Hon. Jerahmiel S. Grafstein: Honourable senators, Auschwitz holds a
dark significance for both my mother's family and my father's family. All but
two in my mother's extensive family who lived in Poland before the Second World
War perished in Auschwitz.
My father's branch of the family went from Austria to Southern Poland over
two centuries ago and settled in a small village not far from Auschwitz. One
branch of my father's family emigrated to France and Belgium. My father, his
sister and older brothers, save one, immigrated one at a time to Canada,
starting at the turn of the last century. My father's oldest brother and all his
sprawling family and cousinhood, some 63 in all, remained in Poland and were
transported in 1940 not far from their peaceful village to Auschwitz — where all
but two perished.
So, exactly what do we demand from ourselves when we commemorate on January
27, 60 years since the liberation of Auschwitz? What are we to do? What are we
The Hebrew word for memory is zachor. The rabbis tell us that
zachor is not a passive word, that zachor looks backwards and
forwards. Although we must never forget the past, we live in the present.
Zachor is an imperative verb. Zachor cannot ignore the present
because the root of Auschwitz and the Holocaust was hate of the "other" —
unreasoned, impassioned fear and hate of the other.
Back in July 2002, the annual OSCE Parliamentary Assembly met in Berlin in
the very Reichstag where the infamous Nazi laws were passed in the 1930s,
considered and unanimously approved a resolution that I co-sponsored, urging
parliamentarians in all member states — 55 in all — and others to study and
address the insidious revival of anti-Semitism across the entire OSCE space,
including Canada. In the last three years, anti-Semitic incidents have erupted
and escalated across Canada — and all of those since the resolution against
anti-Semitism was first introduced in the Senate.
I gave notice of a motion to study the OSCE resolution on November 21, 2002,
which languished on the Order Paper for almost a year and a half. On February 3,
2003, the resolution was referred by unanimous consent for consideration by the
Standing Senate Committee on Human Rights, which held hearings for several hours
on April 19, 2004. There, the matter stayed until Parliament dissolved on May
The OSCE resolution is a long one, but in part it urges — and I quote —
consideration of the following:
...effective measures to prevent anti-Semitism and to ensure that laws,
regulations and practices and policies conform to the OSCE commitments.
Canada now lags behind a number of other states who have considered and acted
on this resolution and made recommendations. Why commemorate Auschwitz if not to
move to eradicate the roots of anti-Semitism in our time? I urge the Standing
Senate Committee on Human Rights to revive the resolution and give careful
consideration to how this generation and future generations of Canadians can
eradicate the contagious virus of anti-Semitism that animated and engineered
Auschwitz and the Holocaust.
How can we teach our children to respect the "other"? Senators, how can we
expect our children to respect differences if the Senate remains indifferent to
ongoing egregious acts of hate and discrimination in our time?
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable
senators, I rise to congratulate all who participated in the negotiations for
the offshore accord with Newfoundland and Labrador — first of all, the Prime
Minister, who kept his promise and who kept it for all the right reasons.
He knew this was not just a deal about oil, but about rectifying past
injustices and about helping a province in grave economic circumstances. He knew
about our $10-billion debt and about how much, every year, goes toward paying
down that debt. He knew we were weak and that he could help to make us strong.
He knew what he had to do and he did it.
As well, congratulations go to Premier Danny Williams. He knew that we were
not a have-not province but a keep-not province. He knew that, in spite of our
resources, financially we were simply running on the spot with no hope of ever
catching up. He knew that, given a fair start, we could not only support
ourselves but be a strong contributor to the nation. He knew that although the
fish were gone, the oil was still there, and that it would be our last best
hope. He knew it was now or never, and his determination and perseverance led
him to succeed where his predecessors had failed. He knew what he had to do and
he did it.
Those of us who kept close to the negotiations know that there were others
who played significant roles. Minister John Efford brought his passion to the
debate, and honourable senators should know that Senator George Furey played a
key role in articulating the position of the province and providing a less
emotionally charged channel of communication.
We became part of this country less than 60 years ago. We were the only
independent country to join Canada. We brought with us to Canada a long
coastline rich in marine life and petroleum reserves. We brought with us
abundant hydroelectric power and vast mineral lodes. Yet, in spite of that, we
saw ourselves slipping more and more into the slough of dependency.
Because of this accord, we will no longer reflect on the past but set our
sights on new horizons. It does not mean that tough times are over — just paying
down the debt will restrict our ability to educate people or to keep them
healthy — but we now have a fair chance. Because of this accord, we can become
full Canadians not just in name but in deed.
Hon. W. David Angus: Honourable senators, I rise today with much
sadness to signal the passing last Wednesday in Toronto of a truly remarkable
Canadian, a man I was privileged to know as a friend and loyal partner for close
to 50 years.
Roy Fraser Elliott lived a diverse and productive life, and Canada is surely
enhanced for his having passed this way. On Monday afternoon, Grace Church
on-the-Hill in Toronto was full to capacity as individuals whose lives he
touched in a myriad of ways came from near and far to celebrate his life.
As the French would say, Fraser Elliott "avait beaucoup de cordes à son arc."
He had many strings to his bow. He was a brilliant lawyer, a canny businessman
and entrepreneur, a sensitive patron of the arts and a generous benefactor to
countless causes and institutions. He was also an astute art collector and an
avid sportsman. He loved golf and salmon fishing. His ardent competitive spirit,
so evident in his professional and business life, was also alive and well on the
Fraser was born here in Ottawa on November 25, 1921, the son of Colin Fraser
Elliott, a lifetime civil servant, whose career included terms as Deputy
Minister of National Revenue and Ambassador to Chile. Fraser's higher education
included a B.Com. from Queen's University in 1943, a law degree from Osgoode
Hall in 1946, and a Harvard M.B.A. in 1947. Although a proud son of Ontario,
after Harvard, Fraser had ventured to Montreal in la belle province du Québec
where his extraordinary career would take shape and evolve over the next 30
years, before he decided, in 1976, to continue his noble pursuits in Toronto. He
quickly mastered the mysteries of le droit civil and was sworn in as a member of
le Barreau du Québec in 1948. Fraser befriended his father's protege, a
brilliant young tax lawyer named Heward Stikeman, who had just returned to
Montreal after nine years as a government lawyer in Ottawa, including two years
as special counsel to the Standing Senate Committee on Banking, Trade and
Commerce, where he had a mandate to design a complete new set of tax laws for
In 1952, these bright and ambitious young men, as equal partners, founded
their own tax and corporate boutique law firm, Stikeman Elliott. They
complemented each other beautifully; Stikeman being the visionary intellectual
and legal purist, and Elliott the pragmatic businessman. Today, Stikeman Elliott
is a leading global law firm with close to 400 lawyers, and Fraser was still
attending the office as recently as two weeks ago.
For Fraser Elliott, hard work, focus, loyalty, integrity and sound judgment
were the key ingredients to success. He also earnestly believed that success and
good fortune carry with them the obligation to put back into society. He always
encouraged his colleagues and associates to get involved and to participate in
community affairs and public service.
Fraser's incisive business acumen manifested itself outside the law firm
through a wide variety of successful commercial ventures, through which he
accumulated a substantial fortune. By far his favourite and best known business
pursuit was Canadian Aviation Electronics Ltd., or CAE. He and Mr. Stikeman
invested in CAE in 1951 as a small start-up technology company. Fraser went on
to serve as its chairman.
The Hon. the Speaker: I apologize for interrupting, but the honourable
senator's time has expired.
Hon. Ethel Cochrane: Honourable senators, I rise today in tribute to
Lawrence O'Brien, Member of Parliament for Labrador, who recently passed away at
the young age of 53. Although a young man, and only in Ottawa since 1996,
Lawrence's list of contributions to the people of his home, his province and his
country was anything but short.
Throughout his life, he was devoted to serving his community. Whether as a
schoolteacher, an adult educator or a town councilor, Lawrence sought to make a
positive difference. It was no different when he arrived on Parliament Hill to
fill the seat vacated by our honourable colleague. Lawrence was involved in
everything, from fighting for an increased seal hunt to keeping NATO training
flights in Labrador, to helping create his region's flag.
However, the historic achievement that I think is most reflective of
Lawrence's work came in 2003, when our province's name officially became
Newfoundland and Labrador. It was no easy task. The name change required no less
than a constitutional amendment. However, it was an act of lasting value and of
tremendous symbolic importance to the people of our province. I had the pleasure
of speaking in support of that amendment in this place and was only too happy to
further the cause, which he so passionately presented.
However, aside from those things, which I am sure history will forever
recall, it is the much more discreet gestures and acts that I will remember. I
remember, for instance, all the positive stories I have heard from people about
encounters they have had with Lawrence O'Brien: about him stepping in to make
sure that stranded air travellers in Labrador made it home for the holidays; or
how he ensured that a constituent, who was in desperate need of equipment to
start a home-based business, had what she needed within two weeks.
Those are the things that we rarely read about and seldom see, but those are
the truest reflections of Lawrence O'Brien. He made the news last October when,
in ailing health, he left his hospital bed to vote on the Throne Speech here in
Ottawa. Many were astounded by that act of loyalty and devotion, but, frankly,
that level of dedication was indeed typical of Lawrence.
Honourable senators, the Prime Minister has said of Lawrence:
He was a man of honour, he was a man of principle. He was a man of
character....Above all, he was a man of Labrador.
I could not agree more.
To his wife, Alice, and their two children, I extend my heartfelt
Hon. Donald H. Oliver: Honourable senators, it is with great pride
that I stand in this chamber today to call your attention to the importance of
Black History Month.
We celebrate Black History Month each year to acknowledge the vibrance of
Black history and culture and the rich contributions of Blacks to Canada. I also
believe that Black History Month should be a period of reflection; it should be
a period where all Canadians ask themselves how they can improve the condition
of Blacks, and indeed, of all visible minorities across Canada.
Honourable senators, I am here to tell you that there is still much work to
be done. Racism remains entrenched in Canadian society. It exists in our public
service, in our schools and within our police forces.
In our public service, for instance, visible minorities occupy just 7.4 per
cent of the workforce, despite making up more than 15 per cent of the population
generally. Of the visible minority groups in Canada, the Conference Board of
Canada recently reported that Black people are the most likely to be victims of
racism, at 32 per cent.
Racial profiling also continues to be a cancer within our police forces.
Successful Black men and women continue to be stopped, pulled over and
interrogated, simply because of the colour of their skin. The Ontario criminal
justice system reported in 1995 that 50 per cent of all African-Canadian males
had been stopped or questioned by police in the past two years compared with 25
per cent of White males. In this very chamber, honourable senators, only three
Black Canadians have ever been privileged to serve this country. What is more,
of the 89 senators who currently sit in the Senate of Canada, only four are
visible minorities — an unacceptable 4.5 per cent.
This year, Black Canadians celebrate the four-hundredth anniversary of our
presence in Canada. Mathieu da Costa, a Portuguese navigator and explorer, came
to the New World alongside Samuel de Champlain in 1605. In the 400 years since
da Costa's arrival, there have been profound changes to Black culture in Canada.
We have gone from slavery to freedom. We have taken part in two World Wars.
Blacks have done their part to build Canada into what it is today, but they
remain marginalized and unequal. Opposition to diversity still exists. Racism
continues to block our advancement, and this must change.
We celebrate Black History Month to remind all Canadians, from coast to
coast, that the quest for equality is far from over. It is a time of reflection,
a reminder to Canadians that the fight against systemic racism must continue
until it is exterminated from our society. It is a time to celebrate Black
history and culture, but also a time to promote Canada, where everyone is
treated equally, regardless of the colour of their skin.
Honourable senators, that is the Canada that I want, and that is the Canada
we must build.
Hon. Noël A. Kinsella (Leader of the Opposition): Honourable senators,
as the time allocated for Question Period yesterday overcame us in the midst of
a very interesting exchange of questions and answers from the Honourable Leader
of the Government in the Senate concerning transportation issues affecting the
West Coast, I wanted to ask this question.
The issue of rail transportation through the Rockies to the West Coast was
mentioned in yesterday's exchange. Currently, Canadian Pacific Railway has a
single track that runs through the Rockies. It is very difficult terrain and
often there are accidents of nature such as slides, and we read in the paper of
the track being blocked. It is amazing how quickly the track can be backed up.
It was brought to our attention that consideration is being given to dual
tracking the Canadian Pacific line.
My understanding from the exchange yesterday was that individuals involved in
the British Columbia railway industry and those who use the railways in their
trade are hoping to see the process of dual tracking along the rail line sped
up. Sometimes there is a lot of bureaucratic red tape that holds back the
process. All Canadians are aware that no matter where one lives in Canada,
economic spinoffs for the whole country can result from dual tracking. Also,
given that Canadians from coast to coast to coast are proud of the fact that the
Winter Olympics is slated for Vancouver in 2010, a sense of urgency might be
added to the question of dual tracking CP lines.
Is the federal government prepared to further collaborate with Canadian
Pacific to expedite the process of dual tracking in the province of British
Hon. Jack Austin (Leader of the Government): Honourable senators, I
appreciate the question. I think it was in my answer that I referred to
consideration being given by Canadian Pacific Railway to increasing its rail
carrying capacity, partly through dual tracking, in the line that runs from the
Port of Vancouver through to the Rockies. I did not mean to suggest that the
entire line would be dual tracked but that Canadian Pacific Railway, in managing
the two-way flow of rail traffic, could increase capacity by additional dual
tracking. I was given a number that indicated that enhancing railway capacity
would cost probably in excess of half a billion dollars.
