the University
of Manitoba, and as Honorary Council Member of the Royal Winnipeg Ballet. These
community institutions have been fortunate to profit from his wise counsel and
rare judgment, and these same qualities will be much missed by his colleagues
here in the Senate.
Senator Kroft's early and voluntary retirement is regrettable from the point
of view of honourable senators who remain. All of us share a great admiration of
his professional and personal abilities. No doubt, however, his retirement will
be a great benefit to his family, to whom I would like to offer sincerest best
wishes — his grandchildren, his children Elizabeth, Steven and Gordon, and most
of all, his wife, Hillaine. I would like to say to her that she will have him
kicking around the house.
Maybe you will not want him there as much as you will find he is; you could
send him back.
Hon. David Tkachuk: Honourable senators, I am pleased to say a few
words about the retirement of the Honourable Richard Kroft — not that I am
pleased to use the word "retired."
While Richard and I may have differed in some of our political views, when we
worked together on the Senate Banking Committee, we always worked to represent
the views of Western Canadians — something not easy to accomplish on the Banking
Committee with Bay Street financiers and CEOs from all the big banks of Eastern
Canada clamouring to appear.
This may surprise some honourable senators, but I was not shocked to hear of
Richard's early retirement since he often warned that he would not stay at the
Senate for a long time.
I hope, Richard, that it was a good time. I know I did my best to ensure your
days as the Chair of the Standing Senate Committee on Banking, Trade and
Commerce were always interesting. As Chair of the Banking Committee, Senator
Kroft upheld the fine tradition of past banking chairs by leading the committee
through a number of studies. One of the most significant reports during his
tenure was entitled Debtors and Creditors Sharing the Burden: A Review of the
Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act,
which came about because the Bankruptcy and Insolvency Act was due for review
and the House of Commons decided not to review it. I can attest to the
complexity but importance of this study for the benefit of millions of
Canadians, from students to small business people, to owners and seniors.
Senator Kroft, and I think most members of the committee, immediately saw
that what we thought would be a rather arcane, dry subject was actually full of
human complexity and of tremendous import to Canadians in general but
specifically to the small business economy in Canada. He demonstrated true
leadership. He led by example, as I realized from the joint press conference.
When we would get away from the main principles and into the technical matters,
I was like a deer in the headlights; but Senator Kroft understood and knew it
all. He answered questions spectacularly. He could explain the rationale for how
the committee arrived at each recommendation, and there were over 50 of them. It
was quite impressive.
Richard, I do not know if you realized the "commotion" your resignation
caused the Banking Committee. Let us just say there was some turmoil over
replacing you, and perhaps that is fitting. You did not hold the position nearly
long enough as far as I am concerned.
I want to wish you the very best in what I know is not a typical retirement.
You will probably be busier now than you were before. I wish you all the best
from our caucus, and warmest wishes to you and your family.
Hon. Wilfred P. Moore: Honourable senators, I wish to join colleagues
in speaking in tribute to the Honourable Richard Kroft, who was my seatmate for
nearly all of his six years in this place. I have known Richard for over 20
years. During that period we have collaborated on many fronts, and we became
very good friends.
As has been mentioned, Richard distinguished himself in the service of Canada
in his chairmanships of our Standing Committee on Internal Economy, Budgets and
Administration and the Standing Senate Committee on Banking, Trade and Commerce.
Perhaps his greatest contribution has been his talent to get colleagues together
to canvass issues of the day over a meal somewhere off Parliament Hill. I shall
personally miss that fellowship, Richard, and our many issue-solving sessions.
Since coming to the Senate, his administrative assistant has been Ms. Lisa
Fisher. I know that Richard would wish me to record his appreciation and thanks
to Lisa for her assistance. I am delighted to report that I am the beneficiary
of that period of mutual tutelage as Ms. Fisher now works with me.
Richard, I have always found most interesting your many advices to me
regarding your beloved hometown of Winnipeg, including the people and the events
of national significance rooted there and which continue to emanate therefrom.
However, despite those impressive facts, Richard, I still am not convinced that
Winnipeg really should be the capital of Canada.
I wish you, Hillaine, and your family the very best of health and happiness
in the years ahead, and I hope that your leisure time will permit you to come to
Atlantic Canada to our fabulous, historic coast where our great country began.
Hon. Mira Spivak: Honourable senators, if there is one word in our
community in Manitoba to describe Richard Kroft, that word is "perfect." He has
heard that before. Life for him is not a farrago but the orderly pursuit of
excellence in all endeavours. He is the very glass of fashion in a conservative
way, of course, highly respected in business, wise in many varied ways, and an
exemplary family man.
Respect and admiration is his due in Manitoba. As a fellow traveller and a
friend of the family, I wish to comment briefly, in a manner I am not accustomed
to, on that aspect of his career, which is the result of a quite extraordinary
record of community service, not overshadowed by his national service, as
attested to here.
How catholic that record is, embracing cultural, civic, provincial,
educational and political causes. His support of the Royal Winnipeg Ballet
enabled the erection of a splendid ballet school. He was involved in the Pan Am
Games. He was named to the Premiers and Mayors Committee to determine the future
of the Winnipeg Jets and a new arena. He was named as well to the Port of
Churchill Task Force and to the Mid-Continent International Trade Corridor Task
Force. That is just for starters for someone so young.
Hardly any of Winnipeg's venerable institutions have been left untouched by
his influence: the University of Manitoba, the Asper School of Business, St.
Pauls, Misericordia Hospital, the Jewish Foundation, the Jewish Museum — and the
If there is one small flaw in this picture, one tiny imperfection, it is his
political judgment. Too good, too good for my taste!
May I say that it has been a privilege and a pleasure to have had him here as
a colleague in the Senate. I want to wish him well in all of his future careers
that I am sure he will pursue, and of course Hillaine will have a golf partner.
Hon. Lucie Pépin: Honourable senators, it is not easy for me to stand
here and say goodbye to our colleague Richard Kroft. Over the years, we have
come to know this man and his extraordinary intellectual, moral and professional
integrity. He has marked our institution by the force of his personality and the
quality of his work. His familiarity with the ins and outs of the business world
will be a sad loss to the Senate.
Senator Kroft is reserved but warm-hearted, quiet but effective. He is a
courteous colleague who treats everyone with respect. An exemplar of what the
word "pragmatism" means, he does not rattle the chandeliers or go off on long,
lyrical flights, and yet the clarity and sincerity with which he expresses his
ideas leave little room for confusion. He is someone who inspires trust. We
always knew where we stood with him, and his word was his bond.
The fact that Senator Kroft is leaving before his official retirement age is
emblematic of his character. He is his own man, someone who throws himself
entirely into any job he has decided to take on. His legendary mastery of the
issues is the result of this conviction that something worth doing is worth
doing well. His own rich life shows that he has always been 100 per cent
committed to the causes in which he believes for his community and for his
country. Because of his dedication, he was invited in 1997 to become a member of
the Order of Canada.
Senator Kroft, you are one of those of whom it can confidently be said that
they will leave their mark.
Today we are losing a highly competent colleague and, above all, the daily
companionship of a good friend, which is how I will always think of you. We will
miss you here at the Senate.
I join with all my colleagues in wishing you the best of health and
well-deserved rest, surrounded by your family: Hillaine, Elizabeth, Steven,
Gordon and all your grandchildren. May the wind be always at your back and the
sun on your face.
Hon. Céline Hervieux-Payette: Honourable senators, I agree completely
with Senator Spivak, who has given us an extensive list of our colleague's many
qualities, but I take issue with the tiny imperfection she found in him,
suggesting that he was too Liberal. I think this is one of his greatest
qualities. I am paying tribute to Richard in French since he will now have the
time to take French courses, which will allow him to speak to his children and
grandchildren in the language of Molière.
Having sat with him on the Standing Senate Committee on Banking, Trade and
Commerce, I have been able to witness his leadership and wisdom in his dealings
with others. The word "integrity" best describes Richard. He has served Canada
well. He has represented the citizens of Canada, women in particular, and I
thank him for everything he has done here in the Senate for Canada, for his
province and especially for his community, where he was very active. Thanks to
him, about 30 years ago I even learned to like the temperature in Winnipeg.
I wish him and Hillaine and his entire family much success, and I wish him
much happiness in his new endeavours.
The Hon. the Speaker: Honourable senators, I regret that the 15
minutes for tributes have passed, but I mention that my understanding is that
Senator Banks will ask for leave under Notices of Inquiries to return to that
subject, should senators so wish at that time.
Hon. Rose-Marie Losier-Cool: Honourable senators, I would like to draw
your attention today to a conference on early learning and child care that was
held last weekend in Winnipeg.
This major event was organized by the Canadian Council on Social Development,
with support from Social Development Canada, the Government of Manitoba and
Status of Women Canada. The numerous speakers, most of whom were excellent,
represented the various levels of government, our own Senator Pearson among
them, as well as the private sector, unions, and proponents of education and
The three-day conference alternated presentations, panels, plenary sessions,
workshops and even a town hall meeting hosted by none other than the CBC's Mark
Kelly. Many hundreds of participants dealt with a wide range of themes including
child care and early learning as two national priorities, financing an
infrastructure of child care and early education, unique communities such as
Aboriginal children and linguistic minorities, and the enormous benefits of
child care and early education to parents, children, society in general and to
the Canadian economy.
The following are the five main points that came out of the conference.
First, child care and early childhood education no longer concern only women or
mothers, as they did in the 1970s, but society as a whole.
Second, child care and early childhood education are no longer a matter of
just parking children somewhere, but a means of getting our future adults off to
a good start.
Third, child care and early childhood education are not a business venture
but a public service on a par with health or education.
Fourth, as the Minister of Social Development, Ken Dryden, said, our new
national child care and early childhood education system must be irreversible,
so that it cannot be diminished or done away with by future governments.
Finally, our new system must be capable of attracting, training, motivating
and retaining more specialized workers.
Honourable senators, I will be returning to this matter within a few weeks in
the form of an inquiry.
Hon. Terry M. Mercer: Collectively, charitable organizations draw on
over 2 billion volunteer hours and more than $8 billion in individual donations
to provide their services. This year, hundreds of charities and over 50,000
people across North America will participate in ceremonies marking National
Philanthropy Day which was first formally celebrated in 1986. It is a day for
all Canadians to honour their volunteers and to recognize that when we choose to
give and offer our time, our nation becomes better.
You will receive a copy of the supplement to the National Post which
celebrates National Philanthropy Day and its history. I encourage you to read
it. You will find that philanthropy truly is the "love of mankind." It simply
means people helping people.
All 14 chapters of the Association of Fundraising Professionals celebrate
National Philanthropy Day in their own way. In Halifax and Ottawa, awards are
being presented to outstanding contributors to our sector, from large
corporations to individual volunteers. I would like to congratulate the award
recipients from Halifax: Volunteer Fundraiser of the Year, Ruth Goldbloom;
Individual Philanthropist, Ken Rowe; Corporate Philanthropist, The Maritime Life
Assurance Company and O'Regan's Automotive Group; Small Business Philanthropist,
the Halifax Shopping Centre; Philanthropic Group, GIFT Atlantic; and the Rising
Star Fundraising Professional Award to Jodi Swan.
