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Debates of the Senate (Hansard)

1st Session, 38th Parliament,
Volume 142, Issue 40

Thursday, February 24, 2005
The Honourable Daniel Hays, Speaker



Thursday, February 24, 2005

The Senate met at 1:30 p.m., the Speaker in the chair.


Visitor in the Gallery

The Hon. the Speaker: Honourable senators, before proceeding with our business, I should like to draw your attention to the presence in our gallery of His Excellency Anton Thalmann, Ambassador of Switzerland to Canada and the Bahamas. He is the guest of the Honourable Senator Ferretti Barth.

Welcome to the Senate.


Royal Assent

The Hon. the Speaker informed the Senate that the following communication had been received:


February 23, 2005

Mr. Speaker,

I have the honour to inform you that the Honourable Louis LeBel, Puisne Judge of the Supreme Court of Canada, in his capacity as Deputy of the Governor General, signified royal assent by written declaration to the bills listed in the Schedule to this letter on the 24th day of February, 2005 at 11:02 a.m.

Yours sincerely,

Curtis Barlowfor Barbara Uteck
Secretary to the Governor General

The Honourable
        The Speaker of the Senate

Bills Assented to Thursday, February 24, 2005:

An Act to amend the Department of Canadian Heritage Act and the Parks Canada Agency Act and to make related amendments to other Acts (Bill C-7, Chapter 2, 2005)

An Act to implement the Convention on International Interests in Mobile Equipment and the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (Bill C-4, Chapter 3, 2005)

An Act to change the name of the electoral district of Kitchener—Wilmot—Wellesley—Woolwich (Bill C-302, Chapter 4, 2005)

An Act to change the name of the electoral district of Battle River (Bill C-304, Chapter 5, 2005)

An Act to change the boundaries of the Acadie—Bathurst and Miramichi electoral districts (Bill C-36, Chapter 6, 2005)



The Honourable Vivienne Poy

Congratulations on Receiving Distinguished Alumni Award from Seneca College of Applied Arts and Technology

Hon. Rose-Marie Losier-Cool: Honourable senators, I rise today to congratulate Senator Vivienne Poy on receiving a distinguished alumni award from one of her alma maters, Toronto's Seneca College of Applied Arts and Technology. This college, established in 1966, is the largest institution of its kind in Canada, offering some 260 programs to over 100,000 students in 11 campus locations.

We are all quite aware of our colleague's reputation as a member of our chamber, where she champions issues relating to human rights, gender equity and multiculturalism. She is also a respected entrepreneur, author, historian, community activist and fashion designer. Not everyone here may know this, but she is also an avid gardener.

Senator Poy graduated in fashion arts from Seneca in 1981. On March 10, she will receive the Premier's Award at a gala dinner at the Hilton Suites in Markham. This award consists of a plaque and $1,000 bursary that Senator Poy will donate to the Seneca College faculty, school or program of her choice.

In closing, allow me a short quote from Seneca's Alumni Association:

Vivienne's exemplary corporate citizenship and tremendous personal and professional accomplishments have made her a role model for all college students and alumni. Her commitment to so many aspects of Canadian life has made her a role model to all Canadians.

Congratulations, Senator Poy.

Hon. Senators: Hear, hear!

The Late Tom Patterson, O. Ont., O.C.

Hon. Michael A. Meighen: Honourable senators, I rise today to pay tribute and to celebrate the life of a true Canadian pioneer, Tom Patterson, who passed away yesterday after a lengthy illness.

As Stratford Festival Artistic Director Richard Monette so simply and aptly put it: "Without Tom Patterson there would be no Stratford Festival." Tom Patterson was its founder, the driving force behind its birth and subsequent development into one of the finest theatrical festivals in the world today.


Tom Patterson was a man of vision in the truest sense. With the end of the railway era, he was determined to ensure the survival and growth of his town of Stratford, but for that to happen, a Shakespearean theatre company had to be formed. As Tom himself put it, "I knew the festival was going to happen because I was going to make it happen."

The story goes that, back in 1952, Mr. Patterson appeared before the Stratford town council to request $100 to go to New York so he could discuss his dream with Sir Laurence Olivier. One member of the council offered to increase his grant to $120, and eventually Tom was sent off with $125 to go to New York to convince Olivier to appear.

While this mission failed, he eventually persuaded Tyrone Guthrie to assume the position of artistic director. Having secured Mr. Guthrie, Alec Guinness, Irene Worth and the renowned theatre designer Tanya Moiseiwitsch were then persuaded to come on board and the Stratford Festival of Canada opened in July 1953 with productions of Richard III and All is Well that Ends Well. The rest, as they say, is history. In the words of the American poet Ralph Waldo Emerson: "He builded it better than he knew — the conscious stone to beauty grew."

Tom Patterson served the festival as general manager and worked in various capacities until his retirement in 1967. He was at the centre of a host of cultural innovations in Canada. He was founding director of the Canadian Theatre Centre, founding president of the National Theatre School of Canada, co-founder of the touring company Canadian Players and founder of the Dawson City Gold Rush Festival.

His dedication to Stratford and to the arts in Canada brought him many awards: the Order of Canada, Canadian Centennial Medal, the Queen Elizabeth Silver Jubilee Medal, the Order of Ontario, and honorary degrees from the University of Toronto and the University of Western Ontario. His hometown of Stratford has honoured his life's contributions by naming its third theatrical stage the Tom Patterson Theatre, as well as naming an island in the Avon River after him in 2002.

So fond are the patrons of the Stratford Festival of its founding father that at the inaugural performance marking the festival's fiftieth year the loudest applause was received not by the actors, but by Mr. Patterson, who appeared on stage weak, frail and in a wheelchair, but still with the heart and soul of a visionary, without whose dreams and hard work the Stratford Festival would never have been born.

I last spoke to Tom just over a year ago in the Veterans Wing of Sunnybrook Hospital. His interest and pride in the festival was undiminished, and he rejoiced that from humble beginnings in a tent some 53 years ago, the festival has grown to the extent that it now has a budget of over $52 million, performs on four stages, employs some 900 people on an annual basis, and attracts almost 600,000 patrons from across Canada and the United States.

As Hamlet said:

He was a man, take him for all in all; I shall not look upon his like again.

Our sympathies go to his wife, Pat, his sons, Bob, Tim and Lyle Scott, and his daughter, Lucy Ann, as well as to everyone in his extended theatre family.

Visit to Croatia

Hon. Francis William Mahovlich: Honourable senators, I rise today to talk about my trip to the Republic of Croatia from which I have just returned. The purpose of this visit was to represent Canada at the inauguration of Stjepan Mesic as Croatia's president, as well as to help with Canadian-Croatian diplomacy. This trip, without a doubt, was a success.

I was fortunate to meet many fine people in Croatia, such as Canadian Ambassador Stefanie Beck and Counsellor and Consul Sven Jurschewsky, as well as the representatives of various European countries, such as Ukrainian President Vicktor Yushchenko.

I had a meeting with the Chairman of the Sabor's Foreign Affairs Committee, Gordon Jandrokovic, where we discussed Canadian-Croatian relations and how to improve them. I also met members of the Croatian Hockey Association, as well as other sports representatives, and we discussed the need for more hockey arenas in their country. Canadian expertise in ice-making is world renowned and could help with the manufacturing of ice in Croatia.

During my week in Croatia, I was able to get a first-hand glimpse of the life that many Croatians live on a daily basis. I was particularly touched to see how the vast minefields that still exist affect the lives and living conditions of the people who live around them. I was also moved by the refugee camps and the atrocious conditions that these people must face every day.

This trip was of personal significance for me because my parents immigrated to Canada from Croatia in the 1930s. I was fortunate enough to visit my parent's hometown of Gornji Ostric. This was a memorable experience, and I wish to thank all those in Croatia for their wonderful hospitality. I also wish to thank Pierre Pettigrew and the Department of Foreign Affairs for allowing me this opportunity. I will continue to work on Canadian-Croatian relations and I plan to have meetings with the Canadian Ministry of Foreign Affairs to help solve some of the concerns of the Croats.

Honourable senators, I would like to give you one piece of interesting trivia that many of you may not know: Cravats, or neckties, originated in Croatia. To quote the British historian Norman Davies:

...people who negate the influence of Europe's "smaller nations" should remember that the Croats hold us all by the neck.

The Stanley Cup

Possible Awarding to Winners of National Women's Hockey League

Hon. Lorna Milne: Honourable senators, Senator Mahovlich is always a hard act to follow. I intend to talk about the Stanley Cup.

Earlier this week, Governor General Adrienne Clarkson mused that in light of the breakdown of the negotiations between the NHL and the NHL Players Association, the Stanley Cup should be awarded to the best women's hockey team in Canada. I could not agree with her more.

In fact, I would go so far as to suggest that the Stanley Cup should be awarded to the NWHL champion team that will be crowned in Brampton on March 25. For the last five seasons, my hometown of Brampton has played host to the NWHL championship series, and I have no doubt that the champions of that league are deserving of the Stanley Cup.

Women's hockey in Canada has grown exponentially over the last number of years for many reasons. Gold medal status at the Olympic Games and increased TV exposure for the women is part of the reason. Several of the top players on the gold medal team trained in Brampton. The main reason is the increased skill of Canada's women. Anyone who has watched the NWHL or has seen Canada's national team on ice will tell you that these women play with expertise, heart, dedication and for the love of the game. They are outstanding role models for boys and girls across the country.

For Canadians, nothing symbolizes excellence better than the Stanley Cup. No sports award or trophy is closer to the heart and psyche than Lord Stanley's cup. For most Canadians, part of our pride and sense of accomplishment is wrapped up in the game of hockey. I have never been accused of being a hockey nut, certainly not by my husband, but I was in the stands in Salt Lake City in February 2002 when Canada's men's team brought home gold for the first time since 1956. Despite all of our differences, on that day all 31 million of us were truly proud Canadians. For a generation of young Canadians, true heroes were born when both our men's and women's teams won gold.

Now we have a unique opportunity. The NHL will not be exercising its right to award the Stanley Cup and a newer breed of heroes can take their proper place — female heroes. The 1947 agreement between the trustees of the Stanley Cup and the NHL states that:

In the event of the dissolution or other termination of the National Hockey League, the Stanley Cup shall revert to the custody of the trustees.

Although we do not have a dissolution, we certainly have a termination of NHL play. This termination may be short term, but play has stopped nonetheless. Legal control of the cup should revert to the trustees, and they should decide now what to do with it.


The NHL players have decided that $1.3 million annually is not enough money to be our heroes for a year, their empty vaults being much bigger than their hearts or their love of the game. Canadians get it. The NHL is a business, and negotiations take time.

The Stanley Cup is about heroes, and I can think of none better than this generation of Canadian women hockey players who play for the love of the game. I call upon the trustees of Lord Stanley's cup to award the cup to the NWHL champion or to whichever team of women hockey players they feel is most deserving of being our heroes this winter.


Budget 2005

Documents Tabled

Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, I have the honour to table, in both official languages, the budget documents for 2005.