The matter of railway capacity from the Port of Vancouver is under study in
the federal government by the Department of Transport and by other departments
affected. I have no further information that I can give the honourable senator
at this time.
Hon. A. Raynell Andreychuk: Honourable senators, I have risen before
to speak about RCI programming to Ukraine. In 2004 there was an announcement
that the programming would be cut back effective January 28, 2005. Due to
realignment of the RCI budget, programming for Ukraine was cut back and other
countries were added, with which I have no dispute.
However, in light of what has transpired since the Canadian government made
that decision in consultations with the CBC, there is an opportunity to revisit
and strengthen the necessary international services to Ukraine. The previous
programming was of varying types, and I do commend RCI for putting emphasis on
public service, as this is very important.
The election in Ukraine taught us that there was a lack of even-handed
information into all parts of Ukraine. While President Yushchenko is sounding a
hopeful sign for democratic reform in Ukraine, I believe that the Canadian
government must support this endeavour. It is inappropriate to cut back the
Ukrainian programming service at this time.
The honourable leader's answer to my previous question was that this is a
hands-off CBC issue and that the CBC is at arm's length. However, in looking
into this matter by way of further discussions with CBC and others in the
government, it is apparent that the issue is not quite that simple.
DFAIT, on behalf of the Canadian government, sits down with the CBC to
negotiate and discuss what programming will fall under the rubric of
international services. I do not quarrel with the choices they made a year ago,
but the landscape has changed entirely. An appeal to both the government and the
CBC has not borne fruit. On January 28, the programs were dramatically cut back.
CBC has indicated to me that they have no further money and that they have
not received a signal from the Canadian government that the government wishes to
revisit this issue.
Is the Canadian government willing to revisit this issue to determine whether
further funds could be injected into Ukrainian programming at this important
time to assist in the momentum for reform and change in Ukraine?
Hon. Jack Austin (Leader of the Government): Honourable senators, I
have no quarrel with Senator Andreychuk's description of the facts. I, too, have
looked into the issue since that exchange of questions and answers and have
discovered that RCI does have a continuing dialogue with Foreign Affairs Canada
with respect to priorities for Canada to reach foreign communities through
As Senator Andreychuk has said, this was a priority set more than a year ago,
and the CBC, seeking to serve Canada's interests, accepted the recommendation of
Foreign Affairs Canada with respect to a change of broadcasting priorities.
As Senator Andreychuk has said, events in Ukraine overtook the decisions that
were made by RCI and the advice given by Foreign Affairs Canada, and no
adjustment to their priorities was made by either of those parties in view of
the changing circumstance.
I have had discussions with an official of the CBC and an official of the
Department of Foreign Affairs with respect to the matter. I cannot report that
any change has taken place, but I can say that I made strong representations
that the previous service be restored.
Finally, I did not suggest new financial resources be given to the CBC.
Funding to the CBC is a matter of incredible complexity. I simply asked them,
through their own means, to restore the service because clearly, in light of
today's events, it is a major priority to have the values of Canada and Canada's
interest in Ukraine and its democratic development reflected through these
Senator Andreychuk: Honourable senators, I fully understand the
current position of the CBC. They have apportioned among a number of countries
the money that was provided for international services. They simply could not,
at this late hour, withdraw it from programming elsewhere. However, I would
plead for a one-time, one-year injection of money for international services.
The Canadian government spent a minimum of $5 million — and I would suggest that
it was much more than that — on election monitoring. This is a critical point in
the life of Ukraine, and Canada can do something to make its investment
profitable. The people of Ukraine must hear from Canada that we continue to
support them and continue to want a strong, reformed Ukraine.
Continuing this service at this critical time would top up our investment in
election monitoring. This is a special case. It does not have to be CBC funding
because we are talking about international services. I ask the Leader of the
Government in the Senate to raise this matter with the government and the Prime
Senator Austin: Honourable senators, I would be pleased to do so.
As the honourable senator indicated, once the decision was taken, different
resources were assembled to broadcast to Brazil and other parts of South
America, as it turns out, and resources dealing with Ukraine were transferred.
It takes time to put all of those resources back in place, if in fact we can
achieve the necessary decision.
I assure the honourable senator that I am making representations to the
Minister of Finance to make this a special item. The honourable senator has
again raised the matter, and the support of other senators would be of
Senator Andreychuk: As a footnote, I think the CBC is looking for a
signal from the government, so there is some room for discussion. This request
must be taken up as a special concern. Extending service to Ukraine would be a
good example of what we could constructively do in other cases, perhaps. It
would not be difficult to readjust the existing staff component and availability
of resources to a more public services-oriented format, which is critically
needed at this time.
Senator Austin: This series of questions and answers obviously
demonstrates the importance of public-owned broadcasting in Canada.
Hon. Gerald J. Comeau: Honourable senators, last month Senator Downe
wrote to the Prime Minister to request an increase in the Guaranteed Income
Supplement benefit paid to Canada's poorest seniors. I want to commend Senator
Downe on his initiative, but I find it curious that he would need to write such
a letter given that during last year's election the Prime Minister promised to
increase the GIS by a total of $1.5 billion over five years.
Could the Leader of the Government in the Senate explain why there has yet to
be any announcement on either the timing or the details of that increase, and
could he tell us what the holdup is on this increase in the GIS?
Hon. Jack Austin (Leader of the Government): Honourable senators, the
obvious answer is that the government has a large number of requests for the
expenditure of the fiscal surplus. The Minister of Finance is in his pre-budget
cycle now; therefore, these representations by Senator Downe and Senator Comeau
are timely. I will ensure that Senator Comeau's question is drawn to the
attention of the Minister of Finance.
Hon. Gerald J. Comeau: Honourable senators, I commend Senator Downe
for the inquiry he launched last October. At that time, he raised the concern
that several thousand needy seniors are not getting the Guaranteed Income
Supplement because they do not realize that they are eligible for it or had
otherwise failed to apply.
In the three and a half months since this concern was brought to the
attention of the Senate, has the Leader of the Government sought any information
on what is being done to address this problem, or has he learned of any new
initiatives? If so, does he have anything concrete to report to the Senate with
regard to enabling these potential GIS recipients to access this initiative?
They are the most needy in society, and we must make every effort possible to
ensure that they get what is due them under Canadian law.
Hon. Jack Austin (Leader of the Government): Honourable senators, the
issue of making public information available to potential applicants has been
under review since the question has again arisen. Obviously, the starting point
is the responsibility of every Canadian to be informed of what is available. The
question, then, is how proactive government officials can be and the cost of
Is it easy to find the constituency to which you are referring, Senator
Comeau? How do we approach them? How much assistance do we give them and what is
the cost of that particular activity? Obviously, everyone wants seniors who need
the GIS to get the GIS.
Senator Comeau: Honourable senators, I am glad that the leader asked
those questions, and I do have a suggestion. I think this was brought forward by
Senator Downe as well, and I commend him for this initiative.
The Canada Revenue Agency does have regular contact with Social Development
Canada. They do talk on a regular basis. Similarly, when the Government of
Canada wants to collect income tax, for example, it does have communications
with certain provincial departments. Obviously, if the federal government can
talk to provincial departments in order to collect revenue from citizens, it
should not be much more difficult for one federal agency to talk to another
I agree entirely that we have to leave the onus on Canadians to inform the
federal government, but some people may not be as familiar with government
programs as we are. We have to go the extra mile to encourage government to act
the same way it does in accessing information from another department when it
wants to collect taxes. Why does the federal government not encourage those
departments to contact seniors to collect what is due to them under the GIS?
Senator Austin: I am entirely in accord with the sentiment, but I do
want to comment on the process that has been outlined. Tax information is kept
confidential and is not shared with other government departments except in the
most restricted of circumstances.
The honourable senator referred to the provinces. The agency acts as a tax
collector for most of the provinces and therefore does work with those provinces
in respect of certain kinds of information given.
One of the problems with reaching people who are eligible for GIS is
essentially this whole question of tax privacy. How much searching does one do?
The program under consideration appears to be again limited to some form of
public notice and public advertising. Hopefully, other Canadians who know of
senior citizens who are eligible for GIS could play an important role in
forwarding the information available to the applicant.
Senator Comeau: One final suggestion is that when those seniors apply
for GST rebates, and most of them do, perhaps at that point the GST department,
which does not fall under the income tax department, might issue to those
individuals a notice asking if they have considered applying for GIS.
Senator Austin: Thank you. I will pass that suggestion along.
Hon. Donald H. Oliver: Honourable senators, my question is directed to
the Leader of the Government in the Senate.
During his recent trip to China, the Prime Minister said:
You do not defend human rights by simply making statements. You defend
human rights by being persistent and consistent.
It would seem that the Prime Minister did neither during his trip to China
with respect to the death of the former Communist Party leader Zhao Ziyang.
There was very little mention of Mr. Zhao by the Prime Minister except to
criticize a member of our Parliament who wanted to pay his respects to Mr.
Zhao's family and offer support to the pro-democracy movement.
Could the Leader of the Government in the Senate tell us in what way the
Prime Minister's apparent reluctance to speak about Mr. Zhao during his visit to
China could be categorized as being part of the persistent and consistent
defence of human rights?
Hon. Jack Austin (Leader of the Government): Honourable senators, let
me answer the question with a preface. I knew the former premier, Zhao Ziyang,
very well. I negotiated Canada's Expo 86 invitation to China in the fall of
1983. Premier Zhao came to that negotiation and participated in the concluding
part of it.
I also negotiated his state visit to Canada in December 1983 and in January
1984, and I was the minister in attendance to Premier Zhao for nearly three
weeks of that visit.
Subsequent to 1984, I was able to visit with Premier Zhao in Beijing once or
twice a year. I knew Premier Zhao and Jason Kenney did not. Jason Kenney
accompanied the Prime Minister to China for the purpose of assisting and
facilitating the development of Canada-China relations.
Premier Zhao is an important figure in Chinese political history. His role
will be studied for a very long time.
Prime Minister Paul Martin expressed his condolences to the Chinese
leadership in private meetings. He was not called upon to make a public gesture
with respect to the political standing of Premier Zhao in China.
I felt that I, too, should at that particular time last month express my
condolences to the Chinese leadership, and in both cases it was graciously
received. It was not the subject of negativity on the part of the Chinese
leadership. However, as for public gestures by a representative of the
Government of Canada, which is the Prime Minister or myself as members of the
Government of Canada, this is not in accordance with our international role and
I return to Jason Kenney, who decided for his own reasons to make an overt
political gesture. There are precedents, of course, in China. A former
parliamentary colleague, Svend Robinson, made a dramatic gesture in Tiananmen
Square by unrolling a banner. It is very easy to capture headlines with gestures
of that type, and it is a little harder to build a relationship of confidence
and trust step by step. To attempt to illustrate the value of the Canadian
system by demonstrations that are simply press-catching is not constructive.
Finally, I want to say that Mr. Kenney called members of the press and asked
them to go with him to the home of Zhao Ziyang. He did not make that call as
Jason Kenney but deliberately set up a media event to take advantage of whatever
came with that in terms of Canadian political reaction. He was not, therefore,
present for discussions about human rights and Canadian values.
Immediately after his demonstration, Mr. Kenney left China. He did not stay
with the Prime Minister's mission, which certainly does raise, in my mind,
questions about the practice that has developed of opposition members travelling
with the government in support of the government-to-government relationship with
Hon. Donald H. Oliver: My question was about human rights. The Prime
Minister also remarked during his visit that China had made considerable
progress in improving its human rights record. This claim mystified the many
Canadians who believed that China's record over the years has remained very
poor. The Prime Minister's remark must have also surprised the Chinese-Canadian
journalists who were denied visas to cover his trip and the Canadian journalists
who were harassed by Chinese authorities during the visit. Where is the
persistent and consistent defence of human rights in the Prime Minister's
statement that China has made considerable progress in recent years?
Hon. Jack Austin (Leader of the Government): Honourable senators,
Jason Kenney's behaviour had nothing to do with human rights. It had everything
to do with political opportunism.
With respect to the rest of the honourable senator's question, I replied
extensively to questions this week on the way in which Canada is seeking to
develop and cooperate with China in the evolution of its legal and individual
rights system. Enormous progress is being made in the economic and social
freedom of the Chinese people.
I will say in summary that the Chinese people are studying other systems.
They are busy, in their academies, think-tanks, universities and government
agencies, assessing the political institutions of the future. Political and
judicial development in China is not arrested. It is moving forward.
That Westerners believe they have the answers for China and are impatient for
China to achieve their own answers is, perhaps, a bit of an overreach. For
example, in the State of the Union address given by President Bush last night,
he made it clear that America is not trying to establish its model of governance
and democracy in foreign countries, but is simply trying to permit the progress
of freedom in those societies.
Senator St. Germain: At least you are supporting George W. Thank
goodness. That is the first positive thing I have heard from you Liberals.
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable
senators, I have the honour to table a delayed answer in response to a question
raised on December 7, 2004, by Senator Gustafson, regarding Kyoto targets.
(Response to question raised by Hon. Leonard J. Gustafson on December 7,
The Government of Canada has always understood that reaching Kyoto would be
a challenge. Indeed, we have taken on a tough target:
Canada has to reduce emissions by 6 percent (below 1990 levels) while
its population and economy has been consistently growing;
Canada has many export-oriented energy-intensive industries (e.g. oil
and gas, forestry, mining, manufacturing), which use energy to extract and
process raw material to produce goods for use in other countries;
Canada has a cold climate and long distances between population centres.