I will be attending the Ottawa awards event this evening. I offer my
congratulations to the Chair of the Organizing Committee, Neil Leslie, and the
Ottawa Chair of AFP, Tim Kluke, on what I am sure will be a fantastic event.
Similar events will be held in Vancouver, St. John's, Toronto, Winnipeg,
Montreal, Regina, Windsor, Calgary and Victoria.
Honourable senators, a recognized National Philanthropy Day by the federal
government will go a long way to increasing the awareness of charities and the
important role they play in Canadian society. I will continue to pursue the goal
of a federally recognized National Philanthropy Day during my tenure in this
place and beyond, if I have to. That is how important charitable giving is to me
and to all Canadians.
Hon. Laurier L. LaPierre: Honourable senators, the Nunavut Youth
Abroad Program, or NYAP, is an exciting leadership development program that was
designed a few years ago to meet the unique needs of northern youth in the area
that has since become Nunavut.
NYAP developed out of a study that determined that the key to success for
many Inuit students was travel outside of their remote home communities.
Participants in the program gain an orientation to life outside their culture,
and through work and travel are prepared for post-secondary studies in southern
Canadian cities. This innovative, multi-phased program enables Nunavut youth to
acquire concrete work skills, first, through work placements in communities
across Canada and, second, through placements in southern Africa. Participants
have developed skills in the areas of journalism, communication, environmental
conservation, office administration and management, education, trade and health.
These skills are crucial for youth to play a greater role in the decision-making
process of their new territory.
The honorary patrons of NYAP are John Amagoalik and Susan Aglukark. The
participants have developed the confidence and motivation to complete their
studies and have forged new respect for the indigenous people of Nunavut, the
Inuit. During the past seven years, NYAP has helped to develop leadership,
cross-cultural awareness, career aspirations and international citizenship. I
Hon. Marisa Ferretti Barth: Honourable senators, as the first
Italian-Canadian woman appointed to the Senate, I invite you to join me in
applauding the election of the first woman of colour to the Quebec National
For the past year, Yolande James, a young lawyer, has worked as a political
attaché to the Minister of Health, Philippe Couillard. She was elected to
represent the riding of Nelligan in a by-election held on September 20, 2004.
I am sure that Ms. James will work on behalf of her constituents with
dedication and enthusiasm. Honourable senators, let us wish her great success in
her new role.
Hon. Wilfred P. Moore: Honourable senators, I rise today to make a
statement in tribute to my friend Sherman Fenwick Homer Zwicker, who passed away
on November 9. A proud son of Lunenburg, Nova Scotia, Sherman served as mayor of
his historic hometown from 1971 to 1979. He had earlier served for eight years
as a town councillor. Over the years, Sherman served on more than 30 volunteer
organizations, often as chair, at the town, county, provincial and national
levels. He truly led by example.
From 1960, he was president of Zwicker and Company Limited, the family firm
that traded in salt fish in the British and Foreign West Indies and the South
America trades. Prior to retiring in 1990, Sherman served for 10 years as the
executive director of the Union of Nova Scotia Municipalities, his most
cherished level of governing.
Sherman was the ideal candidate for every political party at the provincial
and federal levels. Despite the many courtships, he chose to keep himself true
to municipal government by not aligning himself with any party. However, he
often reminded me of his willingness to serve in this august chamber and that he
was ready to take that call. What a fine senator he would have been.
Early in October, Sherman was recognized for his exemplary community service
when he was awarded the Order of Nova Scotia by Her Honour, Lieutenant Governor
Myra Freeman. In continuation of the Zwicker family tradition of public service,
Sherman saw his son, Peter, elected to Lunenburg's town council on November 16.
A devout Anglican, Sherman's committal service was held in St. John's Anglican
Church, our partially restored place of worship that he loved so much.
We express our deepest sympathy to Sherman's wife, Barbara, and his children,
Peter, Lisa and Andrea, and we thank them for sharing him with us.
Hon. Pat Carney: Honourable senators, I should like to add my comments
on the impending retirement of my friend and colleague Laurier LaPierre. Due to
unforeseen circumstances yesterday, I was unable to take part in the Senate
I have known Laurier since the mid-1960s when he was a shy and modest man. He
was a university professor who taught Canadian history and he hosted a CBC
program, Inquiry, produced, as it happened, by my twin brother, Jim.
Laurier was the first French Canadian to show me that an English Canadian
from the West and a French Canadian could share the same vision of the country.
Remember, senators, this was before Expo '67 and before Pierre Trudeau; this was
the time when we were all young and committed, and Canada was being reinvented
as a bilingual and bicultural country. Laurier was very much part of that. Both
my brother and Laurier went on to This Hour Has Seven Days, one a star
and the other a producer.
Through television, Laurier showed Canadians that across the language and
cultural divide we could all contribute and enjoy a sense of country. He was so
successful that Maclean's ran him on the cover as a potential Prime
Minister of Canada. He was appointed to the Senate, and everyone knows that
being a senator is better than being a prime minister. He has been travelling
across the country to support that shared vision of a beloved country.
I want to say, Laurier, that we will miss you in this chamber and, until we
meet again, adieu and God bless.
Hon. Joyce Fairbairn: Honourable senators, I rise today to say a fond
farewell to my seatmate, Senator Laurier LaPierre. I reminisced with him today
that not his friendship with me but, rather, my admiration for him goes back a
long time to the days when I was a young journalist in the Parliamentary Press
Gallery. He and Patrick Watson were on This Hour Has Seven Days which, as
those of you who are old enough will remember, was a true marker of a new form
of television journalism in Canada. It was lively, controversial and outrageous.
It introduced us to interesting people in other parts of Canada, such as a
fellow named Pierre Trudeau and another named René Levesque. It debated on air
and, in the end, it became the subject of a House of Commons inquiry. It was at
that point that I actually saw these people alive, well and still aggressive in
their protection of their program.
It is fair to say that part of Laurier is much within the Canadian soul. He
has a passion unlike anyone I know when it comes to Canada and her institutions.
He has made a contribution to young people across this country where he has
worked diligently to try to spark an interest and a sense of pride in Canadian
history and culture. Laurier has been a troubadour of extraordinary talent and
heart for so many years. He has certainly added an element of interest, devotion
and zip to this chamber. He speaks his mind; he is as straight as an arrow; and
he is compassionate for the people of this country which he loves so dearly.
Laurier, it is sad to see you go, but I have a sense that you will just keep
on marching, every step of the way, and we will march with you. Thank you for
your friendship and your contribution to the Senate of Canada.
Hon. Elizabeth Hubley: Honourable senators, I know that when our
colleagues in this chamber retire they are supposed to be "out of the picture,"
so to speak, and yet they are never far from our memory, especially those
individuals who have made an indelible mark with their unique personalities,
knowledge and abilities. One such person is the esteemed former Senator Archie
Johnstone, who represented Prince Edward Island in the Senate briefly from 1998
to 1999 and who, coincidentally like myself, also calls the town of Kensington
Although Archie is no longer in the Senate, I can assure you that he
continues to be a keen observer of government and politics. As one might expect
of someone who has given much of his life to public service, he remains active
in many community organizations. Always a proud Scot and a fervent family
historian, Archie arrived at my door just last week with a genealogical chart
demonstrating quite clearly and unequivocally that he and I are related.
Archie Johnstone is a man of many accomplishments. He is a decorated veteran
who flew with the Royal Air Force during World War II. As his friend and
neighbour, I know that November 11 holds great meaning for him. Recently, he
published a collection of poetry called Expressions — reminiscences and
little jewels from his life's experiences. One of the narrative poems in this
little book is about the membership and composition of the Senate. Casting his
eyes across these benches, Senator Johnstone notes:
There are Protestant ministers, Catholic sisters and others almost Devine
Whose profound thinking is oft thought to be ahead of its time...
Among contractors and broadcasters, there are lawyers by the score
Surely it would be inhuman to punish the Senate with one Q.C. more...
There are re-treaded politicians, Aboriginals, and tillers of the soil
Economists, trade unionists, and those versed in mining, gas and oil...
There are esteemed former Premiers, too old to lead, too young to die
Biographies are available, should you wish to apply...
Honourable senators, without a doubt the Senate is a place where Canadians
from diverse backgrounds come together to fulfil a great and honourable
constitutional responsibility. To the list of distinguished former senators we
can surely add the name of Archibald Hynd Johnstone.
Hon. Tommy Banks: Honourable senators, with leave of the Senate and
notwithstanding rule 57(2), I give notice that later this day I will call the
attention of the Senate to the contributions to the Senate of the Honourable
Richard Kroft, who resigned on September 24, 2004.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Noël A. Kinsella (Leader of the Opposition): Honourable senators,
my question is to the Leader of the Government in the Senate. Could the
honourable minister describe for the house the current government's policy
concerning improvement of the appointment process in filling vacancies on the
Supreme Court of Canada?
Hon. Jack Austin (Leader of the Government): Honourable senators, the
Minister of Justice is holding consultations with parliamentarians with respect
to the process. That is as succinct an answer I can supply to Senator Kinsella.
Senator Kinsella: I am glad to have that answer from the minister
because it would appear to me that the Minister of Justice is doing just the
Honourable senators will recall that last May the House of Commons Standing
Committee on Justice, Human Rights, Public Safety and Emergency Preparedness
tabled its very well-researched and concise report on improving the appointment
process for Supreme Court judges. Last month, the Minister of Justice, Irwin
Cotler, Senator Austin's colleague in the cabinet, responded with a two-page
response. However, according to the Ottawa Citizen last week, the
honourable member in the other place, the Liberal chair of that House committee
— that is right, the member of Parliament who is in the government caucus and is
chair of that committee — wrote a letter to the minister describing the brief
and non-committal response from Minister Cotler as being "inappropriate in light
of all the work that MPs put into their report."
There seems to be a disconnect between the government leader's answer to my
first question, the comments of the Liberal chair of the committee that prepared
the report last May and the position of Minister Cotler. Could my honourable
friend please explain?
Senator Austin: Honourable senators, I see no disconnect. Obviously in
a consultation process there will be a variety of views offered to the
consulter, in this case the Minister of Justice. Perhaps there are some who have
made submissions who are not as yet satisfied with the nature of the
consultation, but that consultation process continues.
Senator Kinsella: Could the minister give us a sense of the timeline?
We already have a detailed report submitted by the committee in the other place.
The minister, according to Senator Austin, is in consultation and will look at
this issue further. How much longer are we expected to wait until we hear a more
definitive position of the policy of the Government of Canada on this very
important matter that has seized the attention of all Canadians?
This issue has seized the government's attention because even as recently as
today there is a rather startling headline in The Globe and Mail stating
"Top court is asked to rule on conspiracy theory." I do not associate myself at
all with the content of that article, but perhaps my honourable friend would
want to use the opportunity while he is on his feet to explain the government's
reaction to what is being alleged.
Senator Austin: Honourable senators, staying with the specific
question, the Government of Canada introduced a novel procedure with respect to
the appointments of Madam Justice Charron and Madam Justice Abella to the
Supreme Court of Canada. The novelty of that procedure was that the Minister of
Justice went before a committee in the other place to explain the reasons why he
believed these two jurists were deserving of sitting on the highest court of
Canada. That procedure is being evaluated in light of the comments and questions
the members of that particular committee offered during the course of the
observations and evidence given by the Minister of Justice and thereafter.
