Hon. Donald H. Oliver: Honourable senators, Canadian companies are
overtaxed. Our corporate tax rates are negatively affecting our ability to
compete on the international stage.
Since 2000, Canada has lowered its federal corporate income tax only five
percentage points, to 21 per cent. We need to lower it further and quickly
before we fall even further behind the rest of the world. The European countries
have been steadily slashing their corporate rates as they vie for foreign
Following the lead of Ireland, which dropped its rates to 12.5 per cent from
24 per cent between the years 2000 and 2003, one nation after another has moved
towards flatter, lower corporate tax rates with fewer loopholes. Ireland's rate
is nearly one half the current rate of Canada. The Netherlands is the second
most popular European target for U.S. and other investment.
Let me give you a practical example of how this lower tax regime works.
Earlier last month, amazon.com formally announced that it would establish a
European operation centre in Ireland. Its major competitor, eBay, has set up its
European base in Switzerland. Hewlett-Packard, last year, set up a major
research and development center in Ireland, allowing it to take advantage of
lower taxes on royalties from intellectual property. Kellogg Company, Lucent
Technologies Inc. and Bell Labs Innovations also set up major facilities in
Ireland last year.
One of the high-flying stocks, Google, an Internet search engine, did the
same thing last year, citing Ireland's ''attractive low corporate rate as one of
the primary reasons for basing its operations in Ireland.''
Honourable senators, more than 1,000 global companies with Irish operations
have chosen that country as a base from which to manage their low-cost
operations in other countries. These companies include Microsoft, Apple
Computer, Inc., Pfizer, Citibank, PepsiCo, Coca-Cola and Accenture.
Honourable senators, would it not be wonderful if each of those companies
were to decide to choose Canada from which to launch their world operations? It
can only be a pipe dream until we do something about our corporate tax rates.
Hon. Joseph A. Day: Honourable senators, it is with pleasure that I
pay tribute today to a good friend and fine man, a great speaker and one of the
most important political figures in New Brunswick in the past several decades,
the Honourable Louis J. Robichaud, former senator and Premier of New Brunswick.
Several senators have spoken on the many accomplishments of the honourable
senator; it is not necessary for me to enumerate those accomplishments again
Honourable senators will be interested to know that Premier Robichaud studied
at the Faculté des sciences sociales et politiques at the University of Laval
under the tutelage of Father Georges-Henri Lévesque. Father Lévesque is known as
an inspiration for social activism and equality, particularly in the provinces
of Quebec and New Brunswick and here at the federal government level.
During his tenure at Laval, Father Lévesque influenced a generation of
Canadian political leaders, including Jean Lesage, René Lévesque, Senator Jean
Marchand, as well as Senator and Premier Louis J. Robichaud. Father Lévesque
taught his students about the need for social reform, social justice and the
role of the state to provide for those in need, and it was that message and that
inspiration that Louis Robichaud took back to New Brunswick.
Honourable senators, there is no question that Senator Robichaud, when he was
premier, achieved a tremendous amount for the Acadian minority in the province
of New Brunswick. However, it is important for us all to realize that he, as the
first Acadian premier of the province of New Brunswick, was able to rally and
inspire the majority in New Brunswick. All of the province supported him in
three separate elections. That leadership will go down as one of his most
tremendous accomplishments. In achieving that equal opportunity throughout the
entire province, he created a bridge between two linguistic groups that
Senator Robichaud left an indelible mark upon the province of New Brunswick
and its people. The policies he implemented and the actions he took over three
decades ago still resonate today. The courage and leadership he demonstrated
against the business elite of the province at the time is documented in a
wonderful book entitled Little Louis and the Giant K.C. I would recommend
it as a very good read. He earned the gratitude of New Brunswickers, regardless
of their political stripe, for his enormous accomplishments. His legacy set an
example for the world and for our country in particular.
I know that his long-time assistant, who still works here on the Hill, Hélène
Damphousse, will wish to join with all senators in expressing our condolences to
Hon. W. David Angus: Honourable senators, I rise simply to complete
the tribute I was giving last Thursday, February 3, to the late Roy Fraser
Elliott, C.M., Q.C. Picking up where Hansard terminated, I will add that he and
Mr. Stikeman invested in CAE in 1951 as a small start-up technology company.
Fraser went on to serve as its chairman and guiding spirit for over 50 years.
CAE is today one of Canada's proudest business success stories, having become
a vast global corporation and the world's principal designer and producer of
aircraft flight simulators.
Fraser Elliott's philanthropy included quiet support for numerous cultural,
health and educational organizations with which he became involved, often in a
leadership role, and to whom he donated literally tens of millions of dollars.
Fraser's admirable accomplishments were deservedly recognized when he was
made a member of the Order of Canada in 1980. He was predeceased by his wife,
Betty Ann McNicoll, and is survived by their six children and their families.
Fraser Elliott has now gone to his eternal resting place. May he rest in peace.
Hon. Ethel Cochrane: Honourable senators, I rise today to offer
congratulations to General Rick Hillier, who was installed as the new Chief of
the Defence Staff for the Canadian Forces on Friday.
General Hillier is a native Newfoundlander and it makes me very proud to see
one of our own men serving in perhaps one of the most demanding times in our
history. He is an excellent choice for the job, as his operational experience is
simply second to none.
During his extraordinary military career, which has spanned more than 30
years, he has served throughout Canada, in Europe and in the U.S. Last year, he
commanded NATO's International Security Assistance Force in Afghanistan. In that
role, he had almost 7,000 troops from 36 countries under his command.
His unique credentials also include participation in an exchange program
during which he served as Deputy Commanding Officer of the U.S. Army's Third
Armored Corps in Fort Hood, Texas.
When the appointment was announced, the Minister of National Defence said
this of Hillier:
He has a vision, not just for the army but for our forces in their entirety
and how they can meet the threats of the modern world.
U.S. Lieutenant-General Leon J. LaPorte described General Hillier as
intelligent, confident and personable. He said, ''When you put these qualities
together, you can't help but be a great leader.'' He also added, ''Our soldiers
respect him and they genuinely love to be around him.''
General Hillier has often been called a soldier's soldier, and it is an
assessment that is easy to understand. In 2003, for instance, when two Canadian
soldiers were killed in Kabul after their jeep hit a landmine, he said he felt
wounded himself. More telling, however, he personally attended to the funeral
arrangements for the two men.
Honourable senators, General Hillier now faces the daunting challenge of
modernizing and guiding our over-stretched military. However, I am confident
that, under his leadership, not only will our country's military institutions
enjoy great success, but so too will the men and women who wear the uniforms and
make the ultimate contribution on behalf of all of Canada.
I ask honourable senators to join with me in extending congratulations and
sincere best wishes to General Hillier.
The Hon. the Speaker informed the Senate that a message had been
received from the House of Commons with Bill C-10, to amend the Criminal Code
(mental disorder) and to make consequential amendments to other Acts.
Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the second time?
On motion of Senator Romkey, bill placed on the Orders of the Day for second
reading two days hence.
Hon. Lorna Milne: Honourable senators, I have the honour to present
2,364 signatures from Canadians in the provinces of British Columbia, Alberta,
Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, New Brunswick and Prince
Edward Island, who are researching their ancestry; as well as signatures from
254 people from more than one dozen states of the United States; and 171 from
the United Kingdom who are researching their Canadian roots. A total of 2,789
people are petitioning the following:
Your petitioners call upon Parliament to immediately direct the Chief
Statistician of Canada to return care and control of schedules of Historic
Census to the National Archivist for subsequent public access in accordance
with the Access to Information and Privacy Acts; and
That continued public access of Historic Census Records, without condition
or restriction, be ensured by the addition to the Statistics Act of a single
Including the signatures I presented to the Thirty-sixth and the
Thirty-seventh Parliaments, I have now presented petitions with over 32,339
signatures, all calling for immediate action on this very important matter of
Hon. Gerry St. Germain: Honourable senators, my question is to the
Leader of the Government in the Senate and relates to the plight of marriage
Judicial activism at the provincial level and the lack of leadership on the
part of the federal government has led the Leader of the Government in the
Senate, in response to a question on February 2, to state:
...the constitutional jurisdiction of marriage lies with the federal
government. The solemnization jurisdiction is with the provinces. If the
provinces in any way interfere with the freedom to practise religion, then
those individuals who feel interfered with should insist on their Charter
This means that marriage commissioners who are not religious officials but
who are provincial public servants are unprotected by what we think is coming
forward from the Liberal side by way of legislation.
As a result, one in 10 marriage commissioners have resigned in Newfoundland
since the province's Supreme Court decided in December that having only
opposite-sex marriages was unconstitutional. These commissioners resigned
because the province told them to abide by the law or quit. In Manitoba, 12
marriage commissioners have resigned; in Saskatchewan, eight have resigned; and
in British Columbia, 12 have resigned.
Last week, The Globe and Mail quoted Saskatchewan Minister of Justice
Frank Quennell as saying:
The marriage commissioners are representatives of the province; they're the
ones who have to administer the law.
And if they won't administer the law as it now stands, then the province is
not following the law.
Mr. Quennell said:
To have civil marriage commissioners import their religious beliefs into
the civil marriage...is to force people to meet religious requirements when,
if they'd wanted to do that, they could have gone to a church.
I cannot see any protection for the religious freedom of people who do not
wish to perform same-sex marriages for religious reasons. We are talking about a
Why is the Minister of Justice telling us that religious freedom is protected
when basically it is not, and the federal government is doing nothing? The
government is telling these people that from time immemorial in this country,
from 1867, freedom of religion existed, and yet these marriage commissioners are
not allowed to practise their religion freely. They are being discriminated
against and fired for failing to live up to judicial activism at the provincial
level, and I do not think the federal government is protecting them in any way,
shape or form.
Hon. Jack Austin (Leader of the Government): Honourable senators, I
thank the Honourable Senator St. Germain for his important question. I believe
his question is completely answered by the reference that Senator St. Germain
cited and attributed to the Minister of Justice in Saskatchewan.
Let me make the point as clearly as I can: People who are commissioned in
various provinces to perform civil marriages are obliged by the commission to
perform civil marriages under the law of that province. That is their duty as
provincial public servants. If they refuse to perform that duty, they are
refusing to exercise the responsibilities that they have undertaken under the
authority of the province. This is in no way an interference with their
religious freedom. They are free to practise their religion and free to stand by
the principles of their religion, but they cannot import that religion into
their civil duties.
We discussed this concept last week when I referred to the role of political
leaders who belonged to a religion that put their public policy duties at odds
with their political responsibilities as leaders. I referred to President
Kennedy, for example, who said that if he is to be President of the United
States, his religious responsibilities were not relevant. He exercised his
duties under his democratic franchise on behalf of all people and under the law
of the United States. Again, that is essentially the principle that is involved
The office of marriage commissioner is a civil office in those provinces. The
provinces have the right to describe how those duties are to be exercised on
behalf of equality of rights for all citizens as set out by the courts of those
Senator St. Germain: I understand what the honourable minister is
saying. However, British Columbia appears to be backpedalling on it's hard-line
approach to marriage commissioners. According to a report last week in The
Globe and Mail, a spokeswoman for the provincial government said that the
policy of requiring marriage commissioners to perform same-sex marriages is no
longer in place, but they must help the couple make other arrangements.
The argument is that these people were hired to perform a civil task. If that
task contravenes their faith, there are some of us who would never sacrifice our
faith and, if given the chance, would vote against it. If I were Jewish, I would
most likely be an Orthodox Jew. If I were an evangelical, I would most likely
follow Billy Graham. I happen to be a Roman Catholic and am proud to say that I
follow Pope John Paul II.
I stand and always vote according to my conscience. I would never stand, like
some politicians, and say, ''I am a devout Catholic,'' and then deny everything
that the Catholic Church preaches in the same breath. Maybe the honourable
senator can live with that but I cannot. Obviously, these marriage commissioners
cannot and there is no protection for them. They are being told to seek out
their rights. This is something that has been basic to them and to every one of
us, yet it is now being challenged. Do I see the federal government standing up?
As I pointed out, the Province of British Columbia is saying that the provision
is no longer in place and that they must help couples to make other
The question is this: Are basic human rights in Canada now dependent on the
goodwill of provincial justice ministers? Is this what Justice Minister Cotler
had in mind when he said during his press conference after tabling the bill that
''rights are not being taken away, rights are being added''?
I say to the honourable minister that there are people whose lives have been
totally disrupted as a result of their faith, yet the government is sitting back
and telling them that they have to abide by a judicial decision at the
provincial level at this time. Is the government telling them that it is not
prepared to protect their rights?
Senator Austin: Honourable senators, I cannot improve on the clarity
of the answer that I gave to the first question Senator St. Germain put to me.
I simply want to make it clear that there is no interference with the right
of any individual to practise the religion of his or her choice. When seven
provinces and one territory provide, through the decision of their courts, that
their law, which is a civil law, permits a civil marriage of people of the same
sex, and those laws have established offices and officers to perform civil
marriages according to the law of those provinces, then, by a parity of
reasoning, public servants in those provinces, or people who have entered into
undertakings to perform public service as the result of an appointment by the
Lieutenant-Governor-in-Council, are obliged to adhere to the law of the province
in which they reside.
They have taken on duties to administer the law of that province. That
province has prescribed those laws and those laws have been found by the courts
to be constitutional. The people who administer those laws have taken on that
responsibility. They are obliged to administer those laws.
This applies not only to marriage commissioners in provinces. It applies to
all public servants. Whatever their religion, they are obliged to carry out the
policies of the governments and respect the laws of their provinces. There would
be chaos in this country were it otherwise.
Senator St. Germain: They are being asked to perform a marriage, and
marriage, in the interpretation of many, is a religious institution. Is the
leader saying that, by virtue of a change in civil law, these people are not
being denied their right to practise their religion? If my religion specifies
that this is not permitted then I can no longer practise my religion freely.
Such an act goes against my religion. I am being asked to operate outside of my
religion for civil purposes, or else be fired. Therefore, as a marriage
commissioner, that would be a denial of my religious rights.
That is my interpretation and I think it would be the interpretation of many.
I am sure that the honourable minister is aware of the controversy surrounding
this very subject across the country. Ministers in churches across this nation
are spending hours speaking out on the issue.
However, I want to focus on marriage commissioners because I believe that
their right to practise their religion is being denied by virtue of the
legislation that has been passed by many provinces. I am not a lawyer, but I
cannot see how persons can be asked to do something in contravention of their
religious beliefs, and if they do not conform, they will be fired. I cannot
understand how that is not discrimination.
Senator Austin: Honourable senators, I will go over the ground another
time, although I am sure that Senator St. Germain and I will not view this issue
in the same light.
Clearly, the office of marriage commissioner in the provinces is a civil
office, not a religious office. Individuals who accept the responsibility of
marrying Canadians in those provinces in a civil ceremony are obliged to marry
those who are legally competent to be married. If they refuse to do so, then
they are in a position of personal conflict, which has to be resolved in favour
of the law of the province and in favour of them fulfilling their
responsibilities according to the appointments that they hold.
This does not interfere with their right to practise their religion. I grant
you it interferes with their right to prescribe the circumstances of other
Canadians, but the Charter and the courts of this country have made the law
extremely clear with respect to the equal rights of Canadians in those
As Senator St. Germain knows, there is a bill in the other place that is
designed to make that law uniform across Canada so that we do not have a
checkerboard set of rights; different rights for different Canadians depending
on where they reside.