Still, the Government of Canada has always said that it will do its very
best to attain its Kyoto objectives. Over the past few years, it has put in
place a wide range of measures to reduce emissions and committed $3.7 billion
to support their implementation. With the Kyoto time frame in mind, we are
energy efficiency at home, in the factories and on the road — energy
efficiency offers many opportunities for both emissions reductions and cost
"emerging" renewable energy sources such as wind power and ethanol —
Canada is already a leader in renewable energy with hydropower;
carbon sequestration from agricultural and forestry practices, and
through underground storage.
The Government is also actively supporting the development of new
technologies that will provide a longer term solution to emissions reductions.
Priority areas include cleaner fossil fuels, hydrogen, energy efficiency,
distributed power and biofuels.
Others in Canada are also taking action. Recent announcements in Ontario
and Quebec, Canada's two largest provinces, are a testimony of actions by
other levels of government. Industry and ordinary Canadians are also committed
New measures, proposed in the Climate Change Plan for Canada in 2002, are
now being implemented across the country. However, there is a need for further
action to put Canada firmly on the path of continuous emissions reductions. In
the October 2004 Speech from the Throne, the Government reiterated its
commitment to act on climate change in a way that will produce long-term and
enduring results while maintaining a strong and growing economy. Moving
forward requires the development of a long term national vision, implemented
through a collaborative approach, and fuelled by domestic actions to achieve
emissions reductions in both the Kyoto time frame and the longer term.
The Government is committed to building on its efforts to date and it will
continue to work with provinces, industry and other stakeholders in moving
forward on climate change. Budget 2004 has already announced the Government's
intention to further its support to environmental technologies, like clean
energy technologies, by investing $1 billion from the sale of our Petro-Canada
shares. Under the guidance of the Council of Energy Ministers, federal,
provincial and territorial working groups have been set up to develop
strategies on energy efficiency and demand-side management, and on energy
technologies. And, a new Cabinet Committee on sustainability and the
environment has been created. The Committee is currently taking stock of the
progress that has been made, and will be discussing options on how best we can
Hon. Bill Rompkey (Deputy Leader of the Government), pursuant to
notice of February 2, 2005, moved:
That the Standing Senate Committee on National Security and Defence have
power to sit at 3:15 p.m. on Tuesday, February 8, 2005, even though the Senate
may then be sitting, and that rule 95(4) be suspended in relation thereto.
An Hon. Senator: Explain, please.
Senator Rompkey: Honourable senators, the committee is hearing
testimony on the establishment of the security organization headed by the
Honourable Anne McLellan, and they want to hear from her. The meeting time has
been mutually agreed upon. The minister is available at that time, which is why
the change is necessary.
The Hon. the Speaker: Are honourable senators ready for the question?
Hon. Senators: Question!
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Hon. Pierre Claude Nolin moved second reading of Bill S-23, to amend
the Royal Canadian Mounted Police Act (modernization of employment and labour
He said: Honourable senators, it is a pleasure and an honour for me to speak
at second reading of Bill S-23, which seeks to thoroughly modernize the Royal
Canadian Mounted Police Act as regards labour relations.
First, I want to point out that the bill is a replica of former bills S-24
and S-12, which I introduced on October 23, 2003 and February 12, 2004
As you are aware, honourable senators, both bills unfortunately died on the
Order Paper without having been examined by the Standing Senate Committee on
National Finance. However, since October 2003, I have received many encouraging
messages from members of the RCMP, from associations representing officers of
various Canadian police forces, from other citizens and from my fellow senators.
I will mention only one colleague, Senator Phalen, who spoke during debate on
second reading of one of the previous bills.
For example, the Canadian Professional Police Association announced yesterday
that it supports Bill S-23 and it invited members of the Senate and of the other
place to approve this important legislation during the coming months. In that
respect, the President of the CPPA, which represents 54,000 municipal,
provincial and federal police officers, Mr. Tony Cannavino, said:
We are at loss to understand why RCMP members have been denied the most
fundamental and basic employee rights for so long. Every other police officer
in Canada is afforded these rights and protections, this is long overdue for
Having said that, on a less encouraging note, a number of cases of sexual
harassment toward female members of the RCMP have also been brought to my
attention over the past few years.
These expressions of support and these shocking facts, which I will describe
a little further on, have convinced me that, in the name of public protection
and transparency, it is essential to bring about this reform within the next few
Honourable senators, that is why, the day before yesterday, I reintroduced
The RCMP was established in 1873. For over 130 years, its traditions, the
professionalism of its members and its excellent international reputation have
been a great source of national pride for all Canadians, and a vibrant symbol of
Everywhere in our country, whether they are assigned to police duties under
contract to provincial authorities or enforcing federal laws that apply across
the land, members of the RCMP are providing police service of the highest order
to the people of Canada, often at great personal sacrifice.
In the past few years, some members of the RCMP have strongly and firmly
criticized — with good reason — their labour relations system. For example, they
have complained, quite rightly, about the high cost to Canadian taxpayers as
well as a lack of transparency, independence, fairness and impartiality.
Through the research and consultation work that I did before tabling the
previous version of Bill S-23, I discovered, as I will show later on, that this
regrettable situation is the root cause of abuse by the employer, of the
deterioration of the members' morale, and of lowered professional and personal
self-esteem among the staff. The current method of labour relations is also
responsible for the frustration and cynicism RCMP members feel with respect to
the present procedure for determining their working conditions and the outdated
and highly controversial mechanisms for settling grievances and dealing with
Honourable senators, the members of the RCMP deserve that we should look into
these serious problems that might, by the way, work against the primary
objective of our national police force, which is to protect Canadians.
Indeed, I strongly believe that the safety of our fellow citizens depends not
only on the implementation of better accountability procedures within the RCMP,
but also on the quality of labour relations within that organization. The main
purpose of Bill S-23 is quite simply to improve labour relations so that the
RCMP can carry out its mandate effectively.
Honourable senators, I am proud to say that this bill constitutes the first
major reform of employer-employee relations in the RCMP since Bill C-65 was
passed in 1986. The purpose of that bill was to implement a series of
recommendations set out in the 1976 report of the important Commission of
Inquiry Relating to Public Complaints, Internal Discipline and Grievance
Procedures within the Royal Canadian Mounted Police, better known as the Marin
I do not intend to repeat word for word my speech of February 2004. I would
rather focus on certain elements of the bill in order to explain why it is
necessary for the Senate to adopt it.
According to the official figures, setting aside the senior ranks, the
provisions of this bill will apply to approximately 15,000 members of the RCMP.
Federal public servants who work primarily within administrative units of the
RCMP would be excluded from the application of Bill S-23 because their working
conditions and their internal grievance or disciplinary procedures are already
governed by the Public Service Staff Relations Act.
Because of the historic nature of the reform I am proposing today, the bill
includes a preamble, which sets out the principles on which implementation and
interpretation of the provisions of this bill are founded. Thus, it first
recognizes that the right to certification and the right to collective
bargaining are basic principles on which the workplace is organized in the
private and public sectors in Canada.
Next, it points out that the members of the RCMP, unlike members of most
civilian police forces in Canada, do not have these rights, and that this
situation is a source of injustice and continuing frustration, and may even
threaten the safety and security of Canadians.
Third, it states that the establishment of good staff relations within the
Royal Canadian Mounted Police will enhance protection of the public, since the
peace officers will spend more of their time carrying out their duties to the
public, as they will be aware that the representatives of an accredited police
association will be defending their interests with respect to working conditions
and internal grievance and disciplinary procedures.
Finally, the preamble states that, in order to enjoy the trust and respect of
the public, the RCMP must be accountable to Canadians, not only through the
Royal Canadian Mounted Police Public Complaints Commission, but also through an
internal discipline and grievance procedure that is consistent with the general
principles of the law — commonly known as due process — notably fairness,
impartiality, independence and expeditiousness. That having been said, Bill S-23
recognizes, for the first time in history, the right of members of the RCMP to
speak out democratically and freely on the possibility of unionizing.
During my two previous speeches, I fully explained the reasons that led the
federal government, first in 1873 and more specifically in 1918 — when an order
was adopted to deny members of the RCMP the right to organize, to bargain
collectively — to reject the unionization of police forces. Without wishing to
go over this very interesting history, I would simply say that in order to
justify this policy, the federal government stressed, as its modern counterpart
still does today, the need to protect the public by maintaining a stable
national police force, the specific tasks of the members of the RCMP, the need
to subject them to a paramilitary type code of discipline, and the existence of
possible conflicting loyalties — that is the possibility that some members of
the RCMP would show more loyalty to their police association than to those in
command should there be a labour dispute.
In 1967, federal government employees won the right to certification and
collective bargaining with the enactment by Parliament of the Public Service
Staff Relations Act. Pursuant to the Order-in-Council adopted in 1918, the
legislation excluded members of the RCMP from the application of the new labour
relations system. In 1974, in order to counter the efforts of certain members of
the RCMP to obtain the same rights as other federal public servants, the federal
government abrogated that Order-in-Council and that same year established the
Divisional Staff Relations Representative Program. The organizational structure
of this program would appear at first to be similar to that of an association
accredited under the Public Service Staff Relations Act but, for a number of
reasons I mentioned in my two earlier speeches, it has become ineffective over
Honourable senators, as I stated earlier, members of the RCMP are denied the
right to certification and collective bargaining currently enjoyed by the
majority of peace officers working for other police forces in Canada and
elsewhere in the world. However, the RCMP has evolved a great deal since its
formation. From an essentially paramilitary force at its origin, our federal
police service has become a national police force that provides basically the
same services as other Canadian police forces. The greater part of its
activities are devoted to police services that it performs under contracts
called "Contract Policing Services" in eight provinces — all except Quebec and
Ontario — more than 200 municipalities, 65 Aboriginal communities and at three
Currently, more than 60 per cent of RCMP members are assigned to maintaining
order in those locations. They provide essentially the same services as
municipal and provincial civil police forces that are entitled to certification
and collective bargaining. In an effort to correct this situation, some members
of the RCMP decided to challenge this prohibition against employee associations
before the courts.
Thus, in 1985, more than ten years after the creation of the Divisional Staff
Relations Representative program, the members of Division "C" of the RCMP — the
RCMP detachment in Quebec — at the initiative of Staff Sergeant Gaétan Delisle
formed the Association des membres de la Police montée du Québec.
In 1987, Mr. Delisle began a long legal battle to have the exclusion under
the Public Service Staff Relations Act for members of the RCMP struck down.
Mindful of the importance of the profession in which he served, of the need to
protect the public and the practices prevailing in other Canadian police forces,
Mr. Delisle never called for the right to strike.
I have always been surprised that, despite the considerable difficulties they
have faced since the early 1970s, the members of the RCMP have always used
peaceful and legitimate means to promote their cause. In comparison, in the
U.K., members of both the English and Welsh constabularies obtained the right to
certification and collective bargaining in 1919, over 84 years ago, after an
illegal strike and other pressure tactics involving civil disobedience.
In September 1999, in a majority decision, the justices of the Supreme Court
of Canada in Delisle v. Canada (Deputy Attorney General) categorically
dismissed the argument that the right of association guaranteed in the Charter
expressly guarantees RCMP members the right to form an certified association
under the Public Service Staff Relations Act and thus to have access to
Given that Quebec members of the RCMP had been able to freely form an
independent employee association, the majority of the court found that their
right of association had not been interfered with, and that it was the exclusive
prerogative of the Parliament of Canada to recognize the right claimed by Mr.
Delisle, through legislative amendments.
Rather amazingly, in December 2001, two years later, a majority of justices
of the Supreme Court of Canada, in Dunmore v. Ontario (Attorney General),
contradicted their own majority opinion in Delisle. This decision
surprised a number of labour relations experts. In that case they found that
recognizing freedom of association for the Ontario farm workers called expressly
for the creation of a union.
Honourable senators, the majority opinion of the Supreme Court in Delisle
that modifying the labour relations regime for members of the RCMP was the
prerogative of Parliament led to the introduction of Bill S-23. Nonetheless,
other factors, in addition to those that I mentioned at the beginning of my
speech, also prompted me to move ahead on this issue.
While the legal proceedings in Delisle were underway, two other
associations of members of the RCMP were created in Canada — the Mounted Police
Association of Ontario in 1990 and the British Columbia Mounted Police
Professional Association in 1992 — illustrating the flaws in the Staff Relations
Representative Program and the desire to change the staff relations regime
within the RCMP.
Furthermore, on September 22, 1989, former RCMP Commissioner Norman Inkster
made a surprising statement in connection with the Delisle case before
the Quebec Superior Court. According to him, the federal Parliament was
ultimately responsible for the staff relations framework applying to the RCMP.
If the law were amended as Mr. Delisle wanted it to be, this would not affect
the administration of the RCMP inordinately.
This position was reiterated in the fall of 2003 by the caucus of RCMP Staff
Relations Representatives, as reported by Pony Express magazine in its
November 2003 edition. This is the national, official, internal magazine of the
force. It reported that during a meeting held in Ottawa the caucus of RCMP Staff
Relations Representatives said it did not object to RCMP members voting on the
question of unionization if the bill were to pass.
In 1995, the important task force report on revision of the Canada Labour
Code, Part I — better known as the Sims report — entitled "Seeking a Balance"
recommended unionization for the RCMP under some other legislation than the
Canada Labour Code. The task force felt that adoption of such a policy would not
have any negative impact on operational control of the RCMP or protection of the
Taking all these factors into consideration, Bill S-23 provides for the right
to certification and collective bargaining by creating, within the RCMP Act, a
system that is distinct from the one set out in the Public Service Staff
Relations Act. In order to foster the implementation of harmonious staff
relations within the RCMP and to ensure the credibility, transparency,
independence and smooth operation of this initiative, it will be administered by
the Public Service Staff Relations Board referred to hereinafter in my speech,
as "the board."