The government wants to achieve a transparent process in making these
extremely important appointments while at the same time seeking to avoid
introducing personalities and partisanship.
Senator Tkachuk: Please!
Senator Kinsella: Would the minister not agree that the committee to
which he referred was an ad hoc committee that did not have any representation
from this house of Parliament, and that under the process of review he alluded
to earlier it may be prudent and advisable, if a committee model is to be used
for ratification in the future, that this house be represented on such a
Senator Austin: Honourable senators, I will take that representation
by Senator Kinsella to the Minister of Justice as part of his process of
Hon. Anne C. Cools: Honourable senators, I have a supplementary
question. I believe I heard the Leader of the Government say that the Minister
of Justice appeared before a committee. Could the minister tell me what
committee that was? At the same time, could the minister tell me what
constitutional authority exists for such a committee?
Senator Austin: Honourable senators, I believe that any minister and
any parliamentarian has the authority to consult with any Canadians that such
minister seeks to consult.
As Senator Kinsella, the Leader of the Opposition, has just said, the
committee was an ad hoc committee composed of members of the other place who
were chosen by their parties to be members of that ad hoc committee.
Senator Cools: I think the minister misunderstood me. I was not
speaking about any process of consultation, nor was I suggesting that
consultation is not a desirable characteristic of modern governments. I was just
seeking to know what constitutional or parliamentary authority exists for the
creation of ad hoc committees. In other words, in a parliamentary way, what is
an ad hoc committee? What is it a committee of? A committee is a subset of a
larger set. What is an ad hoc committee a committee of? Is it a committee of the
House of Commons?
Senator Austin: Well, honourable senators, I would like to answer the
question as I have answered it. It was a committee of members of the other place
constituted by agreement amongst the party leaders in that chamber.
Senator Cools: Perhaps I could find out the legal basis for
constituting a committee by an informal agreement.
Senator Austin: Perhaps, Senator Cools, you could tell me why the
organization of such a committee does not have parliamentary authority.
Senator Tkachuk: Do not ask us questions.
Senator Cools: I think the minister is a little confused, honourable
senators. My understanding is that during Question Period, only a minister of
the Crown can speak for the government in this place, so I believe the minister
is confused and thinks that I am a member of the government.
Senator Austin: I have never been confused in that regard. I speak for
the government but, in speaking for the government, I sometimes ask colleagues
opposite to be clearer about their points. What I do not understand in Senator
Cools' question is what legal or constitutional authority the honourable senator
alleges may be missing in the organization of a committee in the other place.
Senator Tkachuk: She will tell you; you know that.
Senator Cools: I can tell you what is missing, honourable senators. In
point of fact, the committee is a piece of fraud. The minister has provided me
with an opportunity to say that the so-called ad hoc committee is a mimic. It is
a parliamentary mimic. It is a parliamentary impersonation. That is what it is.
I will tell the minister what authority a committee needs in order to be
constituted. It is called an "order of reference," and it is brought into
existence by a vote of one or the other House. Then, perhaps, the minister can
tell me what the order of reference was on the floor of the House of Commons
that caused such a committee to be constituted.
Senator Austin: Honourable senators, I do not think it is within the
normal processes of Parliament for this chamber to question the procedures
adopted in the other House.
Senator Lynch-Staunton: Parliament was not even sitting!
Hon Gerald J. Comeau: Honourable senators, the Prime Minster's
spokesperson has become an irritant in negotiations between the federal
government and the Newfoundland and Labrador government in the question of an
offshore revenue agreement. Twice now, Scott Reid, the Prime Minister's director
of communications, has made comments that have caused setbacks in resolving this
dispute. The situation has become so bad that Premier Danny Williams has called
on the Prime Minister to put someone else in charge of handling communications
on this file.
Given the sensitive nature of negotiations over this file and the fact that
Mr. Reid's interventions have left the impression that Ottawa is conducting
these negotiations with Newfoundland and Labrador in bad faith, is the
government considering the removal of Mr. Reid from this file?
Hon. Jack Austin (Leader of the Government): Honourable senators, the
answer is no.
Senator Kinsella: Why not?
Senator Austin: Senator Comeau's question is a bit stale-dated. The
three governments, namely, the Government of Newfoundland and Labrador on the
one part, the Government of Nova Scotia on the second part, and the Government
of Canada on the third part, are in active discussions at this time.
Senator LeBreton: Well, it is not stale, then. It is only stale-dated
if you come to a solution.
Senator Austin: I can assure you that all parties want to carry on
those discussions without raising in any way the public temperature on this
Senator Comeau: The minister indicates that the question is
stale-dated, but I am quite sure that the other provincial governments have been
following the negative approach by the Prime Minister's Office on this question.
First, Mr. Reid had to apologize for threatening that Mr. Williams was making a
mistake of historic proportions by not agreeing to the terms of the federal
offer. This was perceived, of course, as a threat to the people of Atlantic
Canada. Then, just last week, he pre-empted a meeting by telling CanWest news,
in advance of this meeting, that there was no possibility of a deal being
Given Mr. Reid's increasingly unhelpful interventions on this file, will this
government stop the practice of using Mr. Reid to negotiate these issues through
Senator Austin: Honourable senators, as I said, it is very much in the
interests of the two provinces I have mentioned and the Government of Canada to
conclude an arrangement that is satisfactory to all three parties. Mr. Reid has
apologized for his comments. Those apologies have been accepted by the Premier
of Newfoundland and Labrador, and that is where it rests.
Hon. Gerry St. Germain: Honourable senators, my question is also to
the Leader of the Government in the Senate. On the weekend, Prime Minister
Martin once again chastised the United Nations for not acting fast enough in
responding to the situation in Darfur. That is a fair comment. However, it seems
clear from the news reports that the route the Liberal government has chosen is
no more expedient. The African Union is assembling, according to reports, a
75,000-strong intervention force for Darfur, an effort that the Liberal
government never fails to mention it is supporting. Yet, the force is clearly
not ready for action.
After speaking to the head of the African Union on the weekend, Prime
Minister Martin was quoted as saying that they are not quite sure what their
needs will be. Mr. Martin then asked that a list of the needs be supplied to
Can the minister tell us when Mr. Martin expects to get the list of the
needs, and when those needs will be fulfilled?
Hon. Jack Austin (Leader of the Government): Honourable senators,
there is no country which has done more to try to alleviate the situation in
Darfur than has Canada. Our very own colleague, Senator Jaffer, was the first
person on the ground sent by any foreign government to deal with and review the
Hon. Senators: Hear, hear!
Senator Austin: Canada was the first country to make a commitment of
$20 million to organize a group on the ground to report back to the United
Nations with respect to the situation there. Canada has provided training and
material to the African Union force, as we discussed earlier in this chamber.
The Prime Minister will be travelling to Khartoum in the next few days to
have discussions with both the leaders of the Sudanese government and the
leaders of the communities in the Darfur and southern Sudan region.
As Senator St. Germain has pointed out, the Prime Minister spoke in the
United Nations and urged the United Nations to take stronger steps to deal with
a difficult and unhappy situation in the Sudan.
Senator St. Germain: Honourable senators, this is a replay of the
Rwanda situation, in some aspects. The minister says there is a commitment of
$20 million. We had our special envoy on the ground, which I see as an
honourable move. Has any positive action been taken to help these people? Where
did the $20 million go? If the minister is saying that the African Union is
75,000 strong and the Prime Minister is then asked to supply a list of needs,
just exactly what is happening over there? Are we simply being spectators,
mouthing words and taking no action?
Honourable senators, this issue is not a question of partisanship. It is a
question of taking a forceful position, getting things done and not relying on
the United Nations. The government has criticized other countries that have not
relied on the United Nations, yet as a government we seem to be going back and
relying on them when we know they are ineffective.
Can the leader explain to us where the $20 million went? Did it go to the
people on the ground?
Senator Austin: I very much appreciate the question. The $20 million
is a contribution to the African Union to organize its peacekeeping efforts and
to allow for the capacity to assist people on the ground in Darfur.
We have also sent $250,000 worth of equipment to the African Union mission,
and we have sent people to provide training for African Union forces in dealing
with peacekeeping. As senators know, the African Union is the force designated
by the United Nations to play that role and has the backing of its members in
Negotiations are also underway with respect to a separate peacekeeping
mission in southern Sudan. While separate from the African Union process, it
will require the authority of the United Nations. This is an arrangement
insisted upon by the Government of Sudan, which is a member of the United
Nations. We are proceeding here to support but not to override the activities of
the United Nations.
As Senator St. Germain has noted, the Prime Minister appeared before the
General Assembly of the United Nations and stated that the doctrine of state
sovereignty is not by itself to be taken to limit the responsibility of the
world community to assist populations that are endangered as a result of failed
states or the actions of authoritarian and malevolent governments toward
minorities. This, as Senator St. Germain also knows, is a Canadian value that
was laid before the United Nations General Assembly by Prime Minister Chrétien
when he appeared there last year.
Senator St. Germain: The question boils down to this: What is being
done to help the people in Darfur? They are being attacked by vigilante groups.
Is the Canadian government doing anything definitive other than trying to
persuade the United Nations, which has failed dismally in Rwanda and other
places? Is anything actually being done?
We have a special envoy. Are we allowed to ask her questions about what is
transpiring? What is her status as a special envoy? Is she part of the executive
branch of government or is she part of the legislative branch? These are all
important questions because, if we have a replay of Rwanda, we cannot just stand
back and say that it happened again. I ask these questions out of a sincere
concern for the people on the ground in Darfur.
Senator Austin: I do not doubt for a moment the sincerity of the
questions and their importance. We have had an exchange in the Senate on this
topic before, and I pointed out that Canada is acting in the vanguard of any
nation in terms of endeavouring to facilitate the safety of the people in
Darfur. We are obliged to act within the context of the United Nations. We
cannot simply organize a force and land it in Sudan against the wishes of the
world community and against the wishes of the Government of Sudan; nor could we
make a meaningful contribution even if we did that. A contribution that is
meaningful must be made by the world community, and we are in the field urging
the world community to come to this task. The Prime Minister will be in Khartoum
so that he can report to other world leaders with respect to the situation
there. In the circumstances, the Prime Minister's visit to Sudan to personally
view the situation demonstrates the goodwill and commitment of Canada.
Hon. Terry Stratton (Deputy Leader of the Opposition): That was a
rather interesting answer because it did not respond to the first part of the
question asked by Senator St. Germain. Under what authority did Senator Jaffer
travel to Sudan? Who paid for the trip? With whom and with how many others did
she travel? Those questions need to be answered on the floor of this chamber by
This occurs on a continuing basis, so we are told, yet nothing seems to
transpire other than that we get these little reports.
If the honourable senator is travelling, is she given an annual budget for
her visits? If so, what is that budget? If she is given this authority to travel
and work in this field, how many additional staff does she have? Those questions
need to be answered.
Senator Austin: Honourable senators, I have no hesitation in answering
those questions. I have answered them here before.
Senator Jaffer is not a member of the executive. Senator Jaffer is a member
of this legislature as is well known here. In addition to that membership, she
has been asked by the Minister of Foreign Affairs to act as a special emissary
to Sudan. She is an eminent Canadian lawyer. She speaks some of the languages of
that area. She has developed a substantial credibility to assist in the dialogue
with the parties there. She cannot be asked questions in this chamber because
she does not fall within our rules as one of those persons who can be asked
questions. I am sure Senator Stratton is very clear on that point even without
asking the question.