Hon. Terry M. Mercer: Honourable senators, by way of a supplementary
question to the Leader of the Government, if we were to accept Senator St.
Germain's argument, it would seem, then, that many other public servants at the
provincial level must find themselves in the same quandary that Senator St.
Germain puts forward regarding marriage commissioners. What about all those
Roman Catholics who work in provincial governments across the country who are
involved in the registration and the processing of divorces, when the Catholic
Church stands firmly against divorce? Are they in the same boat? I would argue
not. I would think it is a falsehood, but I would like to hear the government
leader's comments on that point.
Senator St. Germain: I do not agree with that either. I do not agree
Senator Austin: Honourable senators, each of us has religious
convictions that are paramount in our personal behaviour because we have decided
that they should be paramount in our personal behaviour. However, we live in a
secular nation. Canada is not a theocracy. It is the result of long years of
political evolution and the separation of the church and the state. Today, the
state speaks for the civil rights of Canadians.
Hon. Anne C. Cools: Honourable senators, I have been listening to the
Leader of the Government in the Senate with some interest and I wonder if he
would agree with me that in Canada, for the last many hundred years, we have had
the separation of church and state. Am I correct in that, or is separation of
church and state a new concept?
Senator Austin: I believe I just answered that question in response to
Senator Cools: I thought I was asking a slightly different question. I
thought I was asking the leader to pinpoint when, in Canada, church and state
Senator Austin: I would not know when, in Canada, church and state
Senator Cools: Very well. Then it is fair to say that at least since
Confederation we have had separation of church and state.
Senator Austin: I do not believe they are united.
Senator Cools: Precisely; we have always had separation of church and
state. I am trying to suggest to the honourable leader that he is not talking
about separating church and state, but that he is talking about separating
people from their religion. There is a slight difference. Church and state have
been separated in Canada for quite some time, if not forever.
Marriage is interesting. Two people cannot, of their own volition, marry;
just as two people, a man and woman, cannot, of their own volition, end their
marriage. There is a third party to every marriage, just as there is a third
party to every divorce, and that third party is Her Majesty. The act of
performing, solemnizing a marriage in this country is a prerogative act under
the Royal Prerogative. That is why there are marriage commissioners. A
commissioner is an agent of Her Majesty who marries couples by Her licence.
How is it possible that, in the name of the law, the courts can force Her
Majesty's agents in how they exercise their duties under the Royal Prerogative
of celebrating a marriage? This may seem corny, but it is profound.
Senator Austin: Honourable senators, as Senator Cools knows as well as
anyone in the chamber, laws are made by the sovereign in Parliament. The Charter
is a law made by the sovereign in Parliament and confirmed by the legislatures
of nine of the 10 provinces, which the Supreme Court in 1981 found to be
sufficient to pass a constitutional amendment. Therefore, the situation we are
dealing with is one in which the people and the sovereign have spoken together.
Senator Cools: My understanding is that the Supreme Court of Canada,
in its opinion last fall, clearly stated that the Charter did not require the
current proposal as the honourable senator is putting it. At the end of the day,
the power over marriage rests with Her Majesty. What constitutional authority do
you have to compel Her Majesty's commissioners to do what you want? I submit you
have no constitutional authority. Unfortunately, it is an area of law that no
one will look at.
Senator Austin: Honourable senators, I am saying something that is
obvious to anyone who is a practitioner of governance. This Parliament and the
provinces together have acted constitutionally in bringing about a
constitutional amendment, which we describe in point of relevance as the
Charter. Under our constitutional system, the courts are the instrument for the
interpretation of that document. The courts have made an interpretation in which
they have found that the law and the Charter permit civil marriage, and the
courts of seven of our provinces and one of our territories have decided that
civil marriage is lawful, and the laws of those provinces allow it. That is the
chain of authority.
Hon. Donald H. Oliver: Honourable senators, my question is for the
Leader of the Government in the Senate. It concerns the process leading up to
the budget on February 23. For the past several months the Minister of National
Revenue has headed the Expenditure Review Committee which is seeking to achieve
$12 billion in savings, of which half is to come through operating efficiencies
in areas such as property management, purchasing and service delivery, and the
other half from an exercise where deputy ministers identify the 5 per cent of
spending in their departments which represents the lowest priority.
When he appeared before the Standing Senate Committee on National Finance on
November 17, Mr. McCallum said that he hoped to have a package of proposed costs
ready for the Prime Minister before Christmas so it could be included in the
Could the Leader of the Government in the Senate advise the Senate whether
the package of possible savings was completed prior to the Christmas break?
Hon. Jack Austin (Leader of the Government): Honourable senators, it
is my information that the Minister of National Revenue has made a full report
to the Prime Minister on the subject of expenditure review.
Senator Oliver: When Minister McCallum was before the Standing Senate
Committee on National Finance, he was asked about the role of parliamentarians
in this expenditure review process. His answer kept coming back to the Liberal
caucus. For example, he said, ''I have had about 20 meetings with different
members of our caucus.'' As to the report of the Expenditure Review Committee,
which was to be completed by Christmas, the minister said, ''We will certainly
discuss within caucus the general lines of it.''
For the benefit of those of us who sit in another caucus, could the Leader of
the Government advise the Senate whether Mr. McCallum has taken either the final
or the draft report of the Expenditure Review Committee to his caucus and, if
so, what are ''the general lines of it''?
Further, how can Parliament, as an institution, become involved in this
Senator Austin: Honourable senators, today seems to be a day for
discussing the issue of the constitutional makeup of our governance system.
Obviously, there is a difference between the government and the legislature. The
process of expenditure review is an exercise carried on within the government.
The non-governmental process is the way in which political parties govern their
affairs here in Parliament. I can neither be exact with respect to that which is
internal to the government process nor that which is internal to the Liberal
Hon. Marjory LeBreton: Honourable senators, on March 24 of last year,
in response to a question I raised about the unity fund, the Leader of the
Honourable senators, the Prime Minister was not aware of a fund called the
national unity reserve until the time he became Prime Minister...
Senator Austin was referring to Prime Minister Martin.
This morning before the Gomery Commission, the former Prime Minister outlined
the purposes of spending reserves in general and made some comments about the
reserves. He then said that, during the course of his administration, the
Minister of Finance and he agreed to set aside $50 million a year for
expenditures related to national unity that would be decided upon during the
course of the year.
In view of this, will the Leader of the Government in the Senate indicate
which version is the correct one?
Hon. Jack Austin (Leader of the Government): Honourable senators, I
have not found any contradiction in Senator LeBreton's question. I presume she
is referring to a fund that was set aside by all governments, going back to
Prime Minister Trudeau, with respect to national unity. Such a fund was in
existence during the tenure of Prime Minister Mulroney, as it was with respect
to Prime Minister Chrétien. That fund has been long standing and well known.
Senator LeBreton: There is quite a difference. This one was run out of
the Prime Minister's office under the signature of the Prime Minister.
This morning former Prime Minister Jean Chrétien made a number of statements
that implied that the current Prime Minister knew about the government's
national unity spending and was in support of it. He told the commission that
his cabinet was united in its determination to do what it takes. He said that no
one in government believed for a moment that federal sponsorship of community
events alone would convince Quebecers to remain in Canada, but that they were
certain that the absence of a visible federal presence hurt the cause of Canada.
He told the commission that federal visibility was merely one element of a very
He went on to say that a cabinet committee, headed by Marcel Massé, made
several recommendations that included but went well beyond this federal
visibility in Quebec. He said that Marcel Massé's report was discussed in detail
in cabinet on February 1 and 2, 1996, and the recommendations, including
increased federal visibility, were all unanimously approved. He said that they
acted on all of them over the next days, weeks, months and years.
The current Prime Minister is set to testify later this week. Could the
Leader of the Government in the Senate advise whether the Prime Minister intends
to stick to his story that he knew nothing about what was going on in the
province of Quebec?
Senator Austin: Honourable senators, first, Prime Ministers Trudeau,
Mulroney, and Chrétien all had ministerial responsibility for the national unity
fund. There is nothing exceptional in that.
Second, the present Prime Minister made clear to me, and I made clear in the
chamber, that I was in error in saying that he was not aware of the sponsorship
fund. That is on the Senate record. There is no issue in that regard.
Third, the honourable senator has referred to a document. I believe that we
have the right to have the statement by the Right Honourable Jean Chrétien
tabled and appended to Hansard today so that the complete statement made by
Prime Minister Chrétien is available to this chamber.
Honourable senators, am I correct in saying that the document is required to
Some Hon. Senators: No.
The Hon. the Speaker: Honourable senators, I believe that leave with
unanimous consent is required in order to table a document. With the permission
of honourable senators, I will return to the matter later so that Senator
Cochrane is able to proceed.
In respect of the exchange during Question Period between Senator LeBreton
and Senator Austin, the Leader of the Government in the Senate, to clarify the
point, I quote from Beauchesne's Parliamentary Rules & Forms, 6th Edition
at page 151, paragraph 495(6):
A private Member has neither the right nor the obligation to table an
official, or any other, document.
Having said that, it is the practice of the house to table documents with
unanimous consent. However, there is no obligation on the part of Senator
LeBreton to request it.
Hon. Ethel Cochrane: Honourable senators, my question for the Leader
of the Government in the Senate deals with the reporting of reactions to
prescription drugs. Currently, physicians and other health professionals report
adverse drug reactions of patients to Health Canada on a voluntary basis. Last
December, the Minister of Health stated that he is committed to making this
practice mandatory by instituting a system whereby doctors would be legally
compelled to report serious side effects arising from medication use. Could the
Leader of the Government tell us if the health minister has already begun talks
with the provincial governments and the regulatory bodies regarding his
Hon. Jack Austin (Leader of the Government): Honourable senators, I
will look into the subject matter of Senator Cochrane's question and provide an
answer for her as quickly as possible.
Senator Cochrane: Critics of the minister's proposals say that
requiring doctors to file such reports may not improve drug monitoring,
especially if it leads to an enormous amount of data collected without a proper
method of analysis or a means to share the information. Issues of patient
privacy and provincial jurisdiction may also arise from the minister's proposal.
Could the leader make inquiries to determine whether the health minister entered
into consultations with the provinces, the physicians' associations and other
health groups before going public with his intention?
Senator Austin: Honourable senators, I will look into the matter. I do
not have any specific information to offer Senator Cochrane at this time. I
recall, however, a question on this matter from Senator Keon who was concerned
about Health Canada and the Food and Drug Administration in the United States
monitoring the use of, and negative effects of, drugs that had been approved for
public use. Senator Keon asked whether there was a monitoring process in place.
Of course, the front line of knowledge on the impact of drugs is with the
medical practitioners. I have no further way of answering Senator Cochrane's
question, but I am interested in the response.
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable
senators, I have the honour to present two delayed answers in response to oral
questions raised in the Senate. The first one is in response to an oral question
raised on December 15, 2004, by Senator Di Nino, regarding the airline industry
and the RCMP investigation of airport workers for possible ties to organized
The second is in response to an oral question raised in the Senate on
December 13, 2004, by Senator St. Germain, concerning the Millennium Bureau.
I am presenting an appendix that should have been attached to the delayed
answer tabled Tuesday, February 1, 2005, in response to Senator Forrestall's
oral question raised on November 23, 2004, regarding sovereignty in the Arctic.
I should say to Senator Lynch-Staunton that I had thought that I would have
the answer to his question today; however, I do not have it. I expect to have it
this week and perhaps the delay is occasioned by getting it right in view of the
person who asked the question. I am assured that the honourable senator will
have it this week.
(Response to question raised by Hon. Consiglio Di Nino on December 15,
The Minister of Transport Canada and the Royal Canadian Mounted Police
(RCMP) have signed an agreement on the sharing of sensitive law-enforcement
information, including information on organized crime and criminal association
for the purpose of conducting security screening background checks on
Transport Canada, has, in cooperation with the RCMP, reviewed all existing
airport clearance holders against the criteria identified by the Auditor
General, and will continue to subject all new applicants to the same review
The review has identified 73 possible cases out of the 125,926 existing
airport clearance holders that may require further investigation. This does
not mean that there are 73 cases of concern, only that there are 73 cases that
merit further review. Of the 73 workers initially identified, a more extensive
investigation resulted in some clearance holders or applicants being
eliminated as potential threats, whereas others continue to be under review.
For these cases, decisions on action, if any, will be made pending the results
of the reviews.
When Transport Canada obtains credible information indicating an existing
clearance holder poses a risk to transportation security, the department
responds immediately to suspend or revoke the clearance of the individual in
(Response to question raised by Hon. Gerry St. Germain on December 13,
Alleged problems within the Millennium Bureau
The Canadian Millennium Partnership Program (CMPP) was a highly successful
community-based initiative to celebrate the turn of the Millennium that
generated enthusiasm among Canadians for their communities and country.
The Millennium Bureau established a rigorous monitoring and evaluation
framework in 2000. This framework provided for the monitoring of up to one
third of the project files to assess compliance with program requirements.
Furthermore, each application was assessed against clearly defined criteria. A
formal contribution agreement was established for each project, to ensure that
project design would be respected and project objectives met. These agreements
provided clear reporting requirements for all projects over $250,000, such as
submitting audited financial statements to the Bureau.
The Millennium Bureau of Canada operated in a fully transparent manner. All
contributions made under the CMPP were reported in the Public Accounts of
Canada and posted on the Millennium Bureau website. Like all departments, the
Millennium Partnership Program reported on its expenditures and results to
Parliament. It filed Performance Reports to Parliament, starting in 1999 up
until 2001-02, the last year it was in operation.
Records related to the Millennium Bureau
As the Millennium Bureau is a defunct organization, its records have been
under the care and control of Library and Archives Canada since it wound down
in fiscal year 2001/ 2002.
With the consent of Library and Archives Canada, access has been provided
to these records to answer Parliamentary queries, as required.
Review of Millennium Program
The Millennium Bureau operated in a fully transparent manner, and had a
rigorous monitoring and evaluation framework. Paper audits were conducted by
the Bureau's staff. A number of formal file audits were conducted by external
Chartered Accountants. As well, an independent evaluation of the CMPP was
conducted by an outside consultant in 2001, as the program was winding down.
This evaluation found that the CMPP was a very well run program: it was
effective in reaching its objective, it was managed within its budget, it had
proper processes for assessing and approving applications and it had
appropriate controls and accountability mechanisms.
The Hon. the Speaker: Honourable senators, I would like to present to
you Christina Richard, a native of Gatineau, Quebec. She is studying
Communications and Political Science at the University of Ottawa. We welcome her
to the Senate.
Hon. Maria Chaput moved second reading of Bill C-18, to amend the
Telefilm Canada Act and another Act.
She said: Honourable senators, it is a great pleasure for me to speak to you
today at second reading of Bill C-18, to amend the Telefilm Canada Act. This is
of great importance for the audiovisual sector, and thus for the cultural and
artistic life of Canadians.
Culture is part of every Canadian's life. It helps enhance our quality of
life, fosters personal and social development, inspires us and allows us to
define our identity as individuals and as a nation.
In Canada it is crucial for our culture to be developed, strengthened and
preserved so that the stories that characterize us may link the diverse
communities across the land and forge ties to unite all Canadians.