The bill sets out a complete and transparent procedure to enable, as I
mentioned earlier, RCMP members to speak democratically and freely on the
creation of a police association. In this regard, the bill does not require that
such an association be created within this police force. By passing this
legislation, Parliament will only be approving the framework required for this
right to be exercised as was the case in 1967, when Parliament passed the Public
Service Staff Relations Board Act.
If, and only if, the majority of RCMP members vote in favour, the association
would act as the bargaining agent certified by the board to negotiate
improvements to the working conditions of the members of the RCMP. The
association will also be responsible for defending employees during the
resolution of grievances or the imposition of disciplinary measures.
Given the particular way the work is organized within the RCMP, the duties
performed by its employees, as well as practices observed in other jurisdictions
in Canada, the United Kingdom and Australia, this association will consist
solely of members of the RCMP and will also not be allowed to affiliate with the
larger unions representing the majority of federal public servants.
This bill also contains measures to protect members from intimidation or any
other unfair practice by the employer aimed at preventing the members of the
RCMP from associating. That is nothing new, since every labour relations code in
the world contains this type of protection.
Once the certification process has been duly completed, Bill S-23 sets out a
procedure similar to the one that currently exists within the federal public
service for the negotiation in good faith of the first RCMP collective agreement
and its renewal.
The bill also includes recourse to conciliation or binding arbitration should
negotiations reach an impasse. The board will oversee the application of these
two distinct types of dispute resolution. The board could appoint a conciliator
to bring both parties closer together or, under certain criteria, an independent
arbitrator to resolve legal disputes. Decisions taken under the arbitration
process will be binding and not open to appeal.
Honourable senators, the collective bargaining procedure proposed in Bill
S-23 seeks not only to promote the positive resolution of labour disputes within
the RCMP but also to ensure better public protection.
With the implementation of a binding arbitration process, in keeping with the
practice in most other civilian police forces in Canada, the United Kingdom,
Australia and New Zealand, the members of the RCMP would be denied the right to
strike in the event of an impasse in negotiations with the employer. I am
repeating this because, unfortunately, some of my honourable colleagues have
come to me, following my last two speeches, asking whether they would be granted
the right to strike, and the answer is no. I repeat, Bill S-23 does not grant
RCMP members the right to strike. This ban also applies to any work slowdown or
other concerted activity on the part of employees aimed at restricting their
The bill is very clear on this and imposes criminal measures for illegal
walkouts. Any employee who participates in or incites such a walkout is liable
on summary conviction to a maximum sentence of imprisonment of six months or a
fine of $1,000. For union officers, the maximum fine is set at $2,000. Every
trade union that declares or authorizes an illegal strike is liable to a fine
not exceeding $10,000 each day that the strike continues. Should members of the
RCMP commit acts of vandalism or mischief or disturb the peace during collective
bargaining, they will be subject to criminal charges or discipline under the
Royal Canadian Mounted Police Act.
Honourable senators, I cited earlier a series of arguments that have been
used to support the federal government's continuing refusal to propose a reform
similar to the one proposed in Bill S-23. Still, I consider that this refusal
and the government's arguments behind it were not justified in 2003, when I
introduced my original bill, and remain so today. They put the security of the
Canadian public at risk.
In my view, the professionalism and restraint shown by certain members of the
RCMP in this contentious issue, the aforementioned comments by former
Commissioner Inkster and the recent comments by the caucus of Staff Relations
Representatives, the recommendations of the Sims Commission, the evolution of
the RCMP and the no-strike clause in this bill show beyond a doubt that the
creation of a certified police association would not have a harmful effect on
public protection, the administration of the RCMP or discipline.
What is more, the federal government is trailing not only the provinces and
municipalities, but also other Commonwealth countries. In addition to England
and Wales, which I have already referred to, Australia recognized its police
forces' right to certification and collective bargaining in 1942. New Zealand
did so in 1935.
Regarding the presumed conflict in loyalties and the chaos that would result
from the creation of a police association within the RCMP, this argument is
unfounded, since the practice in other jurisdictions proved that this never
really materialized. Truth to tell, as a responsible parliamentarian who is
concerned with public safety, I am more concerned by the fact that police
officers must currently fight for their basic rights to be recognized during a
disciplinary hearing or a grievance, too often to the detriment of public
That said, let us move on to the second part of the bill, which deals with
grievance and discipline procedures under the RCMP Act.
Honourable senators, the debate on the unionization of RCMP officers has
often been linked to ineffectiveness, a lack of impartiality, speed,
transparency and independence with regard to the highly complex processes of
grievances and discipline. According to a series of reports released by the RCMP
External Review Committee in recent years, the time taken to settle grievances
or to impose disciplinary sanctions all too often exceeds the statutory time
limit and can take several years.
The committee also reports that, besides the significant costs to the RCMP,
and therefore to Canadian taxpayers, this situation is a source of considerable
tension for members, their families and colleagues, particularly in the case of
disciplinary action resulting in suspension without pay or even dismissal. I
want to stress that this may also affect the confidence of Canadians in an
effective and professional national police force.
Currently, an RCMP member may file a grievance concerning the working
conditions enforced by his employer. The legislation states that the RCMP
Commissioner is the final level of appeal for decisions made by a lower level
with respect to a grievance. Before making a decision, the commissioner must
refer certain categories of grievances to the RCMP's External Review Committee.
Even though the members are appointed by the Governor-in-Council, they can only
review the cases referred by the commissioner. Moreover, the review committee
only has the authority to recommend to the Commissioner, and thus has no means
of making its advice binding.
In order to correct this situation, the bill eliminates the review committee
and replaces it with an independent, external adjudication process, similar to
the one that exists for the federal public service. In this system, a grievance
that has gone through the entire internal grievance process may be referred to a
board of adjudication where the employer and the police association are
represented and costs are shared on an equal basis by both parties. The
operation of this new process will be overseen by the Public Service Staff
Relations Board, and the decisions made as part of this process will be binding.
With respect to serious disciplinary action for offences under the Code of
Conduct, the Royal Canadian Mounted Police Act provides that, following the
presentation of a complaint by the employer, a board of adjudication composed of
three RCMP officers shall be established. This board shall determine the
appropriate penalty to prevent any repeat offence. The member may appeal the
board's decision to the commissioner. As in the case of a grievance, the review
committee may make recommendations to the commissioner before the latter makes a
In a case of discharge or demotion, the decision is made by a discharge and
demotion board, also consisting of three RCMP officers. As in the case of
serious disciplinary action, the member may appeal to the commissioner.
Honourable senators, these quasi-judicial decisions that often bring into
play the fundamental rights of RCMP members can have highly negative effects on
the quality of life and work of RCMP members who must face this complex process,
noted for its lack of independence, alone and with few resources.
Honourable senators, I would like to cite three cases to illustrate that this
situation cannot go on.
In Laberge v. The Appropriate Officer of the Royal Canadian Mounted Police,
in 2000, and Lefebvre v. The Appropriate Officer of the Royal Canadian
Mounted Police, again in 2000, two internal boards of adjudication rejected
outright the procedures prescribed for two members of the RCMP. They had been
suspended and then dismissed following disciplinary procedures that lasted
nearly five years.
Five years later, the two boards of adjudication ruled that the charges did
not stand and that the employees had to be reinstated. Can you see the effect on
morale among the members? Individually, alone, the two members had to go through
a process entirely dependent on the commissioner and be told at the end of the
day that things were done wrong and they had to start over.
Honourable senators, that is unacceptable. We have to put an end to such
I want to cite two other cases involving harassment or sexual misconduct
within the RCMP. Once again, unfortunately, the victims are women.
On August 29, 2003, a feature article in the Journal de Montréal
stated that the disciplinary action provided for in the Royal Canadian Mounted
Police Act might not be enough to resolve sexual harassment problems within the
The situation is such that in a letter obtained by the newspaper, RCMP
Commissioner Giuliano Zaccardelli said:
Cases of harassment, including sexual misconduct, have been brought to my
attention, but reports I have received on how some of these situations were
handled are even more disturbing.
I quote the RCMP Commissioner, who is the ultimate authority in this whole
system. That said, the first case I would like to present to you is that of Ms.
Terry Lebrasseur. In June 2003, this RCMP officer, who was part of the team
protecting the Prime Minister and his wife, filed a complaint against the RCMP
with the Federal Court for failure to comply with disciplinary procedures
prescribed by law. Ms. Lebrasseur joined the RCMP in 1993. She says her
performance reviews from 1998 to 2001 were always excellent.
In May 2001, an inspector advised her to leave the Prime Minister's
protective team or she would receive a reprimand. And what was the reason? She
had simply annoyed a colleague while doing her job. Ms. Lebrasseur refused, and
was later removed from the team. Despite her request for a review of the
disciplinary measure ordered by the inspector, the RCMP refused to take the
matter to an adjudication board as provided in the act.
In her suit, Ms. Lebrasseur alleged that her demotion was due to the fact
that, between 1998 and 2000, she had tried to inform her employer about the
sexual harassment she had been subjected to by an RCMP superintendent. She
stated that the police force authorities knew about the situation but did
nothing to correct it. Ms. Lebrasseur, therefore, is suing her employer for
damages because of the economic, psychological and medical problems she claims
were caused by the disciplinary measures to which she was subjected.
The Lebrasseur case is not unique. In September 2003, four RCMP
officers in Calgary took legal action against their employer before the Alberta
Court of Queen's Bench. I recently learned that there was an out-of-court
settlement in that case.
That said, even if the details of this settlement cannot be disclosed, I will
nevertheless offer honourable senators a summary of the facts in order to
demonstrate the ineffectiveness of the present labour relations system within
In what is called the Doe case, four female officers were sexually
harassed by the same sergeant and, after many delays, disciplinary measures were
taken against him. The plaintiffs alleged that a number of RCMP officers wanted
to cover up the matter by using disciplinary retaliations against them in order
to preserve the image of the national police force. Other officers apparently
tried to interfere in the disciplinary procedures by failing to comply with
legislation on the handling of disciplinary inquiries or cases taken to an
Finally, the staff relations representatives — and this is the most shameful
— apparently refused to get involved. These are a sort of union representative,
and the position has existed since 1974 because the RCMP did not have the same
rights as other federal public servants. They refused to support certain female
complainants during the various stages of the disciplinary procedures, thereby
forcing them to incur the expense of hiring lawyers. As in Lebrasseur,
they are suing the RCMP for damages.
Honourable senators, these cases, particularly those relating to harassment
or sexual misconduct, prove the ineffectiveness of the act because members have
to resort to the courts to have their fundamental rights respected.
Bill S-23 will put an end to that. Without in any way interfering with
disciplinary measures or discharge procedures, and while protecting public
safety, Bill S-23 does away with the adjudication board and the discharge and
demotion board, as well as the process of appealing to the Commissioner of the
RCMP. From now on, the sanctions will be determined by the employer and will
follow an internal review process. However, for reasons of efficiency,
impartiality and independence, this decision could be subject to the new
external and independent grievance adjudication process.
Finally, in the interests of transparency for the members of the RCMP and the
general public, Bill S-23 provides that the Public Service Staff Relations Board
would be required to present an annual report to Parliament on the
administration of the various provisions of this bill, as it currently does with
respect to administration of the Public Service Staff Relations Act.
In conclusion, honourable senators, some, including Commissioner Zaccardelli,
whom I met in November, might say that the modest reforms recently undertaken by
the RCMP to improve the Divisional Staff Relations Representative Program — and
you saw how well this system works in Alberta — the process for settling
grievances and dealing with disciplinary action, would be sufficient to improve
labour relations and the quality of life of members.
However, many of those I consulted over the past few months and who testified
during consideration of Bill S-23 at the Standing Senate Committee on National
Finance stated that these changes would do little to restore the confidence of
the majority of RCMP members in the current staff relations regime.
In other words, honourable senators, these amendments and others perhaps
currently being considered by the federal government, as laudable as they may
be, will not resolve the fundamental problems undermining RCMP morale.
In conclusion, honourable senators, Parliament must act quickly in this case.
Our work has always been non-partisan and expeditious when it comes to improving
the statutory instruments the RCMP needs in order to effectively fight crime in
our communities, organized crime and terrorism. In that sense, I strongly
believe that the same spirit must guide our work during all stages of
consideration of Bill S-23.
This legislative initiative will foster harmonious staff relations built on
trust, dialogue and mutual respect. As they say, a happy employee is a
productive employee. This is just as important as increasing the RCMP budget or
amending the Criminal Code to enable this police force to effectively fulfill
Ultimately, Bill S-23 will benefit not only the RCMP but also, and above all,
Canadians, who deserve a first-class federal police force.
Resuming debate on the motion of the Honourable Senator Oliver, seconded by
the Honourable Senator Cochrane, for the second reading of Bill S-15, An Act
to prevent unsolicited messages on the Internet.—(Honourable Senator Oliver)
Hon. Donald H. Oliver: Honourable senators, it is my pleasure to speak
today to continue my remarks at second reading of Bill S-15, to prevent
unsolicited messages on the Internet.