Social Affairs, Science and Technology

Budget—Report of Committee on Study of State of Health Care System Presented

Hon. Joan Cook, for Senator Kirby, Chair of the Standing Senate Committee on Social Affairs, Science and Technology, presented the following report:

Thursday, February 24, 2005

The Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its


Your Committee, which was authorized by the Senate on Thursday, October 7, 2004 to examine and report on issues arising from, and developments since, the tabling of its final report on the state of the health care system in Canada in October 2002 and in particular was authorized to examine issues concerning mental health and mental illness.

Pursuant to Chapter 3:06, section 2(1)(c) of the Senate Administrative Rules, the budget submitted to the Standing Committee on Internal Economy, Budgets and Administration and the report thereon of that Committee are appended to this report.

Respectfully submitted,


(For text of budget, see today's Journals of the Senate, Appendix A, p. 512.)

The Hon. the Speaker: When shall this report be taken into consideration?

On motion of Senator Cook, report placed on the Orders of the Day for consideration at the next sitting of the Senate.

Internal Economy, Budgets and Administration

Fourth Report of Committee Presented

Hon. George J. Furey, Chairman of the Standing Committee on Internal Economy, Budgets and Administration presented the following report:

Thursday, February 24, 2005

The Standing Committee on Internal Economy, Budgets and Administration has the honour to present its


Your Committee has approved the Senate Estimates for the fiscal year 2005-2006 and recommends their adoption. Your Committee notes that the proposed total budget is $80,605,450.

Your committee also notes that the following policy and program changes are reflected in this budget:

A special fund has been created to meet exceptional funding needs for Senators' special circumstances.

The policy allowing transfers between Senators' Research and Office Expenses budgets has been eliminated.

A chargeback program has been approved for printing and duplication services, messenger services, trades services, and postal services, not covered by franking privileges.

The dollar limit for purchases which Senators can make directly from suppliers has been increased from $250 to $2,500.

A change to the Senator's 64 Points Travel Policy has been approved such that meals and incidentals will be reimbursed on the basis of per diems rather than upon submission of receipts.

All relevant policies and sections of the Senate Administrative Rules will be amended to reflect these changes. The effective date of each change will be determined by your committee over the next few months and Senators will be notified accordingly.

An overview of the 2005-2006 budget will be forwarded to every Senator's office.

Respectfully submitted,


(For text of budget, see today's Journals of the Senate, Appendix B, p. 522.)

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

On motion of Senator Furey, report placed on the Orders of the Day for consideration at the next sitting of the Senate.

National Security and Defence

Budget—Report of Committee on Study of National Security Policy Presented

Hon. Colin Kenny, Chair of the Standing Senate Committee on National Security and Defence, presented the following report:

Thursday, February 24, 2005

The Standing Senate Committee on National Security and Defence has the honour to present its


Your Committee, which was authorized by the Senate on Wednesday, October 20, 2004, to examine and report on the national security policy for Canada, respectfully requests the approval of funds for fiscal year 2005-2006.

Pursuant to Chapter 3:06, section 2(1)(c) of the Senate Administrative Rules, the budget submitted to the Standing Committee on Internal Economy, Budgets and Administration and the report thereon of that Committee are appended to this report.

Respectfully submitted,


(For text of budget, see today's Journals of the Senate, Appendix C, p. 525.)

On motion of Senator Kenny, report placed on the Orders of the Day for consideration at the next sitting of the Senate.

Inter-Parliamentary Union

One-hundred and Eleventh Assembly, September 28-October 1, 2004—Report Tabled

Hon. Donald H. Oliver: Honourable senators, pursuant to rule 23(6), I have the honour to table, in both official languages, the report of the Canadian delegation of the Canadian Group of the Inter-Parliamentary Union respecting its participation at the One-hundred and Eleventh Assembly and Related Meetings of the Inter-Parliamentary Union held in Geneva, Switzerland, from September 28 to October 1, 2004.

The Senate

Notice of Motion to Amend Rule 32—Speaking in the Senate

Hon. Eymard G. Corbin: Honourable senators, I give notice that two days hence I will move:

That the Rules of the Senate be amended by replacing Rule 32 with the following:

32. (1) A Senator desiring to speak in the Senate shall rise in the place where that Senator normally sits and address the rest of the Senators.

(2) Any Senator who speaks in the Senate shall do so in one of the official languages.

(3) Notwithstanding subsection (2), a Senator desiring to address the Senate in Inuktitut shall so inform the Clerk of the Senate at least four hours before the start of that sitting of the Senate.

(4) The Clerk of the Senate shall make the necessary arrangements to provide interpretation of remarks made in Inuktitut into the two official languages.

(5) Remarks made in Inuktitut shall be published in the Debates of the Senate in the two official languages, with a note in the Journals of the Senate explaining that they were delivered in Inuktitut.

Budget 2005

Notice of Inquiry

Hon. Noël A. Kinsella (Leader of the Opposition): Honourable senators, I give notice that on Tuesday, March 8, 2005, I shall call the attention of the Senate to the budget presented by the Minister of Finance in the House of Commons on February 23, 2005.


Treatment of Autism—Presentation of Petition

Hon. Mac Harb: Honourable senators, I have the honour to present a petition on behalf of the Autism Society and its supporters calling on Parliament to amend the Canada Health Act and corresponding regulations to include IBI/ABA people with autism as a medically necessary treatment and require that all provinces provide or fund this essential treatment for autism. As well, they are calling for the creation of chairs at universities in each of the provinces to do studies and research on the matter.

In addition, there are 4,200 electronically signed petitions. It is my belief that they cannot be officially tabled. Nonetheless, I should like to draw the attention of the Senate to those petitions.




Cox-2 Inhibitors—Public Hearings

Hon. Donald H. Oliver: Honourable senators, my question is for the Leader of the Government in the Senate. Last week, the Drug Safety Advisory Panel for the U.S. Food and Drug Administration recommended the continued use of Celebrex, Vioxx, and Bextra with some stringent conditions. Health Canada will soon begin its own review of these drugs, but there has been some confusion as to whether its deliberations will be as open to the public as they were in the United States. The Minister of Health said last week that Health Canada would not necessarily have public hearings, but that they would be held "in a public fashion."

Could the Leader of the Government in the Senate please clarify for us what form of Health Canada hearings will take place and how open they will be?

Hon. Jack Austin (Leader of the Government): Honourable senators, on February 15, 2005, the FDA announced the creation of a new independent drug safety oversight board to oversee the management of drug safety issues and information. Health Canada has been directed by the minister to present options for a permanent drug safety monitoring board that will encourage public input in the regulatory decision-making processes. Health Canada is now developing options for a drug safety monitoring board that will be based on international best practices from comparable regulatory agencies in developing its options.

Cox-2 Inhibitors—Request for Data on Clinical Trials

Hon. Donald H. Oliver: Honourable senators, last November, Health Canada requested that Merck, the maker of Vioxx, provide the department with its full research data on the clinical trial that led to the drug's withdrawal from the marketplace last fall. On the weekend, the National Post reported that three months after this request was made, Health Canada has still not received this information.

Could the Leader of the Government in the Senate tell us if Health Canada will have to delay its review of Cox-2 inhibitors if it does not soon receive this information?

Hon. Jack Austin (Leader of the Government): Honourable senators, the question directs itself to the authority of Health Canada to require this information, and I am advised that once a drug has been approved for distribution in Canada, Health Canada is without the authority to demand further information with respect to trials. However, as to the balance of the question, I will have to be further advised by Health Canada.

Public Works and Government Services

Purchase of JDS Uniphase Complex

Hon. Jack Austin (Leader of the Government): Honourable senators, yesterday Senator Forrestall asked me whether the JDS Uniphase complex had been leased or purchased for use by the RCMP. I informed this chamber that Public Works and Government Services has not leased or purchased the JDS Uniphase complex. After giving the answer, I asked for further information. The answer is absolutely correct. Public Works is not involved in any way with respect to the JDS Uniphase complex and would need to be involved if the government were to enter into any arrangement to lease or purchase. Nonetheless, Senator Forrestall has his usual excellent sources of information, and the RCMP has begun some inquiries as to whether the JDS Uniphase complex might be suitable to them. However, that is at a very early stage.


Budget 2005—Release of Possible Confidential Information to National Post

Hon. David Tkachuk: Honourable senators, yesterday I asked the Leader of the Government in the Senate about possible budget leaks to the National Post in advance of the budget actually being announced. I told him that I would be listening closely to that speech, and I did. I am sure that the leader has a copy of that February 25 Anne Dawson article by now.

The Minister of Finance announced that Canada would record its eighth consecutive balanced budget, the longest unbroken string of surpluses since Confederation. In her National Post article, Anne Dawson wrote: "It will be the eighth balanced budget in a row, something never before accomplished."

The minister announced an increase in the basic personal exemption of $10,000, the same figure that Ms. Dawson quoted in her article.

Ms. Dawson wrote that there would be $600 million in new spending for cities. Mr. Goodale announced an increase from the $400 million previously announced to — surprise — $600 million.

Ms. Dawson wrote that National Defence would be injected with over $12 billion and that $2.5 billion of that would be directed specifically at purchasing new helicopters. The budget calls for $12.8 billion for the military over five years and uses the $2.5 billion figure when referring to helicopters and other equipment.

These are only a few of the remarkable similarities between Ms. Dawson's figures and figures used in the budget speech. The Leader of the Government will find others, I am sure, if he goes through the article and has his people check it with the actual budget speech delivered by Mr. Goodale yesterday.

On the basis of these and other similarities, would the Leader of the Government agree to launch an investigation into whether the budget was leaked prior to it being announced, or possibly the whole budget given to a reporter or a source?

Hon. Jack Austin (Leader of the Government): Honourable senators, I have no information to provide to Senator Tkachuk or others with respect to the Anne Dawson story that appeared yesterday in the National Post and which I have now read, and I have no factual basis to speculate on that story. Therefore, it is not my intention to initiate an inquiry, and I do not have the intention of raising the matter with the Governor-in-Council.

Senator Tkachuk: Honourable senators, the Leader of the Government has said twice now, yesterday and once today, that I was speculating. I am a little upset about that, because I am not speculating. Here is the budget, and here is the article by Anne Dawson. The similarities are incredible.

Speculation happens when people have advance copies of the budget. In the budget yesterday, the 30 per cent foreign limit on RRSPs was eliminated. That caused a drop in the dollar of almost a penny while the speech was being delivered. It is advantageous to currency speculators to know what is in the budget. This is a serious matter, and I am not here speculating. I am raising a very serious issue.

These things did happen, and if people had copies of that budget and were smart enough to know what it meant, they could easily take advantage of what was in it.

Sources were cited in newspapers clear across the country before this budget such as I have never seen before, and this particular source was extremely accurate. People can read it for themselves, and they should. I am asking the Leader of the Government to take the matter seriously, because I am asking about it in a serious way.

Senator Austin: Honourable senators, when I referred to speculation, I was referring to the speculation of Senator Tkachuk yesterday when he used names and suggested — and the better word is probably "speculated" — on a relationship that might give rise to insider information.