Having said that, I will ask Senator Jaffer to make a statement, which she
can do as a senator, with respect to the work she is doing there.
Senator Stratton: I appreciate that very much. There is a need to
clear the air, particularly as to exactly how much travel Senator Jaffer is
doing. It must be fairly large in scope to that area of Africa. I am not
denigrating her efforts except to say that if she is, in essence, representing
Canadians as an emissary of the government and of the Prime Minister, she should
make a statement. She should tell us what her annual budget is, how much she
travels, what this costs the people of Canada, how many additional staff she has
in her office and, if she travels, who she travels with.
It is critical to lay that information on the table so we can determine what
is taking place.
Senator Austin: Honourable senators, Senator Jaffer is an adviser to
the Minister of Foreign Affairs and, like any other person, those communications
are not public.
With respect to her expenses and the other questions that Senator Stratton
has asked, the current rules require them to be disclosed within defined
Hon. David Tkachuk: Have any other senators been special envoys?
Senator Austin: In the past, there have been senators who were special
envoys. Honourable senators may recall that Senator Lois Wilson was a special
envoy, originally to Sudan and then to North Korea.
Honourable senators, I hope I am not hearing an implication from the other
side that senators should not be employed to assist Canadian interests where
those senators have special qualifications.
Senator Tkachuk: I never said that. I asked if there had been other
special envoys. The minister mentioned one. I ask if there were any others.
Also, when the honourable senator says "employed," exactly what does he mean by
Senator Austin: The word "employed" means "used" or "retained." I will
get a thesaurus if the honourable senator does not understand the word, but it
means "engaged in."
Senator Stratton: Don't go getting thin-skinned here again!
Senator St. Germain: This is not a question of denigrating the work
that is being done. What I want to know is: under what authority are these
people appointed? Ambassadors are appointed under a certain authority. Is this a
Governor-in-Council appointment? These people are going out, and Parliament, or
the Senate, does not have the ability to scrutinize these appointments. These
appointments are made arbitrarily by the minister. There is no process for us to
access information from these individuals, and as the official opposition, we
have the right to know. Is this just a special scenario that the government has
that they do not have to explain to the official opposition, or the official
opposition does not have the right to know and get reports back from these
I am concerned about the authority. I do not wish to take away from the good
works that are being done, but I would like to know what authority there is for
Senator Austin: Honourable senators, I thought it was very clear,
because the rule applies to all honourable senators with respect to
compensation, that if a person such as Senator Jaffer is asked to carry out a
role as a special emissary, no additional compensation is paid. I thought that
was so obvious that I did not understand what Senator Tkachuk was asking when he
asked me what I meant by the word "employed."
In response to the second question, Senator Jaffer, vis-à-vis the minister,
is in the same position as any person who is not a senator who is asked to be a
special emissary. I am not talking about compensation, but reporting.
Honourable senators should know that it might be possible for someone
opposite to be a special emissary; there is talent on that other side.
Senator Robichaud: They don't believe it themselves!
Senator Stratton: If you only knew!
Senator Austin: That role does not change the role of the senator who
might be an emissary. To be very clear, the appointment of Senator Jaffer is a
ministerial appointment, not a GIC appointment.
Hon. Noël A. Kinsella (Leader of the Opposition): Is it the minister's
view that the payment of travel in this kind of circumstance is consistent or
inconsistent with section 14 of the Parliament of Canada Act?
Senator Austin: I believe that the payment of expenses is not an
infraction of any rule applying to the senator.
Hon. Pat Carney: My question is for the Leader of the Government in
the Senate. I am fascinated by the possibility that some of us who sit in
opposition could be appointed as emissaries of the government in areas of our
As the minister knows, I have expertise in an area of common interest, China.
I am certainly willing to entertain such an offer, should one come forward.
Could the honourable senator elaborate on the terms and conditions of such an
offer made to an opposition senator?
Ireland is another area in which I am very interested. We could all give our
requests to the minister for the areas in which we would like to be named as
special emissaries, particularly since we will be marked present in the Senate
chamber while we are off in Dublin or Beijing.
Senator Austin: Honourable senators, I understand that Senator Carney
would like to be a special emissary, from what she has said, and I will pass her
representation on to the Minister of Foreign Affairs. I am sure due
consideration will be given to that issue.
Senator Carney: Or international trade.
Senator Austin: Due consideration will be given to that issue, as
Honourable senators, I do not wish to leave outstanding any implication — I
am sure Senator Carney did not mean it — that someone who is absent from this
place on public business is in any way behaving contrary to the rules of this
The Hon. the Speaker: Honourable senators, I regret to advise that the
time for Question Period has expired.
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable
senators, I have the honour of tabling three delayed answers to oral questions
raised in the Senate; the first in response to the question raised in the Senate
on October 19, 2004, by Senator Oliver regarding Indian Residential Schools
I have a second delayed answer to questions posed in the Senate by Senator
Gustafson, on November 4, 2004, regarding the Northwest Territories negotiations
to clean up Giant Mine.
I have a third delayed response to questions raised in the Senate by Senator
Keon, on November 3, 2004, regarding water quality on reserves.
(Response to question raised by Hon. Donald H. Oliver on October 19, 2004)
Administrative Costs of Alternative Dispute Resolution Process (ADR)
The Government of Canada is committed to resolving proven claims of
physical and sexual abuse of former Indian residential schools students as
expeditiously, humanely and compassionately as possible, giving priority to
the sick and the elderly.
As of October 22, 2004, the Government of Canada has received over 900
application forms for the Alternative Dispute Resolution (ADR) process and we
continue to receive application forms, schedule hearings and resolve claims.
In addition we continue to settle litigation claims; nearly 1,730 claims have
been settled, the vast majority through out-of-court processes.
One of the biggest challenges facing the Government is finding the most
effective way to respond to the 13,000 individual claims of sexual and
physical abuse at Indian residential schools in a timely and effective manner.
The Resolution Framework, launched in November 2003, contains a suite of
approaches that is composed of an ADR process to resolve claims of physical
and sexual abuse; health supports; commemorative initiatives, and litigation.
The Government estimates that over the next seven years, the cost of the
Resolution Framework will total about $1.69B. This cost includes $955M for
settlements; $335M for the ADR process (research, Adjudicator Secretariat in
Regina, et cetera); $74M for health and safety supports; $10M for
commemoration and $285M for litigation, since it is always an option for
The Government of Canada cannot confirm the reported cost of $18,000 to
resolve an ADR claim since it is unsure how this figure was calculated. What
we can confirm is that the first hearing took place at the end of May 2004,
and it is too early in the process to know the average cost of resolving an
ADR claim. The Government of Canada will provide an average cost of resolving
ADR claims once it has reached 50 resolutions with former students — we
anticipate that this will be early in the new year. Although the cost is
unknown at this time, we remain convinced that the costs of the ADR process
will be less costly than litigation.
Another important element of the Resolution Framework is the opportunity
for former students to participate in commemoration initiatives if they so
desire. IRSRC has dedicated funds to commemoration as a way of honouring and
paying tribute to all former students.
Investing now in resolving claims in a timely and effective manner will
save taxpayers money in the long term.
The Government is pleased with the uptake and progress of the ADR process
as we are where we forecasted when we launched the ADR process. We announced
that applicants could expect it to take nine months from the time of
application to a hearing. The first application form was received in December
2003 and the first hearing took place six months later in May 2004.
The Government is open to dialogue about ways to improve the ADR process to
ensure we resolve the legacy of IRS schools in a meaningful way for former
students. We are mandated by Ministers to review the National Resolution
Framework in 2006.
The underlying premise of the Alternative Dispute Resolution (ADR) process
is to offer former students a choice about how to resolve their Indian
residential school claims. The ADR is a voluntary process that offers a timely
and alternative method to resolve claims of physical abuse, sexual abuse and
wrongful confinement at Indian residential schools. If claimants choose to
enter the ADR process, they need to complete and submit a detailed application
form to Indian Residential Schools Resolution Canada.
The Government of Canada advises former students to hire a lawyer, however,
claimants do have the choice to represent themselves. In fact, we have heard
that some former students do not want a lawyer. Stakeholders have highlighted
the requirement for the ADR process to provide basic support services to those
former students who do not hire a lawyer.
Therefore, we are trying to identify neutral, objective Aboriginal service
providers to assist former students in completing the application form. The
types of services provided by form fillers include: explaining what questions
the application form is asking; discussing generally how the ADR process
works; and identifying counselling supports for follow up with the applicant.
We have also been clear that this support does not replace the advice a lawyer
could provide and is not intended to interfere in the relationship between
former students and their lawyers.
(Response to question raised by Hon. Leonard J. Gustafson on November 4,
Indian and Northern Affairs (INAC) continues to ensure that Giant Mine is
safely and effectively managed to protect the health and safety of northerners
and the environment.
A large amount of work has been invested in the creation of a thorough and
effective remediation plan for Giant Mine. In the winter of 2004, INAC
selected the Frozen Block method as the best alternative for the long-term
management of the arsenic trioxide stored underground at the site. This
decision was the result of more than four years of intensive research and
public consultation. INAC is currently finalizing an overall remediation plan
for the site. Once that remediation plan is complete and approved by
appropriate levels of government, it will be submitted to a regulatory body.
The implementation of the plan would follow regulatory approvals.
The remediation of Giant Mine involves a very complex set of issues,
including shared jurisdiction and corresponding responsibilities between
Canada and the Government of the Northwest Territories.
Renewed efforts are underway as we speak to negotiate a fair and reasonable
solution that allows the remediation efforts to proceed. Senior officials from
the federal government and the Government of the Northwest Territories have
agreed to set aside the legal debate and are working to achieve a practical
and fair agreement that will allow the project to continue to move forward.
There is a mutual understanding at this point that recognizes the
importance of progressing with a remediation plan that effectively addresses
both the surface and subsurface issues at Giant Mine, and is supported by both
levels of government.
It is our goal to make significant progress on these negotiations by early
in the new year. This is a high priority for the federal government. The work
done at Giant Mine is an excellent example of this government's commitment to
addressing federal contaminated sites and protecting the health and safety of
(Response to question raised by Hon. Wilbert J. Keon on November 3, 2004)
In May 2003, the Government of Canada announced the First Nations Water
Management Strategy, a comprehensive plan comprised of seven key elements
designed to help achieve a clean and safe water supply for First Nation
citizens. Indian and Northern Affairs Canada, Health Canada, Environment
Canada, and First Nations are partners in this initiative.
Indian and Northern Affairs Canada has undertaken various activities to
meet its objectives under the First Nations Water Management Strategy. In
2004-2005 alone, Indian and Northern Affairs Canada will spend $255.1 million
to improve drinking water quality. Of this amount, $173.1 million will go to
infrastructure, $73.4 million to upgrade operations and maintenance, $4
million for operator training, and $4.6 million for other water management
priorities, including the improvement of monitoring and reporting regimes. In
the Government of Canada's February 2003 budget, $600 million was identified
for the First Nations Water Management Strategy (from 2003-2004 to 2007-2008).