Like the cultures in many other countries of the world, Canadian culture is
made up of diversity, and that diversity is constantly growing. We are a nation
of numerous ethnic backgrounds, ideologies and experiences. Culture helps us
understand each other. It unites us. For that to happen, however, we need tools
and mechanisms by which to make the concept into a reality.
Telefilm Canada constitutes one such mechanism and its role is a crucial one.
Over the past 38 years, Telefilm Canada has built up our cinematography industry
and supported its creators. It has contributed to the creation of a dynamic and
prosperous industry, one recognized throughout the world for its talent in
producing cinematic works.
Bill C-18 amends the Telefilm Canada Act of 1967, which was intended to
encourage the development of a feature film industry in Canada. As cultural
policies evolved and new technologies appeared, Telefilm Canada and its feature
film expertise became the natural choice when it came to allocating
responsibility for programs relating to television, innovative media and audio
recording. In so doing, however, Telefilm's activities exceeded its initial
mandate and no longer observed the spirit of the law.
In 2004, the Auditor General pointed out these flaws within her mandate of
improving government transparency and accountability, and the government
responded to these concerns by tabling Bill C-18.
This bill gives Telefilm the mandate it requires in order to carry on its
current activities in the areas of television, new media and sound recording and
ultimately to contribute to Canada's success in these fields, just as it has in
the feature film sector.
Bill C-18 validates Telefilm's past activities in the audiovisual sector so
that there will be no lingering doubts about the excellence of the work
accomplished so far.
Telefilm Canada is an institution recognized as a supporter of cultural
activities. Its support for Canada's audiovisual industry has helped to
strengthen Canada's cultural fabric and give expression to the hopes and
experiences shared by diverse communities.
As a cultural investor in the film, television, new media and sound recording
fields, Telefilm thus supports the creation of Canadian content reflecting the
diversity of the Canadian population that can be seen on television and movie
screens and heard through headsets by all Canadians.
Telefilm encourages and fosters excellence in Canadian cultural works. It has
made possible the growth and creation of new jobs. Many of its high-quality
cultural products have attracted large audiences all over the world.
Through its support for creating Canadian content, Telefilm has contributed
to the recognition of Canadian works and Canadian talent everywhere in the world
and has made it possible to build international partnerships that have led to
profitable business opportunities.
Telefilm's participation in feature films, television, new media and music
has generated innumerable achievements and successes that confirm Telefilm's
Thanks to these successes, more media attention is now paid to the launch of
Canadian audiovisual content, and more and more Canadians are now watching these
films or programs or listening to home-grown music. And they are talking about
it as well, which increases their understanding of and interest in Canadian
content and raises their awareness of Canadian talent and Canadian creators.
Let us talk about some of these successes: Canadian films.
In terms of feature films, for example, The Barbarian Invasions, a
Canada-France co-production, won many awards, including the 2004 Oscar for best
foreign-language film. This fascinating story, steeped in local references and
situations, made a significant impression on audiences in Canada and elsewhere.
Séraphin: Heart of Stone, by Charles Binamé, had outstanding success
in Canada with ticket sales of nearly $10 million.
Other films financed by Telefilm, such as The Saddest Music in the World
by Guy Maddin, The Statement by Norman Jewison and Seducing Doctor
Lewis by Jean-François Pouliot, have won acclaim at home and abroad for
their captivating stories and the quality of their direction, cinematography and
I am sure you will agree with me that these are major productions.
Telefilm's success in the film industry points to its future success in
television, new media and sound recording. Consequently, there is no question
that Telefilm must continue to make its contribution.
Let us talk about Canadian television. We can all be proud of the Canadian
performances on our television screens. The popularity of series such as Les
Bougon, Fortier and Trailer Park Boys, as well as many others,
underscores just how much Canadians appreciate their national television. These
programs and others capture the lives of ordinary Canadians from east to west,
reflecting the humour, the mannerisms and the lifestyles with which all
Canadians can identify.
These programs can also display characteristics that some Canadians are
unfamiliar with, thereby giving them a chance to learn and revel in the
conventions and history of diverse communities across Canada. These programs
engage and connect Canadians.
The ability of Canadian shows to resonate with Canadians and develop a large
following of fans at home and abroad is a testament to the level of talent
developed and refined here in Canada.
For instance, crime dramas like Da Vinci's Inquest and Cold Squad
have infused a local Canadian flavour to the once American-dominated style of
cop shows. Da Vinci's Inquest, English Canada's longest running dramatic
series, has won the Gemini Award for Best Dramatic Series four times over and
can be found on television schedules around the world. It is a definite success
story, and one also that I dearly love.
The French-language market frequently produces top-rated programming that
outperforms even the biggest foreign prime-time hits and syndicated favourites.
As a matter of fact, there are no American programs ranked in the top 10 in
French-language Canada, an indication of a connected culture that prefers to see
itself on the screen. Canadians want to see themselves reflected.
A significant contributing factor to the success of these shows is the
Canadian Television Fund, which is administered in part by Telefilm. This
$267-million fund focuses more and more on audience levels rather than levels of
production volume as a measure of program success.
Thanks to the programming decisions of Telefilm and the Canadian Television
Fund Corporation, Canadians now have an entertaining and diverse array of
Canadian prime-time programming that is quickly inching its way up the audience
Let us talk about new media. Of all the sectors to be discussed here today,
new media is by far the fastest growing and potentially furthest reaching of
all. Over half of all Canadians have access to the Internet, and for many young
Canadians this translates into a vast resource for learning, sharing and
Combined with other creative works, such as film, television or music, online
content can be used as an extremely effective cross-promotional tool by
directing viewers from the Internet and CD-ROMs to Canadian content on the big
screen, small screen and radio, greatly increasing audience potential for
The New Media Fund serves to develop a prominent and visible online content
industry that brings to light the creative and technological advances of
Canadian work to Canadian audiences. This program is extremely beneficial to the
way in which our children learn and socialize with each other and the world
around them. For example, since the Internet and interactive CD-ROMs are widely
used in school curricula, the Canadian New Media Fund serves as an extremely
important mechanism for Canadian content to be generated and brought to the
attention of teachers and students alike, introducing Canada's youth to the
extensive and dynamic array of Canadian content, and presenting information from
a Canadian point of view. This, as honourable senators will agree, will help to
develop a better sense of who we are as Canadians during an individual's
developmental stage, which will likely nourish their appetite for Canadian
stories well on into their adult years.
Canada's achievements in this sector are numerous and cover a wide range of
interactive and digital products. One notable accomplishment is the website
www.degrassi.tv. This online site, inspired by the internationally renowned
Canadian television series Degrassi: The Next Generation, has garnered
domestic recognition by the Academy of Canadian Cinema and Television for its
outstanding interactivity and enormous popularity.
Lastly, let us not forget about the Canadian sound recording industry. In
concurrence with the Department of Canadian Heritage's 2001 Sound Recording
Policy to build a competitive music industry for the new economy and develop
audiences for homegrown talent, Telefilm was given the responsibility to
administer the Music Entrepreneur Program. Telefilm's expertise in supporting
cultural entrepreneurs has been utilized to allow these companies to better
capitalize on their creative talent. This program has supported Canadian music
entrepreneurs and has given them the necessary funding to carry out their
short-and long-term corporate business plans, therefore shifting the focus from
that of project assistance to one of sector building.
Along with these initiatives, Telefilm administers other programs ranging in
focus from training and professional development to the advancement of minority
involvement in the audiovisual industries. Combined, Telefilm's programs provide
support to all components of the creative and commercial process, facilitate new
ventures between entrepreneurs and promote cultural products domestically and
From what you have heard, it is apparent that Telefilm's involvement from
creation to audience building in the major sectors of the audiovisual industry
has allowed it to develop an expertise we must cherish and encourage.
There is no denying that Telefilm has been a key player in building a strong
and viable industry for the long run. It has helped to develop world-class
creators. It has allowed minorities to have a voice and to share their distinct
cultures and heritage with the rest of Canada and the world.
It has supported young talent and provided them with the tools to build
successful careers around their passions. Lastly, it has opened up the eyes and
ears of the Canadian public to the rich and vibrant stories and sounds of our
Telefilm's successes have been Canada's successes and, as such, I urge you to
join me in supporting Bill C-18 so that Telefilm can continue with its great
work in fostering and building an industry that is essential to the
strengthening of a nation, deepening our mutual understanding and contributing
to our economy.
Hon. Tommy Banks: Honourable senators, may I ask a question of the
Senator Chaput: Yes.
Senator Banks: I apologize for not having read this bill before today.
I enjoyed the honourable senator's remarks about Telefilm and, indeed, I share
the high regard in which she holds Telefilm and what it has done in the past.
My question will be specific, but an answer at a later date would be quite
acceptable. It has to do with the amendment to section 10(6)(a) on page
two of the bill. The definition states:
(6) For the purposes of this Act, a ''Canadian audio-visual production'' is
an audio-visual production in respect of which the Corporation has determined
(a) ...the copyright in the completed production...will be owned
by an individual resident in Canada,...
Honourable senators, that could refer to a film, a television show, a sound
recording or new media work. However, it does not say that it must be owned by a
The second part of my question is the most important part. Paragraph (a)
continues by stating that the copyright could be owned by a corporation
incorporated under the laws of Canada or a province or by any combination of the
What gives me pause is that that could include a corporation that is
incorporated under the laws, for example, of Alberta, or a federal corporation,
the entire ownership of which may not reside in Canada or be Canadian of any
Is that the intent of the bill? That is to say, is its intent to allow
foreign-owned corporations to benefit from the efforts of Telefilm, which might
be perfectly all right? Is that the intent or is it, perhaps, an oversight?
Senator Chaput: Honourable senators, I will answer that question to
the best of my ability. We may perhaps want to ask for additional information.
My understanding of the bill that we have before us today is that it simply
reflects what Telefilm Canada has always done. Over the years, with changes in
technology, Telefilm Canada, which initially dealt only with feature films, has
been given additional responsibilities by different governments, in film, in
video, in new technologies and in feature films.
Telefilm Canada will not change its way of doing business. If, so far, the
point you raised has not been a problem, in my opinion, it will not now become a
problem because nothing has been changed except for the fact that this bill, in
any case, will give Telefilm Canada the mandate that it has always carried out.
In her recommendations the Auditor General drew to the attention of Telefilm
Canada that everything it was doing conformed to the best public management
practices; the financial statements were clear and accurate, its programs were
run in accordance with its mandate, its agreements were perfectly proper, but
Telefilm Canada was going further than the law because they went beyond what the
law allowed them to do.
This bill reflects the current situation of Telefilm Canada. That is the best
answer I can give you at this time based on my knowledge of the bill.
Senator Banks: Has it been the case that, in the past, Telefilm's
definition of an eligible corporation was only that the corporation be
incorporated in Canada, or in a province, without reference to the ownership of
that corporation? If that was so, will it continue to be so, and is it intended
to continue to be so under the present bill?
I will assume that the honourable senator will find out the answers to those
questions and let us know later.
Hon. Jean Lapointe: Honourable senators, my first question is directed
to Senator Banks. Has Senator Banks seen...
The Hon. the Speaker pro tempore: I am sorry but the
Honourable Senator Lapointe may not put a question to Senator Banks. He may only
offer comments on the remarks made by Senator Chaput.
Senator Lapointe: I will ask my question another way. Is the
Honourable Senator Chaput aware of a case where a foreign corporation received
subsidies via a Canadian corporation to produce a film here in Canada?
Senator Chaput: No, not to my knowledge. Moreover, according to the
Auditor General, the annual report of Telefilm Canada clearly reports what
Telefilm Canada has done in terms of activities and programs. I am sure that if
he consults the report of Telefilm Canada's activities, Senator Banks' concerns
can be put to rest.
Senator Lapointe: I have a second question: Which committee will be
examining Bill C-18?
Senator Chaput: It will be the Standing Committee on Transport and
Senator Lapointe: That is what I wanted to hear. In the year 2005,
must we refer artistic matters to the Transport and Communications Committee? I
have been asking for two and a half years that the Library of Parliament
Committee become a committee dealing with both the arts and the library. Bill
C-18 is being referred to the Transport and Communications Committee. I am
opposed to that. Inside, I am fuming. After so many years, it is time that we
had a committee on the arts. We cannot have a committee on the arts elsewhere.
There is no committee for artists. We should establish one and join it with the
library committee that meets four times a year.
Senator Chaput: I understand your point of view very well and my heart
is with you.
Senator Lapointe: I wish your mind were also with me!
Senator Banks: Honourable senators, I wish to make it clear that, with
respect to the questions I asked, I never suggested that there was the slightest
impropriety in the operation of Telefilm Canada, with which I used to have a
great deal to do. I know how well they have managed the business that they have
It has never occurred to me before, however, that the question of the
ownership of a Canadian corporation might be absent in this act or in the one
which preceded it. My question is limited strictly to that matter. I am not
suggesting the slightest impropriety in the operation of Telefilm Canada now,
before or, one hopes, in the future.
Senator Chaput: I thank Senator Banks for those remarks. In my
opinion, it is always a good idea to ask the question, even if only as a
The Hon. the Speaker pro tempore: Honourable senators, I
would like to recognize the presence of a group of students from Curve Lake
Secondary School near Peterborough. They are the guests of Senator Adams.
Resuming debate on the motion of the Honourable Senator St. Germain, P.C.,
seconded by the Honourable Senator LeBreton, for the second reading of Bill
S-16, An Act providing for the Crown's recognition of self-governing First
Nations of Canada.
Hon. Aurélien Gill: Honourable senators, a few weeks ago, the
Honourable Senator St. Germain introduced Bill S-16.
The senator, like many others in this chamber, pointed out the many
incarnations of government policy over the years. He reviewed the essential
aspects of the Indian Act, the reserve system, the Indian registry and the issue
of treaties and rights, from the Royal Proclamation of 1763 to the Constitution
of 1982. The senator's presentation is invaluable for an understanding of where
we are, but above all to see the direction in which we must go if we want to
break with a past encumbered with paternalism, bad faith and misadministration.
In terms of what needs to be done to truly embark on a new future, I support
what the senator said, but I would like to go still further.
The general intention, honourable senators, as we know and as some of our
colleagues have recalled in this chamber, is the creation of responsible First
Nations self-government. However, more than that, it is important to point out,
and it encapsulates my firm conviction, the essential prerequisite is the
emergence of new and original Aboriginal political institutions in which this
responsible self-government will be conceived.
We must move towards the creation of a permanent representative assembly of
First Nations to ensure that our interests are handled politically within our
nations, coming together in a political forum that does not exist at present.
There is a link missing in the chain. In order to found new institutions, we
need a founding body that belongs to the First Nations themselves.
I am personally convinced that the current Assembly of First Nations must
metamorphose into a kind of political assembly that will hold an estates general
out of which our new political institutions will emerge. This permanent assembly
of the government of the First Nations that our leaders would like to have must
be interpreted, viewed and accepted as part of the inherent rights of our
nations, as provided for in the Constitution of our country.
You cannot make something new out of something old, especially where history
has served us First Nations people so ill. I know that it is difficult to break
with and forget the old ways of thinking. It is unfortunate to see that people
still say ''First Nations'' when they refer to a band, thinking of band
councils, Indian reserves and other similar terms. People in English Canada
often say ''the band.'' It is no longer possible, to the point of becoming
exasperating, to use these old concepts to attain new realities. If the term
''First Nations'' merely replaces the expression ''Indian reserve,'' we are
starting out on the wrong foot.