Honourable senators, I have no evidence that that relationship is responsible for a leak of the budget. As well, Senator Tkachuk has revealed no information to this place as to who may have taken steps to leak the budget, if indeed anyone did so. Honourable senators, without a charge being made, there is certainly no basis to consider an inquiry, and the government would not consider sending the RCMP on a fishing expedition.

Senator Tkachuk: Honourable senators, I have laid evidence before the chamber, and the people of Canada have seen the evidence in the newspaper article and in the budget. I do not know how much more evidence the honourable leader requires, other than Anne Dawson waving the budget on television in front of him, perhaps. The government leader said that he would not investigate my question of yesterday about the relationship between Mr. Ferguson, Director General, House of Commons, Liberal Caucus Research Bureau and Ms. Anne Dawson. However, the government leader claims there was no evidence and so he must have looked into it.

Therefore, I would ask the honourable leader again to explain how Mr. Ferguson is no longer a possible source of this budget leak and how Ms. Dawson could have such accurate details of a budget that should have been reported for the first time to Canadians at four o'clock in the afternoon, not at six o'clock in the morning.

Senator Austin: Honourable senators, evidence is not speculation. Evidence is a knowledge that can be brought forward as to the conduct of an individual, and there is no such evidence with respect to any individual that Senator Tkachuk has mentioned. In yesterday's questioning, I sensed a suggestion of impropriety between two people who, I have since learned, are married. There can be no suggestion of impropriety for that very reason. Each is a professional, with professional duties, and each is subject to sanctions. Hence, when professionals are a couple, it is assumed that each will proceed according to their professional responsibilities and duties. I would not speculate without evidence that that did not take place. As well, it is inappropriate to invade the privacy of people for reasons of a fishing expedition.

It has always been the tradition in this chamber and in the House of Commons that specific evidence is alleged as to the conduct of specific people. Without that, I do not see the basis on which the government would start an inquiry. It is always possible to draw the matter to the attention of the RCMP so that it may determine what actions might be warranted.

Senator Tkachuk: Yesterday, the government leader said that he did not know Ms. Dawson or Mr. Ferguson, that he would not follow up on the relationship and that I should follow it up. The government leader is now telling the chamber that he did follow it up and found out that Ms. Dawson and Mr. Ferguson are married, two people of whom the leader said he had no knowledge. Did the government leader ask the question about whether anyone had information and whether that information was given to Ms. Dawson?

Senator Austin: Honourable senators, the information I gave the chamber was correct. I did not know them yesterday, and I do not know them today. However, I made inquiries with respect to the honourable senator's question. I would not be showing proper respect for his question had I not taken it seriously and made inquiries. I was informed that Ms. Dawson and Mr. Ferguson were married; however beyond that, I have no further issue to play out with Senator Tkachuk, unless he has something specific to add.

If Senator Tkachuk wants to make a charge that the husband happened to leave a copy of the budget in his desk and that his wife happened to see it, then there may be something to make an inquiry about. However, these are professionals and the onus is that they have behaved professionally.


Budget 2005—Fiscal Imbalance Between Provinces

Hon. Pierre Claude Nolin: Honourable senators, yesterday we learned once again that the federal government is literally swimming, and dare I say, excessively so, in budgetary surpluses while many provinces are having an awful time trying to balance their books without seriously compromising the quality of the services that they provide to their citizens.

Rather than acknowledge this grave problem, the Liberal government, in addition to profoundly changing the nature of the equalization program, has gone back on the amendment to the Speech from the Throne adopted by the other place last October 20, which was, and I quote from the text of the Speech from the Throne, adopted by the other chamber:

... that all measures ...fully respect the provinces' areas of jurisdiction and that the financial pressures some call the fiscal imbalance be alleviated.

Thumbing its nose at this important amendment, the Liberal government yesterday announced a series of measures in areas of provincial jurisdiction. However, in 1957, former Prime Minister Pierre Elliott Trudeau had already denounced that practice when he wrote:

If a government had such an excess of revenue that it undertook to ensure the part of the common good that fell outside its jurisdiction, the presumption arises that that government had taken more than its share of taxable capacity.

With that perspective, my question to the Honourable Senator Austin is very simple: Why will his government not respect the amendment to the Speech from the Throne? Why does it not acknowledge the existence of a significant fiscal imbalance in Canada?


Hon. Jack Austin (Leader of the Government): Honourable senators, I am quite mystified by the thrust of Senator Nolin's question. The government has respected, in every way I know, the jurisdiction of the provinces and the jurisdiction of Quebec. The government has also transferred substantial funds to the provinces, including the Province of Quebec, a transfer that is part of the federal-provincial agreement with respect to health. Quebec has its own bilateral arrangement with respect to the transfer of funds. Quebec is the recipient of a substantially larger sum under the equalization program than was the case with the equalization formula. The federal government altered that formula to the advantage of the provinces, without negotiation. The province has a long list of advantages stemming from yesterday's budget in the areas of gas tax revenue; economic development, Community Futures; the Canadian Agricultural Income Stabilization program; agricultural cash advances; New Horizons; Tomorrow Starts Today; the Canadian Space Agency; which is located in the province of Quebec, Genome Canada research in Quebec, the Ocean Action Plan, et cetera.

Honourable senators, I had an exchange with Senator Rivest about the fiscal deficit. I said then and I say now that there is no conceptual basis for that argument. I pointed out at that time that the federal debt is larger than the collective debt of the provinces. People on the other side have argued that debt reduction should be a priority of the federal government. I welcome the reaction of the Leader of the Official Opposition in the other place who saw this budget as moving in the right direction. I may disagree with him as to whether this is moving in a Conservative direction or a Liberal direction, but at least there seems to be some recognition of the value of this budget.



Budget 2005—Quebec—Opting Out of National Child Care Program

Hon. Pierre Claude Nolin: Honourable senators, yesterday's budget announced more than $5 billion over a period of five years for the development of a national child care initiative. If you are looking for an example of provincial jurisdiction, here is one.

Considering that Quebec is not taking part in the negotiations on this file because it already has its own child care program, can the Leader of the Government in the Senate confirm to us that, on this initiative, the federal government will allow Quebec to opt out with full financial compensation?


Hon. Jack Austin (Leader of the Government): Honourable senators, the specific answer is that the issue is being negotiated between the Province of Quebec and the federal government, and it is being negotiated at the same time as negotiations with other provinces with respect to the daycare issue.

As Senator Nolin knows, the Minister of Social Development, the Honourable Ken Dryden, has met with all of his provincial colleagues. They wisely chose Vancouver as the venue for that meeting. It was said that agreement in principle with respect to the program was achieved but that there remained discussions regarding the more specific nature of those agreements.

Honourable senators, Quebec does have, and I acknowledge it, the best child-care program in Canada. I have two grandchildren who have benefited from that program. They live in the City of Montreal, so I am a little more familiar with it than perhaps one might think. Normally, in federal-provincial discussions, so long as the funds are used in the general policy area of their purpose, the provinces have a fairly wide discretion as to how to employ those funds.

Senator Nolin: So the answer is no.


Budget 2005—Renewal of Canada-community Agreements

Hon. Pierre Claude Nolin: Honourable senators, for a number of weeks, francophone communities outside Quebec have been hoping that the federal government would announce the renewal of the Canada-Community Agreements for a five-year period. These agreements are important because they affect the cultural and community development of francophones who live outside the province of Quebec. The most recent agreements of this kind were negotiated in 1999 for a five-year period, until March 2004, for an overall amount of nearly $25 million.

According to our information, a year later, the Minister of Canadian Heritage has still not begun negotiations to renew these agreements. This situation is unacceptable because the Dion plan that was introduced by your own government in 2003 provided for an additional amount of $19 million for the Canada-Community Agreements. Having presented itself as the great defender of language rights in the last election, what is your government doing?

Because of your inaction on this matter, four francophone community radio stations are now threatened with having to close if these agreements are not renewed quickly.

Why were francophone communities overlooked in the budget? Can you also tell us the current status of the negotiations to renew these agreements and/or simply tell us whether the negotiations have begun?


Hon. Jack Austin (Leader of the Government): Honourable senators, first, the correct interpretation of my answer to the previous question is not "no," but "not yet decided."

Second, with respect to the direct question, I will look into the specific question and the specific program. Something in the nature of over 1,000 programs were announced in the budget, and I will determine whether the program mentioned by Senator Nolin is there. If it is not, I will look for it in the continuing program category. If I do not find it there, then I will make specific inquiries.

National Defence

United States—Participation in Missile Defence Program—Possibility of Debate

Hon. Noël A. Kinsella (Leader of the Opposition): Honourable senators will recall that last fall this chamber voted to amend the Speech from the Throne. Paragraph five of that amendment read as following:

with respect to an agreement on ballistic missile defence, the assurance that Parliament will have an opportunity to consider all public information pertaining to the agreement and to vote prior to a government decision.

Honourable senators, this was the will of this chamber. Indeed, it was the will of the other chamber, where a similar amendment was adopted. The address in reply was delivered to Her Excellency as late as last week containing this expression of the will of Parliament. Clearly, the announcement today of the Prime Minister and the Minister of Foreign Affairs that the government has taken a decision that this country will not participate in the ballistic missile defence system seems to totally ignore that will. It may be a good decision in the opinion of some, but the critical issue is that the will of this house has been completely ignored. I believe my remarks would be supported by all members on both sides of the house, excluding the honourable member.

My question to the Leader of the Government is: Why did the government violate the will of Parliament and not allow a debate and vote on this issue prior to taking the decision?

Hon. Jack Austin (Leader of the Government): Honourable senators, my interpretation of the vote was that it was based on a concern that we would enter into an agreement with the United States with respect to ballistic missile defence and where that could lead, that is, the weaponization of space. My thought was that, if such a step were to be taken, it should have the support of Parliament. However, as such a step is not being taken and the government has decided not to enter into arrangements with respect to the United States ballistic missile defence program at this time, it would appear that the implied will of the house has been met.

Senator Kinsella: If that was the position of the government, then it is indeed more disappointing. The fact of the matter is that the government has ignored Parliament and eliminated the opportunity of parliamentarians in both places to lend their views to the pros and cons of a public policy matter that will have far-reaching consequences for all Canadians. Why does the government hold in such disdain the role of Parliament when, in the minds of most parliamentarians, it was a clear understanding and expression of that understanding that there be no decision taken until Parliament had had a fulsome debate on the matter?

Senator Austin: Honourable senators, the situation that led to the decision is one in which the government came to a clear appraisal of the correct course of action. It is the responsibility of the government to govern, to take responsibility for its decisions, and to submit them for the approval of the people of Canada.

United States—Participation in Missile Defence Program—Request for Documents

Hon. Noël A. Kinsella (Leader of the Opposition): Honourable senators, I simply ask if the minister will table in this house the documents on ballistic defence missiles upon which the government based this decision, a decision about which it did not bother to consult Parliament.


Hon. Jack Austin (Leader of the Government): Honourable senators, Senator Kinsella knows as well as anyone in this house that documents prepared for the decision of the government, cabinet documents and reports that are part of the cabinet process, are not made available for 30 years. Perhaps Senator Kinsella can examine those documents at that time.