When combined with Indian and Northern Affairs Canada's A-Base funding for
First Nation water, and Health Canada's contribution, this brings a total
investment of $1.6 billion over five years to the First Nations Water
In 2006, Indian and Northern Affairs Canada will undertake a comprehensive
progress report to review the First Nations Water Management Strategy. The
monitoring of the First Nations Water Management Strategy, in addition to the
committed resources, ensures the government can proceed with confidence in
achieving the collective goal of providing safe and potable drinking water to
First Nation communities.
On September 28, 2004, a few of the Neskantaga (Lansdowne House) First
Nation's members vandalized the water treatment plant. It was feared that they
may have deposited chemicals into the community's water reservoir. Upon
notification, Indian and Northern Affairs Canada immediately reacted and
offered to provide five litres a day of bottled water to all residents of the
First Nation for drinking and cooking purposes. This was beyond the allocation
of two litres of water per day, per person, that is provided to "persons at
risk" (i.e., elderly, infants, immuno-supressed) that is normally provided
under Boil Water Advisories. Under a Boil Water Advisory, the amount of two
litres of bottled water provided per day, per person at risk, has been set by
On October 23, 2004, the emergency at the Neskantaga First Nation ended.
Since a Boil Water Advisory is still required at the First Nation, the
department is currently providing two litres of water per day, per person, not
only to those at risk, but to every on-reserve person, until the testing can
been completed by Health Canada.
With respect to the issue of washing the mould, bleach and water is no
longer the recommended remedy for this problem; the use of soap and water is
considered a safer solution.
Resuming debate on the motion of the Honourable Senator Milne, seconded by
the Honourable Senator Losier-Cool, for the second reading of Bill S-18, to
amend the Statistics Act.
Hon. Gerald J. Comeau: Honourable senators, I would first like to
acknowledge the work of Senator Milne and her legion of census patrons who have
mounted an aggressive and capable campaign to have confidential census records
made public. I do not doubt their sincerity and their belief in their campaign.
I also do not dispute that census records are a valuable source of information
to people who wish to trace their ancestry. One cannot be faulted with the
desire to trace one's background and there is no doubt that open access to
census records is valuable to historians.
I acknowledge the value of research data but, in turn, I would also like the
proponents of Bill S-18 to recognize that parliamentarians do have a duty to
consider the implications of legislative changes. My role is not to rain on
their parade, but to express legitimate concerns. I ask to be given a fair
hearing without being accused of not being a proud Nova Scotian.
The purpose of Bill S-18 is to repeal the secrecy provisions, section 17 and
18, of the Statistics Act, to allow for information in the census no longer to
be confidential 92 years after the census is taken. Allow me to read into the
record the relevant provisions of section 17 and 18 of the current Statistics
Act which is to be repealed. The title of these two sections, written right into
the act, come under the heading "Secrecy." Section 17(1) has the margin
description, "prohibition against divulging information."
(a) no person, other than a person employed or deemed to be employed
under this Act, and sworn under section 6, shall be permitted to examine any
identifiable individual return made for the purposes of this Act; and
(b) no person who has been sworn under section 6 shall disclose or
knowingly cause to be disclosed, by any means, any information obtained under
this Act in such a manner that it is possible from the disclosure to relate
the particulars obtained from any individual return to any identifiable
individual person, business or organization.
Section 18 of the Statistics Act, also to be repealed, has the margin
description, "Information is privileged." It reads:
18.(1) Except for the purposes of a prosecution under this Act, any
return made to Statistics Canada pursuant to this Act and any copy of the
return in the possession of the respondent is privileged and shall not be used
as evidence in any proceedings whatever.
(2) No person sworn under section 6 shall by an order of any court,
tribunal or other body be required in any proceedings whatever to give oral
testimony or to produce any return, document or record with respect to any
information obtained in the course of administering this Act.
Most of us in this chamber have probably at one time or another filled out a
census form. I would like to read into the record the statutory promise written
right on the census form itself. It states:
As Canada's national statistics agency, Statistics Canada uses census data
for producing statistical tables, analytical reports and for selecting samples
or following up responses for some of our surveys. These uses are strictly for
statistical purposes and no one outside the agency can have access to your
Again, right on the form it says:
By law, Statistics Canada must take a census every five years and every
household must fill in a census form. Also, by law, Statistics Canada must
protect the confidentiality of the personal information you provide. Our
employees, including census takers, are personally liable to fines or
imprisonment should they break the confidentiality of your information.
This form is signed by Ivan P. Fellegi, Chief Statistician of Canada, who, we
learned yesterday from Senator Milne, now supports the release, in spite of his
signature on the form.
Further down the form it says:
Confidential when completed.
The last page of the census states:
The law protects what you tell us.
The confidentiality of your census questionnaire is protected by law. All
Statistics Canada employees have taken an oath of secrecy. Your personal
census information cannot be given to anyone outside Statistics Canada — not
the police, not another government department, not another person. This is
Your census questionnaire will be retained in accordance with legislative
requirements and will be stored securely.
In spite of all of this clear, concise, unambiguous wording, Minister David
Emerson, in his promotional package forwarded to us, states:
This enactment will remove a legal ambiguity in relation to access to
census records for the period 1911 to 2001 inclusive and to future census
records starting with the 2006 Census.
In spite of what we see in the act and on the census forms, Minister Emerson
says it is quite ambiguous as to whether or not this information was protected.
Minister Emerson admits in the promotional package that:
Justice Gibson of the Federal Court in his June 25, 2004 decision ruled
that the care and control of the 1911 Census rests with the Chief
Statistician. Furthermore, Justice Gibson suggested that the balance between
privacy rights of Canadians and public access was a policy matter for the
government to address.
The court ruling means that the government needs us — parliamentarians — to
authorize the release. The purpose of Bill S-18, therefore, is to break the
promise of confidentiality made by our predecessors — a promise made to our
grandparents, parents, and to us in more recent years.
The U.K. and the U.S. are often cited as countries where the census is
released after a certain number of years. This is true, but there was no
legislative promise to keep them permanently secret. The citizens of these
countries knew what the stakes were when they responded to the census.
Proponents of this bill also argue that those who responded 92 years ago have
raised no complaints. There is little doubt that most of these people are
deceased or too old to follow this debate, but it is a rather disrespectful
argument to be making at this point. Should one's right to privacy be
disrespected because one is dead, old or sick?
For those honourable senators who may not be aware, I would like to draw
attention to certain questions in the 1911 census regarding family members. This
is one reason we should consider seriously before opening up this census. This
was a different age.
One question was: Is the person deaf or dumb? This census was taken by
neighbours who visited houses and wrote down their impressions of the people
there. Other questions were: Is the person crazy or a lunatic? Is the person
idiotic or silly?
As I say, that was a different age, but if we do pass this bill, we will be
able to access those old census forms and find out if Aunt Matilda was in fact
silly. That information would be right in the census form. We always thought she
was a little bit batty, but now we will know for sure.
Other questions on the census form at that time included: Name your race or
tribal origin and religion. Your tribal origin? Give me a break.
Senator Joyal raised the issue yesterday of such information getting into the
wrong hands, and Senator Milne responded, quite rightly, that one's religion is
irrelevant after 92 years. However, if we are breaking the promise after 92
years, why not break it in a few years, after ten years or five years? What is
stopping us at that point? How will the people who come after us act once we
have established the principle that promises can be broken?
Further to the concerns stated by Senator Joyal yesterday, I would like to
read excerpts from an article in The Boston Globe of November 10. The
article is entitled "Census official seeks to reassure rights groups on privacy
concerns." This is very important. The subtitle is "Arab-Americans data was
shared." It reads:
Census officials sought to reassure minority and civil rights groups
yesterday that the agency keeps names, addresses, and other personal
information confidential from other government departments. Some critics
Further on it says that the Census Bureau shared population data with the
Homeland Security agency. Officials at the headquarters said that if there is
any perception that this kind of information is shared, it can be an extreme
problem to the bureau. It goes on further to say:
But hearing that data are being shared with an agency like Homeland
Security's customs bureau "scares people the most" and may lead some to stop
answering census surveys...
Confidentiality of census data is of paramount importance...
Further on it says:
Arab-American groups contend that the information sharing undermined the
public's trust in the Census Bureau.
The article really speaks for itself.
The Chief Statistician of Canada finally gave up the fight to maintain the
confidentiality provisions of the census, and this is understandable. The
government has twice tabled a bill to break the promise. Justice lawyers have
reversed themselves completely in their legal advice and now apparently suggest
that the legislative confidentiality promise might not stand up in court.
Honourable senators, there are no voters in cemeteries, and therefore
Minister Emerson, like his predecessor, issued a press release in support of
breaking the promise. What else could the Chief Statistician do? Given that
reality, the Chief Statistician is no doubt trying to salvage an illusion of
credibility of the confidentiality promise. He hopes that the consent provisions
of this current amendment whereby Canadians can request that future censuses not
be divulged without their consent might encourage Canadians to keep faith in the
credibility of the census.
He is dreaming in technicolour, honourable senators. Once we establish the
principle that a promise of confidentiality is only as good as the current crop
of parliamentarians, can we expect Canadians to believe in other false promises?
Parliamentarians should be mindful that the Chief Statistician's concern is
not with the impact on our image as breakers of promises. His concern is with
the impact that this breach will have on the integrity of future census data.
Will Canadians respond truthfully and helpfully if legislative promises of
confidentiality are worthless?
To use an analogy, imagine the credibility that an official of the witness
protection program would have if parliamentarians were to start fooling around
with the secrecy and confidentiality of that program. Similarly, are we not
damaging the Chief Statistician's primary public policy tool, namely, the
promise of privacy?
There is no question that Parliament is, supposedly, supreme. We can
retroactively break promises whenever we want; but do we want to? I am the
product of a time and a culture in which one's promise is considered sacred,
even the promise of a politician. Senator Milne stated yesterday that she had
been informed that the current Privacy Commissioner apparently now supports
breaking the promise. We should seek to learn why she has taken this position.
The previous commissioner, however, had problems with the implications of
this bill. Unlike the Chief Statistician, his concern was not with the negative
consequences of broken parliamentary promises, but rather with the impact on the
privacy of Canadians.
I look forward to learning how the current Privacy Commissioner can both
protect privacy and yet support breaking a promise of privacy. If she supports
the release at 92 years, would she support the release at 90 years, or 50 years,
or 20 years? Where does she draw the line? These are the types of questions to
which our Privacy Commissioner needs to respond, if in fact the person who
reported to Senator Milne was correct in saying that the commissioner now
supports the release of this data.
The Department of Justice could not care less whether we break our promise.
Their interest is in making certain that Parliament passes amendments that will
legally absolve the government of the breach of faith.
Obviously, family historians would have no cause to be concerned with the
negative implications of parliamentarians breaking promises.
Therefore, it is up to us, as parliamentarians in this chamber, as well as
those in the other chamber, to assess the consequences of breaking our
legislative promises to Canadians.
We wonder why Canadians do not trust parliamentarians. Would we not somehow
feel violated if our doctor suddenly decided that our private medical files are
to be opened to the public? Would we not feel violated if our lawyer started
breaking client confidentiality, or if our priests started to break the silence
of the confessional? Why should we hold ourselves to a lesser standard of trust
than doctors, father confessors and lawyers? Why should we accept that our
promise is only as good as the current group sitting in this place today? Why is
it that our promises are not worth the paper they are written on?