Accountable government, good governance, self-government, all these new
concepts cannot refer to a band council, even to the concept of a band council.
I know whereof I speak, as I was Chief of the Pointe-Bleue band. This —
wrongly named — political structure has always been, it must be said, an
administrative branch of Indian Affairs in Ottawa, where all the money, all the
power and all the policy were concentrated. Throughout history, these band
councils, created by and described in the Indian Act, isolated, divided and
scattered our peoples in so many small communities.
The federal concept of ''band,'' as defined by the Indian Act and as
administered for generations by a non-Indian bureaucracy, killed the concept of
''nation.'' Because we became bands under the law we were no longer people.
I personally experienced, in the 1970s, the period of taking charge, the era
when the federal government wanted to transfer to the band councils direct
responsibilities for administering services on the Indian reserves. It was a
special present, to put it mildly. The councils were often not ready to receive
these budgets and obligations, and above all the structure was not appropriate —
and it never will be. A band council, in the meaning given to it, is not a
general government. The intention was to make these local agencies of Indian
Affairs the autonomous governments of isolated villages. More recently, things
reached the point where these councils were considered entirely responsible for
their administrative debacle. Facile accusations are levelled at the members of
First Nations that they were responsible for this debacle. They talk of
governance without taking into account the ungovernable.
The band councils did what they could. They dealt with a situation that was
imposed on them. The councils picked up the pieces — as they have always done.
Far be it from me to denigrate band councils in general, but even the best band
councils cannot give what they do not have: a genuine political dimension at the
national level. Nor do they have the legal framework to do so.
I say simply but in all seriousness that our new political institutions must
distance themselves from the existing structures, all of which are related to
this paternalistic, infantilizing federal system. Our communities must
rediscover their identity, their confidence and their political maturity.
Our communities are no longer camps numbered in Ottawa by bureaucrats who,
for so long, were able to get away with not knowing that an Indian reserve had a
cultural affiliation. The autonomous, responsible, accountable government that
we are all seeking is not, therefore, that of a band or a group of bands. We
will all have to relearn how to talk about local communities or groups of
communities, but above all about peoples and nations. The original political
institutions that we are seeking must make reference to the founding nations and
must be applicable to the realities of First Nations. These institutions must
reinvent the notion of local, regional, national and intergovernmental
democracy. Our nations, which have been ignored for centuries, separated by
provincial and territorial borders, buried under structures that do not
recognize them, must be reborn in a country that has done everything,
consciously or unconsciously, to erase them from the map.
How many First Nations are there in Canada? I do not know. The
Erasmus-Dussault report, which examined this question in 1997, estimates that
there are about 50. The mere fact that we no longer know how many there are and
will have to re-establish this is a good indication of the extent of the damage
done to us by government policy over the generations. There are over 600 Indian
reserves; this we do know, but which nations they belong to, we no longer really
know, at least not with any precision. They straddle provincial borders;
sometimes they are extremely small, sometimes big. Each one has its own history,
but they all have in common the Indian Act, assimilation policies and exile in
marginalization. As a result, I believe that, despite wishful thinking, the
efforts made, the rhetoric and the good intentions, the time has come to wipe
the slate clean and start anew.
Honourable senators, for years now governments have been ignoring our
political leaders, considering them more as advisers, consultants or what have
you. Our political leaders do not have any power in Canadian politics. Both
federally and provincially, this is truly absurd, considering how fed up we all
are with consultations, studies and study findings. My colleague Senator St.
Germain has stressed this himself: enough studies, now we need action. From now
on we need political will, along with recognition of the political actions of
the First Nations. What is required, therefore, is innovation, invention and new
political institutions that reflect what we are and what we want to be. This
will not be done overnight. I think we need to encourage the creation of a
permanent First Nations assembly, the general mandate of which would be to
design the appropriate political institutions, tailored to the needs of all the
First Nations of Canada.
This constituent and founding assembly should have all the time required,
years if necessary, and all the resources and means at its disposal to achieve
its goals. It should be absolutely, entirely and fully under the control of our
leaders, whose task it would be to invent the world of tomorrow while meeting
all the challenges there are in our communities. Given the very small extent to
which it has been possible to adapt existing Indian Affairs legislation and
practices, clearly this process would definitively sound the death knell for the
system as we know it. It would ring in a new era. This is a major challenge
because it affects everything. Everything will have to be rethought. Senator St.
Germain's work on Bill S-16 is clear evidence of its complexity and difficulty.
However, I see his proposal as just one example, one model among many, for what
we really need, as I have said, to go back to square one ourselves, without any
reference to the present institutions. This will be quite an undertaking, but do
we have any choice? We must look at the representativeness of the national First
Nations government and the governments of each nation. We must, I repeat, start
with the people, not the bands or communities, and to think in terms of nations.
We need to create these new political institutions and then we would be able to
talk seriously about an Aboriginal government and Aboriginal governments in this
There are the issues of land, resources, revenues, tax bases, public funds,
equalization with the federal government, agreements with the provinces; in
short, issues of financing and viability. There are also all the issues related
to good governance: budgets, public health, culture, social affairs, justice,
public safety, education, economic development and intergovernmental affairs. As
well, there are the Charter, the Constitution and redesigning the Canadian
political landscape, because all of this is happening within today's Canada,
consistent with the Constitution in which our rights are enshrined.
Honourable senators, you can see how ambitious my proposal is. Year in and
year out, for countless years, Aboriginal matters have been costing billions of
dollars, and everyone keeps saying those dollars are badly spent. The
Erasmus-Dussault commission foresaw this. Let us give the money back to those
who are entitled to it, who will make better use of it, that is, a genuine
Aboriginal responsible government, but first and foremost, let us ensure that
such a political institution exists. It will be up to that government, with its
leadership and its various levels, which does not yet exist, to set its own
goals and methods, its priorities and decisions. With such responsible
governments, we will have the ability to take back all our responsibilities. It
is the only way.
For 30 years, we have been moving forward case by case through a costly
process of legal quibbling, nation by nation, sometimes village by village,
which is very unfortunate, but a model is finally taking shape — specific
agreements which each aim at self-government for the nations involved. Rather
than continuing to take each of these steps in isolation, rather than beginning
anew each time, with the pace varying across Canada and no end in sight, let us
do it once and for all, because our rights are not subject to discussion; our
existence has been recognized. There are no further arguments to add.
Of course, I repeat, the last stretch will be the most difficult for
everyone. It is not up to the federal government or any existing government to
build the new Aboriginal political reality; it is up to the First Nations
themselves. No law can miraculously bring about what must take time to develop
under legitimate conditions. It is not the task of the Senate, the House of
Commons, a minister, or even a first minister; it is totally up to the First
Nations. I therefore come back to my proposal: We have to give ourselves the
time, conditions and means to develop new political structures that will enable
us to truly talk about First Nations self-government in this country. These
structures must not, in any way, be the product of existing structures. They
must be designed by the First Nations themselves, the product of a monumental
process over many years, which has not yet taken place. That is why I am talking
about a permanent assembly, or a commission, without a fixed time frame,
mandated to deliver an original proposal. The First Nations, through their
leaders, may well decide on the national forum provided by the Assembly of First
Nations to create this government or an alternative. This is not to take
anything away from the merits of Senator St. Germain's Bill S-16; I simply find
that it does not come from the right authorities.
Furthermore, it does not distinguish itself sufficiently from the traditional
structures that are the heritage of Indian Affairs and the Indian Act.
Lastly, it is up to Aboriginal thinkers, to the leaders of the nations and to
a broad range of minds to agree on a general institution that will ensure a
place for the First Nations in the political landscape of Canada.
We have done everything to achieve a synthesis, whether it be the old
treaties of alliance and friendship, the territorial treaties, the modern
treaties; whether it be the rights of the Metis, the Iroquois, the Nisga'a, the
Inuit or the Malécites, from north to south, from east to west. It is high time
to reunite what should be reunited, to bring together what should be together.
Honourable senators, let me conclude by repeating to you my conviction that
if there were a firm will on the part of the members of this chamber and of the
other place to change radically the way we think and act towards the First
Nations of this country, we could greatly help the First Nations to establish
their own formula of governance, and thus enable these First Nations to emerge
from this marginality, to participate fully in the development of our country.
Hon. Gerry St. Germain: I should like to congratulate Senator Gill
because he brings a host of experience to this subject.
I have a question for Senator Gill. Does he think that this is a first step
towards beginning the debate?
Every giant journey begins with a single step.
Senator Gill speaks of nations instead of bands, et cetera. Could we begin
the debate in committee in this way? Does he consider it important? Does he
think that we have at least a chance of going further if we refer this topic to
committee and continue the discussion?
Senator Gill: Honourable senators, we have always tried to take things
in small steps. We have tried to climb the stairs gradually. One basic element
is missing, and that is the official recognition of institutions or of
Aboriginal citizens as full citizens. As long as the Indian Act exists in its
present form, the First Nations will be considered minors. This is something on
which everyone can agree, in particular those in the legal field.
As long as we do not have official recognition, even if it is not legal or
enshrined in the current legislation, let it at least be enshrined in our heads,
in our minds, in our attitudes, and say that an Indian is not worthless because
he is an Indian.
I am not saying that that is everyone's opinion, but it is the opinion of a
good proportion of the population that an Indian should live on a reserve. You
all know the adjectives that are used to describe them. We have to change our
use of the word ''band,'' which is itself a pejorative term. You talk about ''a
band of wolves,'' ''a band of animals,'' but not ''a band of people'' or ''a
band of Indians.'' It makes no sense. These things have to be changed so that we
can move forward.
We have to give things a huge push, otherwise, the mistakes of the past will
be perpetuated. As a general rule, the efforts that have been made are laudable.
We have to continue taking small steps, but a huge push is what is needed.
Senator St. Germain: Honourable senators, how can we do that? Senator
Gill says that Aboriginal people are minors, but how can we change that
perception? Does it take a duly constituted Aboriginal assembly? Does Senator
Gill have any suggestions?
Senator Gill: Over the holidays, I was invited to speak to a committee
organized by the First Nations. I spoke to my Aboriginal colleagues. I suggested
that this assembly be constituted and that we muster the determination to assert
ourselves in the eyes of Canadians in general.
We must assert ourselves as a nation, as a people, and act accordingly, in
other words, demand that space be created. The First Nations must be told that
this is their home and that they must assume their responsibilities. We have to
It is with the Assembly of First Nations, with the Inuit Assembly, and with
all the existing organizations that, for once, we must make an official
declaration and say that we are full citizens, that it is accepted, that the
necessary spaces will be created and that we will have help to reach our goals
and to become full citizens. Aboriginal people themselves must acquire
institutions capable of governing themselves, asserting themselves in Canada and
contributing to the development of Canada.
Senator St. Germain: If the debate continues on its present course,
there is at least a chance. If we say nothing and do nothing, there will be no
debate and no response.
I understand the importance of what Senator Gill is saying. Lawyers are
costing our Aboriginal peoples millions of dollars. Bill S-16 introduces various
aspects and I wanted to begin the debate, as we are doing now.
I would add that, in my view, people like Senator Gill are the ones who
should take the lead and speak to the assemblies.
Senator Gill: Honourable senators, the people or the representatives
of the Aboriginal leaders could do the same thing. The Assembly of First
Nations, the members, the chiefs and the representatives meet only two or three
times a year, for a few days, to settle the complex problems facing the
Aboriginal nations of this country. This makes no sense.
The Senate, the House of Commons and all the provincial legislatures debate
for months to find solutions to problems. The Aboriginal people do not have that
opportunity. We try to solve the problems in their stead. That is why I am so
reticent and my leader may find me somewhat tiresome.
I would like us to make an effort in the Senate to give the Aboriginal
peoples the opportunity to discuss their affairs in an assembly where they can
suggest solutions, rather than have these come from the initiatives of the
Senate or of the government. That is what I would like.
I am convinced that with this approach — if the means to implement it were
found — solutions could be reached and we would not have the same problems in
ten years that we have today. Someone has to take a stand, so that the
Aboriginal people can have representatives to discuss their affairs. We do not
have this possibility at this point, but I am convinced that the leaders would
accept favourable spaces being created. I guarantee you that we would not have
the same problems in ten years.
Hon. Charlie Watt: Honourable senators, as you can see, the subject
matter brought forward by Senator Gill is not easy to deal with, and the
complexity of the matter requires a great deal of work and attention.
Honourable senators, there is a definite need for local political
development, a definite need for regional political development, a need for
provincial political development and also a need for national political
development within Aboriginal society. This area has been touched upon from time
to time. We have tried many different solutions, such as dealing with the
Constitution back in 1982 and the subsequent Meech Lake and Charlottetown
accords, attempts to get into the grassroots of those areas so we could begin to
raise matters that could be beneficial to Aboriginal people and the country as a
whole. Until now, we have not succeeded. If we continue the way we are going, we
will not succeed. Economically, Canada will be hampered every step of the way.
As I recall, the senator across the aisle mentioned the cultural issue. There
is money in that option, an economic side that has not been examined.
Today, governments are hesitant to talk about sovereignty. Why is that so,
when we all know that we have to share the country? Everyone is afraid to talk
about jurisdiction and powers, just as everyone is afraid to talk about the
national deficit, that is, the deficit in the sense that Aboriginals are the
ones who are being left way behind.
I believe that is what Senator Gill is addressing. Aboriginal people must be
given opportunities. We must not be excluded from the system. The system, in
some way, has to participate in what we do at the local level.
Who is the authority? Where do we seek consent? We have our own political
institutions such as the Assembly of First Nations, ITK, and various regional
organizations which are incorporated under Part II of the Canada Act, not the
Indian Act or any other act. Therefore, those political institutions are not a
political institution per se. The act itself states that they must be
non-political and non-profit. The question is: What are we? We do deal with
political issues from time to time.
Aboriginal people need a genuine political instrument to come at least
halfway to see whether they can survive with their counterparts. That is what
the Aboriginal people are asking for. We are not asking for special treatment.
We are asking for acknowledgment of what is contained in the Constitution. Let
us move ahead and implement that. If we only deal with it on a piecemeal basis,
as we have been doing over the years, we will not get there. We have looked at
the big picture to see what we can do to improve our relations, our economy, and
the social fabric of the people so that we can live harmoniously with one
another and respect can be restored.
Let me give the example that I always use. Under the James Bay and Northern
Quebec Agreement, our ability to be a hospitable people has been taken away. We
cannot give fish or caribou meat to anyone, because it is illegal. Is that
right? I do not think so.
Honourable senators, I would like to go on and talk about those things
because much can be said. We have to talk about the civil law and the common
law. Where do we fit in? How do we transact? We must deal with all of those
Honourable senators, I would ask that the debate be adjourned in my name so
that I may have an opportunity to highlight some of those areas.
Hon. John G. Bryden moved second reading of Bill S-24, to amend the
Criminal Code (cruelty to animals).
He said: Honourable senators, Bill S-24 increases the maximum penalties which
a court may impose for offences under sections 444 to 447 of the Criminal Code
dealing with animal cruelty. Otherwise, the code is unchanged.
Before I go further, I would point out that that is one of the reasons this
booklet containing the bill is constructed in the manner it is. The explanatory
notes on pages 1A and 1B at the back set out the Criminal Code as it is now,
with the penalties as they are now. This makes it easy to compare the changes
proposed by this bill. Only the penalties will change. The sections that create
the offences will remain exactly as they exist and have existed for a long time.