Senator Kinsella: Honourable senators, perhaps the government leader could represent the position of the government by providing an explication in a clear manner so at least the honourable members of this house can understand what the principles were that underlined the decision that was taken. As we find ourselves situated presently, there was no debate, notwithstanding that one was expected prior to the decision. If the documents that constitute the preparation for the cabinet decision are not available for 30 years, at least the Canadian people and this house have a right to know the public policy principles upon which this decision was based.

Senator Austin: Honourable senators, if it is agreeable to the chamber, I would very happily read into the Senate record the presentation of the Minister of Foreign Affairs in the other place explaining the government's decision. Do I have leave to do so?

Senator Mercer: That would be good.

Senator Austin: Honourable senators, I am quoting from the minister in the other House — which is in accordance with our rules.

The Hon. the Speaker: Honourable senators, I should point out that Question Period has less than a minute left. Do honourable senators still wish Senator Austin to proceed?

Senator Austin: Maybe the Leader of the Opposition will read today's Hansard from the other place. I will not continue with reading.

Budget 2005—Funding of Reserves

Hon. J. Michael Forrestall: Honourable senators, the minister will now understand why I did not pursue it and why I should point out to him today that the question in front of me was not intended to pursue what I believed at the time to have been a mistake. I will pursue the question of the RCMP at a later date. This has to do with where the monies are coming from to support the reserves.

Hon. Jack Austin (Leader of the Government): Honourable senators, I appreciate notice given by Senator Forrestall. I will make inquiries.

Delayed Answer to Oral Question

Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, I have the honour of presenting a delayed answer in response to an oral question raised in the Senate on February 17 by Senator St. Germain, regarding the reopening of the U.S. border on March 7, 2005.

Agriculture and Agri-Food

Bovine Spongiform Encephalopathy—Effect on Cattle Farmers

(Response to question raised by Hon. Gerry St. Germain on February 17, 2005)

As the Honourable Senator is aware, the United States Department of Agriculture published the US BSE minimal risk rule on January 4, 2005. When implemented on March 7, this rule will provide significantly improved access for Canadian exports of cattle and beef. On that date, Canada will re-gain access for live cattle under 30 months of age for slaughter, as well as virtually all products from these cattle. On March 7, trade will also be able to resume in live sheep and goats under 12 months of age for slaughter and meat products from those animals.

In addition, when US Secretary of Agriculture Mike Johanns met with Minister Mitchell on February 9, 2005, he committed to the consideration and development of a plan to allow imports of animals 30 months of age or older for slaughter and meat from those animals as the next step in resuming full trade with Canada.

There are two possible issues that could affect the March 7 re-opening of the border. The rule remains subject to Congressional review, and the Ranchers-Cattlemen Action Legal Fund (R-CALF) has initiated a lawsuit seeking a continuance of the border closure.

The US Congressional Review Act provides for a 60 legislative-day review of rules, such as the BSE minimal risk rule, that are deemed "major". During this review period, Congress can vote to disapprove the rule. On February 10, 2005, ten US Senators introduced a resolution of disapproval of the rule. In order to keep the rule from going into effect, the resolution would have to pass in both houses of Congress and be signed by President Bush. When he was in Washington, Minister Mitchell met with Congressional leaders, including the Chairs of the Senate and House Agriculture Committees in order to impress on them that the interests of the US cattle and beef sectors will be best served by making decisions based on science.

On January 31, 2005, R-CALF submitted a motion seeking an injunction to delay implementation until the final rule has been reviewed in full by the Court. Arguments on this motion are scheduled to be heard by the Court on March 2, 2005. We are disappointed that R-CALF fails to recognize that Canada and the United States have the same BSE risk status and have the same appropriate measures in place to protect human health.

It is premature to speculate on the outcome of either the Congressional review or the US legal process. Nonetheless, we anticipate that decisions on re-opening the US border will be based on science with full consideration of the established international standards that protect human and animal health. The science indicates that the border should be opened to live animals, including cattle of all ages and a wide range of low-risk products, and there is no reason to expect that the border will not re-open as scheduled on March 7, 2005.


Federal-Provincial Fiscal Arrangements Act

Bill to Amend—Second Reading—Debate Adjourned

Hon. Sharon Carstairs moved second reading of Bill C-39, to amend the Federal-Provincial Fiscal Arrangements Act and to enact An Act respecting the provision of funding for diagnostic and medical equipment.

She said: Honourable senators, I want to thank you for the opportunity to introduce, at second reading, Bill C-39, to implement the 10-year plan to strengthen health care.


This bill implements what Canadians have said they want from their government, which is increased funding for health care.


Indeed, in recent years, a number of learned reports, including the Senate study on the state of the health care system in Canada chaired by my honourable colleague, Senator Kirby, have examined health care in Canada. One common theme is that Canadians want and expect timely access to quality services from our publicly funded health care system.

Canadians from all parts of the country have said that modernizing medicare means providing better access to services, including primary care, diagnostic services, home and palliative care, as well as expanded catastrophic drug coverage. This type of reform and renewal takes time, sustained commitment and adequate resources.

Canadians have asked that their governments work together to strengthen the health care system and ensure its long-term sustainability. Honourable senators, that is exactly what governments are doing. Last September, the Prime Minister and all provincial and territorial first ministers signed the 10-year plan to strengthen health care. At that time, first ministers reaffirmed their commitment to ensuring that Canadians have access to the care they need when they need it. For its part, the Government of Canada committed to increase its health care transfers to provinces and territories by $41 billion over 10 years.

Just what will that increased funding do? The funding will accomplish three things. First, this new funding will strengthen the Canada Health Transfer, which is the largest federal transfer supporting health. This bill proposes both to increase the base level of the CHT and to establish an automatic escalator of 6 per cent annual growth. The result is a strong transfer, providing stable and predictable growth in support of health. Second, the increased funding will target wait times reduction, helping provinces and territories in reducing wait times according to their respective priorities. Third, the new federal funding will provide an additional $500 million to provinces and territories for diagnostic and medical equipment to improve access to publicly funded diagnostic services.

Honourable senators, the federal government's $41-billion commitment to the provinces and territories illustrates how serious this government is about supporting a publicly funded health care system of which Canadians can be proud.

Let me take a moment to outline the details of the 10-year plan to strengthen health care.

To begin, the federal government will take steps to strengthen the Canada Health Transfer, the CHT, by investing an additional $3 billion in the CHT in 2004-05 and 2005-06. This action will accelerate and broaden health renewal and reform in the near term.

The second important initiative contained in the plan is the establishment of a new higher base of $19 billion for the Canadian Health Transfer, beginning in 2005-06. It is important to note that the new $19-billion base includes $500 million in targeted funding for home care and catastrophic drug coverage. These two issues were identified as important priorities for many Canadians.

Home care is an essential part of modern, integrated and patient-centered health care. The federal government is committed to working with provinces and territories to improve access to home and community care services, actions that are essential to improving the quality of life for many Canadians by allowing them to be cared for or to recover at home.

Most honourable senators in this chamber know of my passionate concern about end-of-life care. If end-of-life care is truly to be delivered where Canadians want it to be delivered, it must be delivered in the home. This budget will make that possible, as will this bill.

The home care services envisaged under the 10-year plan will result in first-dollar coverage for certain home care services based on assessed need across Canada for the very first time. What this means for Canadians is greater access to short-term acute care, acute community health home care and end-of-life care.

Governments have recognized the challenge to ensure appropriate and affordable access to needed drug therapy and acknowledged concern regarding rising drug costs, a fast-growing component of health expenditures. First ministers agree that no Canadian should suffer undue financial hardship in accessing needed drug therapies. As a result, the additional $500 million in the CHT base also provides targeted support for catastrophic drug coverage.


Under the 10-year plan, the first ministers have agreed that no Canadian should have to endure a crippling financial burden to obtain the medication they need. Access to necessary drugs is essential to the good health of our citizens.


An important change to the Canada Health Transfer is that, effective 2005-06 and beyond, the Health Reform Transfer, established in the 2003 health accord, will be consolidated with the CHT.


Consolidating the CHT and the Health Reform Transfer brings together the two major federal transfers for health, reflecting the continuing commitment of the federal government to the reforms established in the 2003 accord, most notably, primary care, home care and catastrophic drug coverage.

To ensure predictable and sustainable growth in the Canada Health Transfer, the government has committed to legislate an automatic escalator of 6 per cent annual growth, to be applied to the new Canada Health Transfer base of $19 billion effective in 2006-07. This is an unprecedented step for the federal government, one that responds to the recommendations in many learned reports calling for this automatic escalator clause.

Reducing the time that Canadians have to wait for treatment is crucial to the success of the 10-year plan. Long wait times for vital tests or treatments are not only upsetting for patients, but also unacceptable. Provinces and territories have taken tangible action to address wait times, particularly in such priority areas as cancer treatment, heart, diagnostic imaging, joint replacements and sight restoration.

This government is committed to ensuring that Canadians have timely access to the health care that they need. To ensure this happens, Bill C-39 provides for an investment by the Government of Canada of $5.5 billion over 10 years in a Wait Times Reduction Transfer.

In recognition that not all provinces and territories are at the same state in implementing their wait times reduction strategies, Bill C-39 provides for funding of $4.25 billion over five years to be provided through a third-party trust and accounted for by the Government of Canada in 2004-05. Provinces and territories will be able to access this funding according to their respective needs in order to meet their own commitments to reduce wait times. These priorities include the training and hiring of more health professionals, clearing backlogs, building capacity for regional centres of excellence and expanding appropriate ambulatory and community care programs and tools to manage wait times.

In addition, beginning in 2009-10, $250 million will be provided through an annual transfer to provinces and territories in support of health care-related human resources and tools to manage wait times.

Honourable senators, diagnostic and medical equipment is crucial to providing health care in the 21st century. This equipment can be expensive. As part of its commitment to securing Canada's health care system, the federal government will also provide to provinces and territories a further $500 million for medical equipment in 2004-05. This investment builds on previous investments of $1 billion and $1.5 billion in diagnostic and medical equipment made by this government in the 2000 and 2003 health accords, respectively. This funding will assist provinces and territories in improving health care services by providing funding for new equipment and, much more importantly, the specialized staff training to improve access to publicly funded diagnostic services.

As a result of these new funding commitments for health care, total federal cash transfers in support of health care are scheduled to rise to $30.5 billion in 2013-14 from $16.3 billion in 2004-05.

As I have outlined, the largest part of this new funding will be provided through the Canada Health Transfer, which will grow by 6 per cent annually from its new base of $19 billion in 2005-06.


This money will add to the significant support provided in the form of transferred income tax credits, which will continue to increase as a function of the economy.

Honourable senators, these measures demonstrate the extent to which the government is determined to continue to improve the Canadian health care system and to ensure its future.


Honourable senators, first ministers agreed on the importance of reporting to their citizens on health system performance, including the elements set out in the 10-year plan. Governments agreed to seek advice from experts and health providers on the most appropriate indicators to measure health system performance.