The premise of Bill S-18 is that your privacy dies with you, but this bill
goes way beyond breaking promises made to the dead. In fact, as of 2001, there
were 77,000 Canadians aged 92 and over who were still living when their census
was released. Furthermore, this bill breaks the promises to all Canadians living
today who have ever filled out a census return.
Bill S-18 provides withholding consent to future census returns. However,
this withholding consent is worthless if we establish the principle that
parliamentarians can break promises at will and simply retroactively break the
consent provisions in the future. Why else would we be reviewing this provision
over the next few censuses, which is written right into the law and which is
proposed in the package sent to us by Minister Emerson?
Furthermore, the consent provisions for censuses after 2005 may be quite
difficult to administer. Only if consent is given would the person's information
be transferred to the archives after 92 years. However, it is typical in most
dwellings for only one person to complete the form for the entire household,
raising questions as to who had and had not given consent to either release or
not release. The one signing the form is signing on behalf of others.
Lawyers from the Department of Justice are now of the view that the
legislative promises of confidentiality under the current Statistics Act might
be broken by the courts. This is the same group of lawyers who provided legal
advice to the government on the Pearson bill in support of taking away citizens'
rights to their day in court. It is the same group of lawyers who joined Allan
Rock in an eight-year political vendetta against the former Prime Minister.
Their track record leaves a lot to be desired.
Honourable senators, should we roll over and accept the Justice Department's
opinion that the courts can break our parliamentary promises? Is this the
pitiful excuse we offer for our breach of trust? Are we, as parliamentarians,
ready to accept that judges are so powerful that we have to cower before them
and break our word because these judges might make us do it? Are they so much
above Parliament that this is what we have come to? Will we say, "The judges
made us do it"? I would suggest not.
I read the confidentiality declarations earlier. There is no room for doubt
at all. If Department of Justice lawyers now suggest that the wording in the act
was not sufficiently clear, then let us make it so. Let us not hide behind the
fear that the courts might misinterpret the meaning of confidentiality and cause
us to cower under their watchful gaze. If we as parliamentarians want to break
the promise to Canadians, let us not do it meekly and blame the courts. Let us
do it out of conviction.
For those of us who may not have reviewed the testimony at committee when we
last looked at this bill, allow me to quote from a few comments made by some of
The previous Privacy Commissioner said:
This bill, if passed, will violate a promise repeatedly made to Canadians
by successive governments and eliminate existing privacy rights retroactively.
He went on to say:
For censuses taken after 1918, there is neither ambiguity nor
inconsistency. The 1918 Statistics Act stated explicitly that the material
would be kept confidential. That prohibition has been repeated in every
Statistics Act since.
Still quoting from the testimony of the Privacy Commissioner:
Breaking the promise of confidentiality made to Canadians could seriously
erode public trust in undertakings made by the Government of Canada. Some
people might say that the promise of confidentiality will still hold for 92
years after the census. However, the rest of us might well wonder. If a
commitment made in perpetuity can in fact be broken after 92 years, what makes
92 years such a magic number? Might a future government next time break
promises after 50 years or 25 years or 10 years?
In referring to Canadians, the Privacy Commissioner said:
We have always been able to assure them that the government has undertaken
to respect the confidentiality of their answers and that Statistics Canada has
a very good history of protecting confidential information.
We will not be able to give any more such assurance in the future if this
bill, as it is presented, is passed.
If people cannot trust that confidential information will remain
confidential, they will lie. Wouldn't you? It is common sense.
...I believe that privacy will be the defining issue of this decade.
Let me refer to the Chief Statistician, who said:
Would I be more comfortable as Chief Statistician if the aspect of
confidentiality was protected forever? Of course, I would.
He went on to say:
The compromise goes as far as I dare to go. No one knows how the public
will react. However, what I do know is that trust is a very fragile commodity.
This is as far as I dare to go. Am I concerned? Yes, I am.
Honourable senators, I am not making up these remarks. They are on the record
and you can check them, should you choose to do so. It is in the testimony of
the committee in the previous Parliament and these are the professionals. These
are the recommendations and comments that they made at that time.
Where will our disregard for privacy end? Which files will be opened next?
Will it be student loan applications, application information for immigration or
refugee status, EI benefits, passports, jobs, firearms licence applications,
income tax or pardons? Where will it end?
The fact that legislation is needed to break the promise is evidence that the
promise was in fact made, if any further evidence should be needed. The
government needs our approval. To absolve itself from breaking the promise, the
government needs Parliament's permission. The government might well be open to
libel if it did not have this permission from us.
Honourable senators, I can understand that some may not share my passion for
keeping promises, legislative or otherwise. The release of private and
confidential information, in their view, may be more important than keeping our
word. However, I should like to remind honourable senators that statistical
information is only as good as the information that is gathered. I fear that
many Canadians, when they become aware of this bill, will provide information as
worthless as our promises. Do we not invite false promises to our false
guarantees? I would urge honourable senators to carefully consider the
It is true that a well orchestrated lobby has been mounted to seek your
support. The proponents are articulate, and their commitment is strong. I know,
since I have been on the receiving end. I also know I am not popular with this
very articulate group of historians and genealogists. Also, little opposition
has been shown to this bill. I wonder, however, how Canadians will react when
they eventually find out what is actually at stake here. What will happen when
Canadians learn that this is not only breaking a promise made to dead people but
also breaking a promise made to those still living today? Will they accept and
This bill is not necessary to provide access to legitimate users. A
compromise had been made whereby access could be provided to families of
deceased census respondents and responsible historians. I believe it was
mentioned yesterday that some people would like to be able to access these files
in order to find out if there is any kind of medical situation in their history,
and I think an honourable compromise had been offered. However, this was
rejected out of hand.
The current legislation could also mimic what is extant in the United Kingdom
and the United States. However, the U.S. and the United Kingdom did not make
promises that their information would be kept in confidentiality forever. The
people who signed those documents, therefore, knew exactly where they stood and
thus this question of confidentiality does not arise.
These compromises were rejected out of hand, and it was all or nothing,
resulting in this current bill. I would urge honourable senators to seriously
consider the stakes when we start fooling around with retroactive legislation.
There was no "best before" date when the Statistics Canada Act was enacted.
Unlike milk, our promises should not sour with time. Do we really want to be
parties to breaking our faith with Canadians? Could we, as parliamentarians,
ever hope to expect or have the trust of Canadians with our word in the future?
I will let you be the judge.
Hon. Lorna Milne: Would the honourable senator accept a question?
Senator Comeau: Absolutely.
Senator Milne: My question is in the form of a letter that I received
from Dr. Fellegi this morning. I wonder if the honourable senator would like to
hear what is in the letter.
Senator Lynch-Staunton: That is not a question.
Senator Milne: It is not long.
Senator Comeau: That is not a question.
Senator Milne: The answer to the question can be no.
Senator Comeau: No. This is work for the committee. If Dr. Fellegi
wants to swallow himself whole, as I said yesterday, or has thrown in the towel,
fine, by all means. He is an employee of the Government of Canada. He obviously
knows who signs his cheques at the end of the week. Let us get this to
Senator Milne: Very well, I will move that this bill be —
Hon. John Lynch-Staunton: Just a moment. I would like to move the
adjournment of the debate.
On motion of Senator Lynch-Staunton, debate adjourned.
Resuming debate on the motion of the Honourable Senator Harb, seconded by
the Honourable Senator Adams, for the second reading of Bill S-17, to
implement an agreement, conventions and protocols concluded between Canada and
Gabon, Ireland, Armenia, Oman and Azerbaijan for the avoidance of double
taxation and the prevention of fiscal evasion.
Hon. John Lynch-Staunton: Honourable senators, I do not have anything
to add to what Senator Harb has already said about the content of the bill
itself. It is a bill that is intended to continue the policy of signing tax
treaties with various countries, and that by itself is certainly commendable, as
the purpose of these tax treaties is to prevent double taxation and, we hope,
establish mechanisms to stop tax evasion.
I want to remind the honourable senator and others that, for several years
now, some of us on this side have certainly felt uncomfortable with officials
dealing with countries known more for their abuse of human rights than for
protecting them. These concerns were last raised when the Banking Committee, two
years ago, studied a similar bill, also entitled Bill S-17, which was the last
tax treaty tabled in Parliament before this one. The then Parliamentary
Secretary to the Minister of Finance agreed at that time to share government
studies of human rights in countries subject to future tax treaties. I very much
regret — and I hope that others share this regret — that this commitment has not
been kept. An attempt to explain its dismissal by pleading changes in senior
parliamentary positions following an election is just not acceptable, because
the issue is too important to be treated in this way.
I should like to make a plea here to the government and to the Chairman of
the Standing Senate Committee on Banking, Trade and Commerce, to which, I
assume, the bill will go, that the committee take it upon itself to call as
witnesses officials responsible for tracing human rights activities
internationally so that the Senate can get a better appreciation of the policy
which sanctions agreements of any kind with countries that violate fundamental
I know this brings up the old argument of business and trade versus human
rights. Some claim it is like comparing apples and oranges. On the other hand,
if Canada, as a leading proponent of human rights around the world, is willing
to enter into agreements with countries whose record is just abominable, its
concern can seriously be challenged, because it might be diluting its commitment
by abandoning certain principles for immediate business gain.
Those are my comments, honourable senators. I urge that witnesses along the
lines that I have suggested be called so that we can thrash this out and
hopefully get some assurance that my concerns are poorly based.
Senator Robichaud: Question!
The Hon. the Speaker: I will put the question. It was moved by the
Honourable Senator Harb, seconded by the Honourable Senator Adams, that this
bill be read the second time. Is it your pleasure, honourable senators, to adopt
Resuming debate on the motion of the Honourable Senator Oliver, seconded by
the Honourable Senator Comeau, for the second reading of Bill S-13, An Act to
amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership
of the Senate).—(Speaker's Ruling)
The Hon. the Speaker: Honourable senators, on Thursday, November 4,
Senator Murray raised a point of order during second reading debate on Senator
Oliver's Bill S-13, which seeks to introduce an election process for the offices
of the Senate Speaker and Deputy Speaker as well as provide the Chair with a
casting vote in instances where there is a tie. Without being definitive about
his position, Senator Murray asked for a ruling to clarify whether Royal Consent
was required for this bill.
Following a request from Senator Kinsella, the Leader of the Opposition, to
provide some explanation to support the point of order, Senator Murray then
cited section 34 of the Constitution Act, 1867, which states that the Governor
General may from time to time, by instrument under the Great Seal of Canada,
appoint a senator to be Speaker. In Senator Murray's view, the election of the
Speaker would remove a prerogative now exercised by the Governor General and
turn it over to the Senate.
Senator Austin, the Leader of the Government, then intervened to support the
request for a ruling. Senator Joyal spoke next to suggest that based on previous
rulings of the Speaker when confronted with a point of order respecting the
possible need for a Royal Consent to a bill, the point of order need not impede
debate since the chair is not required to provide a ruling until the vote for
third reading. This position was subsequently supported by Senator Stratton, the
Deputy Leader of the Opposition.