Honourable senators, in order to resolve the serious problem of junk email,
Canada requires government policy of substance. It is clear to everyone, I am
sure, that we must have a versatile weapon in order to win the war against spam
in Canada. The measures we take in education, training, the use of technology
and law enforcement must work together.
In other words, spam can and will be substantially reduced, with the
cooperation of industry, technology and the public sector. Until now, the
Government of Canada has remained silent, but, through the collaboration of all
stakeholders, that is, the public sector and the technology industry, combined
with a number of self-regulation mechanisms, and the active support and
cooperation of ISPs, international organizations, consumer education groups and
law enforcement groups, I am sure a viable solution can be found.
Honourable senators, this is the third time I have drawn your attention to
the scourge of spam. Therefore, I will not repeat the basic definitions of
unsolicited bulk email nor comment on the various types and many forms of spam.
Instead, I will use my speaking time to discuss legislative trends currently
seen in various parts of the world, including examples of success, and indicate
the path I think Canada should follow.
Bill Gates perhaps summed it up best when he said:
Spam is much more than an annoyance. It costs businesses millions of
dollars a year, and can encroach on families and children, exposing them to
pornographic or fraudulent content.
Spam is threatening the very heart of email as a reliable medium of
communication. It is also a serious threat to the great promise of the Internet
for individuals, businesses, governments and society at large. It is time for
government to step up to the plate and take action.
Canada is lagging behind our competitors in this area. They include the
United States, the European Union, Australia and others. Most of these countries
have already passed anti-spam-specific legislation. For instance, Australia
passed a new law which came into force in April of 2004 and it has already had a
significant effect. We were told at a December task force conference that it is
literally driving spammers out of that country and moving Australia off the
top-10 list of spam-originating countries.
In the United States, 36 states have some form of anti-spam legislation. In
addition, there is the federal anti-spam statute called the CAN-SPAM Act, which
passed both Houses of Congress in November of 2003, and President Bush signed
the bill into law in December of 2003.
In the same way that we in Canada have a division of powers, being federal
and provincial, in the United States they have federal laws and U.S. state laws.
U.S. state laws encompass a wide range of requirements and rights including
labelling requirements, prohibitions on spoofing, requirements for opt-out
mechanisms, civil rights of action, ISP blocking of email messages and the
criminalization of spam. The "Summary" portion of my bill provides that:
Any person may give a notice, to the Minister or the body to which the
Minister delegates the responsibility, that they wish to be on a "no-spam
list", and persons sending spam must first check to see if the address is on
the "no-spam list". The list will not be a public document and the Minister
will only provide information as to whether an address is or is not on the
The enactment makes it an offence to send spam to a person whose address is
on the "no-spam list". However, the recipient must file a complaint with the
Minister before any proceedings may be instituted.
U.S. federal legislation allows email recipients to request not to receive
further commercial emails from the sender. In addition, the legislation
prohibits what is called harvesting email addresses, that is, obtaining email
addresses from Internet chat rooms. It prohibits the use of materially deceptive
headers. It requires that unsolicited commercial email be clearly and
conspicuously labelled as such and requires that a valid physical postal address
be included in the email. The legislation allocates fines of US$250 for each
fraudulent or deceptive email to a maximum of $6 million. In addition, those who
use incorrect return email addresses or misleading subject lines can face terms
of imprisonment for up to five years. Finally, the legislation allows civil
actions by states or ISPs, with statutory damages of up to US$1 million.
As I mentioned in my last second reading speech in this chamber on Bill C-23
on September 23, 2003, the European Union has issued directive number 2002/58/EC
concerning the processing of personal data and the protection of privacy in the
electronic communications sector. This new directive, which had an
implementation date of October 31, 2003, provides safeguards against intrusion
by unsolicited email communications for direct marketing purposes. Customers
must be clearly informed of the use of their personal information for further
advertising and provided the opportunity to refuse such use. False sender
identity information is prohibited, and that is what we need in Canada.
A new word has come out and has really taken off. It is called "phishing,"
the act of sending an email to someone falsely claiming to be an established,
legitimate enterprise in an attempt to scam the user into surrendering private
information that will be used for identity theft. The email directs the user to
visit a website where they are asked to update personal information such as a
password and a credit card, social security number, bank account number that the
legitimate organization already has. The website, however, is bogus and is set
up only to steal the user's information.
This idea of phishing has become widespread. As an example, 2003 saw the
proliferation of a phishing scam in which users received emails, supposedly from
eBay, claiming that the user's account was about to be suspended unless he
clicked on the provided link and updated the credit card information that the
genuine eBay already had. Because it is relatively easy to make a website look
like a legitimate organization's site by mimicking the HTML code, the scam
counted on people being tricked into thinking they were actually being contacted
by eBay and were subsequently going to the eBay site to update their account
information. By spamming large groups of people, the phisher counted on the
email being read by a percentage of people who actually had listed credit card
numbers with eBay legitimately. That is another form of abuse of spam on the
As I said earlier, Australia recently enacted legislation that places a
number of severe restrictions on the distribution of commercial electronic
messages. Such messages may only be sent to those who have explicitly agreed to
receive it; they must include any easy unsubscribe option, and they must be sent
from a legitimate email address. In addition, the legislation prohibits software
that is designed to generate email address lists for the purposes of sending
spam. The legislation also calls for the creation of a spam-monitoring and
Finally, the Korean Ministry of Information and Communication estimates that
Koreans receive nearly 1 billion spam messages daily. The Korean government has
passed laws that require senders to provide contact information, to allow
recipients to opt out of receipt of marketing messages, and to provide
recipients with information on the source of their email address. The Korean
government has also established wireless spam guidelines that require all
advertisers using text messages to clearly mark the message as an advertisement
and attach their contact numbers so as to identify the sender. Failure to do so
could result in a fine of 5 million won, or $5,660 in Canadian dollars.
Do we need legislation in Canada?
Since I introduced my first anti-spam bill in the Senate nearly two years
ago, I am more convinced than ever that Canada needs legislation. I met several
times with Madam Robillard, the former Minister of Industry, and she was
instrumental in establishing a task force on spam consisting of industry leaders
and chaired by Mr. Michael Binder. That task force has made great strides in
trying to persuade the industry in Canada, generally, that some form of
legislation is urgently required in Canada.
However, I should inform honourable senators that one of the reasons the task
force has not already come up with a draft form of legislation is that a number
of stakeholders feel that we do not need any legislation, that what is needed is
education and for industry to do a better job at public awareness so that
Canadians stop looking at and buying from spammers. However, spammers can make
money even with a response rate of only 0.0001 per cent, because sending spam is
almost costless. Hence, even if virtually everyone is deleting spam, it will
probably always find a market somewhere.
What type of message are we actually sending to Canadians or members of the
public, generally, if we urge them to take action against spam but do not outlaw
this practice? Legislation clearly prohibiting spam is necessary in order to
send a clear message to spammers that using email this way is an abuse that will
not be acceptable in this country.
However, in addition to legislation, we need it accompanied by strong
enforcement measures. The agency or organizations that are responsible for
enforcement must have the necessary government resources to be able to enforce
I will now speak about a private right of action. In the same way that
legislation is only one part of the fight against spam, public enforcement of
anti-spam laws is just one part of an effective legislative regime. Recognizing
the resource limitations of enforcement agencies, the law should explicitly
permit private rights of action against spammers. If private parties are
permitted, indeed encouraged, to go after spammers themselves, then such private
actions can add to the deterrent effect of government enforcement action. This
is the case of the public and private sectors working together and trying to
combat the scourge of spam.
All one has to do is look at the recent spate of lawsuits against spammers in
the U.S. that are being brought by the large ISPs under the CAN-SPAM Act's
private right of action provisions. If private parties have the incentive and
the ability to take such measures, they can fill in gaps left by
resource-strapped law enforcement agencies.
I used to be a trial lawyer and frequently brought suits to recover general
damages as a remedy. General damages are determined by judges or juries. That
brings a lot of uncertainty into the arena. For spam, I strongly believe we need
to have a fixed statutory damage enshrined in the statute. In Washington State,
for instance, it is $500 per spam, or $100 per spam under the CAN-SPAM Act.
I am deeply indebted to Phillipa Lawson, the Executive Director of the
Canadian Internet Policy and Public Interest Clinic at the Faculty of Law at the
University of Ottawa, for a fascinating paper she prepared, entitled "A
Statutory Private Right of Action against Spammers in Canada." Ms. Lawson's
study has identified only two lawsuits under Canadian law against spammers; one
in TM infringement and trespass, and the other a breach of contract against an
ISP and a customer. It appears that our existing Canadian rights of action are
insufficiently tailored to spam, too costly to use or unrewarding in terms of
potential compensation, and that it is not worthwhile for those suffering from
spam to use any existing remedies without having new legislation. We, therefore,
clearly need a specific anti-spam law in Canada.
Since I started my anti-spam work in the Senate, I have received dozens of
emails from Canadians from all walks of life encouraging my effort. One of the
main reasons is that email users are fed up with spam but do not know where to
complain or how to complain. There is no one agency in Canada that has
responsibility for this area. For instance, the CRTC, the Competition Bureau and
the Privacy Commissioner have all received complaints about spam; however, other
than one recent highly publicized case, there is no binding finding from the
Privacy Commissioner, the CRTC, the Competition Bureau, or anyone else that we
can rely on. Both the Competition Bureau and the CRTC say that they do not have
the powers or the resources to regulate this activity.
In conclusion, therefore, the public clearly needs a place to send complaints
to get action in respect to spam and the public also needs to be empowered by a
law to go after spammers themselves. That is why there is a need for a private
right of action.
What should be in our legislation?
Our legislation in Canada should permit the Competition Bureau and other
investigative agencies such as the Privacy Commissioner to share information on
spam investigations with their counterparts in other countries. We need this as
a way of fostering much needed international cooperation. We also need to
prevent a duplication of sometimes contradictory efforts from across Canada by
designing a single agency to be responsible for spam complaints and enforcement
and to give this agency the necessary resources to do the job properly. We must
be sure to include penalties that are sufficiently high to deter spammers.
We were told at the December 2004 task force conference here in Ottawa that,
in Australia, the Australia Communications Authority, the ACA, may initiate
civil actions against spammers and go after fines of up to $1 million per day.
Our legislation should allow agencies to order restitution to those who
suffer damages as a result of spam upon the application for such restitution.
Next, our legislation must allow governments and private parties to go after
businesses that use spam, as well as spammers themselves by way of a right of
In the December 12, 2004, edition of The Hill Times, an op-ed piece —
which was written by Mike Eisen, the Microsoft Canada Vice-president of Law and
Corporate Affairs — entitled "Parliament needs to pass anti-spam legislation"
argued that the absence of comprehensive anti-spam legislation in Canada remains
a key impediment to eradicating spam in this country.
In a broader paper, entitled "Integration Innovation," Microsoft concluded
the following — and I quote:
The components of this anti-spam strategy are like pieces of a puzzle. The
pieces, however, can only be brought together with the help of effective
legislation. Without strong criminal and civil remedies for activities like
the harvesting of email lists or distributing fraudulent emails, enforcement
opportunities are very limited. Currently, the anti-fraud provisions in the
Criminal Code provide a weapon against certain types of spam. The Personal
Information Protection and Electronic Documents Act provides individuals with
new rights in the event that their personal information is used for spam
purposes without their consent. While these statutes undoubtedly form part of
the solution, Canada's anti-spam legal framework is incomplete. Further, were
Canada to adopt legislation with efficient enforcement procedures, it could be
included as part of coordinated global legal actions of the kind launched by
Microsoft in the U.S. and U.K.
The article ended by stating:
Microsoft wishes to work with the governments of Canada to put in place
effective legislation that will thwart the efforts of those who abuse email
and preserve the viability of the medium. At the same time, Microsoft will
continue to invest in researching filtering technologies, coordinate industry
anti-spam efforts and educate users about spam.
Honourable senators, there is growing support from both within and outside of
government in both private and public sector to have some form of legislation
combatting spam in Canada.
There is no pride in authorship, and I am anxious to see Bill S-15 move
quickly to committee so witnesses such as Mr. Mike Eisen of Microsoft, officials
from the Canadian Internet Policy and Public Interest Clinic from the University
of Ottawa, officials from the Department of Industry, and others can appear
before the committee to give viva voce evidence about the importance of having a
private right of action. Hopefully, Bill S-15 would be amended, improved and
enhanced so that when it comes back to this chamber for third reading it will be
legislation that will clearly benefit all Canadians and be acceptable to all
Thank you for providing me this opportunity to speak again about the problem
of spam in Canada.
Hon. Senators: Hear, hear!
Hon. Madeleine Plamondon: Have there been any class actions against
spammers in North America?
Senator Oliver: Yes, in the United States there have been class
actions against spammers, but now that they have the CAN-SPAM Act, a number of
spammers are joining together and bringing an action under that act. In
addition, some states have had class action suits brought, but the CAN-SPAM Act
is a federal statute.
Hon. Bill Rompkey (Deputy Leader of the Government): I should like to
adjourn the debate, but I could not help overhearing Senator Oliver talk about
canned spam. I always thought spam came in cans. All of the spam I ever ate came
from a can.
Resuming debate on the consideration of the third report (first interim) of
the Standing Senate Committee on Social Affairs, Science and Technology
entitled: Mental Health, Mental Illness and Addiction: Overview of Policies
and Programs in Canada, tabled in the Senate on November 23, 2004.—(Honourable
Hon. Wilbert J. Keon: Honourable senators, I rise today to speak to
the mental health reports from the Standing Senate Committee on Social Affairs,
Science and Technology. Yesterday, Senator Kirby outlined the magnitude of the
problem imposed by mental health and addiction in Canada, which affects some 4.5
million Canadians with direct health costs of $6.3 billion and $14.4 billion in
economic impact. To compound the problem, only one third of the patients with
mental illness and addiction are receiving any kind of professional help.