That is a significant point.
These sections and the offences under them have evolved over many years, some
of them from the common law before there even was a code. Undisturbed, these
sections have the great advantage of having been used and interpreted many times
and have left a trail of legal precedents that are accepted by and instructive
to present day judges, enforcement officers, prosecutors and all members of the
public in regulating our treatment of animals.
I have introduced this bill now because of the recent history of this issue.
Over the last three years, Bills C-10, C-10B and C-22 dealing with cruelty to
animals have been introduced into Parliament, and it is likely that a fourth
bill will be introduced in this Parliament.
When each of the bills was introduced, we were told by ministers of justice
and several senior officials from the Department of Justice that the purpose of
the proposed amendments was very limited; namely, to increase the penalties for
existing offences and to simplify and rationalize the existing law.
Ms. Joanne Klineberg, a lawyer with the Criminal Law Policy Section with the
Department of Justice, said:
The main thrust was increasing penalties, but as well there are certain
elements of the existing regime that are complicated and not as clear as they
could be. The other guiding principle was to clarify these things so that
everyone could have a better understanding of what the law actually required.
We were told repeatedly that what is lawful today will be lawful under the
proposed measures in the bill. We were told this, for example, by then Justice
Minister Cauchon on November 20, 2002 and on December 4, 2002 by Mr. Richard
Mosley, then the Assistant Deputy Minister, Criminal Law Policy and Community
Justice Branch, and now a justice with the Federal Court of Canada.
Upon examination, it was the opinion of a number of us in this chamber and of
many expert witnesses who appeared before the Standing Senate Committee on Legal
and Constitutional Affairs that those bills went much further. Those bills made
substantive changes to the criminal law. Even if those changes are appropriate
or indeed necessary, the public policy of those changes was never openly
debated, nor was the impact and implication for the people most directly
affected ever tested. For example, evidence before our committee indicated that
no consultation occurred with Aboriginal peoples, as is required under the
non-derogation clause in the Constitution.
I believe that my bill could achieve the principal objective of the
government while avoiding the problems. To understand why I chose the approach
reflected in my bill, one first needs to understand the problems with the
government's bills. For clarity I will use Bill C-22 as my reference point, the
last such bill introduced by the government in the last Parliament. Like its
predecessors, it moved the sections on cruelty to animals from the Crimes
Against Property part of the code to a new part of the Criminal Code, Part V.1,
entitled ''Cruelty to Animals.'' It then sets out the offences of cruelty to
animals in three main sections.
Honourable senators, a number of us — and a number of witnesses who appeared
before the committee — were concerned about the potential impact of moving these
sections to this newly created part of the code. Professor Ruth Sullivan is an
expert on statutory interpretation, with years of experience teaching statutory
drafting and interpretation at the University of Ottawa Faculty of Law and with
years of drafting experience at the Department of Justice. She testified:
Mr. Chairman, I was invited to address two issues. One is whether moving a
provision from one section of the code to another, or one part of the code to
another, could have legal significance. The short answer is, definitely. Where
you place a provision in a legislative scheme naturally colours its
interpretation.... Moving things from one part of the code to another can make
quite a significant difference.
She later elaborated:
I think of law as being broader than the rules set out in the code. It is
also how they are applied and interpreted. You are signalling that attitude by
moving it to a new section. You are saying, ''We will take a different
attitude towards this.'' Even though the words remain the same, we might
interpret it a little more broadly than we did before.
I should note that Ronald Sklar, a professor of animal law at McGill
University, agreed completely with this statement by Professor Sullivan.
Mr. Gerald Chipeur, a lawyer who specializes in constitutional law and who is
well known to many of us, noted that the new part for cruelty to animals was to
be placed directly after section 182 of the Criminal Code which deals with the
treatment of dead bodies. Mr. Chipeur said:
If I were a judge and wanted to engage in some mischief, I would say that
section 182 deals with dead bodies and that, although dead bodies are not
property, they are not human beings, and so they have some special status
within our society. In placing section 182.1 —
— cruelty to animals —
— and following right after section 182, Parliament was intending to create
some special status for animals that derogates from their former status as
property. I think even Professor Sklar would admit that the intent here is to
upgrade the treatment and status of animals within our society.
Honourable senators, my training as a lawyer ingrained in me the principle of
statutory interpretation that Parliament does not act without a purpose. If we
were to pass an amendment moving these provisions from one part of the Criminal
Code to another, the implication would be that there is a reason. Just as there
are no rights without a remedy, it would not be unreasonable or far-fetched for
someone to argue persuasively that consequences must have been intended to flow
from such a change.
Ms. Bessie Borwein, Special Advisor to the Vice-President of Research at the
University of Western Ontario, has had a great deal of experience with animal
rights groups. She told the committee:
I and all the researchers I know approve of much in the bill and
wholeheartedly support increasing the penalties for wanton cruelty to animals.
However, it is our contention that in order to do this, it is not at all
necessary to move the cruelty to animals provisions out of the property
section in the Criminal Code. The worry that researchers have, and that one
hears so often, is not the bill itself but the context in which we function
and where the bill stands....
I have been following and documenting animal rights extremism for 20 years
— its history of arson, break-ins, vandalism, razor-bladed letters, theft of
research animals, harassment — even at people's homes — costs in dollars,
threats and intimidation. This has become a matter of grave concern for
researchers, in certain domains in particular. Millions of dollars of public
money have been spent on security, which does not further education, research
or patient care....
There are animal rights groups in Canada that have specifically and
publicly stated their intention to use Bill C-10 —
— which is the number it had at the beginning —
— to further their agenda. They say they will use the law to press charges
and to test it to the utmost. They will use peace officers or authorized
organizations like the SPCA or humane societies sympathetic to their cause in
order to press this....
We know there are many bona fide animal welfare organizations, which we
need. However, some of them have been radicalized and taken over by
extremists, and many of them feel vulnerable to that pressure.
Ms. Borwein asked the committee ''to very seriously consider reinstating the
crimes against animals in the property section of the Criminal Code, as it
exists in many jurisdictions.'' She explained:
The move away from animals as property must have ideological meaning in the
animal rights philosophy and mindset because it is part of their campaign to
move animals toward what is called ''personhood.'' In fact, they have written
that this bill heralds the emancipation of animals.
Honourable senators, I cannot stand here and tell you that Ms. Borwein is
right and that by simply moving these provisions to a new part of the Criminal
Code that specifically and expressly addresses cruelty to animals we would be
opening the door to creating a brand new status for animals in our legal system
and inviting claims for animal rights. However, given the testimony of one of
our leading experts on statutory drafting and interpretation, who trained many
drafters in the Department of Justice, and hearing about the on-the-ground
experience of a researcher at a well-known Canadian university, among other
testimony on the issue, doubt was raised in my mind that this may not be a
simple, benign or neutral act. Indeed, the creation of this new part alone may
change the law.
Honourable senators, I will speak to an analysis of the offences as set out
in the previous proposed legislation, Bill C-22. For the first time, the bill
would have included a definition of ''animal.'' Section 182.1 provided that
''animal'' means a ''vertebrate other than a human being.'' This in itself would
seem to broaden the scope of the offences significantly from the existing law.
Section 182.2 of Bill C-22 addresses offences committed wilfully and recklessly.
Most of the offences under this section can be traced back to the existing code.
However, paragraph (c) creates a new criminal offence. Section 182.2
(1) Everyone commits an offence who, wilfully or recklessly,
(c) kills an animal without lawful excuse.
Under the Criminal Code today, it is an offence to, wilfully and without
lawful excuse, kill a dog, bird or animal that is kept for a lawful purpose.
However, wild animals are deliberately not within the spectrum of the offences.
This would be a new offence under our criminal law. Many of us were concerned
about the impact of this provision on those Canadians who hunt or fish lawfully,
under today's law, with valid provincial hunting or fishing licences.
As I said in this chamber on November 4, 2003, the courts have said that the
phrase ''without lawful excuse'' only means that an accident, duress or mistaken
fact are implied by that phrase at common law. The phrase has very little
significance, according to the courts, unless Parliament specifically indicates
that it has a particular meaning. The case law further indicates that the
possession of a permit or licence issued by a provincial government does not
constitute a lawful excuse.
Honourable senators have heard about this a number of times over the history
of these bills, so I will not repeat the case law now. However, no less a court
than the Supreme Court of Canada has held in the Jorgensen case that the
approval of provincial authorities does not constitute a lawful excuse under the
Criminal Code. Indeed, this was admitted by officials from the Department of
Justice. Ms. Klineberg said:
You are absolutely right in your understanding of Jorgensen that the
piece of paper that comes from the province is not, in itself, a legal excuse.
Honourable senators, I listened closely to the testimony from several Justice
officials on this point. They appeared to me to be saying that what is really at
issue are not traditional hunting practices, but vicious or brutal killing. For
example, during an exchange on this issue of whether a provincial statute or
licence would be considered an excuse for the purpose of the provisions of the
bill, Rick Mosley said:
This is aimed not at the type of practice to which the honourable senator
referred but to the cases you have all read about in newspapers in recent
years. For example, someone on the St. Lawrence decided to get rid of an
unwanted dog by bashing it on the head and throwing it into the river.
Virtually every group that has commented on this legislation has agreed
that the existing penalty structure is inadequate for these offences and that
there is a need to provide for longer terms than the present summary
conviction maximum of six months.
This goes to the moral culpability of the individual. With the greatest of
respect, I cannot see how viciously, brutally and without any justification
whatsoever killing an animal in any way accords with traditional hunting or
Honourable senators, I would have no problem whatsoever if the proposed
provisions only had prohibited vicious and brutal killing. My difficulty is
that, as drafted, the section goes much further. Paragraph (c) makes it a
criminal offence to wilfully kill an animal without lawful excuse, period.
Indeed, paragraph 182.2 (1)(b) is the section of Bill C-22 that would
have prohibited vicious and brutal killing. It read:
(1) Everyone commits an offence who wilfully or recklessly
(b) kills an animal or, being the owner, permits an animal to be
killed, brutally or viciously, regardless of whether the animal dies
Honourable senators, the bill already would have made it an offence to kill
an animal brutally or viciously. Why, then, paragraph (c)? Why is it
included? If I were a judge, I would have to say that Parliament intended to
cover something more than brutal or vicious killing. I believe there is a real
possibility that our current hunting and fishing practices would have been at
risk under this bill and, contrary to what we were led to believe, what is
lawful today would not necessarily have continued to be lawful under the bill.
Another section of Bill C-22 that caused me concern was section 182.2(1)(a).
That section would have provided that everyone commits an offence who ''wilfully
or recklessly, causes or, being the owner, permits to be caused unnecessary
pain, suffering or injury to an animal.''
Honourable senators, could someone engaging in ''catch-and-release'' fishing
be said to be wilfully causing unnecessary pain, suffering or injury to a fish?
Remember the definition of ''animal'' includes a fish under this bill. Some
animal rights activists are adamantly opposed to ''catch-and-release'' fishing.
The American organization, People for Ethical Treatment of Animals, or PETA, has
a website — www.FishingHurts.com — where they say, among other things, that:
Catching fish is cruel and unnecessary, whether they are killed on the spot
or thrown back in the water, injured and exhausted.
PETA is an American-based organization, but it has not stopped its activities
at the border. In August 2003, they sponsored a billboard in St. John's urging
people in Newfoundland to stop catching and eating fish. Honourable senators,
after taking on the people of Newfoundland and Labrador and trying to convince
them to stop catching and eating fish, I think a legal challenge to
''catch-and-release'' fishing would look easy indeed.
Senator Rompkey: Can we breathe?
Senator Bryden: We also heard testimony that the bill, as drafted,
could be used to prosecute those engaged in ''catch-and-release'' fishing. In
this regard, Gerald Chipeur stated:
Let me give you a few examples of how the first three subsections of 182.2
could be, and most certainly will be, misused if this amendment is passed as
Fly fishing and other forms of fishing where you have catch and release
would be at risk. I have the most recent Fish Magazine. They encourage
all fishers to release. Catch and release is an important part of stewardship
and maintaining the environment. If you read these sections, it is clear that
if you are fishing for pleasure and you cause harm to that fish by snagging it
with that hook and then throwing the fish back alive, you simply did that for
your own pleasure. There is no lawful excuse for doing that, no excuse that
would stand up in court.
Say goodbye to the Calgary Stampede. No doubt about it. I came from a
program at the Hyatt in Calgary. There was a dog show there. I could not give
an opinion to a dog show that they would not be prosecuted for what they would
He was referring to the passage of this amendment. That comes from the
testimony of the Standing Senate Committee on Legal and Constitutional Affairs,
February 26, 2003.
Again, honourable senators, the main issue for me right now is that the bill
went further than simply increasing penalties and modernizing language. It was
absolutely not clear that what is lawful today would have been lawful under the
bill. My analysis, and that of eminent lawyers in the field, suggest that the
bill would have criminalized certain activities that are lawful and, in fact,
quite common today.
An interesting statistic that I discovered in the course of preparing this
speech is that twice as many people fish as play hockey in Canada. My apologies
to Senator Mahovlich and some others who feel that hockey is our real national
sport. I suspect the figures may be different if one were to speak of watching
the sport on television.
Honourable senators, the more I analyzed the provisions of the proposed
legislation, the more problems I found with them. Professor Gary Trotter, former
prosecutor and now professor of criminal law at Queen's University, appeared in
his personal capacity in front of the Standing Senate Committee on Legal and
Constitutional Affairs. He summed up the situation well:
As I understood it, there were two points to this bill that the Department
of Justice explained. The first was to increase penalties in response to
certain horrendous and publicized events regarding animals. That is a value
judgment made by the department. That is fine.
The problems with this legislation are taken up in the Department of
Justice's second objective, which is to try to simplify and rationalize the
offences. That would seem simple given that there are only a couple of
sections in the Criminal Code with which to tinker.
However, it is not so simple because the Department of Justice had to
negotiate an irony here. We have animal cruelty provisions that operate in an
environment where society accepts a certain amount of killing of animals,
sometimes even for sport. Killing animals is justified in certain
circumstances. We operate in an environment where animals are killed for other
types of greater good reasons.
The Department of Justice has not put forward a package that allows proper
negotiation in this environment. People are entitled to know in advance
whether their acts will be criminalized. In my respectful submission, this
bill is problematic because it does not guarantee that assurance.
I have two more quick quotes from eminent witnesses who spoke of the real
potential that the bill was exposing currently lawful activities to charges of
criminality. The first is from Mr. Seth Weinstein, who appeared on behalf of the
Canadian Council of Criminal Defence Lawyers:
The concern that we have with the proposed legislation is, notwithstanding
the Department of Justice's assurances that what was lawful will remain
lawful, the way in which the legislation is currently drafted. It brings
profound changes that expose both animal-dependent communities and those with
domestic animals to unfounded charges that they would not otherwise be
subjected to under the current legislation.
Finally, Mr. Chipeur again:
We are walking into unknown territory. We do not know where we are going. I
am convinced that those who do not have your goodwill in mind will use this to
abuse their fellow citizens in an unfortunately misguided effort to try to
ensure that there is humanity. We all agree that cruelty to animals is
terrible and the current Criminal Code prohibits such cruelty. That is all you
Honourable senators, I agree. I sat through many hours of hearings on this
issue. I did not hear any examples of acts of cruelty to animals that would not
be caught by the current provisions of the code. We simply do not need to amend
the substantive provisions in order to prosecute the terrible acts that so
horrify all of us.