After some brief exchanges relating to the election of the Speaker of the
House of Commons, Senator Cools also spoke about the recent rulings on Royal
Consent in the Senate. Senator Cools explained that it has been the consistent
position of the Speaker, as expressed in several rulings, that Royal Consent can
be given at any time during the proceedings, and that a bill is not rendered
defective for want of Royal Consent at second reading, nor does it impede debate
on the bill. Senator Kinsella then cited some decisions from Rulings of
Senate Speakers, 1994-2004 that confirmed this assessment.
Once the arguments had been made, the Speaker pro tempore agreed to
take the matter under advisement. Since then, I have had time to read the
exchanges on this point of order, consult the relevant procedural authorities,
and review the recent rulings that have been made in the Senate on Royal
Consent. I am now prepared to give a ruling.
The issue of whether Royal Consent is required for this bill is not new. It
has been raised in debate with respect to prior versions of this bill, on
September 30 and October 21, 2003. No ruling, however, was actually sought or
made at that time.
Royal Consent is a feature that has been incorporated into our parliamentary
practice from Westminster. As is stated in Marleau and Montpetit, House of
Commons Procedure and Practice, page 643:
Royal Consent...is taken from British practice and is part of the unwritten
rules and customs of the House of Commons of Canada. Any legislation that
affects the prerogatives, hereditary revenues, property or interests of the
Crown requires Royal Consent, that is, the consent of the Governor General in
his or her capacity as representative of the Sovereign.
In the twenty-third edition of Erskine May's Parliamentary Practice,
the Royal Prerogative is described as being
...powers exercisable by the sovereign for the performance of
This is found at page 708. Many of these prerogatives, in turn, have been
vested, as Dicey explained in his study of the Law of the Constitution, in the
office of the Governor General.
Both the Canadian and British authorities explain the consequences of failure
to signify Royal Consent for a bill requiring it in a similar way. Erskine May
at page 710 states:
If Queen's consent has not been obtained or is not signified, the question
on the relevant stage of a bill for which consent is required cannot be
proposed. Similarly, where a bill affecting the interests of the Crown has
been allowed, through inadvertence, to be read the third time and passed
without the Queen's consent being signified, the proceedings have been
declared null and void.
Erskine May goes on to explain that the Queen's consent involves the
willingness of the Crown to place its prerogatives or interests at the disposal
of Parliament for the purpose of the bill.
There is an element to this procedure that is very much pro forma. In the
United Kingdom, at least, it would appear that the government will invariably
provide the consent even to bills of which it disapproves. As Erskine May
The understanding is that the grant of consent does not imply approval by
the Crown or its advisors, but only that the Crown does not intend that, for
lack of its consent, Parliament should be debarred from debating its
As was noted, one objective of Senator Oliver's bill is to amend section 34
of the Constitution Act, 1867, by providing for the election of the Senate
Speaker by secret ballot. This would effectively extinguish the authority of the
Governor General to appoint the Speaker. Such an action clearly affects the
prerogative power exercised by the Governor General. Accordingly, it seems to me
appropriate that Royal Consent be obtained for this bill.
A review of Senate practice, as decided in recent rulings by both my
predecessor, the late Senator Molgat, and myself, clearly show that the
requirement for Royal Consent need not be signified in both chambers. In fact,
in most precedents, consent was signified in the other place only. There are a
few notable exceptions to this, one being in 1951 and two others of more recent
date. As honourable senators will recall, the Senate was advised of Royal
Consent to Bill C-10, the Clarity Act, in the second session of the Thirty-sixth
Parliament and Bill S-34, the Royal Assent Act, in the first session of the
Thirty-seventh Parliament. Further, the Senate rulings by the chair show that
the requirement for Royal Consent is not an impediment to debate since it need
only be given before final passage of the bill. There is no reason for me to
dispute either of these assessments.
To clarify the point raised by the Honourable Senator Murray, Royal Consent
will indeed be necessary. It will not, however, prevent debate on second reading
Hon. Donald H. Oliver: Honourable senators, I would move that this
bill be referred to the Standing Senate Committee on Legal and Constitutional
Affairs for further study.
Hon. Lowell Murray: What about reading it first?
The Hon. the Speaker: Yes, I will come to this in a moment. No
senators rising to speak to the bill, I then ask, are honourable senators ready
for the question?
Hon. Senators: Question!
The Hon. the Speaker: Honourable senators having indicated they are
ready for the question, I will put it.
It was moved by the Honourable Senator Oliver, seconded by the Honourable
Senator Comeau, that this bill be read the second time.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Madeleine Plamondon moved second reading of Bill S-19, to amend
the Criminal Code (criminal interest rate).
She said: Honourable senators, Bill S-19 has two objectives. The first
objective is to review the criminal interest rate currently set at 60 per cent
in the Criminal Code, which has not changed since 1981. The second one is to
change the definition of "interest" in paragraph 347(2) of the Criminal Code. In
my opinion, it is essential that the criminal interest rate be brought down to a
realistic level and that the charges actually paid by the borrower be taken into
Let us start by taking a look at how interest rates, usury and, finally, the
legislation came to be. In the past, money represented a medium of exchange, and
no interest was charged on loans. No community or culture used this practice. In
time, interest started to be charged, and the rates increased to the point of
becoming plain usury.
Usury is the act of lending at interest at an excessive rate, as compared to
the financial norm. It then became necessary to take legislative action. One of
the first pieces of legislation respecting interest and usury was passed in
England in 1571. In Canada, the first Interest Act was enacted in 1777, setting
the maximum interest rate at 6 per cent. This act evolved to become the Interest
Act as we know it today.
Section 2 of the current Interest Act recognizes the freedom to contract and
the right to agree on any rate of interest, while section 3 provides that, when
no rate is specified in the contract, the maximum rate is 5 per cent.
I am all in favour of the freedom to contract, but this freedom to contract
is no reason to abuse it. In fact, it was in that spirit that, during the 20th
century, the lawmaker intervened, first in 1906, then in 1939 and, most
recently, in 1981, to try to limit abuse viewed as criminal.
The legislative intentions for curbing abuse are as valid today as they were
in 1906. The same intentions have motivated every subsequent piece of
legislation, while taking into account the fiscal context at the time.
The legislators' intention to limit abuses, which was conveyed by the 1906
legislation and subsequent measures, is still very relevant today.
In fact, an excerpt from the preamble of the 1906 legislation clearly
indicates the objective sought, namely to protect inexperienced and abused
borrowers. The preamble reads in part as follows:
Whereas on the part of some money-lenders a practice has obtained of
charging exorbitant rates of interest to needy or ignorant borrowers, and
whereas it is in the public interest that the transactions of money-lenders
should be controlled by limiting their rates of interest...
This is the preamble that provides protection to borrowers. As we can see,
the 1906 act, and those of 1939 and 1981, all seek the same objective. A maximum
rate is set and the various costs assumed by the borrower are taken into
consideration in order to protect him.
Today, in 2004, the situation is not the same as it was in 1981. As
honourable senators may remember, in 1981, the central bank rate was headed for
historical highs. The legislator then decided to repeal the Small Loans Act of
1939, which had become obsolete. At the same time, it adopted section 305.1, now
section 347 of the Criminal Code, which I want Parliament to amend. This section
sets the criminal rate at 60 per cent. It must be understood that when section
347 came into effect, on April 1, 1981, the Bank of Canada rate was at an
exceptionally high level, reaching a maximum of 21.03 per cent in August. Today,
the rate is at 2.5 per cent, exactly the same as in 1939. You will agree with me
that this criminal rate of 60 per cent is really out of proportion now.
Therefore, it is important to review it, because it leads to abuse.
The discussions and testimonies heard by the Standing Senate Committee on
Banking, Trade and Commerce during the review of the legislation in 1979 and
1980 show that traditional lenders no longer wanted to grant loans of less than
$1,500, because they did not make a profit. The tightening of credit criteria
had the effect of making some borrowers turn to finance companies that were
charging high interest rates. In 1981, we legislated the criminal rate to
eliminate abuse and protect consumers. The relevant section included provisions
to prosecute criminals and avoid the problems associated with these criminal
Professor Ziegel referred to the matter of charging usurers in his commentary
on the bill. He indicated that the rate was determined after consultation with
the Montreal Police Department.
Today, as 2004 winds down, we are very far from the context of 1981 from a
number of points of view. The amendment I am proposing to section 347 will make
it possible to keep its application up to date. It also addresses the total real
cost of a loan. The calculation of interest must include the cost of insurance
paid by the borrower, because mandatory insurance has become a major component
in credit costs.
This is, moreover, the approach used in the various laws in Canada that
relate to disclosure of the real cost of a loan to the borrower. A typical
example of this is the case of a person in my region. He borrowed $4,468.09 in
2002 for a period of 48 months. This will end up costing him $10,491.36. The
interest rate given on the contract is 35.99 per cent, but is in actual fact
50.63 per cent once the cost of mandatory insurance is added in, along with the
interest paid on that insurance. The Bank of Canada central bank rate at the
time he signed the contract was 3 per cent.
The cost of credit absolutely must include the cost of insurance. I will use
Quebec as an example of what I mean by the cost of credit. Its Consumer
Protection Act describes the costs of credit as credit charges which include
insurance premiums. Other jurisdictions in Canada also include other costs in
the cost of credit.
That is the most logical and the most usual way to consider the cost to the
borrower. To state things simply and referring to Alberta's law on this
principle, the cost of credit is the difference between the value paid by the
borrower and the value received. Alberta also includes the cost of insurance
among the various costs taken into consideration in calculating the value paid.
Let us now look at a related issue, the indebtedness of Canadians. While
interest rates are low at the moment, we are seeing an increase in the debt
levels of Canadian households. The household debt ratio is at its highest level,
around 106 per cent of income. In a telephone call this morning, someone from a
Montreal consumers' group said that it was around 115 per cent.
In a recent study, the Vanier Institute of the Family reported that a growing
number of households live on the edge of financial disaster. Other studies have
confirmed this over-indebtedness of Canadians.
This is a very disturbing situation. In my opinion, it may lead to disaster
because interest rates will not remain at the current level. Even a tiny
increase in the mortgage rate may lead some households to a financial disaster.
If mortgage rates increase, payments will be higher, and there will be less
money available for other expenses, and after that, there are some who, reaching
their credit limit, will turn to high-interest loans although their ability to
repay is already stretched to the limit.
Despite current interest rates in the mainstream financial sector, access to
credit at a sensible rate is far and away from being available to everyone.
Banks are not very interested in providing small loans. Many consumers who do
not have a credit card or a line of credit have to turn to finance companies.
Others resort to alternative, short-term credit with very high interest, as high
as 60 per cent. The situation is clear: we must act in order to protect the
growing number of people who are unable to access regular credit channels.
However, I must mention an initiative by the Caisses Desjardins in Quebec. The
Desjardins Group, has started up a self-help fund, in conjunction with consumer
groups, that provides budgeting advice and follow-up. The average loan made is
$548, often interest-free, and 92 per cent of people pay back their loans, which
is excellent in risk financing, according to a Desjardins spokesperson. I am
told of similar experiences in Vancouver and Toronto. These initiatives are
commendable, but do not cover all the needs or every region in Canada.
In passing Bill S-19, we are following in the footsteps of our predecessors,
who were concerned about abuse by lenders. Let us follow their example because
by maintaining the status quo we are contributing to a situation that has become
a cancer for many low-income people. In addition to indebtedness, there is
another phenomenon which signals the current unhealthy situation: the growing
number of class action suits filed over the past few years in Canada targeting
the high interest rates. The institutions targeted are alternative credit
companies and credit card companies affiliated with major chain stores.