To date, the committee has provided three reports, namely, Mental Health,
Mental Illness and Addiction: Overview of Policies and Programs in Canada;
Mental Health Policies and Programs in Selected Countries; and Mental
Health, Mental Illness and Addiction: Issues and Options for Canada, which
will provide the structural framework for the next steps.
Our review of policies and programs in Canada has uncovered some most
disturbing facts. We found that we are the only G8 country without a mental
health strategy. There is no coordinated mental health program of prevention,
treatment or rehabilitation, no direct links between research and service
provided, with no feedback loops and with inappropriate assessment strategies.
The task confronting the committee when it comes to strategies and
recommendations for the future is truly a daunting one. Between now and the end
of June, the committee will hear from patients, experts and citizens across the
country, and we hope to have our final report completed by the end of the year.
The second report summarizes mental health policies in Australia, New
Zealand, England and the United States. I must inform you that Canada is way
behind these four countries. Yes, even the health system in the United States,
that we Canadians criticize so freely, has much to teach us. Indeed, we are the
only G8 country without a mental health strategy. We summarize this
international study by noting five major trends.
The first is a focus on recovery as the driver for mental health thinking.
Recovery means recovery of the patient to a point where he or she can function
in society again.
The second is individualized plans for treatment and care including
encouragement of family and consumer participation in the plan.
The third is delivery of integrated services in the community, while
insisting on the importance of ongoing monitoring to limit delivery by isolated
The fourth is the importance of deploying national resources for mental
health promotion, in particular campaigning against stigma and discrimination.
The fifth is the need to eliminate disparities in the extent of services
available to people, whatever the reasons. Examples of that would be language,
culture, availability of service in geographical areas, et cetera.
The unifying factor behind these elements is organization of services to best
meet the needs of the patient or client. There are five essential components of
The first is identification of action targets that engage the entire mental
health community. The second is the establishment of measurable criteria for
progress. The third is comprehensive human resource planning. The fourth is
adequate research funding. The fifth is effective translation or application of
the knowledge that results from the research.
I should like to say a few words on the contents of the third volume, which
summarizes what we see as the issues and options for Canada.
The major issue, of course — the delivery of mental health care — stands out
above all others. We start with the view that the status quo is not an option
and there must be major change. The present system seems to be designed more for
the convenience of the providers than for the patients. Should it indeed be
called a system at all? It is fragmented and uncoordinated. It is a collection
of silos that do not interconnect.
In Canada, we are searching for a mental health and addiction treatment
system that will be patient centred, focused on recovery, tailored with services
to meet the needs of individual patients or clients in a culturally sensitive
manner, provide early diagnosis and treatment to individuals soon after the
onset of mental illness or addiction, provide new knowledge, and measure
outcomes and necessary adjustments on progress. Such a system must be seamless
with high quality services and supports that are well coordinated and well
We identified the very great variability of how mental illness presents, as
well as its effects on various stages of life. We talked about children and
adolescents, Aboriginal peoples, seniors and individuals with complex needs for
special attention. Mental health services and supports for children and
adolescents have been called the "orphans' orphan." Children and adolescents are
orphans within the mental health system, which itself is an orphan in the
overall health care system. Therefore, it is essential that we design systems to
deal with this. The good news is that Alberta, British Columbia and Prince
Edward Island have already addressed this issue and have implemented programs,
and I hope that the other provinces and territories can follow suit.
Aboriginal peoples, with their very high rates of mental illness and suicide,
bring cultural issues into sharp focus. The disease may be the same, but how it
is expressed and how it might best be treated depends heavily on cultural values
Seniors with mental illness are truly vulnerable. This should be a matter of
concern to all of us here in the Senate since we are rapidly coming into that
Stigma and discrimination are central to the present Canadian way of
management of mental health. The relative lack of attention given to the
mentally ill in our system is truly discrimination. It has been said that when
an organ such as a heart, kidney or liver malfunctions the community reacts with
sympathy, and indeed I have seen this over and over. However, when the brain
malfunctions people react with suspicion, wariness and fear. The committee needs
advice on how to develop a national anti-stigma and discrimination strategy and
hopefully this will unfold.
In both this study and in our previous study on the federal role in the
health of Canadians, we draw attention to the need for national information
databases and, of course, we cannot make progress until this is established. We
also need a national information system. One has to ask if such a system would
raise special concerns for the mentally ill, and of course it would. Talk of a
national information database on electronic health records immediately raises
the spectre of invasion of privacy. Particularly for mental health this is a
two-edged sword. Concerns are raised that databases will allow release of
personal health information and thus adversely affect Canadians. We believe that
fear of possible invasion of privacy is preventing effective management of our
health care systems, and it is also preventing us from learning much more about
how to improve them. Therefore, we have to choose our options carefully, but we
have to also find a way to make progress.
Funding for research is a continuing question for Canadians. Is there enough
money committed for mental health? At this point I do not think so. The
establishment of the Institute of Neurosciences, Mental Health and Addiction has
been a giant step forward, but even though this institute receives the
second-highest level of funding of the 13 institutes, we are not adequately
funding mental health research at this point.
What might be the role of the federal government in all these issues? As in
all health matters, we identify a direct and an indirect role. The direct role
arises from the federal government as a major employer, responsible for the
mental health of its employees, and also as the health care provider for
specific population groups for which it is responsible. This includes First
Nations people on reserves, Inuit populations, inmates of federal
penitentiaries, members of our Armed Forces and veterans, the RCMP, and certain
landed immigrants and refugee claimants. We did not find any significant
evidence of targeted strategies to improve conditions for any of these
categories for which the federal government is responsible. By fully addressing
its responsibility here, the federal government could emerge as a great leader
The indirect role of the federal government arises from its responsibility to
oversee the health of Canadians in general. The Canada Health Act,
unfortunately, expressly excludes services provided by psychiatric institutions,
and that has to be corrected. How can the federal government address this
ambivalent approach to the place of mental health in its broad national policies
for health? This has to be solved. We cannot leave mental health services as an
orphan any longer.
In short, we lack a national action plan for mental health care, which is
clearly discrimination against the very large number of Canadians who are deeply
affected by mental illness.
I would now like to try to place mental health care into the broader context
of Canada's overall health care system, for which I see mental health care as a
special case. We must develop an adequate primary care system that is integrated
with community service. Indeed, primary care is a huge universal problem in
Canada now. Just move to another city and try to find yourself a family doctor.
Some of you coming into this city have asked me for assistance in finding family
doctors. People call me virtually every day asking me if I can get them into the
health care system here in Ottawa, Canada's capital. They cannot get a family
doctor, which is terrible. We need a major reorganization of primary care, and
it must accommodate mental health.
Honourable senators, I believe we now need to reconsider the boundaries
between what different groups of health professionals are allowed to do. Though
this will certainly require considerable public education, primary care
physicians are now heavily burdened doing things that could be done just as well
or perhaps better by health care professionals with fewer overall
qualifications. The same applies to nurses and other health professionals.
However, the present rigid definitions about who, for example, can write
prescriptions for a number of drugs may need to be reconsidered. For mental
health this will certainly mean much greater integration of the many aspects
that are essential to the proper social integration of the patient.
What do I foresee evolving over the next few years or decades? I see a
patient-centred approach, which would be central. We are talking about a
patient-centred approach with competitive market forces for efficient delivery
of high-quality services funded by the single public payer who will ensure
universal access. This is tremendously important. I know there is much
disagreement over this recommendation, but I believe, like Great Britain, we
must separate the payer and the provider. The single payer with universal
coverage is sacred, but let the provider be whoever does it best and let them
We must move to a much greater level of evaluation of outcomes of the health
systems, comparisons of outcomes between different regions, clinics, hospitals
or even individual practices and physicians, which is badly needed. How can we
judge the system if we do not have comparisons?
I look forward to a time, hopefully in the not-too-distant future, when the
patient and his or her family can find proper health care, including mental
health care, wherever in Canada he or she might be. Access will be gained to a
primary care network consisting of multidisciplinary clinics that will be linked
to community services and integrated with them. The patient and family should be
guided through coordinated and integrated systems of care, including health
promotion strategies, and not have to find their own way. The whole coordinated
and integrated system, or probably a set of systems, should be subject to
continuing evaluations to achieve the optimal outcomes within the available
Hopefully, honourable senators, we can collectively develop a national mental
health strategy — which I hope our last document will be — that will put us in
step with the other G8 countries and give patients the services they deserve.
Resuming debate on the inquiry of the Honourable Senator Downe calling the
attention of the Senate to the basic flaws in the delivery of the Guaranteed
Income Supplement program for low-income seniors.—(Honourable Senator
Hon. Catherine S. Callbeck: Honourable senators, this inquiry stands
in the name of Senator Ferretti Barth, but it is at her request that I am
speaking to it today.
I am pleased to rise to participate in an inquiry raised by my colleague from
Prince Edward Island, the Honourable Senator Percy Downe, calling the attention
of the Senate to the basic flaws in the delivery of the Guaranteed Income
Supplement program for low-income seniors.
As colleagues are aware, Social Development Canada administers two
income-support programs that provide benefits to seniors — the Canada Pension
Plan and Old Age Security. The Old Age Security program is the most widely
accessible source of income for older Canadians. The federal government spends
more than $26 billion each year to provide income support to 3.9 million
As part of the Old Age Security program, the Guaranteed Income Supplement
provides additional money to low-income seniors living in Canada who have little
or no other income. Across Canada, the Guaranteed Income Supplement assists
about 1.4 million Canadians, at a cost of $5.8 billion. As the Guaranteed Income
Supplement, or GIS, is based on a senior's annual income, a senior must apply
for it every year.
Most seniors automatically renew their GIS simply by filing their income tax
return by April 30 each year. However, as Senator Downe pointed out in his
remarks, if a senior does not file an income tax return or does not otherwise
apply, he or she is not receiving additional income for which they may be
eligible — additional income that may make all the difference to a senior
struggling to make ends meet.
In his remarks, Senator Downe referred to the 2001 report on the GIS tabled
by the House of Commons Standing Committee on Human Resources, Skills
Development, Social Development and the Status of Persons with Disabilities. In
that report, the committee found that there are approximately 220,000 eligible
seniors who receive the OAS but not the GIS, and that another 50,000 are
eligible but receive neither benefit. Furthermore, the committee went on to say
that it believed the estimates were based on the number of seniors who filed
income tax returns and so did not capture those seniors who would be eligible
but who did not file income tax returns. In the committee's view, the
under-subscription to the program was based on two major factors — a lack of
awareness about the program and an unnecessarily complex application process.
As Senator Downe indicated, the federal government has taken some action
since this 2001 report to address the problem of under-subscription. In February
and March of 2002, just over 105,000 seniors received notification of their
potential eligibility for an income supplement from Human Resources Development
Canada based on income tax information collected from the Canada Customs and
Revenue Agency. The individuals contacted were sent a simplified one-page form,
and they were able to apply for the GIS by confirming the declaration of income
and family status and signing and returning the form.
Furthermore, in February 2002, the Canada Customs and Revenue Agency also
sent letters on behalf of Human Resources Development Canada to approximately
65,000 seniors who declared low-income levels on their income tax returns but
who were receiving neither the OAS nor the GIS. In 2001 and 2002, the department
reported that these measures had led to the successful application for the GIS
by approximately 75,000 additional Canadian seniors.
Furthermore, the federal government undertook a public education campaign
designed to inform seniors about the benefits available to them, and the
department launched a review of its application process with an eye to
streamlining the system. The Canada Revenue Agency is also undertaking measures
to make filing a tax return more user-friendly for seniors.
In January 2003, approximately 125,000 seniors were issued a letter inviting
them to file their 2002 tax return using the simplified service that was created
especially for seniors. Using a telephone, clients need only identify
themselves, to ensure that confidentiality provisions are met, answer a few
"yes" or "no" questions, and their tax return is completed.
As well, in an effort to ensure that those who are currently receiving the
GIS continue to, in January 2003 the Canada Customs and Revenue Agency informed,
by mail, nearly 80,000 seniors who had not filed a tax return but were receiving
the GIS of the benefits of filing a tax return as a method of automatically
renewing their GIS.
As a result of all these efforts, in March 2004, Social Development Canada
reported 91,928 more seniors receiving the GIS than in March 2001. However,
honourable senators, despite these measures, there are still thousands of
eligible seniors who are not receiving the benefits to which they are entitled
and who are most in need.
Honourable senator, seniors in Canada are better off than they were a few
decades ago. A recent Statistics Canada report notes that from 1980 to 2000,
across all 27 of Canada's metropolitan census areas, the low-income rate for
seniors fell from 34.1 per cent to 20.2 per cent, using low-income cut-offs.
This improvement is substantially due to changes in programs such as the old age
pension, the GIS and the Canada and Quebec Pension Plans. However, the average
income of seniors still remains substantially below that of the population as a
whole. Senior women have lower incomes than senior men, and unattached seniors
have lower incomes than couples.
Seniors are one of the most valuable resources of Canada. They contribute to
society in a number of ways, including providing care to young family members
and volunteering. Approximately one fifth of all seniors participate in
volunteer activities, and seniors donate more volunteer time annually than the
rest of the population. Studies have shown that the market value of volunteer
assistance by seniors over the age of 55 is worth $10 billion. If these
volunteers did not contribute such assistance, our communities' standard of
living would decrease dramatically. As lawmakers, it is our role to ensure that
our seniors receive the income support they need to remain healthy and active
contributors to their communities.