In my amended bill, we go from almost all the penalties being by summary
conviction with a maximum of six months up to, by indictment, five years in
prison or, on summary conviction, a $10,000 fine and/or six months. Absolutely,
we need stronger penalties. That is what Canadians want and expect. However, it
would be wrong under the guise of a bill to increase penalties and do some minor
housekeeping of language to then significantly change the criminal law. That is
back door legislating, honourable senators, and that is wrong.
The bill I am putting forward today would leave the substantive provisions of
the code intact — ensuring that what is lawful today would continue to be lawful
— but would increase the available penalties to the levels proposed in Bill
C-22. It is short and to the point. My hope is to facilitate an end to the
situation in which we find ourselves, to propose a solution that cuts to the
heart of our real objective in a way that, I hope, we can all support so that
Canadians' real objective — making the punishment better fit these crimes — can
be achieved as quickly as possible.
I hope all honourable senators will join me in supporting this bill.
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. Catherine S. Callbeck: Honourable senators, I would like to bring
your attention to the reports tabled in the Senate by the Chair of the Standing
Senate Committee on Social Affairs, Science and Technology on mental health,
mental illness and addiction.
The committee has learned a great deal about mental illness and addiction
since starting the study. Mental illness and addiction affect one in five over
the course of their lives, ranging from short-term anxiety or crisis to enduring
and serious mental illness.
Those aged 15 to 24 are more likely to be affected than any other group. In
addition, the prevalence of mental disorders among seniors in nursing homes and
long-term facilities is very high. The prevalence of mental disorders among
Aboriginal peoples, homeless people and inmates is much higher than in the
Mental illness can affect people across the country, young and old, from all
walks of life. Mental illness and addiction rank first and second as causes of
disabilities in Canada. It is no surprise that the economic impact of mental
illnesses was estimated to be more than $14 billion in 1998. That is through
direct health care costs like physicians, hospitals and medication, and indirect
costs like lost productivity for long-and short-term disability. In addition,
the cost of substance abuse was estimated to be nearly $9 billion in 1992
through direct health care costs, as well as lost productivity due to illness
and law enforcement.
Individuals with both mental illness and an addiction have specific needs.
Both disorders need to be treated together in an integrated way. Most government
addiction services have now become part of community health and social services
delivery programs. That is the case in my home province of Prince Edward Island.
We are now more aware of the need to integrate alcohol and drug services not
only into the mental health care system, but also into our broader social
Although we have studied the mental health care situation here in Canada, as
well as the progress being made in other countries, there is still considerable
work left to be done. The committee heard over and over again about the very
real challenges facing those suffering from mental illness and addiction, and
The committee's initial findings from these public hearings have been
released as three reports. The first report, entitled Mental Health, Mental
Illness and Addiction: An Overview of Programs and Policies in Canada,
begins with the personal stories of people living with mental illness and
addiction, and their families. The report then examines the current state and
delivery of mental health services and the provision of addiction treatment in
The second report, entitled Mental Health Policies and Programs in
Selected Countries, compares the structure and funding of mental health care
in four countries — Australia, New Zealand, England and the United States — and
points to some important lessons that we can learn from these countries.
The third report, entitled Mental Health, Mental Illness and Addiction:
Issues and Options for Canada, contains a series of questions and options
for action that need to be addressed in order to improve the delivery of mental
health services and addiction treatment.
A number of issues and options are up for discussion. During its first
consultations, the committee heard over and over again about the fragmentation
and the lack of integration in the mental health care system across Canada. Some
collaboration does exist, such as the partnership in Prince Edward Island
between the province and the Canadian Mental Health Association. However, in
many areas nationwide, there are so many different players involved that it is a
very difficult task to get everyone working together and even more difficult to
The whole mental health care system is a complex array of services delivered
through federal, provincial and municipal governments, as well as private
providers and non-governmental organizations. The committee heard that what is
needed is a more seamless transition between each service. This would involve
making sure there is coordination of all the various services and supports
needed by the people living with mental illness or addiction. The person can
then move through treatment and discharge, through to skills enhancement, then
to housing and employment.
There is a desperate need for a patient-centred system that focuses on each
individual's recovery and creates a personalized care plan.
This fragmentation also makes it difficult for care providers to address
those with more complex needs, such as mental health and addiction. They can be
so closely intertwined that both must be addressed simultaneously and require
major intergovernmental and cross-sector action.
With input from the various stakeholders, the committee hopes to offer
recommendations on how mental health services and addiction treatment can best
be integrated and how these can then be integrated into the health care system
as a whole.
The committee was also told that, in addition to intergovernmental
collaboration, Canada needs to develop a comprehensive national plan on mental
health, mental illness and addiction to ensure successful reform and
restructuring nationwide. Some provinces have already focused on reforming the
system, and progress has been made in various places across the country.
However, different provinces and territories are at different stages of reform
in their own systems.
There is a clear need for leadership if Canada is to move forward in ensuring
uniformity and equity in service provision. The committee will investigate the
potential of a national action plan and define the roles and responsibilities of
the various levels of government and organizations involved.
Since the provinces and territories have the major responsibility for the
delivery of services for mental health and addiction in their particular
jurisdictions, a great deal of effort must be devoted to intergovernmental
consultation, partnerships and collaboration in creating a national strategy.
Any consideration of a federal role cannot reduce the primary provincial
responsibility for the design and delivery of programs for individuals with
mental illness and addiction.
Some provinces have already made strides to reform these programs under their
jurisdiction. In 2002, Prince Edward Island released its own model for mental
health service delivery.
Every year in my province, about 4,000 people receive care through
community-based organizations in the mental health system. In addition,
approximately 1,500 more are treated in an institutional setting.
Since the model's release, the province has implemented a number of
initiatives focusing on service and supports for those with persistent and
serious mental disorders. They have begun outreach services and a crisis
response program for those individuals experiencing acute mental distress. They
have also initiated a telemental health service, a 24-hour crisis response line
which provides support and refers clients to P.E.I. mental health programs.
P.E.I. is currently engaged in policy planning and programming for seniors
and children, as well as those individuals suffering from concurrent disorders.
They are working closely with the Canadian Mental Health Association to help
address support needs, such as housing and employment, for those with mental
illnesses. They have also begun work on a suicide prevention plan for the
province. They are clearly making progress.
The committee also heard about the tremendous impact of stigma and
discrimination. For many individuals, stigma can cause as much stress as the
disorder itself. Stigma may discourage people from seeking the treatment they
need, which leads to underfunding of treatment and support services.
Such stigma and discrimination can be so much more damaging in rural or
remote communities. In areas with smaller populations, individuals may be less
likely to come forward to seek the necessary treatments. It may be difficult for
those suffering from mental illness or addiction to admit their need for
assistance. Family and friends may shield the individual, further discouraging
them from seeking treatment.
Combating this kind of stigma and discrimination will require a broad effort
over a long period of time. Other countries, such as Australia and the United
Kingdom, have already implemented some educational programs. In Australia,
journalists are taught about mental disorders, and in the U.K. a group of
affected individuals has been trained to speak to the media.
Canada must do its part to enable those living with mental illness and
addiction to receive the treatment they require without adding the strain of
stigma. We must ensure that consumers are able to access services such as
housing, employment and education without fear of discrimination due to their
The goal of the committee's study is to make a real difference in the range,
quality and organization of mental health and addiction services in Canada.
Although improvements have been made, we must ensure such programs and services
are available to all Canadians across the country. Collaborating with various
levels of government, the Government of Canada will be able to create a plan for
reforming and restructuring mental health services in this country. I believe
that by working together we can make a difference in the lives of the tens of
thousands of Canadians who are living with mental illness or addiction in their
The Hon. the Speaker pro tempore: If no other senator
wishes to speak, this matter will be considered debated.
Resuming debate on the motion of the Honourable Senator Kinsella seconded
by the Honourable Senator Stratton:
That the Senate urge the government to reduce personal income taxes for low
and modest income earners;
That the Senate urge the government to stop overcharging Canadian employees
and reduce Employment Insurance rates so that annual program revenues will no
longer substantially exceed annual program expenditures;
That the Senate urge the government in each budget henceforth to target an
amount for debt reduction of not less than 2/7 of the net revenue expected to
be raised by the federal Goods and Services Tax; and
That a message be sent to the House of Commons requesting that House to
unite with the Senate for the above purpose. —(Honourable Senator Austin,
Hon. Terry Stratton (Deputy Leader of the Opposition): Honourable
senators, I am pleased to have this opportunity to speak to the motion before
the Senate. In particular, I will focus on urging the government to reduce
personal income taxes for lower- and modest-income Canadians.
I also want to thank Senator Kinsella for putting this motion before the
Senate, as it will allow us to debate the issue of alleviating the tax burden on
I will start with some figures from the Fraser Institute so that we may have
a clear picture of the current tax situation in Canada. Taxes in this country
are at an all-time high. If you think you are paying more and more in taxes each
year, you are right. The total tax bill of the average Canadian family has
increased by 1,550 per cent since 1961.
Back then, the average Canadian family income was $5,000, and the tax bill
for that family was just over $1,500, or one third of its income. By 2003, the
average family income had risen to almost $60,000, but the total amount of taxes
paid is almost $30,000, or one-half of the family income.
Honourable senators, the reality is that just about half of what Canadian
families earned last year went to taxes. Half of their paycheques were gobbled
up by their massive governments, not just in income tax, the one we all like to
think about, but also in EI premiums, CPP premiums, property taxes, sales and
excise taxes, motor vehicle taxes and so on.
The C.D. Howe Institute tells us that each year the federal and provincial
governments together collect some $475 billion in revenue, a figure that
translates into almost $16,000 for every man, woman and child. That works out to
$64,000 for a family of four paid out every year. That is more than what some
families are even able to earn in a year.
This is a burden that is too much for anyone to bear, especially when our
government is looking for ways to spend its $9 billion surplus this year.
This burden is greatest on those who can least afford these taxes, low- and
modest-income Canadians. This is where we need to focus our efforts the most.
The Canadian Chamber of Commerce suggested this very step in its pre-budget
submission this year, stating:
More needs to be done in terms of providing tax relief for low- and
modest-income earners, especially families earning between $25,000 and $35,000
annually, who see many of the public transfers they receive (including child
tax benefits, the GST and provincial sales and property tax credits, student
financial assistance and social welfare) clawed back as income rises.
Honourable senators, including clawbacks, the marginal tax rate these people
face is over 60 per cent and in some cases as much as 80 per cent, which is more
than the rate facing Canada's highest earners. Taxing people at this income
level discourages working and saving to improve their situation. Frankly, it is
just not fair.
I agree we need to continue our fight to bring down the debt, but heavy taxes
are not the way to go. They are strangling us. These numbers are staggering and,
frankly, Canadian families cannot continue to fork over half their income each
year. These taxes prevent Canadians from spending money where they need to, such
as on food, shelter and education. These taxes stop them from saving for their
future and investing in their children's future.
The time has come to cut taxes and lift this burden off the backs of
Canadians. Only by doing this can we give the men and women of this country
breathing space and allow them to put their money where they want it to go,
instead of to the big black government box.
Cutting taxes in this way will also benefit the government. Last June, in a
letter to the minister, the Vancouver Board of Trade wrote:
Decreasing taxes encourages Canadians to work, save and invest, and will
allow the economy to grow at a greater rate and provide additional funding for
Canada's important social programs.
Tax cuts do not stop the flow of money into the government purse. It is quite
the opposite. Tax cuts give Canadians more money to invest and that investment
increases the government's tax base and the taxes they can pull in.
The bottom line is that tax cuts ultimately mean more tax revenue. Of course,
individuals are not the only ones bearing the costs of taxes. Companies pay them
as well and business taxes take a heavy toll in this country by increasing the
cost of doing business and making it harder for Canadian firms to compete with
those that pay fewer taxes.
According to an OECD report released in October, Canadians have a heavier tax
burden than people from either of the other countries in NAFTA. In particular,
our tax burden ''remains high relative to the United States,'' which they refer
to as our greatest economic competitor for investment capital and skilled
While our corporate tax rate is lower than that of the United States, we have
a higher effective tax rate on capital because of capital taxes, which are rare
in the United States, and unfavourable depreciation and inventory cost
deductions compared to the U.S.
The already wide gap between taxes paid in Canada and those paid in the U.S.
will only get worse. When the Canadian Council of Chief Executives spoke to the
House of Commons Standing Committee on Finance in November, they pointed out
While Canada's statutory corporate income tax rate is now marginally lower
than that of the United States, the effective tax rate faced by companies is
Furthermore, they said:
Further tax cuts in the United States are very much on President George W.
Bush's agenda for the second term.
We have seen that already in his recent State of the Union address.
The tax gap will only get worse. This tax gap hamstrings Canadian companies
as they try to compete against our trading partners. The winner is the other guy
because he does not pay the taxes that Canadians do.
We do not compete just against Americans. We compete with countries around
the world, but even there we are knocked down time and again by our own heavy
High taxes cut into investment in Canadian firms. According to the most
recent information from the OECD, in 2001, taxes on personal income represented
13 per cent of Canada's gross domestic product, the highest percentage of any G7
country. As a result, we are not getting our share of North American job
creating investment. The Canadian Chamber of Commerce in its pre-budget
Canada's tax treatment of depreciation, inventory costs and the general
absence of capital taxes in the United States puts Canadian investment
projects at a significant disadvantage.
This lack of investment translates into lower productivity which leads to
fewer jobs, a lower standard of living, a shrinking tax base and less money for
the government. Can this happen? It already has. The numbers show it. According
to the C.D. Howe Institute, Canada's business investment has been falling
steadily relative to GDP for 20 years. Look at how far we have fallen. Canada is
now fourteenth in per capita research spending of the top 15 industrialized
nations. Our productivity is plummeting compared to that of the other OECD
nations. We have gone from sixth place in the world competitiveness ranking in
1997 to ninth place in 2001 and fifteenth in 2004; from six, to nine, to 15 in a
simple span of about seven years. According to the World Competitiveness
Yearbook, Canada has the fourth highest corporate tax rate of the 60
economic jurisdictions that it measured. This tax grab does not result in a lot
of money as we rank only thirty-third in terms of corporate tax revenue as a
share of the economy.
High taxes lead to less investment which results in fewer jobs, lower
productivity and ultimately, less tax revenues. The time has come to cut taxes.
Cutting taxes encourages companies to come to Canada and set up shop. The
Canadian Council of Chief Executives told the government on November 4, 2004:
Low corporate tax rates do more than accelerate growth by encouraging
business investment. They also attract more companies that make more money and
at the end of the day generate more revenue for governments.
If we do not cut taxes, businesses may be driven south. A National Post
editorial of November 17, 2004 said:
With taxes already much lower in the United States and George W. Bush is
cutting them further still in his second mandate, businesses will be drawn
south of the border if our rates aren't made more competitive — especially
since we can no longer rely on the advantage of a low Canadian dollar.
The Post went on to advise: ''Rather than waiting until our economic
growth slows, the government should act now to lower corporate taxes.''