In addition, Bill C-39 includes a provision for parliamentary review of progress in implementing the 10-year plan. The review shall be completed by a committee of both Houses of Parliament and shall take place in 2008 and again in 2011.

I would like to illustrate to honourable senators how we arrived at where we are today. This new federal support of $41 billion builds on agreements reached under the 2000 agreement on health renewal and 2003 First Ministers' Accord on Health Care Renewal.

Following the September 2000 agreement for an action plan to renew our health system, the federal government invested over $23 billion over five years through the Canada Health and Social Transfer and targeted investments, including the Primary Health Care Transition Fund, health information technology and medical equipment.

Building on that framework, in February 2003, as part of the 2003 First Ministers' Accord on Health Care Renewal, governments outlined a plan to further improve access to quality health care for Canadians. The federal government's commitment at the discussions on this accord provided for $36.8 billion over five years to support the action plan agreed upon by first ministers. At that time, first ministers also agreed to restructure the Canada Health and Social Transfer into two separate transfers: the Canada Health Transfer and the Canada Social Transfer.

The Canada Health Transfer was structured to provide growing and predictable support for health. The Canada Health Transfer was also designed to improve the transparency and accountability of the government's support for health, while maintaining the provinces' and territories' flexibility to allocate federal funding according to their respective priorities.

The Canada Social Transfer provides federal funding to the provinces and territories for post-secondary education, social assistance and social services, including early childhood development and early learning and child care.

The federal funding provided for in the 2000 and 2003 health accords, combined with the incremental funding of $41 billion in this bill, provides for predictable, sustainable and growing funding that will make the publicly funded system of health care more responsive and sustainable.

In the context of providing federal funding to the provinces and territories, no debate would be complete without mentioning the fundamental changes to Canada's Equalization and Territorial Formula Financing arrangements. The new framework announced last October will bring stability, predictability and growth to the overall level of funding for these programs. This new framework, as laid out in Bill C-24 currently before this chamber, provides for $33 billion in transfers through Equalization and Territorial Formula Financing.

Honourable senators, this $33 billion in funding, combined with the $41 billion for the 10-year plan to strengthen health care, results in an increase of $74 billion in funding to the provinces and territories. This $74 billion can be used by the provinces and territories to provide important health and social services to their citizens.

Canadians need their governments to work together on reforms to the health system and on ensuring its long-term sustainability for future generations. With the 10-year plan to strengthen health care, that is exactly what we did. The $41 billion in new funding provided in this bill represents a significant investment by the Government of Canada in core support for health care and the principles of the Canada Health Act through increases to the Canada Health Transfer.


This new investment supports the efforts of the provinces and territories to improve access and reduce waiting times for obtaining health care. It will also help provinces and territories to invest in necessary diagnostic and medical equipment.


Most of all, this $41 billion in federal funding will allow provinces and territories to invest today and plan for the future to ensure that timely access to quality care is a reality for all Canadians.

In closing, honourable senators will no doubt understand and appreciate the importance of timely consideration of this bill. I urge all senators to join with me in according Bill C-39 speedy passage.

Hon. Lowell Murray: Honourable senators, would the honourable senator permit a question? First, to follow up on the very last sentence of her speech about timely consideration of the bill, does she know or can she find out by turning just slightly to her right and asking one or other of the leader or deputy leader whether there is a timeline on this bill? Will grave problems be created if it does not receive Royal Assent by the end of the fiscal year?

Senator Carstairs: The agreement, as I understand it, does put a timeline on this bill. There has been agreement that the money would flow in 2005-06 and as quickly as possible.


Senator Murray: Honourable senators, I am not sure how grave the problem would be if we slipped by a couple of days. It is not that I am interested in delaying passage of this bill, but I do want to ask the honourable senator a question. I am sure that substantive critical analyses can be made of this bill and the agreements on which it is based. I might make some of them myself to the extent that the agreements fall short of addressing the systemic problems that were reported by our own Standing Senate Committee on Social Affairs, Science and Technology.

However, the loudest criticism of the agreements has come from commentators who, first, seem terribly agitated about the separate agreement with Quebec, to which my colleague did not refer but which I find unexceptional; and who, second, seem to believe that additional conditions should have been attached to this new federal money, in addition to the provisions of the Canada Health Act, to which all the parties have reiterated their commitment.

The criticism has been quite strident, and I am puzzled why the government has not addressed it adequately. The most recent rhetorical flourish I saw from one commentator is that it represents "Frankenstein federalism." Assuming that this bill is given second reading and is referred to committee, will the government consider encouraging the committee to invite one or more of the strongest critics of these agreements to the hearings to state their case so that we may hear from ministers or officials and shed some light on the matter? I believe that the agreements are fully in the Canadian tradition, and when I spoke on the throne speech debate, I quoted no less than Marc Lalonde along the same lines, but the criticisms are out there and they ought to be addressed. The committee might do us all a service by hearing from the critics and then having an appropriate response from the government.

Senator Carstairs: I am not a member of the Standing Senate Committee on Social Affairs, Science and Technology to which I expect this bill will be referred, but I have asked to be a member of the committee should any vacancies arise. I will make that representation to Senator Kirby.

Frankly — and the honourable senator knows my history better than anyone in this chamber — those who criticize this proposal have not read the so-called side deal. I read it, as you might gather, with a great deal of interest, and, like the honourable senator, I saw nothing of concern.

On motion of Senator Stratton, for Senator Keon, debate adjourned.

The Senate

Motion to Appoint Ethics Officer, Jean T. Fournier, Adopted

Hon. Jack Austin (Leader of the Government): Honourable senators, I move seconded by the Honourable Senator —

Hon. Anne C. Cools: I rise on a point of order.

Senator Austin: Is this the time for a point of order?

The Hon. the Speaker: It depends on the point of order. Nothing has happened, so I cannot be sure what the point of order would be about, but I will hear it.

Senator Cools: Your Honour, I was trying to get to my feet because Senator Austin was obviously not planning to speak to the motion.

Senator Austin: I have not been able to move it yet.

Senator Cools: Put the question before us. Go ahead and move it.

Senator Austin: That is so kind.

Honourable senators, pursuant to notice of February 22, 2005, I move:

That in accordance with section 20.1 of the Parliament of Canada Act, chapter P-1 of the Revised Statutes of Canada, 1985, the Senate approve the appointment of Jean T. Fournier, of Ottawa, Ontario, as Senate Ethics Officer for a term of seven years.

The Hon. the Speaker: Is Senator Cools rising on a point of order?

Senator Cools: If Senator Austin wishes to speak to the motion, I would be prepared to hold my point of order for a few moments. However, my understanding is that he is not planning to speak and that he will be moving another motion. Is that correct? I wish to raise my point of order before he moves another motion.

The Hon. the Speaker: Honourable senators, I do not think there is any point of order of an anticipatory nature. If you have a point of order, I will hear it. Otherwise, I will see Senator Austin on his motion. He is speaking to his motion.

Senator Cools: My point of order is on this motion. I wish to raise the possibility, honourable senators, that this motion is somehow defective and is not properly before us. If you look to the words, they are as follows:

That in accordance with section 20.1 of the Parliament of Canada Act, chapter P-1 of the Revised Statutes of Canada, 1985, the Senate approve the appointment of Jean T. Fournier...

My understanding is that Mr. Fournier has not been appointed as of yet. I do not understand how we can be approving an appointment that has not been made. That is the first point.

If we are being asked to approve an action that has not been taken, then that certainly makes this motion somewhat questionable and suspicious, if not defective.

My questions arise, Your Honour and honourable senators, from the fact that the authority for the motion or the authority for what the government is asking the Senate to do arises out of section 20.1 of the Parliament of Canada Act.

Honourable senators, I retrieved a copy of the Parliament of Canada Act from the Department of Justice website. It is a very recent copy, updated as recently as August 31, 2004, and I went to section 20.1. I discovered there is no section 20.1 in the updated act, which, again, is questionable. The only explanation that could possibly be given for that is that the ethics bill, as we passed it some months ago, is not in force.

If it is not in force, how can we be asked to approve an action which has not happened under a section of the act which is not in force? There is something very wrong here, and I hope the minister can explain it. The Senate is being asked to take an action under a section of a statute that is not in force.


Clause 42, which is the coming-into-force provision of the ethics bill, Bill C-4 to amend the Parliament of Canada Act, that we passed some months ago, reads as follows:

The provisions of this Act, other than sections 38 to 41, come into force on a day or days to be fixed by order of the Governor-in-Council.

In my view, it is very clear that whole sections of this bill are not in force; as well, the section under which we are being asked to grant our approval is certainly not in force.

Perhaps there is an explanation. I will be quite happy to hear how Senator Austin responds to this point of order, because it is very odd that the Senate is being asked to perform an action pursuant to a section of an act that is not in force to approve an appointment that has not been made.

Senator Austin: Honourable senators, there were a number of points made by Senator Cools to which I should like to respond. Section 7 of the Interpretation Act provides as follows:

Where an enactment is not in force and it contains provisions conferring power to make regulations or do any other thing, that power may, for the purpose of making the enactment effective on its commencement, be exercised at any time before its commencement, but a regulation so made or a thing so done has no effect until the commencement of the enactment, except in so far as may be necessary to make the enactment effective on its commencement.

In appointing its Ethics Commissioner, the House of Commons acted pursuant to the same regulation. Their motion referred to subsection 72.01, that also had not been brought into force. The section does not need to be brought into force, nor does our section need to be brought into force until the Governor-in-Council is ready to make the Order-in-Council. I again refer to the Interpretation Act.

Honourable senators, senators insisted that no action be taken by the Governor-in-Council to indicate a preference with respect to a Senate Ethics Officer. That insistence was accepted by the government and resulted in a ministerial undertaking, which I gave in February 2004, that all of the action would be reserved to this chamber with respect to designating our preference with respect to a Senate Ethics Officer. The action being requested in the motion that I have moved today is an action for the Senate to approve the appointment of Jean T. Fournier, and that approval will give rise to the action by the Governor-in-Council under its authority to make the appointment.

Honourable senators, there is nothing at all irregular about the steps being taken here. As I said, we are following the same procedure as was followed in the House of Commons, and the purpose of my motion is to initiate the matters contained in my undertaking and to do so within the appropriate language of the section of the former Bill C-4, which was adopted by this chamber.

The Hon. the Speaker: Before I give Senator Cools the final comment, do any other senators wish to make a comment?

Senator Cools: I am not informed of the goings on in the other place. It gives me no comfort and assists me in no form or fashion to be told that we are doing what was done in the House of Commons, because it is entirely possible that if it were done improperly in the House of Commons we would be repeating a mistake. However, I cannot speak about the House of Commons because I have not looked to the record of the House of Commons to see how it was done there. It is my understanding that their situation is somewhat different from ours, in any event. That may or may not be so, but I am not going there. I am going with the plain words of this motion.

This motion is not asking the Senate to approve Mr. Fournier as a candidate for appointment. This motion is not asking the Senate to give a stamp of approval to the individual, and neither is this motion asking the Senate to recommend Mr. Fournier for the position, because what Senator Austin has spoken to is not the business of the appointment. He has spoken to the business of the selection of the person as a candidate for the appointment.