I wish to congratulate Senator Downe for calling the attention of the Senate
to this matter and to join with him in calling on the Minister of Social
Development to redouble efforts to ensure that seniors in Prince Edward Island
and across Canada are receiving the full benefits to which they are entitled.
The Hon. the Speaker pro tempore: If no other honourable
senator wishes to speak, this inquiry is considered debated.
Resuming debate on the inquiry of the Honourable Senator Cools calling the
attention of the Senate to:
(a) November 6, 2004, the sixtieth anniversary of the
assassination of Walter Edward Guinness, Lord Moyne, British Minister
Resident in the Middle East, whose responsibilities included Palestine, and
to his accomplished and outstanding life, ended at age 64 by Jewish
terrorist action in Cairo, Egypt; and
(b) to Lord Moyne's assassins Eliahu Bet-Tsouri, age 22, and
Eliahu Hakim, age 17, of the Jewish extremist Stern Gang LEHI, the Lohamei
Herut Israel, translated, the Fighters for the Freedom of Israel, who
on November 6, 1944 shot him point blank, inflicting mortal wounds which
caused his death hours later as King Farouk's personal physicians tried to
save his life; and
(c) to the 1945 trial, conviction and death sentences of Eliahu
Bet-Tsouri and Eliahu Hakim, and their execution by hanging at Cairo's
Bab-al-Khalk prison on March 23, 1945; and
(d) to the 1975 exchange of prisoners between Israel and Egypt,
being the exchange of 20 Egyptians for the remains of the young assassins
Bet-Tsouri and Hakim, and to their state funeral with full military honours
and their reburial on Jerusalem's Mount Herzl, the Israeli cemetery reserved
for heroes and eminent persons, which state funeral featured Israel's Prime
Minister Rabin and Knesset Member Yitzhak Shamir, who gave the eulogy; and
(e) to Yitzhak Shamir, born Yitzhak Yezernitsky in Russian Poland
in 1915, and in 1935 emigrated to Palestine, later becoming Israel's Foreign
Minister, 1980-1986, and Prime Minister 1983-1984 and 1986-1992, who as the
operations chief for the Stern Gang LEHI, had ordered and planned Lord
Moyne's assassination; and
(f) to Britain's diplomatic objections to the high recognition
accorded by Israel to Lord Moyne's assassins, which objection, conveyed by
British Ambassador to Israel, Sir Bernard Ledwidge, stated that Britain
"very much regretted that an act of terrorism should be honoured in this
way," and Israel's rejection of Britain's representations, and Israel's
characterization of the terrorist assassins as "heroic freedom fighters";
(g) to my recollections, as a child in Barbados, of Lord Moyne's
great contribution to the British West Indies, particularly as Chair of the
West India Royal Commission, 1938-39, known as the Moyne Commission and its
celebrated 1945 Moyne Report, which pointed the way towards universal
suffrage, representative and responsible government in the British West
Indies, and also to the deep esteem accorded to Lord Moyne in the British
Caribbean.—(Honourable Senator Prud'homme, P.C.)
Hon. Pierre Claude Nolin: Honourable senators, we must pay tribute to
Senator Cools, who is inviting us to examine a series of historical facts that,
unfortunately, are known only to the peoples affected by this series of tragic
events. We must congratulate her for drawing our attention to this matter.
First, Lord Moyne, it must be recognized, is someone — and we must accept
Senator Cools' word — who influenced the history of Barbados.
Today, Barbadians can claim to have had their own quiet revolution — and you
will understand that, as a Quebecer, I am using this expression with some
experience — thanks to the reports of Walter Edward Guinness, the real name of
That said, in her speech, Senator Cools shows once again that the peaceful
coexistence of Jews and Palestinians in a different location and, to no lesser
an extent, other Arab peoples in the region, is being compromised by terrorist
groups on both sides, each more radical than the other.
Lord Moyne was assassinated in November 1944 by a group of young Jewish
extremists. I do not want to get into the debate — I leave it to others — over
the identity of their leader. He was not there at the time of the assassination,
but he was behind the operation. Other better informed senators will provide the
details of this plot.
That said, at the time, the action was condemned by the British government
and also — it should be noted — by moderate Zionist leaders. Last November was
the sixtieth anniversary of the attack.
I will conclude my remarks here. I would like to remind you that — and you
will agree with me — while the cause may be good, important and intended to
protect rights and expose unacceptable situations, violence must never prevail,
whatever cause it is claimed to serve. All of us, especially as an institution,
must learn more about the roots of this conflict, clarify what drives extremist
groups to take such action and, finally, come to the conclusion that, however
good the reasons, such action must be punished.
I understand that Senator Prud'homme will be moving the adjournment of the
debate. It is very important that the debate on this inquiry be allowed to
continue and that any senator who wishes to speak be given as much time as he or
On motion of Senator Nolin, for Senator Prud'homme, debate adjourned.
Hon. Pierre Claude Nolin, pursuant to notice given February 1, 2005,
That the Senate of Canada hereby calls upon the government to maintain the
Commission of Inquiry into the Sponsorship Program and Advertising Activities
for as long as necessary to establish the facts and discern the truth, and the
Senate of Canada further urges the government to defend the Commission
rigorously and reject attempts to impugn the integrity of the Commissioner,
Mr. Justice John Howard Gomery.
He said: Honourable senators, every day we read in the papers about the
proceedings of a very important commission of inquiry, which may seem negative
at times. I will remind you of certain statements made by those taking part or
having a direct interest. This commission of inquiry is important for all
Canadians, and I am not the only one to say so. That is why I decided on this
The Honourable the Speaker pro tempore has just given you the content
of my motion, so I will not repeat it. No doubt you have all got the meaning of
it, if not the letter.
This commission of inquiry is important for Canadians. Like all of us,
Canadians want to know what really happened and how taxpayers' money was spent.
They want to know the truth, the whole truth and nothing but the truth, as the
expression goes. The terms of reference of this commission are to clarify the
circumstances surrounding one of the greatest political and government scandals
in Canadian history. Every new hearing day — yesterday's for example — brings
its share of contradictory testimonies, leaks, and revelations, sometimes
surprising and sometimes downright disconcerting, about how certain public
servants and certain members of Parliament might have contributed to this huge
fiasco. It is therefore important for Canadians to know what comprises this
This commission is, however, equally important for the present Prime Minister
of Canada. What did Mr. Martin have to say after the Auditor General's report
was tabled? I quote his words of February 12, 2004:
Canadians need to know that this government takes full responsibility for
resolving this matter. We will not turn our backs on our responsibility to
find out what happened and ensure it never happens again.
This commission is therefore extremely important for the Prime Minister and
his government. He has just given us the reason why. When the commission was
struck on February 20, 2004, he also said the following in reference to its
The terms of the Commission of Inquiry's mandate are very wide, with no
limits. They will really allow us to get to the bottom of this business.
What is the commission's mandate? It is to explain how the sponsorship
program was created by the government, how advertising and communications
agencies were selected, how the Sponsorship and Advertising Activities Program
was managed by the public officials and ministers responsible, how any persons
or organizations received and used funds or commissions granted under the
sponsorship program, and any other matter directly related to the Sponsorship
and Advertising Activities Program the Commissioner considers useful in carrying
out his mandate.
At the conclusion of its work the commission is to make recommendations. Why
recommendations? Recall that the Prime Minister told Canadians: "We must get to
the bottom of this so it may never happen again." So, we need recommendations.
The commission must set out its recommendations and prepare a report on the
responsibility of ministers and public officials according to the
recommendations of the Auditor General.
Does the commission have a difficult mandate? Extremely. Mr. Justice Gomery
himself has admitted his naïveté — and that is my word, not his. It is a
difficult mandate, especially when one considers the explosive political climate
surrounding this scandal and the privileged positions of the many alleged
players in it.
First, you will doubtlessly agree, I think, that Mr. Justice Gomery's
reputation is beyond reproach. I believe that the Prime Minister and the
government made an excellent choice in appointing him commissioner. The
individuals who have tried to tarnish his reputation regret their actions, in my
A motion for recusal was presented by counsel for former Prime Minister
Chrétien. Counsel based it on unfortunate statements — once again, this comes
from me and no one else — by Mr. Justice Gomery, when he wondered how former
Prime Minister Chrétien could have allowed his name to be imprinted on golf
balls, and his statements to the media.
In fact, Justice Gomery told a journalist, as reported in The National
Post on December 5, 2004:
Let's face it, Mr. Guité is a charming scamp and he had his department
During the same interview, the judge also endorsed the Auditor General's
admittedly devastating report on the sponsorship program, and called the
management of this government program, and I am quoting the judge,
If it were to do over, would Justice Gomery still give this kind of interview
to the media? I do not know. I think he made a mistake he will never repeat.
That said, must we ensure that the commission survives its mistakes? I think
so. That is why I decided to introduce this motion. Let us be clear; even though
Mr. Justice Gomery is a judge of the Quebec Superior Court, this is not a
regular court; it is a commission of inquiry. The latitude given commissioners
is broader than that afforded judges in a regular court.
Justice Gomery said this week, when he gave his ruling on the motion for
recusal by counsel for former Prime Minister Chrétien:
I realize now, with the benefit of hindsight, that it was an error for me
to agree to be interviewed by the media before Christmas. I also recognize
that some of the statements made by me during those interviews were
ill-advised and inappropriate. My inexperience in handling the media is
obvious to everyone, and has served to detract attention from the real
objective of the Inquiry, which is to get at the truth ...
He went on to say:
...I am firmly of the opinion that a reasonable, well-informed and
fair-minded person understands the difference between committing an error and
After replying to each of the arguments raised in the motion for recusal by
Mr. Chrétien's lawyers, Justice Gomery concluded that his comments did not
demonstrate a reasonable apprehension of bias on his part. In other words, he
was not biased and had drawn no conclusions about the management of the
For those wondering why the person being asked to recuse himself makes the
decision, this is how Canadian courts work. The first step in a motion for
recusal is up to the person being criticized, and if his or her decision is not
satisfactory, it need only be appealed. What can I say? That is how it works. It
may seem odd. Some would have liked the Chief Justice of the Federal Court to
rule on the issue. Perhaps then we would have discovered the qualities or
political values the Chief Justice of the Federal Court would have been weighed.
That is not why I am here today.
Justice Gomery made a decision finding that his words did not show a
reasonable apprehension of bias. In other words, he was not biased and has not
drawn any conclusion whatsoever on the sponsorship program.
A second person was targeted in the motion for recusal. Justice Gomery also
came to the defence of the lead counsel to the commission of inquiry, whose
integrity had been attacked by Mr. Chrétien's lawyers. What did Mr. Justice
Me. Roy should be judged solely on the basis of his work for the Inquiry,
which has been professional, impartial and objective. He has my full
I have brought two examples of case law, but I do not think I will have
enough time to read them. Those who are interested, however, can call me. I
would be pleased to give them references.
One of the examples concerns the Létourneau commission of inquiry on Somalia.
A soldier appeared before the Federal Court complaining that Mr. Justice
Létourneau had a biased attitude toward him, and the Federal Court initially
ruled in favour of Mr. Beno. Then the Federal Court of Appeal reversed its
decision and said that Justice Létourneau acted as commissioner and although
some statements were open to interpretation, the fact remained that Justice
Létourneau had enough latitude to rule on and talk about decisions.
When it comes to the opinion of an appeal court, there too, our system says
the appeal court outranks the others.
That is the first precedent. The second, somewhat less well known, is
Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities,
1992. There too, the Supreme Court of Canada rejected a motion by the
Newfoundland Telephone Co. against a commissioner of the board, alleging
that he had made statements before and during the investigation, proving his
obvious bias with respect to consumers.
I will not read to you from the decision, but the Supreme Court clearly
stated that the motion was unfounded because the level of objection available to
the parties was much lower than before the tribunal.
And why, honourable senators, do I wish to make this motion?
Senator Mercer: This is Law 101 here.
Senator Nolin: In 1994, the Minister of Defence, David Collenette,
established a commission of inquiry to shed all possible light on the conduct of
Canadian Armed Forces personnel stationed in Somalia as part of a peacekeeping
mission, and particularly on the torture and murder of a young Somalian by
soldiers from the now abolished Canadian Airborne Regiment. This commission was
established in the public interest. The public wanted to know everything and
wanted to get to the bottom of things so that it could never happen again. And
what happened? The commission was gagged! In the Senate, we tried to revive it,
but without success.
Thus, my motion is very appropriate. If you firmly believe in the best
interests of Canadians, you will pass it.
Hon. Eymard G. Corbin: Honourable senators, I have some questions to
ask of Senator Nolin. Will he agree to reply?
Senator Nolin: I am prepared to answer questions, because I have
finished my remarks.
Senator Corbin: It appears that Senator Nolin has covered a lot of
ground but has not asked the fundamental question. I see that Senator Prud'homme
is moving toward Senator Nolin. I do not know why, but he is in migratory mode
here in this chamber. Is Senator Nolin not afraid that he forgot something?
One party felt aggrieved. That is why Justice Gomery was asked to step down.
Senator Nolin, the Prime Minister, the Governor General, the person who polishes
the brass in here every day and myself are all entitled to the same fundamental
rights. An aggrieved party is entitled to use all the resources at the disposal
of the average Canadian to defend himself or herself.