The time has come to cut taxes. The C.D. Howe Institute in a speech to the
Economic Club of Toronto, September 20, 2004 said:
High rates substantially erode Canada's competitiveness by discouraging
people from working, investing in capital and up-to-date technologies and
taking on risk. Recent economic studies have largely come to the same
conclusion — a country's tax levels strongly influence its people's economic
The time has come to cut taxes, but with all this evidence, it does not look
like Paul Martin is even considering tax cuts. He wants to spend the surplus on
his pet projects and if there is something left over maybe, and that is a big
maybe, Canadians will get a tax break and get some of their money returned to
This is the wrong way to go. Listen to what the Canadian Chamber of Commerce
in its pre-budget submission on November 2004 said:
A tax system that unleashes the creative forces of the economy and improves
the incentives to work, save and invest is necessary to provide a framework
for prosperity....Most industrial countries have pursued tax reforms to ensure
that their jurisdiction remains an attractive location for both individuals
and businesses. Canada must do the same.
Low- and modest-income Canadians cannot afford the current level of taxation.
Canadian companies cannot afford the current level of taxation. We cannot afford
to drive companies and investment dollars away. We cannot afford to let our
productivity freefall and take our standard of living down with it. It is time
to cut taxes now.
Resuming debate on the motion of the Honourable Senator Lavigne, seconded
by the Honourable Senator Robichaud, P.C.,
That the Rules of the Senate be amended by adding after rule 135 the
135.1 Every Senator shall, after taking his or her Seat, take and
subscribe an oath of allegiance to Canada, in the following form, before the
Speaker or a person authorized to take the oath:
I, (full name of the Senator), do swear (or solemnly affirm)
that I will be faithful and bear true allegiance to Canada.
Hon. Eymard G. Corbin: Honourable senators, I have done a lot of
reading and research and I deliberated for a long time before deciding to speak
today. The motion of Senator Lavigne, you will recall, asks that a paragraph be
added to rule 135. Rule 135.1 would read as follows:
Every Senator shall, after taking his or her Seat, take and subscribe an
oath of allegiance to Canada, in the following form, before the Speaker or a
person authorized to take the oath:
The proposed text of the oath is:
I, (full name of the Senator), do swear (or solemnly affirm)
that I will be faithful and bear true allegiance to Canada.
If I had not already sworn allegiance, I could not rise today to speak in
this place. I must admit that, basically, I am rather indifferent to taking the
oath — whether to the Queen or to Canada — because it is something imposed upon
me. I do not like impositions, whatever they may be. I am not a great one for
symbols. Anyone wanting to question my sincerity or loyalty is free to do so. I
do not feel I have to prove my loyalty to the Queen in right of Canada, my love
of this country, or my respect for my forebears and all that Canada represents.
On the other hand, I am perfectly prepared to support the Constitution of
Canada, the Charter of Rights and Freedoms and everything connected with them.
Therefore, my remarks are in this vein. I will begin by reminding honourable
senators of the oath of allegiance we all have taken, which is proposed by the
Constitution and found as the Fifth Schedule of the Constitution Acts of 1867
Oath of Allegiance
I, Eymard G. Corbin, do swear, That I will be faithful and bear true
Allegiance to Her Majesty Queen Elizabeth II.
That is what was used for me and for most of you.
In my research, I consulted just about every dictionary in my collection. I
am an aficionado of dictionaries. I look through dictionaries from morning to
night; when I am home, I go back and forth between my desk and the table. When I
am not sure about the meaning of words used by my honourable colleagues in their
speeches, I like to understand what the words meant. I especially like checking
the root of the words, getting into semantics. I am not qualified to do so, but
I have a natural predisposition because of my classical studies background, and
I must admit that I enjoy it with a passion. I realize this is not likely to
bring applause, but that is how I am.
It occurred to me to check not only dictionaries, but also texts, to see how
the word ''oath'' had evolved over the history of humanity. I did not go back to
the dawn of time — I do not have the training required — but I started with the
Bible. I found a concordance of the Jerusalem Bible, and looked under ''oath''.
Just about every book of the Bible has a reference to oath.
What amazed me the most, however, and refreshed my memory at the same time,
because I have read the Bible several times, was the fact that oaths were not
only sworn to God, but that God, or Yahweh, Himself had sworn oaths, had made
commitments to His people — unheard of, in a way, but it was said eons ago, in
sacred texts. I could quote in passing, from Deuteronomy, chapter 1, verse 8:
[the land] that Yahweh swore to give to your fathers,
In chapter 11 of the same book, verse 9:
in the land that Yahweh swore to give to your fathers —
There is something like a column and a quarter of references to the word
''oath'' in the Bible.
I took out my Latin pocket dictionary, which I have been carrying with me
since my versification year. I looked under ''sacramentum,'' or ''solemn
oath.'' According to the Romans, ''sacramentum'' involved putting a
matter in dispute into the hands of the pontiff — in other words, a priest — or
putting up money as a stake, paid by those who lost in a trial.
Second, it can mean a civil proceeding, justo sacramento coniendere eum
aliquo, to give someone due process — literally and figuratively. Third, it
can mean a military oath, enrolment — dicere aliqui: to swear an oath, to
swear allegiance. ''Sacramentum'' also means ''oath, commitment,
In my library I have a book entitled Les mots de l'histoire, or words
in history; it is quite a thick book, which provides me with excellent bedtime
reading. It contains thousands of references to historical situations and
With reference to ''oath,'' I found the following. I think it is something we
should remember in this debate:
Elizabeth II — our Queen — this oath by which the sovereign promises to
govern in the name of the law is the essential moment in the British
Coronation. It is a contract between the monarch and the people. Two English
kings, Edward II and Richard II, lost the throne because they violated this
oath which made them constitutional monarchs.
The ritual established by Saint Dunstan for the coronation of King Edgar in
Bath in 959 has been retained in its entirety. The oath sworn by the king of
France, Charles X, at Rheims in 1825, was taken from the mandatum regis
of King Edgar — very nearly the same oath as the English one.
Queen Elizabeth took the oath at her coronation on June 2, 1945.
The Archbishop of Westminster solemnly asked her if she was willing to take
the oath. She answered:
I am willing.
The Archbishop then asked:
Will you solemnly promise and swear to govern the Peoples of the United
Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand
and the Union of South Africa, Pakistan and Ceylon...
That was the situation in history at that time. I continue:
...and of your Possessions and the other Territories to any of them
belonging or pertaining, according to their respective laws and customs?
To which the Queen answered:
I solemnly promise so to do.
The Archbishop next asked:
Will you to your power cause Law and Justice, in Mercy, to be executed in
all your judgements?
The Queen responded:
Next came questions concerning the Church.
Will you to the utmost of your power maintain in the United Kingdom the
Protestant Reformed Religion established by law?
Will you maintain and preserve the doctrine, worship, discipline, and
government of the Church of England? Will you preserve all such rights and
privileges as by law do or shall appertain to the Bishops and Clergy of the
Church of England?
Having answered in the affirmative, the Queen proceeded to the altar, placed
her right hand on the Bible and said:
The things which I have here promised, I will perform, and keep. So help me
She kissed the book, signed the oath and returned to her chair. At that point
began the ceremony which would make her Queen.
That is the legal source for our own oath of allegiance to Queen Elizabeth II
when we are called to the Senate. It is founded in the law, on the observance
and respect of the law, of the peoples who come under the authority of the
It is not a question of love; it is not a matter of sentiment. It is
something that is legally established, and that is what we are committing
ourselves to when we take the oath of allegiance. We are a link in the
continuing chain of legal authority giving rise to a Parliament in Canada, to
senators, to members of Parliament and to the whole public service that flows
I told you that I was very much at ease in taking the oath of allegiance to
Queen Elizabeth II. It follows logically in the continuous line represented by
the right of Parliament.
I listened with much attention and great interest to the remarks of Senator
Lavigne, the sponsor of this proposal. I listened to Senator Carstairs, and to
my friend Senator Robichaud. I noted their comments and questions. I concluded
that what motivated the sponsor of this proposal and my colleagues was not
really a desire to ensure a kind of legal continuity, or to impose an obligation
of respect; rather, it was an overflowing of love for what Canada represents. I
would be the last person to object to that. I, too, love my country. It is as
simple as that.
However, is it necessary, by means of a new oath, to affirm what, in my
opinion, is already contained in our oath of allegiance to the Crown? If it
could generate some enthusiasm, if it might renew our pride in being part of
this country, I would gladly take such an oath, but I do not believe that this
kind of feeling can be dictated. There are too many things we are being told to
do these days. In the name of security, we are subject to intensive searches
before boarding an airplane; we are asked to make detours to be recognized by a
mounted police officer. New codes of ethics are being imposed on us when there
already exist ample provisions in the Constitution and the rules that govern us
to deal with all these eventualities. That is my opinion.
As I read the text today, I am being asked to accept the taking of a second
oath. I must tell you that idea does not appeal to me very much. However, I will
not be the one to interfere with those who want to proceed in that way. I
understand that there may be good reasons. I realize that there are still some
tensions in Canada.
Surely I have not used up my time. I would like to try to finish my remarks.
The Hon. the Speaker pro tempore: Honourable senators,
is leave granted the honourable senator to complete his remarks?
Hon. Senators: Agreed.
Senator Corbin: I would simply like to say that I feel comfortable
with the current provisions of the taking of the oath. It was with some
trepidation that I rose to speak, knowing that Senator Joyal will follow me. It
goes without saying that he is an expert in constitutional matters.
I quickly wanted to refresh my memory on the procedure for amending the
Constitution of Canada. The oath is imposed on us by the Constitution. In
Section 44 of the Constitution Acts 1867 to 1982, I quote:
Subject to sections 41 and 42, Parliament may exclusively make laws
amending the Constitution of Canada in relation to the executive government of
Canada or the Senate and House of Commons.
If you wish to add an oath, I suggest that you follow the royal road. There
is already a provision, there is already a text. If you wish to feel more
comfortable, in order to more eloquently express or more solemnly declare your
love and your commitment to Canada in public, I suggest that you should bring
forward an amendment to change the form that is contained in the constitutional
I would have liked to say a few words about the Republic of Madawaska because
an honourable senator had mentioned this republic, but I will save it for
another day, especially since the senator is absent.
The subject is the love of one's country. I do not question the deep love of
Senator Lavigne, a strong federalist. I want to read a translation from Spanish,
a poem by Jorge Luis Borges, the famous Argentine poet, who passed away a number
of years ago. When I read this ode for the first time, it gave me the shivers.
Never before had I been deeply moved by the expression of what it means to love
Ode Written in 1966 is the title.
No one is the homeland. Not even the rider
High in the dawn in the empty square,
Who guides a bronze steed through time,
Nor those others who look out from marble,
Nor those who squandered their martial ash
Over the plains of America
Or left a verse or an exploit
Or the memory of a life fulfilled
In the careful exercise of their duties.
No one is the homeland. Nor are the symbols.
No one is the homeland.
Not even time
Laden with battles, swords, exile after exile,
And with the slow peopling of regions
Stretching into the dawn and the sunset,
And with faces growing older
In the darkening mirrors,
And with anonymous agonies endured
All night until daybreak,
And with the cobweb of rain
Over black gardens.
The homeland, friends, is a continuous act
As the world is continuous. (If the Eternal
Spectator were to cease for one instant
To dream us, the white sudden lightning
Of his oblivion would burn us up.)
No one is the homeland, but we should all
Be worthy of that ancient oath
Which those gentlemen swore —
To be something they didn't know, to be Argentines;
To be what they would be by virtue
Of the oath taken in that old house.
We are the future of those men.
The justification of those dead.
Our duty is the glorious burden
Bequeathed to our shadow by those shadows;
It is ours to save.
No one is the homeland — it is all of us.
May that clear, mysterious fire burn
Without ceasing, in my breast and yours.
That is enough for me, thank you.
Hon. Serge Joyal: Honourable senators, I rise to speak to the motion
of Senator Lavigne, which aims to serve an objective that we share, namely, to
recognize the importance of our country and our dedication to the service of
Canada. Those were the intentions expressed by Senator Lavigne when he
introduced his motion.
As always, the devil is in the detail. Senator Lavigne's proposal is
essentially that we add a new oath of allegiance. It states:
Every Senator shall, after taking his or her Seat, take and subscribe an
oath of allegiance to Canada, in the following form, before the Speaker or a
person authorized to take the oath:
I, (full name of the Senator), do swear (or solemnly affirm)
that I will be faithful and bear true allegiance to Canada.
The text of Senator Lavigne's motion is essentially the text in Schedule 5 of
the Constitution. Senator Corbin has quoted from it as follows:
I...do swear, That I will be faithful and bear true Allegiance to Her
Majesty Queen Victoria.
In his proposal, Senator Lavigne has removed ''to Her Majesty Queen
Victoria'' or ''Queen Elizabeth II'' and replaced it with ''true allegiance to
To understand the implications of what we have been asked to do today, the
first thing to say is that each word in an oath counts. What is an oath, what is
allegiance and what is Canada? This will become the text of an oath, and if one
fails to abide by the oath, there are consequences. It is not just a polite
formula or a greeting; it is an oath.
I have searched Canadian legislation for oaths of allegiance. We have an
Oaths of Allegiance Act, adopted in 1985, that prescribes a form for the oath.
The text of that oath reads as follows:
I, ...................., do swear that I will be faithful and bear true
allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her
Heirs and Successors. So help me God.
There is already an act entitled ''Oaths of Allegiance'' that defines
allegiance. Allegiance is to the sovereign, to the head of state. The head of
state in Canada, according to the Oaths of Allegiance Act, is Her Majesty
Elizabeth II, Queen of Canada.
In the Citizenship Act there is an oath that new citizens must take. It
I swear (or affirm) that I will be faithful and bear true allegiance to Her
Majesty Queen Elizabeth the Second, Queen of Canada...
It is quite clear from the text of the Constitution, the Oaths of Allegiance
Act and the Citizenship Act that when we, in Canada, say ''oath of allegiance,''
we mean oath of allegiance to the head of state of Canada.
Senator Corbin spoke about the definition of an oath. I will not quote the
reference in the Bible, as Senator Corbin did, but rather Jowitt's Dictionary
of English Law, because we are dealing here with law. I do not question the
appropriateness of referring to holy scripture. That is important because
statute law usually comes from the holy scripture of 2,000 years ago, through
the evolution of Roman law and canon law.
Jowitt's Dictionary of English Law says that an oath is an appeal to
God or to a sacred trust to witness the truth of a statement. It is called a
promissory oath when it relates not to past evidence but to an intention to do
something in the future.
Of course, when we swear true allegiance to Her Majesty the Queen of Canada,
it is not because we, as in court, take it upon ourselves to tell the truth.
That is past evidence. Rather, it relates to an intention to do something in the
future, and we take God, or a sacred trust, as the testimony of our pledge.
Of course, in the Christian religion the corollary is that if we fail to
observe the oath, we will incur the wrath of God. That is essentially what it
means. That is why the oath was originally a religious initiative. Now, of
course, it is a civil initiative, which is clearly stated in the Constitution,
in the Citizenship Act and in the Oath of Allegiance Act. It is important to
understand the meaning of the words ''oath'' and ''allegiance.'' What is
allegiance? The text proposed by Senator Lavigne to take an oath of allegiance
to Canada is as follows: ''I do swear that I will be faithful and bear true
allegiance to Canada.'' What is the meaning of ''allegiance''? If I swear
allegiance, what does that mean? If I look at the same English dictionary of
law, under ''allegiance'' it states that allegiance is by statute, due to the
sovereign, and the subjects are bound to serve in war against every rebellion
power that might rear against the sovereign, and are protected in so doing from
a tender of high treason and from all forfeitures and penalties. The same source
states that allegiance is a thing to which there are two parties: the sovereign
and the subject. Lord Cook said that allegiance is the mutual bond and
obligation between the king and his subjects whereby subjects are called to his
liege. They are called ''subjects,'' and he is called their ''liege lord''
because he should maintain and defend them.