I have no problems with what Senator Austin has said. If that is what Senator Austin wanted his motion to say, he should have said that in his motion, and he still may. He could proceed by way of amendment. However, the motion cannot ask, in all honesty, that the Senate approve the appointment because the appointment has not been made. Senator Austin is asking us to give an imprimatur, an approval, on an individual to be appointed, which is quite a different matter.

Honourable senators, I am well aware of the undertakings that were made. I followed the debate closely as it occurred several months ago. I am not quarrelling with that and I am not quarrelling with the House of Commons. As a matter of fact, just a few days ago, Senator Austin told me that we should not inquire about what was going on in the House of Commons. My concern is the plain words on the face of this motion.

The Leader of the Government in the Senate quoted the Interpretation Act. I am not going there. I do not think that most honourable senators even know that those sections have not been called into force. I am dealing with the plain words that a motion cannot ask the Senate to do something that is not true. This motion, as Senator Austin has moved it, is asking the Senate to approve an appointment, not to approve a person for appointment. There is a profound difference. This motion, as scripted, is asking the Senate to approve an appointment, and only the Governor-in-Council can make such appointments.

I submit that this motion is defective and questionable. The way around it, perhaps, is to have the mover of the motion move an amendment, which I would be happy to support, that the Senate approve the candidacy of a certain person for the appointment. There is a difference, and Senator Austin cannot simply say there is not a difference.

Senator Austin: Honourable senators, while I appreciate that Senator Cools wants us to follow the correct policy with respect to this matter, the procedure that I am following is based on the advice of law officers of the Crown and the table officers in this chamber. I believe the procedure is well cast and according to law and, as I have pointed out, was the procedure followed in the House of Commons where no objection was taken.

Senator Cools: Let us go back then to section 20.1. I would have thought that Senator Austin, since he is asking us to move a motion relative to this section, would put it on the record.

Senator Austin: Honourable senators, whatever is the law has judicial and parliamentary notice with no further action.

Senator Cools: Perhaps the problem is in the section of the law. Has the government leader considered that possibility?


Senator Austin: The problem is that Senator Cools' interpretation is well meant but not correct.

Senator Cools: I do not think so.

The Hon. the Speaker: Honourable senators, just to try to bring some focus to the matter raised by Senator Cools, the point of order is to determine whether a particular proceeding before us is in accordance with our rules. I would ask senators to address that issue. This is not a time for debate but a time to explain why a matter is or is not in order.

As Senator Cools has raised the point of order, I will give her the last word.

Senator Cools: The question is whether or not the motion asks the Senate to do what the motion is saying. The conclusion that Senator Austin is asking of the Senate is not the conclusion for which the motion is asking.

We cannot have two different propositions before us at the same time. If Senator Austin and the government are asking us to approve of this gentleman as a candidate, then the motion should say that. The motion asks that "the Senate approve the appointment." Mr. Fornier has not been appointed.

Honourable senators, there has been enough bitterness and unhappiness around the question of the Senate Ethics Officer and the process followed. Certainly the government could get it right for once.

The Hon. the Speaker: I have listened, and I believe I understand the point of difference between Senator Cools' point of order and Senator Austin's response. It falls to me as the presiding officer to make a decision.

The point of difference is essentially over the language used in the resolution that the Senate approve the appointment of Jean T. Fournier and whether this is an attempt to do something that will, as is anticipated by the motion and the comments on the point of order, be done following any decision by the Senate as to whether it approves the appointment. Accordingly, I take this to be the issue, and on this issue, my reading of the motion is not that the Senate is attempting to make the appointment or to do something that the government will do by Order-in-Council, but rather, as is indicated by Senator Austin, that the Senate approve the appointment. I do not believe that to be in any way out of order.

As to the question of whether or not an element of the Parliament of Canada Act is in effect and in place, this is a matter which I do not believe falls in my jurisdiction. If it did, then on any matter that came up, a point of order could be raised seeking to prove the fact that an act had been passed and proclaimed. That is a question of law, and a question of law clearly under our rules is not decided by the Speaker. The Speaker decides points of order on procedure and on matters to do with our rules and practices.

Accordingly, it is my ruling that it is in order to proceed with the debate on this motion.

Referred to Committee of the Whole

Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, I move that the motion be referred to Committee of the Whole now.

The Hon. the Speaker: Do you wish to speak, Senator Rompkey?

Senator Rompkey: I would just say that this has been deemed the best course of action open to the chamber in examining the question before us. It was an agreement made by the mover and the seconder and by the leadership on both sides. I would now seek approval of that motion.

Hon. John Lynch-Staunton: Will the honourable senator take a question?

I have no objection to hearing the candidate to which both sides have agreed, but I feel that unless Senator Rompkey can convince me otherwise, perhaps we are jumping ahead of ourselves. We do not have a code of conduct that has yet been approved by the Senate; therefore, the person who is advanced as the one who will apply the code will have nothing to tell us about the rules that will govern us for which he will be responsible.

Would it not be more apropos to have the code first, and when the candidate appears, discuss with him any contention or vagueness in the code which one may feel exists, so we can be sure we are starting from the same time and at the same place? Otherwise, we will name someone, and then in a few weeks hand him over a code and never have a chance to know his interpretation of it, or perhaps he may find some weaknesses or suggest some improvements. As qualified as this gentleman may be, it would be unfair to him to discuss this matter with him without placing before him the one tool that he should have at his disposal.

Hon. Jack Austin (Leader of the Government): I remind honourable senators of the point made repeatedly during the debates that brought final determination to this chamber regarding the Senate Ethics Officer and the Rules of the Senate. That point simply was, and this is the point I am following to the letter, that the Senate Ethics Officer would apply the Rules of the Senate as decided by the Senate and be guided by the Senate. It is not the purpose of the Senate Ethics Officer, in my interpretation, to participate in the development of the rules or to debate or advise with respect to the rules.

The Senate Ethics Officer will apply the Rules of the Senate when the Senate determines what those rules will be.

Senator Lynch-Staunton: I agree, but I think the candidate should have the rules before him so he will know exactly what he will be asked to apply and to ensure that there will be some form of supervision by senators that he is made aware of and that may or may not inhibit the freedom he may have.


Senator Austin: Honourable senators, the candidate, Jean Fournier, is quite familiar with general issues involved in questions of ethics. With respect to practice in Australia, where he was high commissioner, he is quite familiar with rules in the other place, and he generally understands the nature of the position being discussed. However, the best evidence of that will be his appearance and the opportunity for senators to ask questions of him.

Hon. Gerald J. Comeau: In my previous profession I quite often had to hire people to perform certain tasks. The usual procedure was to establish the terms of reference for the employee, the requirements that were needed for the job, the job description and our expectations of the individual. In this case, the Senate does not have the code of ethics yet and so senators do not know what it will ultimately hold. Therefore, it would seem that we are proceeding in reverse by hiring the individual for the position of Ethics Officer and then advising him of the terms of reference at a later date.

I agree with Senator Lynch-Staunton that it would be only fair, if the individual fits the terms of reference as determined by this chamber in the future, that we invite him for an interview to determine whether his qualifications meet the terms of the Senate, no matter his previously-held offices. By attempting to approve this appointment today, the Senate would be hiring the individual on the assumption that he will fit any terms of reference that ultimately the Senate may set out for him. I do not think that is fair. At the end of the day, the Senate may need someone who has more legal expertise than the kind of expertise that this gentleman brings, or there may be other factors to consider. The Senate should establish the terms of reference and the job description, and then fit the individual to those.

Senator Austin: Honourable senators, I have answered the question, but I will answer it in such a way as to specifically address Senator Comeau's concern. There is no mystery in the general nature of rules of conduct. In his report, Senator Oliver has laid out a code of conduct. In this chamber, senators have debated a code of conduct. In the other place, members debated a code of conduct. The issues are well known. The determination of this chamber was to produce a "senators only" code of conduct. I have taken that message seriously indeed.

The candidate is aware of the Senate's debates and of the nature of the job.

In the past, I have hired people because they were bright, competent and possessed the personality and temperament to carry out any assignment. The generalities of the assignment were known beforehand but the specifics were developed later.

The office of the Ethics Officer is being designed by senators only. Therefore, the argument that he might have advice or participate does not factor into these current circumstances. I see no possible objection to having Mr. Fournier attend here to satisfy senators as to his qualifications, interests, general bearing, judgment and integrity. I see no reason for the Senate to not assess this person for the position. As Senator Rompkey pointed out, Mr. Fournier has been interviewed by Senator Kinsella and me, and we found him attractive and suitable to this particular assignment.

I recognize the right of any senator to quarrel with the Leader of the Opposition or with me in respect of our collective or separate judgment. However, I believe senators can have no reasonable objection to making their respective assessments of the gentleman who Senator Kinsella and I believe has the consensus of this chamber. That was the undertaking I sought and received.

Senator Lynch-Staunton: To clarify, the point is not to challenge the gentleman's competence and integrity, but rather to determine from him, with the code before him, whether he finds it applicable, sees weaknesses in it and whether it is a tool that he finds apt to the job he is being asked to do.

We are being asked to interview someone who has not seen the main tool with which he will be expected to perform his duties. It could well be that, once he is appointed and reads the code, he might say that he is sorry but it was not what he expected. Let us avoid that by completing the code of conduct first and filling the position of Ethics Officer second.

Senator Austin: Honourable senators, I would make a point again that that is not how this chamber wanted to proceed.

Hon. Anne C. Cools: Honourable senators, this matter is moving a little faster than I had expected. I expected debate on the first motion today, not that we would skip over debate on the first motion to proceed to the second motion. I find the whole procedure rather odd. It is Thursday at 3:30 and we are talking about something that is of great importance and concern to all senators.

The Hon. the Speaker: To clarify, and because I want to keep the proceedings on track, Senator Austin was speaking and then we had comments. Are you speaking to this item now, Senator Cools?

Senator Cools: I move the adjournment of the debate.

The Hon. the Speaker: When a senator has the floor, we have questions and comments. When that senator is finished, I will recognize another senator. It is my understanding that when Senator Austin rose, took a question and made comments, it was his speaking time. We cannot have a motion to adjourn in the middle of a speech but rather at its termination.

Senator Austin: Honourable senators, this side has no intention of agreeing to any adjournment.

Senator Cools: The person who was speaking, Your Honour, when I moved the motion, was myself.

The Hon. the Speaker: I will clarify that because it is important. In the chair it has been my practice to facilitate the give and take of debate or exchange of views in the chamber. Rather than intervene in a formal way, I have stood back. Unless I thought there was a breach of the rules, I allowed the flow to continue by way of question or comment back and forth, which was happening at that moment. Senator Cools rose, I thought perhaps to ask a question or to make a comment, because that was the nature of the preceding interventions. We were on the item, as I had called it, to which Senator Austin was speaking. Senator Austin has finished speaking to the item and so I will go to the next senator.

Senator Cools, when you rose I said that I would see you next, and I see you now.