In this case, whether Mr. Gomery recused himself or not, whether he
apologized or not, it seems that the Prime Minister's reputation was tarnished
by inappropriate comments made by an individual who has taken an oath of office
and who should never make such comments while proceedings are underway.
I had the opportunity to speak to law students at the University of Ottawa —
whom I will not name, but they serve us here every day — and they said: "I
dropped my textbook on procedure when I read the commissioner's comments
reported in the newspapers and when I watched Prime Minister Chrétien's counsel
The basic issue of the case at stake here is the right of Jean Chrétien to
defend himself, like everyone else under the sun. Senator Nolin did not mention
Chuck Guité has the same rights as you and me, as the Governor General or the
person who polishes the brass here in the Senate, whom I have a lot of respect,
by the way. I do not mean to put anyone down. I believe that if justice is to be
served in this case, then justice must pursue its course. It does not matter how
much it would cost to reopen the inquiry or how long it would take to appoint a
new commissioner to hear the case over again. A person feels that his rights
have not been respected. Does Senator Nolin recognize those rights or not?
Senator Nolin: Yes, of course. I have no problem with anyone's right
to ask a judge to recuse himself if he feels that his basic rights have not been
respected. What I take issue with is the government not making an effort to
defend the very commission it created. Mr. Chrétien has every right to defend
his reputation and if he thinks Justice Gomery's decision is not good, then he
has the entire legal process at his disposal. The Federal Court is there for
With this motion, I want this house to look at the government's action. I am
basing my argument on what happened in Somalia. It is better to exert pressure
than to wait until it is too late. I have no problem with Mr. Chrétien's rights.
If Mr. Guité believes his rights have not been respected, then he should file an
objection. There is a legal process in place to handle such matters. My motion
does not target Mr. Chrétien or Mr. Guité. It is intended to provide the
commission with protection by the government that created it.
Senator Corbin: My second question is this: Senator Nolin cited the
case of Justice Létourneau. I am not familiar with the Newfoundland Telephone
Co. If we compare it with what happened in the Gomery episode, a distinction
has to be made. The Gomery commission is under scrutiny by nearly everyone. I
support the basis of the inquiry and am not out to kill it. I am speaking of
something much more basic: an individual's reputation. Whether that individual
be Gomery, Chrétien, Roy or whoever, I consider that, in this context, the harm
the judge's words could do to a reputation — Guité's or Chrétien's — is far
greater than what Justice Létourneau might have done by speaking out at the
officers' mess on an Armed Forces base. All Canadians hear what goes on in the
Gomery commission and everything that is said in connection with it. I do not
think that the case of Justice Létourneau or Newfoundland Telephone Co.
had the same impact.
There is a huge difference between these statements, given in today's
overheated context. It gives the impression in public opinion that it is all
right to make fun, to mock people's right to justice. Justice Gomery's apology
was a totally honest action.
Personally, I think that if I had been in his shoes, if I had done what he
did and said what he said, I would have recused myself, because I would have
felt unworthy of continuing the investigation. That is what I think.
Senator Nolin: Senator Corbin is so correct in raising the importance
of rights that he compels me to quote the text of the Supreme Court of Canada
decision in Newfoundland Telephone Co. I explained earlier that it was a
commission, not a tribunal.
The court ruled that, based on the facts laid before it, there was reasonable
apprehension of bias and that it was better for the commissioner to avoid making
public statements. The court added the following, however:
Certainly it would be open to a commissioner during the investigative
process to make public statements pertaining to the investigation... During
the investigative stage, a wide licence must be given to board members to make
public comment. As long as those statements do not indicate a mind so closed
that any submissions would be futile, they should not be subject to attack on
the basis of bias.
The Supreme Court could have refused to hear the case, but it agreed to hear
it specifically to try to determine the difference, the latitude a board member
has before a judge. The judicial process is open to those who feel they
sustained injury as a result of the board member's statements.
That being said, my motion is aimed at ensuring, through a decision of this
chamber, that the government will stand up and live with the statements it made
Yes, it is important. It was important then, and it is important now. Yes, we
have to get to the bottom of it so that it does not happen again. That is the
purpose of my motion. We have the courts' interpretation of the role of a board
member. That being said, the Right Honourable Jean Chrétien, Mr. Guité and
anyone who felt injured by the judge's statements, have all the leeway they need
to do what has to be done before the Federal Court.
Hon. Pierrette Ringuette: Honourable senators, I do not have a
legislative or legal background, but I think that there is a fundamental
difference when a decision about members of a board is being reported. What we
are talking about then is a reference to several people reviewing a file. In the
motion you are currently discussing, we are talking about a person to whom a
file has been referred, not a group of people.
I do not think that the same decisions apply in a similar case. That is all I
wanted to say.
Senator Nolin: Honourable senators, allow me to give you my opinion on
Senator Ringuette's argument. There is one factor that has to be considered.
Certainly the Newfoundland board comprises a number of people. In the case
before the Supreme Court, only one board member had made comments.
I have no problem with anyone trying to restrict the leeway of a board member
a little more. The Supreme Court tried to do that, and now the Federal Court
could decide to make an exception and accept that argument; that is a strong
possibility. However, my motion has to do with a commission of inquiry that was
created by an order of the Government Canada, and it is that commission of
inquiry that I want to protect. That is all I want to do.
Hon. Anne C. Cools: Honourable senators, I belong to that group of
people who have serious problems with the use of royal commissions to
investigate matters that are so highly politically charged. I was not
enthusiastic to see this royal commission. To this day, I do not understand why
a royal commission was appointed to perform a task that is really Parliament's
business. I hope in the process of the debate here that we may be able to garner
some insight. If my honourable friend were to read the terms of reference within
the Order-in-Council appointing the commissioner, Judge Gomery, he would see a
wide and exhaustive set of powers. He would wonder who was making this
appointment and why. He would wonder what was going on. It worries me deeply.
In addition, the second part of the terms of reference orders the
commissioner to consider the government's corrective initiatives. Remember,
Prime Minister Martin had included a list of the initiatives the government had
Honourable senators, I have a lot of trouble with, first, creating a royal
commission on the issues; and, second, turning around and empowering the
commissioner to consider what I thought were Mr. Martin's political responses.
Having said that, this entire thing is a terrible spectacle and has troubled
me greatly. I know that I am putting my question in a roundabout way, but there
is no doubt that the whole situation has hurt and damaged Mr. Chrétien. I cannot
see that this can be accidental. I have problems with a royal commission or any
body pretending that it can make judgments on the political conduct of a former
Prime Minister and, in the process of doing so, exposing a former prime minister
to enormous personal and perhaps criminal insinuation. I have made it my
business over the years to ensure that I understand the proper constitutional
relationships that should prevail in all these circumstances. When it comes to
the conduct of that judge, only Parliament has the proper capability and
authority to pass judgment on that conduct. Again, when it comes to the
political conduct — and, if necessary, more than political conduct — of
ministers and prime ministers, only Parliament is the proper forum to make these
kinds of judgments.
The Judges Act respects this because it provides the exemption to allow
judges to serve on royal commissions. There is a body of literature on the evil
or the mischief that can be created when judges are invited to serve as royal
commissioners in these very politically charged circumstances. It is bothersome.
I guess I will develop some of this later.
Honourable senators, the Constitution gives Parliament superintendence over
the conduct of judges as it does over the conduct of the Prime Minister. I am
planning to speak on this matter. I do not like what is going on. At the same
time, I also share the concern that at the end of this terrible spectacle we may
be no closer to the truth. I am one of those parliamentarians who has a deep
concern that Parliament has been totally diminished by the fact that the
investigation and examination of these important matters were removed from the
cognizance of Parliament and given to this royal commission.
I am doing a fair amount of research on this matter. Has the honourable
senator, in his research, formulated any opinions on the wisdom, the prudence
and the effectiveness of the use of royal commissions in these kinds of
Senator Nolin: The short answer is no.
Senator Cools: A royal commission is a royal instrument. I am not sure
if there is a process for a commissioner to recuse himself. Perhaps it exists,
but my understanding is that a royal commission is a command from Her Majesty to
perform a certain task. Granted, the commissioner may be able to say, "I cannot
do it; my health is failing," or whatever. However, I am not sure that a
commissioner can properly recuse himself by a motion. I am not sure as to
whether that course of action was open to Mr. Justice Gomery.
I have a very strong opinion of what the judge had to say. I wish he had
never said those intemperate words. However, I am not convinced that that motion
was a proper process that the judge — and remember, he is not acting as a judge
in this context. We should not be saying "judge." We should be saying
"commissioner." The government has created a sense in the public mind that the
commission of inquiry is somehow a trial, but it is not. The Gomery commission
of inquiry is not like an ordinary case proceeding in the courts, whereby a
plaintiff or a defendant or someone else challenges the judge and the judge has
to recuse himself, so the next judge just steps up. Royal commissions do not
work that way. This is a royal commission, and it would have to start over,
right at the beginning, including a new commission. Parliament, in its wisdom,
when it passed the Inquiries Act, never intended royal commissions to be used by
governments in this way.
I will expound on some of this, but these issues are difficult and complex,
and we have to do the work to sort them out.
Senator Nolin: It is a fundamental right to question the impartiality
of a commissioner or a court. I would be interested to hear the honourable
senator's argument as to whether such a right does or does not exist in front of
a royal commission. However, I have not researched that.
Senator Cools: In all fairness, all this may have been developing for
a while. Prime Minister Martin has continued to call it a judicial inquiry, and
I wish he would cease. It is not a judicial inquiry; it is a commission of
inquiry. The difference is that a commission only has the powers to investigate;
a commission has no powers to adjudicate. One expects impartiality, because
anybody doing that kind of work should conduct him or herself in accordance with
Her Majesty's commission. A judicial inquiry would have adjudicative powers, but
this is not a judicial inquiry.
The powers that the commissioner has are confined to the investigative or
inquisitorial powers. As the debate goes on, I hope this will be clarified. This
is not the first time Parliament has been asked to look at the implications and
the consequences of the use of these royal commissions. In previous times,
members such as John Diefenbaker have had much to say about the use of them.
I hope we will be able to get some of these issues on the table and at the
same time understand that what is taking place is creating enormous cynicism in
this country. The politics of the whole thing is bordering nefarious.
Hon. Marcel Prud'homme: I do not wish to waste the time of the
chamber, but I am prompted to do so at the invitation of my long-time colleague
I am not moving anywhere; I am satisfied where I am in the corner.
I would like to hear the opinion of Senator Nolin, who is a recognized jurist
and the son of an equally prominent jurist. Are we not abusing — and abusing at
great expense — these so-called royal commissions or judicial inquiries? The
people where I live, most of whom are working class, many of them paid minimum
wage, have come to look at this commission as a spectacle. They refer to it as
the "lawyers' commission," because lawyers seem to be the only ones getting
anything out of the commission.
People say the same thing to me about the Létourneau commission and the
celebrated commission on public complaints about the RCMP, which cost $26
million. All that people see are the endless fees paid to the lawyers involved
in these commissions.
My question is this: is there not growing abuse of political power? I am not
taking aim at the current government or former governments with which I was
familiar. Huge amounts of money are wasted, and the government loses sight of
the objective and the legal aspect. The fact is that if there are thieves — I am
going to talk like Jean Chrétien — there is a legal system for that. Let the
courts do their job and the police make it hell. When I have to tell my fellow
citizens that it is going to cost $60 million, $70 million — who knows how much,
and that is not the end of it, because the legal process has not started — and
it is just a starting point that can lead to a trial, it is tough. Charges will
be laid, people will appeal and it will go on forever at enormous cost.
Are these various and sundry commissions being used to get out of political
Senator Nolin: Parliament passed the Inquiries Act, and the government
has complete leeway in using the legislation. Did they do the right thing or
not? There is an advantage to using a commission of inquiry rather than going
straight to court. The first step in legal action is always a charge. I charge
someone with something, and the process is set in motion. A commission of
inquiry undertakes a review. It looks at all the facts. When I read to you
earlier the terms of reference of the commission that seemed to apply to us, you
heard the complete list of what the commission has to accomplish. It is a very
long list. The process of a commission of inquiry is quite comprehensive.
The legislation is there, and the government uses it. There are procedures
applicable to the exercise. As far as lawyers go, there is no way to avoid them.
There will always be people who want to be represented by lawyers because their
rights could be infringed. We recently discussed that issue with Senator Corbin
and others. It is a constitutional right to have counsel present when our rights
are being threatened.
Senator Cools: The Inquiries Act was passed about 70 years ago and it
was a development over many other Inquiries Acts from pre-Confederation.
However, the fact is that the intention of the Inquiries Act was to allow the
Governor-in-Council to make appointments and to call royal commissions without
having to go through the bother of coming to Parliament for money. That is what
the Inquiries Act was about, to give the government access to the Consolidated
When the Inquiries Act was passed, Parliament never anticipated that these
enormous sums of money would be spent. Has the honourable senator, in his
research, begun to formulate concepts or ideas about the fact that it may be
time for Parliament to review the Inquiries Act and to examine carefully what
the government is doing under the Inquiries Act?
I have sat on committees where we raised the possibility of studying this
whole phenomenon, including the National Finance Committee where I raised the
issue that it is time for Parliament to look at these questions. Interestingly
enough, the government has opposed any proposal each and every time. Does the
honourable have any thoughts on that subject?
Senator Nolin: It is an interesting question, but I must answer, no. I
have not reflected on the purpose of undertaking such a study.
On motion of Senator Losier-Cool, debate adjourned.