Allegiance is a two-sided obligation according to those definitions. What is
allegiance in our statutes? If I am called to swear allegiance to something, I
want to understand the responsibility of such an undertaking as pledging
allegiance to Canada. Those are the last three words of the oath that Senator
Lavigne is proposing. What is Canada? That is a simple question to answer but,
as I said, the devil is in the details.
Senator Cools: We could have two Canadas.
Senator Joyal: I know that I have triggered Senator Cools' response
but these aspects are important, so I will finish.
Honourable senators, let us look to section 35 of the Interpretation Act,
In every enactment...
''Canada'', for greater certainty, includes the internal waters of Canada
and the territorial sea of Canada;
That means ''the territory.'' The English version of our national anthem
states: ''O Canada! Our home and native land!'' The French version states: ''O
Canada! Terre de nos aïeux...'' If one were to pledge allegiance to Canada in
the way that Senator Lavigne is proposing, there would be the bond between the
sovereign and the subject, and vice versa, and there would be the bond to the
land — not to Canada, the Constitution; not to Canada, the Charter of Rights and
Freedoms; and not to Canada, the Statutes of Canada. Essentially, there would be
an allegiance to the land. That is literally and legally what it means.
One might say that I am nitpicking legally but, honourable senators, this is
extremely important because it deals with our oath of allegiance. All senators
in this chamber today are here for a specific reason: because Her Majesty,
Elizabeth II, has summoned them, as individuals and as citizens. I quote the
summons that senators receive:
Know you, that as well for the especial trust and confidence We have
manifested in you, as for the purpose of obtaining your advice and assistance
in all weighty and arduous affairs which may the State and Defence of Canada
concern, We have thought fit to summon you to the Senate of Canada...
That means that the Queen of Canada has ordered you to come here and give
your advice and your consent to her, because section 17 of the Constitution
There shall be One Parliament for Canada, consisting of the Queen, an Upper
House styled the Senate, and the House of Commons.
The Queen is part of this chamber. The Queen has requested that you come
here, to leave everything aside and to give your advice and your consent to the
legislation. Before you sit in your seat, you have to pledge personal allegiance
to the Queen because she requested that you give your advice to her because she
is one part of Parliament.
When we touch on those details, honourable senators, and approach those
issues, it is much more complex than one would be tempted to think at first
sight. Of course, as Senator Corbin said, I do not mind this and I do not mind
the institution. However, we must understand from whence it comes. Senator
Corbin has described it well, historically and into the future.
The next question is: Where do we want to go? Honourable senators, I have
looked into the status of the oath in other jurisdictions of the Commonwealth
that are under the head of state representing by Her Majesty. I was astonished
to find that two institutions, Quebec and Nunavut, have adopted a second oath to
follow the first oath of allegiance. I want this information on the record
because, as I said, this is a complex set of issues. If we are to move on this,
and I hope the committee will study the matter, there will be implications.
In Quebec, in addition to taking the oath of allegiance to Her Majesty
prescribed in the Constitution Act, 1867, to which I just referred, a member
must also take the following oath:
I declare under oath that I will be loyal to the people of Quebec and that
I will perform the duties of members honestly and justly in conformity with
the Constitution of Quebec.
That is what we call an ''oath of office,'' whereby one pledges to perform
one's duties to the best of one's knowledge. I would like to quote the Oath of
Allegiance Act that clearly recognizes the oath of office. An oath of office is
not an oath of allegiance. An oath of allegiance, as I mentioned, is directed to
the head of state. An oath of office is the responsibility undertaken by someone
to exercise his or her duties to the best of his or her knowledge, or in other
words, to perform those duties within the framework of the statutes and
regulations that govern the responsibility or the duty.
That is the second oath taken by legislative members in Quebec.
The Hon. the Speaker pro tempore: Honourable senator,
your time is up. Do you seek leave to continue?
Senator Joyal: Yes.
The Hon. the Speaker pro tempore: Is it agreed,
Hon. Senators: Agreed.
Senator Joyal: In Nunavut, there is a second oath as well, which
essentially states that members will duly and faithfully and to the best of
their skill and knowledge execute the power and trust reposed in them as members
of the legislative assembly. That too is an oath of office.
I have considered the situation in the United States and in India, which are
both republics, of course. The country to the south of us has an oath. When
someone enters into his or her duty as a senator in the American Senate, that
person must take an oath of allegiance. It reads as follows:
I do solemnly swear and affirm that I will support and defend the
Constitution of the United States against all enemies, foreign and domestic,
that I will bear true faith and allegiance to the same.
What is it? It is allegiance to the Constitution of the United States. In
other words, you cannot have two allegiances. You have allegiance to either the
head of state or you have allegiance to what is the body of law that governs the
country, the United States.
I have also considered the most interesting example to be found in India. The
oath in India reads as follows:
I,.................... having been elected (or nominated) a member of the
Council of States (or the House of the People) do swear in the name of
God/solemnly affirm that I will bear true faith and allegiance to the
Constitution of India as by law established, that I will uphold the
sovereignty and integrity of India and that I will faithfully discharge the
duty upon which I am about to enter.
There are two parts to the oath of India. There is an oath of allegiance to
the Constitution and an oath of office that you will do your best in performing
Honourable senators, I wanted to draw your attention to those aspects of the
proposal put forward by Senator Lavigne, because I think that he has, in fact,
done us a service by raising this issue. I think it will help us to reflect on
the structure of our chamber and on the status of individual senators and how we
should frame an oath to serve our country.
The question raised by Senator Lavigne is not dispelled by the comment I made
today. I would just say that the words used by Senator Lavigne, to me, are in
conflict with the constitutional concepts that are entrenched in our system of
law in Canada.
The purpose of his proposal is a valid one, but we must be sure that we use
the correct words because, in moving forward and adding a second oath, we must
not contradict the objective of the first oath. We cannot duplicate the
allegiance of the first oath. There is only one allegiance. That is clear
throughout the world.
I would invite honourable senators to peruse the constitutions of the
Commonwealth countries or other countries. You will realize that allegiance is
due only to one entity. It cannot be split in two.
As Senator Corbin properly said, as long as we do not amend The Fifth
Schedule of the Constitution Act, 1867 and the Constitution Act, 1982, we are
bound to respect the concept entrenched in the Constitution. If we were to
change that, that would be another matter. That is an avenue other than the one
proposed by Senator Lavigne. However, if we were to accept the proposition put
forward by Senator Lavigne, which is the recognition of the dedication of a
senator to serve Canada, to fight for Canada, to maintain the integrity of
Canada as he did through referendums on at least two occasions, then that, I
believe, would require different wording. Fundamentally, we must have a clear
perception of what we are doing. They seem innocuous, but in fact the concepts
entrenched in those initiatives are complex and we do not want to adopt a
proposal that would not be enforceable in court. At the end of the day, if you
fail to abide by your oath, you are open to the justice of the courts. I am sure
that each and every individual senator will want to do the right thing at the
Hon. Raymond Lavigne: There is one question I would like to ask of
Senator Joyal. If we look at rule 135, with all due respect to Senator Joyal,
who is a lawyer, I would point out to him that there is no mention of the Queen
of Canada. It merely gives Queen Elizabeth II. When I was sworn in, I did not
swear allegiance to my country of Canada, but to Queen Elizabeth II only.
I do not propose to open up the Constitution but the proposal is to add 135.1
after rule 135, which would be about swearing allegiance to our country, Canada.
It is no more than an act of loyalty to say one belongs to a country. People I
run into ask me why I have sworn allegiance to the Queen and not to my country.
I am asked that a lot.
If there are problems about what one can be within this country, it is
probably because the word ''Canada'' does not appear anywhere. I understand
Senator Joyal's reference to Queen Elizabeth II of Canada, but when it comes to
swearing allegiance to Queen Elizabeth II of Canada, I swear allegiance to Queen
Elizabeth II or Queen Victoria, not to the Queen of Canada. That is what I
wished to change.
Senator Joyal: The issue that Senator Lavigne is raising is
interesting, but it is already the subject of an act, namely the Royal Style and
Titles Act of 1953. This act states clearly that Queen Elizabeth II is the Queen
of Canada. If you look at the text of the Royal Style and Titles Act of Canada,
you will see that Queen Elizabeth II, or her successor, will always have the
title of Queen of Canada or King of Canada.
The Constitution provides that we take a personal oath of allegiance to the
Queen, as in the wording of that oath in The Fifth Schedule of the Constitution.
That schedule essentially gives effect to the summons that you received from the
Queen. Again, the summons by the Queen is worded as follows:
... Elizabeth II, by the Grace of God, of the United Kingdom, Canada, and
Her Other Realms and Territories, Queen, Head of the Commonwealth, Defender of
The person who summoned you here is Queen Elizabeth II who, by the grace of
God, is the Queen of the United Kingdom and the Queen of Canada. It is the very
wording of the summons that you received. When you take your oath of allegiance,
it is to the Queen personally. That queen is, under the Royal Style and Titles,
the Queen of Canada. There is no confusion as to the identity and capacity of
the person when you take the oath of allegiance provided in The Fifth Schedule
of the Constitution.
Senator Lavigne: Honourable senators, people on the street, ordinary
citizens, do not have Senator Joyal's ability to understand that Queen Elizabeth
II is the Queen of Canada. I am convinced that when you talk about Queen
Elizabeth II, these people think that you are talking about the Queen of
England, not the Queen of Canada. People want to see a reference to our country,
Canada, in the oath of allegiance. This is the message that I want to convey to
Senator Joyal: I do not Senator Lavigne to get me wrong. I am not
opposed to his proposed objective. I am simply saying that, when drafting the
text of an oath, we have to take into consideration the country's constitutional
structure and the meaning of the words we use, to ensure that, as he says, we
will be understood by the average person. The purpose of my comments today was
simply to direct his attention, so that if the Senate decides to refer his
motion to a committee for review, the committee will already be aware of the
legal and constitutional implications of adding an oath to the one that the
Constitution already requires us to take.
Hon. Leonard J. Gustafson: Honourable senators, I found the honourable
senator's remarks very interesting regarding the swearing of allegiance to
Canada. I am thinking now as a farmer, I am thinking of the land. We have a
responsibility. We recently saw a situation concerning the water that surrounds
the Maritimes. I wonder if we, as members of the Senate, sometimes forget about
the importance of that allegiance, not only to the Queen, but to the country and
the land. That importance applies to the environment as well, especially in
rural Canada, which has seen some very difficult days. I would like to hear my
honourable friend's comments in that regard.
Senator Joyal: The honourable senator raises an important
preoccupation that we all have, which is to defend our country and to defend the
The oath of office in India calls upon the integrity of the country. Which is
not only the fact that it is one land, one country, but also the fact that
within that country there are parts, elements, and structures that are all
important and that we must fight to maintain.
As much as the objective to add an oath is important, as are the objectives
expressed by Senators Gustafson and Lavigne, we must choose the right word to
ensure that there is no confusion legally and that we respect the structure of
the Constitution under which we are governed and which has served us so well for
Hon. Anne C. Cools: Perhaps the senator will take another question. I
found the senator's statements to be, as usual, very interesting. I think this
house knows where I stand on many of these issues. I strenuously resist at all
times any attempt to deprive Canada of its rightful constitutional heritage, its
monarchy. I see this constant chipping away — it is not chipping away, it is
slashing away — at the entire system as very undesirable.
My question to Senator Joyal has to do with the definition of the word
''Canada'' according to Senator Lavigne's proposal. Senator Joyal will remember
that we had strenuously opposed Bill C-20 at the time. It was called the Clarity
Act and said that Canada was divisible and could become two countries. Maybe
there could be a greater Canada, a lesser Canada, an inferior or superior
Canada, or maybe there could be many.
Has Senator Joyal given any thought to what the word ''Canada'' would mean in
Senator Lavigne's proposal? It may be that some senator could move an amendment
to his motion referring to Canada as we define it today or maybe as it will be
defined at some point in time, Senator Joyal did much work on Bill C-20 at the
As I was saying, Bill C-20, to my mind, did the unthinkable because it put
into law the fact that Canada was divisible and could be divided under
particular conditions. I know that Senator Joyal had many concerns about Bill
C-20, as did I.
When a proposal to swear allegiance to Canada comes forward, one that I do
not like at all, what is the definition of Canada or which Canada is meant?
In addition, the fact is that the allegiance that we swear when we come into
this chamber predates the BNA Act. I will raise this issue when I speak to the
motion because allegiance to Her Majesty was not created by the BNA Act. It
predates the BNA Act. To my mind, therefore, the proposal before us is not
properly constitutional. Has my honourable friend thought about the impact of
this proposal on Bill C-20's divided Canada and, second, the impact on the
allegiance that is owed to Her Majesty, not by virtue of the BNA Act because
what the BNA Act prescribes is the form of the oath of allegiance? The need for
the oath ''antecedes'' or predates the BNA Act. Many confuse the form of the
oath with the actual need for the oath itself. Has the honourable senator taken
a look at that? The particular form of oath as prescribed in the BNA Act is a
short one. The oaths were longer pre-Confederation. Pre-Confederation oaths were
so profound as to find something like this proposal to be treasonous.
Hon. Bill Rompkey (Deputy Leader of the Government): On a question of
process, honourable senators, we have gone beyond the three minutes we had
agreed to give to Senator Joyal.
I do not want to restrict Senator Cools because I understand that she wants
to take part in the debate. However, there will be lots of time for debate and
we do not want to exhaust it today. We are getting close to six o'clock and
certain committees wish to sit. Can we have an answer from Senator Joyal and
then continue debate at a later time? If that is agreeable, I would then like to
The Hon. the Speaker pro tempore: Is it agreed,
Hon. Senators: Agreed.
Senator Joyal: Senator Cools has raised a point that is very true.
There is no question that the oath of allegiance predates Confederation. I could
quote a series of acts dealing with the oath of allegiance in Britain that had
an application to Canada. There is the act of 1838, and I could go back in
history. The honourable senator is totally right on this point.
On the second point, the definition of Canada, I would ask honourable
senators to go back to the BNA Act and read where there are references to
Canada. The references to Canada in the BNA Act always refer to the concept of
the territory. Of course, I understand what Senator Lavigne seems to want to
serve and I understand what Senator Gustafson has appropriately described to us.
However, if we are to give way to their intentions, we have to weigh the concept
and the reality enshrined under each word because an oath related to taking the
seat is a very important oath. That oath must be meaningful in court. It might
have to be interpreted in court one day, or someone might allege one day that a
person has broken his or her oath or second oath. In other words, we must know
exactly what is meant by the word ''Canada.''
Perhaps the text proposed by Senator Lavigne could be studied or improved.
Maybe a definition paragraph could be added stating that ''For the purpose of
this oath, 'Canada' means...'' and then we define what it means. It is not clear
at all from the previous constitutional text, as the honourable senator has
said, what we understand by it, but it is the job of the committee to look into
the matter according to the preoccupation honourable senators have expressed.
On motion of Senator Rompkey, debate adjourned.
The Senate adjourned until Wednesday, February 9, 2005, at 1:30 p.m.