Senator Cools: I thought I had risen and indicated my interest in the item for debate. I thought I had said that I was expecting the first motion to be debated today but the house moved on to the second motion. In light of that, I thought I would move adjournment of the debate so that I might participate in it with more information before me. The hour is late on a Thursday and senators are anxious to go home.

The Hon. the Speaker: Honourable senators, it is not a debatable motion.

It is moved by the Honourable Senator Cools, seconded by the Honourable Senator Lynch-Staunton, that further debate be adjourned to the next sitting of the Senate. Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Yes

Some Hon. Senators: No.

The Hon. the Speaker: Those in favour of the motion to adjourn the debate will please say "yea."

Some Hon. Senators: Yea.

The Hon. the Speaker: Those opposed to the motion will please say "nay."

Some Hon. Senators: Nay.

The Hon. the Speaker: I believe the nays have it.

And two honourable senators having risen.

The Hon. the Speaker: We will have a one-hour bell, unless there is agreement on an earlier vote. Honourable senators, is it agreed that the bell to call in the senators shall ring for 15 minutes?

Hon. Senators: Agreed.

Call in the senators.


Motion negatived on the following division:


Cochrane Lynch-Staunton
Cools Meighen
Forrestall Tkachuk—6.


Adams Jaffer
Atkins Kenny
Austin Kinsella
Banks Lapointe
Callbeck LeBreton
Carstairs Losier-Cool
Chaput Mahovlich
Christensen Massicotte
Cook Milne
Corbin Murray
Day Pearson
De Bané Pépin
Downe Poulin
Fairbairn Prud'homme
Ferretti Barth Ringuette
Finnerty Robichaud
Fraser Rompkey
Furey Sibbeston
Gill Stollery
Harb Stratton
Hervieux-Payette Trenholme Counsell—43.



The Hon. the Speaker: We will continue with the motion of Senator Rompkey.

Senator Rompkey: Question!

The Hon. the Speaker: No senator rising, I will put the question.

It was moved by the Honourable Senator Rompkey, seconded by the Honourable Senator Losier-Cool, that the motion be referred to the Committee of the Whole now.

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

Senator Cools: On division.

The Hon. the Speaker: It is not too late for that.

Motion agreed to, on division.


The Hon. the Speaker: Pursuant to the order of your honourable house, I do now leave the chair and invite the Honourable Senator Robichaud to please take the chair of the committee.

Consideration in Committee of the Whole

The Senate was accordingly adjourned during pleasure and put into a Committee of the Whole, the Honourable Fernand Robichaud in the chair.


The Chairman: Honourable senators, I wish first to draw your attention to rule 83, which provides that:

When the Senate is put into Committee of the Whole every Senator shall sit in the place assigned to that Senator. A Senator who desires to speak shall rise and address the Chair.

Honourable senators, is it your pleasure to suspend the application of rule 83?

Hon. Senators: Agreed.


The Chairman: May I also remind honourable senators that rule 84(1) states:

(a) a Senator may speak any number of times;

(b) Senator shall speak for more than 10 minutes at any one time;


Pursuant to an order of the Senate, Mr. Jean T. Fournier was escorted to a seat in the Senate chamber.

The Chairman: Mr. Fournier, on behalf of all senators, I welcome you to the Senate of Canada. I will ask whether you have an opening statement and, if so, to please proceed.

Mr. Jean T. Fournier: Thank you, Mr. Chairman. Honourable senators, I am very honoured to come before you this afternoon on the recommendation of the Honourable Senator Jack Austin, Leader of the Government in the Senate and the Honourable Senator Noël Kinsella, Leader of the Opposition in the Senate, as the first Senate Ethics Officer reporting directly to the Senate.

During more than 30 years in the federal public service, I was often invited to appear before various Senate committees. I always considered it a privilege to do so. It was also often a stimulating and demanding intellectual exercise to discuss with honourable senators such widely differing subjects as the James Bay and Northern Quebec Agreement, amendments to the Canada Pension Plan and the Pension Benefits Standards Act, the Canadian Multiculturalism Act and the DNA Data Bank legislation, to mention only some of the topics.

Honourable senators, I must confess that this is not the first time that I have spoken on the floor of the Senate. Some of you may perhaps recall that in 1990 I was here, in my capacity as Under Secretary of State, with certain responsibilities at the state ceremony for the swearing in of the Right Honourable Ray Hnatyshyn as Governor General of Canada. It was a memorable experience for me. I remember feeling rather intimidated at the time and, today, 15 years later, I have the same feeling.


Honourable senators, I have a great deal of respect for the Senate of Canada. I know from personal experience the great contributions made by members of this chamber to Canadian public policy and law. You bring a wealth of knowledge and experience to the issues before you and are able to fulfil your constitutional responsibilities in an atmosphere significantly different from that of your colleagues down the hall.

I believe I have an appreciation — again, gained from my long career in Ottawa — for the distinct nature of the Senate as an institution with its own proud history, traditions and culture.

I am deeply conscious of the privilege and responsibility, if indeed you select me, to serve as an officer of the Senate in the position of Senate Ethics Officer. This will be a learning process for all of us as we seek to apply, with wisdom and common sense, the shared rules, standards of behaviour and principles you are currently establishing in the development of the Senate's own code of conduct.

Honourable senators, the code will need to strike a delicate balance, as you well know. For example, there has to be a balance between the public's right to know and the private rights of individual parliamentarians, one which does not impede the process of attracting appropriate and qualified individuals.

Whatever model the Senate chooses at the end of the day, the code must be, and must be seen to be, respectful of these two fundamental principles.


Honourable senators, I carefully read the amendments to the Parliament of Canada Act, which you adopted last year, and which establishes the position of Senate Ethics Officer. I believe that the broad range of experience I have acquired as a senior public servant will serve me well in my new capacity.

We all seek to serve the public good to the best of our abilities, with morality, integrity and in a manner that brings credit to the institution that employs us and the Canadians we serve through that institution. Obviously, the Senate is ultimately responsible for the conduct of its members.


My task will be to help senators abide by the Senate's rules and code of conduct. In particular, with respect to sections 20.5(1) and 20.5(3) of the Parliament of Canada Act, I will carry out, and I quote:

... the duties and functions assigned by the Senate for governing the conduct of members of the Senate when carrying out the duties and functions of their office as members of the Senate.

... under the general direction of any committee of the Senate that may be designated or established by the Senate for that purpose.


Honourable senators, I have always taken very seriously my responsibility as a Canadian public servant to give independent and impartial advice. Should you decide to confirm my appointment as Senate Ethics Officer, I will give my best advice to each of you individually and to this chamber, as you seek to reconcile your private interests and your public duties, always informed by the deep respect I have for this institution. Hopefully, working together, we can position the Senate as a leading ethical organization, both in Canada and internationally, where we are considered to be a "chef de file," a world leader, in promoting sound values and ethics in government.

Honourable senators, I would be pleased to respond to your questions.


The Chairman: Thank you, Mr. Fournier. We shall now proceed with questions.


Senator Kinsella: Mr. Fournier, perhaps you could describe briefly some of the highlights of your many years in the Public Service of Canada, perhaps beginning from your time in the Department of Indian and Northern Affairs through Secretary of State, et cetera.

Mr. Fournier: Senator Kinsella, I always find it somewhat humbling to be put in this situation and speak of myself. I believe senators have seen my curriculum vitae, so I will be brief.

I have served, over the years, in a half dozen departments in the Government of Canada. I have worked on a couple of royal commissions. I have served on a number of boards. Most recently, I was Canada's High Commissioner to Australia, where I had the pleasure of welcoming a number of parliamentarians, including some senators who are here today.

I started working in the Department of Indian and Northern Affairs, and my last position in the federal government before being appointed to Australia was as Deputy Solicitor General of Canada, where I had responsibility for public safety and security issues, again working with a number of senators. Senator Kelly, who is no longer here, comes to mind. I was in that position for seven years.

When I was approached by Senators Austin and Kinsella to be considered for this position, I was surprised, flattered, honoured, and now today delighted that some of my past experience could be of help.

Should honourable senators decide to select me, I look forward to working with all members of this chamber.

Senator Kinsella: Mr. Fournier, you have served as the Under Secretary of State for Canada, having been appointed in 1986, and as the Deputy Solicitor General of Canada, which are senior deputy minister positions in Canada under a variety of governments. Senators, at least this senator, are concerned about the relationship that will be developed between the individual senator and our Ethics Officer. One of the dynamics, in my judgment, that will be terribly important is the dynamic of confidentiality. Would you describe the importance of a confidential relationship that a senior deputy minister has with his or her minister, the kinds of professional and objective advice that is sought by the Prime Minister and is rendered to the Prime Minister, because it is at the highest level of confidentiality?

I am concerned that my relationship with the Ethics Officer will be under an atmosphere of what is described in the legal profession as lawyer-client relationship or, in the field of religion, priest-confessor relationship or, in the field of medicine, doctor-patient relationship. You have experience in dealing with ministers and prime ministers and cabinet documents, which are secret documents. Would you speak about your experience in operating in an environment where confidentiality is essential and how that would be applied by you if you were to serve these honourable senators as our Senate Ethics Officer?

Mr. Fournier: Going back to 1986 when I was first appointed a deputy minister, I have since served seven different ministers; four ministers during the term of Prime Minister Mulroney and three ministers during the term of Prime Minister Chrétien. My approach to serving them has been based on providing them the best advice that I, with the help, assistance and support of my staff, could develop and bring together, recognizing that, at the end of the day, I provided advice as a deputy minister. It ought to be the best advice, it ought to be thoughtful, it ought to be practical, it ought to be politically sensitive, it ought to be independent and it ought to be impartial. At the end of the day, it is up to the minister to decide which course of action he or she wishes to adopt.

It is a relationship with which I have always been comfortable, one that is based on a mutuality of interests, the deputy being respectful of the minister's authority and the minister in turn being comfortable with the professionalism the department or the institution brings to bear. This is a relationship that I have enjoyed. In that context, I have dealt with members of Parliament and senators. If indeed I am selected, I will try and draw on those years of experience in that supportive relationship, which the act of Parliament, the law of Parliament provides. It is my role in this job to support, assist and provide advice to senators as they govern themselves in the implementation of the code of conduct they are currently establishing.

I hope this answers your questions.


Senator Stratton: Mr. Fournier, I would like to talk about the job itself. Although there is not a lot of detail, if you have had exposure to similar events in other countries, such as Australia, that have a code of ethics and ethics officers, perhaps you could expand on that and tell us how you see this job unfolding with the little information that is available right now.

Mr. Fournier: As I mentioned in my opening remarks, I see my job as it is generally outlined in the legislation — that is, setting up the position of Senate Ethics Officer by implementing the rules of conduct and the standards of behaviour that the Senate will decide to adopt as part of its rules; dealing in a supportive way with issues that come up by providing guidance and assistance to individual senators to implement the code; and, in a context of confidentiality, looking into situations and ethical dilemmas that may arise.

Ever since my appointment as Deputy Solicitor General in 1993, I have had top security clearance, and I still have it today. In that position, I had access to some of the top secrets in Canada's security and policing agencies. I endeavoured then to act in a way that respected the oath that I had taken. Of course, I have no difficulty with that and would continue to ensure that I treat with the utmost of discretion the close relationships that I hope to establish with every one of you.