Class action suits have been filed in British Columbia, Quebec, Ontario and
Newfoundland and Labrador. These suits condemn the exorbitant cost of credit.
Why leave the entire decision to a judge when we know full well that a 60 per
cent interest rate is unrealistic? This criminal interest rate has given rise to
an entire alternative credit market. From 1994 to 1999, the number of pledge
loan institutions in Montreal went from 50 to 200. The leading alternative
credit company in Canada stated in its annual report in 2003 that it had 290
offices across the country and covered 60 per cent of the market.
In 1997, we learned from the Association des corporations financières de
Montréal that its members were serving 1.7 million clients. According to a study
conducted in Winnipeg, the number of institutions involved in alternative credit
in the United States went from 2,000 in 1986, to close to 19,000 in 2002. In
Winnipeg, according to that same study, the number of institutions cashing
cheques and lenders collecting on pay day went from 3 in the year 2000, to 33 in
2003. In 2002, there were 33 pawnbrokers doing 8,750 transactions per month.
According to the same study, it is less fortunate people who do business with
alternative credit institutions.
As senators, we represent all these regions. One of the conclusions reached
by the research group that looked at the experience of people who use
alternative credit in the region north of Winnipeg is that they quickly get
deeper into debt. It is not a favour to them, considering the high rates and
fees demanded. This debt load leads the person into a spiral of debt and poverty
from which they cannot escape. Maintaining the current criminal rate encourages
such institutions to go up to the limit set by the provisions of the Criminal
To give ourselves points of comparison, let us examine at what level the
criminal interest rate is set in other jurisdictions. This comparison is another
argument convincing me that what I am proposing is right. In California, the
interest rate for personal loans must not exceed 10 per cent. In Florida, the
rate is 18 per cent and, in Texas, between 18 and 28 per cent, depending on the
loan category. In New York, the criminal rate is 16 per cent in civil cases and
25 per cent in criminal cases. You can see that we are far from these examples
with our 60 per cent. The same in Europe: Canada sticks out just as much. In
France, the rate is 20.85 per cent for a small loan; in Italy, it is 19.28 per
cent, and in Germany, 17.4 per cent.
In conclusion, in Canada, we must preserve the freedom to contract while at
the same time protecting consumers against abuse. We need regulations suitable
to the current financial context, maintaining a 35 per cent difference between
the Bank of Canada bank rate and the criminal rate. This way, no matter what
happens to the bank rate, there is fairness and equity for all.
We are taking into account the increasing uneasiness across Canada, the class
actions showing that Canadians have had it with being charged rates which they
perceive to be criminal, the provincial laws which factor in all that consumers
have to pay to get a loan, courts decisions, the debt load of Canadians, the
aggressive advertising for credit loans and the explosive growth of alternative
lending institutions. In fact, in 2001, the federal government legislated on the
borrowing rate under the Bank Act, and included the disclosure of insurance
The time has come not only to disclose these costs but to factor them into
the interest rate. Section 347 of the Criminal Code has not been reviewed in 23
years. The time has come. The Senate is here to speak for those who do not have
a voice. Will we be up to the task for the thousands of citizens who are
counting on us, and on you?
The Senate proceeded to consideration of the second report of the Standing
Senate Committee on Energy, the Environment and Natural Resources (budget—study
on emerging issues related to its mandate—power to hire staff) presented in the
Senate on November 4, 2004.—(Honourable Senator Banks).
Hon. Tommy Banks moved the adoption of the report.
Hon. Tommy Banks: I rise to call the attention of honourable senators
to an important missing voice — the voice of the Honourable Richard Kroft, who
has left us. When I first came to the Senate, I was thrown into a confusing sea
and asked to swim. It was thus for a long time on every issue that arose until,
in each instance, a voice rose up and made sense of it all, even to me at the
beginning. The voice of Richard Kroft always made sense to me, no matter the
Later, as I became less ignorant but never entirely understanding the
procedures of this place, I actually began to get my oar in the water. The rest
of us, it would seem to me, would be floundering about, roiling the waters and
making incremental progress, if any, not just in this chamber but also in
caucuses and in committees. Then, a voice would speak up. It was a voice of calm
assurance and certainty, one of careful reasoning. Then, with a crystal clarity,
the question, the options and the course of direction that needed to be taken
became clear, I think, to all honourable senators.
I came to rely as a matter of course on that voice and on the many unfailing
courtesies on the part of the man whose voice it was. Since September, I have
missed that voice a great deal. It is a voice that all in this chamber have
missed but will be long remembered here, Richard.
Hon. Jerahmiel S. Grafstein: Honourable senators, I first encountered
Richard Kroft in Ottawa almost four decades ago in 1965 when I came to serve as
John Turner's executive assistant. John Turner then was the most junior minister
to the Pearson government. Richard, on the other hand, was the lofty executive
assistant to the powerful and most senior Minister of Finance, the Honourable
Mitchell Sharp. In those days, Richard — always called Richard and never by a
diminutive of the name — was ever elegant and suave. He sported a graceful pipe,
which was allowed in the halls of Parliament in those days, and was clothed in
immaculate English-cut jackets. He spoke in quiet, measured tones, befitting all
the magisterial sounds that emanated from a mandarin minister's lair. Always
debonair, Richard came from a most distinguished Winnipeg family whose father
and mother held august positions in the Winnipeg Liberal establishment. His
family was multitalented. I, on the other hand, was a rather green,
inexperienced, impatient, political activist from the streets of Toronto,
ever-anxious to change the world. Despite our differences in approach, we always
shared one common political objective, to further the policies and principles of
the Liberal Party, and so we became fast friends and confidants.
Now, while Richard was a loyal member of the Sharp-Chrétien circle, I became
successively a member of the Keith Davey crew, the Turner clan and then the
Trudeau tribe. When Richard was finally summoned by Mr. Chrétien to serve in
this chamber some six years ago, I asked him what had taken him so long. It did
not take Richard long to catch up. He rose swiftly through the Senate ranks to
hold the position of Chair of the Standing Senate Committee on Banking, Trade
and Commerce, which I now hold. Although we disagreed on measures from time to
time, especially the role of the Senate in the clarity bill, Richard was always
sound and considerate in all of his views.
We will miss his wise counsel but are consoled by the fact that now that he
has been liberated from the travails of the Senate, he will speak up freely and
wisely in Canada's interests in the future as he has done so ably in the past.
I extend to him safe passage as he returns to the arms of his wife, Hillaine,
to his wonderful and talented family and to the tranquility of private life. No
doubt we will hear words of wisdom from Richard in the future.
Finally, honourable senators, I confess that Richard and I share a deep, dark
secret — a love of Winnipeg. My daughter-in-law and the mother of my three
grandsons was born and bred in Winnipeg. I have observed that the wind and the
cold at Portage and Main has enlarged the warmth in the hearts of all
Winnipeggers. We are so grateful to share the warmth of Richard's friendship.
Hon. George J. Furey: Honourable senators, I would like to offer a few
words of farewell to our colleague and friend, Richard Kroft. Richard came to
the Senate in 1998 and distinguished himself while he was here with his
balanced, thoughtful and practical appreciation of the public issues that we all
face during our time here. It is in the nature of the Senate as an institution
that we are continuously faced with changing membership. Richard Kroft spent six
years here and during that time he contributed significantly to the well-being
of our institution and, indeed, to Canada at large.
While in the Senate, he contributed extensively to issues on the Standing
Senate Committee on Banking, Trade and Commerce. I was both happy and privileged
to serve with him on this committee and to have heard his views on corporate
governance and ethics. Hearing what Senator Kroft had to say about Enron and
other corporate ethics matters gave me a greater appreciation of the issues
facing our modern corporate world. His appreciation was developed, no doubt,
over his many years as a corporate director, investment fund manager and chair
of numerous associations. I am especially regretful that the Senate is losing a
person with this kind of experience. It seems to me that the role of the Senate
is to leaven public policy debate with comments and attitudes from just such
people as Richard Kroft.
While we are all aware of the many public service roles that Senator Kroft
filled over the years, from the Jewish Foundation of Manitoba, the Royal
Winnipeg Ballet, the University of Manitoba, the Pan Am Games and, indeed, even
the Winnipeg Jets, it would appear that after his brief period in the Senate he
will be back deeply involved once again in those core community-building
activities. We wish him luck.
Richard, our very best wishes to you, Hillaine and your family.
The Hon. the Speaker: Honourable senators, it being Wednesday, we are
subject to an order of the Senate such that I leave the chair at four o'clock if
we have not adjourned by that time. I have another senator on my list under
Inquiries. Is it your wish that I not see the clock for one additional
Hon. Senators: Agreed.
Hon. Joyce Fairbairn: Honourable senators, I rise to say farewell to
someone whom I have admired for many years. Senator Grafstein, others in this
chamber and I go back decades on Parliament Hill. I remember when we were all
young and enthusiastic. I remember Richard serving quietly and carefully, and
with great skill, ministers of former administrations. I, however, did not
really know Richard as an individual and friend until he came to this chamber
about six years ago. Senator Spivak noted today that he was the absolute picture
of elegance and class in Winnipeg, and he certainly has been here in this
chamber and in Ottawa as well.
The thing that really touched my heart about Richard was the maiden speech
that he made in this chamber. As a Westerner myself, it struck me as almost the
kind of thing students should read in school. He came here with all the
intentions that we all do. We want to make a contribution and we are delighted
to be asked. However, he came here for another reason, too, because, as someone
who lived west of the Ontario border, he had a tremendous desire, if not a sense
of mission, to create a better understanding of that region we call Western
Now, I would be more inclined to be found, as His Honour knows, in a Stetson
and boots, but I think that Senator Kroft managed to get his message across in
many ways that were perhaps understated. Certainly, by his very presence here,
he exuded a sense of being a worthwhile, intelligent person committed to this
country and to his region.
Honourable senators, I want to go back to Senator Kroft's maiden speech
because, oddly enough, he made it just before the weekend of the Grey Cup in
1998, which event is upcoming this weekend as well. In his speech he used the
unifying force of sports — a great sense of pride and entertainment in this
country — but he gave it a sense of bringing a country together, and he wanted
to talk about that because it was his part of the country that was bringing
Canada together for that particular weekend. Senator Kroft talked about his
strong belief in the importance of Manitoba and the city of Winnipeg and their
very centrality in the whole idea of Canada. He said:
We are a natural part of both halves of our country. We live on the edge of
the great western prairies, and holiday where the Canadian Shield spills over
the Ontario border into Manitoba. Our English and French languages and
cultures mix easily, in a way that enriches us all.
That was his motivation in coming here, and he was one of the strongest
images of the reality and success of those words that I can think of. He made a
contribution to this place on the Banking, Rules and Internal Economy
Committees, but for me, always, his sojourn here in the Senate of Canada was an
important statement about the pride and the worth of Western Canada, the
province of Manitoba, the city of Winnipeg. We all thank him for that and wish
him a glorious next career back in the place he loves, with his wonderful wife,
Hillaine, and family.
The Senate adjourned until Thursday, November 18, 2004, at 1:30 p.m.