Senator, you made reference to Australia. Certainly, Australia, among other countries, is looking to Canada and to Canada's experience. The Australians have a long-standing experience with a code of conduct for public servants that goes back to 1997, and I believe that particular code for public servants was embedded in that year in the Public Service Act of that country, and it remains there today. Australia has developed, first of all, a code of conduct for public servants. Indeed, the first part of the Public Service Act of Australia is all about the code of conduct and standards of behaviour that are expected of public servants, and the Australian experience in that sense is quite instructive.

With respect to the House of Representatives, as they call it in Australia, the Senate, which as you know is elected in Australia, and ministers, there is no formal code as you are discussing here. There is a bill, however, before the Senate in the name of Senator Andrew Murray, which provides for the establishment of a commissioner of ministerial and parliamentary ethics. This bill has been on the order paper for the last three or four years and is making slow progress through the parliamentary system in Australia. I know from my discussions with my colleagues in Canberra that they are watching the work that is being done in Canada with a great deal of interest so that it will inform the final decisions that the Australians make with respect to their own code of conduct for ministers, members of the house and senators.

Indeed, I know, as you do, from visits of other countries to Ottawa and to this Parliament, that there is a considerable amount of interest in Canadian efforts and initiatives in the area of parliamentary reform, promoting sound values and government ethics. I would expect that the code of conduct that you finally approve will be of interest not only to Australia but also to other countries.

Senator Sibbeston: Mr. Chairman, first, I want to welcome Jean Fournier to the Senate. Thirty years ago, I was a young politician in the North, and Mr. Fournier used to come North with then Minister of Indian Affairs Jean Chrétien. It was interesting to see him. I have risen as a politician to become a senator, and, Mr. Fournier, you are at the point of reaching perhaps the epitome of civil servant jobs in being ethics commissioner in the Senate, so we have both come a long way.

When we were dealing with the ethics rules for the Senate, I expressed a concern, that is, that rules are made, for example, in the area of criminal law and other law with the general southern populace in mind. In terms of government policies, many of the federal government's policies regarding the North are made in the South, and we in the North have to scramble to try to modify them to make them work in the North.

You have had a great deal of experience. I have read your CV and it is very impressive. Part of your experience has been in the North, and you have also dealt with Aboriginal people, so I trust that this will stand you well in your dealings with us.

My question is related to the North. If you were faced with the task of interpreting the ethics rules, would you be able to understand and adapt the rules to the northern situation? Invariably, a rules conflict may arise in your dealings with businesses, government contracts and so forth. The North is different from the South in that there are few people and people are often related. In every community, both territorial and federal governments have a huge presence, so how can people ever avoid contact or relationship with government? People could find themselves in somewhat of a conflict because of that. Can you see yourself being able to deal with situations like that and being able to adapt the rules to the northern situation and make sense of it?

Mr. Fournier: Thank you, Senator Sibbeston. It is a pleasure for me, so many years later, to see you this afternoon, and I look forward to catching up with you in the weeks and months to come.

You raise a very important question. Not only does it speak to the issue of Northern Canada, which is close and dear to me, but it also speaks generally to the nature of the Senate's code of conduct. I believe the point that you make about flexibility is a critical one for the Standing Senate Committee on Rules, Procedures and the Rights of Parliament to consider in the days and weeks to come, as it wrestles with the scope and the wording of that code of conduct. A good code of conduct must be flexible. A good code of conduct provides a framework that sets out standards of behaviour, and it has principles and general rules.


It cannot be so restrictive as to create a straitjacket which makes it difficult or impossible to apply to all parts of Canada. This is a code of conduct for all senators representing all regions of Canada.

In my view, a good code has to be simple, easy to use and easy to understand. It should be practical and involve minimal costs. It should be thoughtful. It should recognize that ethics includes many grey areas and, in helping senators work through these grey areas, I will be guided by the code.

I do not believe that one size fits all in Canada. One has to be regionally sensitive. It makes no sense to bring an enforcement perspective or a rules-based perspective to ethics. One needs to be guided by certain key principles. It should not be so complicated that every senator needs accountants and lawyers and policemen in order to conform to the code.

Thank you for your question, which has provided me with an opportunity to make a broader statement about your code. My job will be to implement your code. I hope that the flexibility that you argue for in the northern context will also apply more generally to the code that you are working on.


Senator De Bané: Mr. Fournier, welcome to the Senate. I am honoured that you accepted this great responsibility. What is the relationship between the code of conduct and the Criminal Code, which also governs our activities?

Mr. Fournier: The Senate is currently subject to a number of ethical rules. The Rules of the Senate include rules on ethics. The code of conduct, once implemented, will govern the senators' conduct. Not all ethical matters involving the Senate will be included in the code. More general clauses relating to the Senate are included in the Constitution of Canada, the Criminal Code and the Parliament of Canada Act. These are related and complementary. The Criminal Code addresses matters of a criminal nature, while the code of conduct that you will develop will touch more on matters of morality and conduct. It will not carry over into criminal matters.

Senator De Bané: I have a suggestion I would like you to consider. In the private sector when a person is appointed to a board of directors, they expect legal advisors, either internal or third party professionals, to provide them with a document that sets out their responsibilities. Likewise, the president of a corporation receives legal advice.

A law firm cannot guarantee how a court will rule in a given situation, but it can look at jurisprudence and advise their client accordingly. One of my colleagues was found guilty despite his good faith. He did not realize that in taking a certain action he was committing an offence. Most of the judges who ruled in this case agreed that he had acted in good faith. Why not take our lead from the private sector and, without prejudice to what the courts might later decide, send every member of the Senate a document advising them of the possible legal ramifications of a given situation? We could explain a situation and provide advice based on legislation and the code of conduct on what is permissible or not, even if this information is not binding on the Ethics Officer or the courts.

I was surprised to see this colleague, unbeknownst to him and in good faith, commit an act that has disqualified him from sitting in this place. Why is the private sector entitled to all sorts of legal advice when we receive none here until after the fact?

Mr. Fournier: The legislation establishing the position of Senate Ethics Officer calls for the creation of a Senate committee and for me to act under the general authority of this committee. That is an excellent suggestion and one we will be able to discuss in this committee. The existence of this committee is extremely important in order that I may serve you and that your questions and suggestions, such as the ones you just described, may be heard.

I hope that when the code is implemented, the Senate will immediately take the necessary measures to strike this Senate committee. Perhaps you will be a member of it and we will be able to continue this discussion, because ultimately, if I am to serve you, it is important for there to be mechanisms allowing us to exchange ideas. You and I are pioneers. We have to establish guideposts that will be useful for both you and me.

Senator Ringuette: You knew a number of people who led very active public lives. What distinctions do you draw between a parliamentarian's public and private lives?


Mr. Fournier: That is a fundamental question, the very core of the code of conduct.

A proper balance must be found, and what a delicate and difficult task that is, between senators' public responsibilities and their private lives. There are two principles involved here: the public's right to know, and your rights as senators to privacy. These are two fundamental rights. We cannot say that one is more important than the other; we have to deal with both. The legislation and the code will provide us with the framework for doing so. That framework is, of course, important, but what is within that framework is more important still. Imagination will be required as well as good relations between my office and the senators, if we are to be able to exchange information in total confidence and address specific cases.

Establishing principles is not enough in itself. Rules must be set. Those rules are not, however, cut and dried. Life is rarely black and white; there are a lot of grey areas. Over the years, I have had to learn to deal with ambiguity and have, moreover, become comfortable with doing so. We need to talk about it, address it head on, and become properly aware of it. That is the approach that has enabled me to serve numerous ministers and senior public servants over the course of my career. I hope that, with your support, I will be able to take that same approach here.


Senator Cools: Mr. Fournier, I would begin by welcoming you to the Senate chamber.

I listened to you carefully, trying to get a feel for you — the person, the man and, of course, the public servant. Perhaps I could begin my exchange with you from there.

I am sure that you have read a lot of the debates and I am sure that you are aware that many senators in this chamber, myself included, have voiced strong objections to the manner in which the ethics bill had proceeded. At times I have believed that the flaws have been so great as to actually impair the bill, or at least to put large shadows and clouds over it.

In particular, I have raised the question of the relationship between servants of the Crown and members of Parliament. For a couple of hundred years, Parliament has excluded servants of the Crown, especially office-holders for profit, from its bosom. Therefore, I am comforted to hear you say that this is new ground, that this is pioneer work. I draw much comfort from that, because you seem to be taking this very seriously, and you seem to understand inherently that, although you have an abundance of experience in the public service, you are moving into a new incarnation, so to speak. I assure you, Mr. Fournier, that the Senate will be like none other that you have ever worked in. In saying that, I am trying to relax you a bit. Trust me; it is a world in itself.

You make some interesting remarks, Mr. Fournier. You talked about serving the Senate. You used the words "serving you" and "serving the Senate." You talked about this being pioneer work and you used some other interesting phrases that I noted.

Perhaps we could begin our exchange with me asking you to address that phenomenon. Have you given much thought to the constitutional relationship that the Ethics Officer will have with the Senate collectively and senators individually, and do you have any ideas on it?

Mr. Fournier: Thank you, honourable senator. I have much to learn from you and other senators in this chamber. There is considerable knowledge and experience in this chamber on matters of ethics. I have read some of the debates of the special committee of the Senate that was chaired ably, I thought, by Senator Milne. I have also read the very instructive report that Senator Oliver was involved with some 10 years or so ago, along with Mr. Milliken, and I look to benefit from the experience in this chamber.

As a public servant, my knowledge of ethical issues, of course, has, up until now, been focused on the ethics that govern public servants. That is an area that has been of increasing importance over the last 15 years, going back to the milestone report of the late John Tait, which is being used internationally. It is well known in Australia, the U.K. and elsewhere as a foundation document on issues of values and ethics in government. John Tait was a good colleague of mine when he was Deputy Minister of Justice and I was Deputy Solicitor General. We often spoke about ethical issues in the context of the life of a public servant. Therefore, ethical issues are not foreign to me.

The application of ethical issues to parliamentarians, and in the Senate in particular, is an area in which I look forward to working with you as you establish your own code, which will go a long way to defining the relationship between me, my office, you as senators and this chamber. At least it will provide the framework and the general rules of behaviour that you want to give to yourself and adhere to as senators. My role, much as it was when I was a deputy minister, will be to serve you, to guide you and support you in the implementation of those rules.

Inevitably, those rules will evolve. The code that you will give yourself will be a living tree, and we will work it together. By a process of iteration, I hope that, together, we can ensure that the relationship between us is a productive one, and an easy one.


It has been suggested by both Senator Austin and Senator Kinsella that I should have an office, if not in this building, on the Hill. If that is your wish, if that is possible, I would consider it important in terms of building the relationship so that it is not simply limited to my appearing today or before meetings of the special committee set up to liaise with the Senate Ethics Officer or to the one-on-one discussions to which I look forward. If indeed I have an office here as opposed to somewhere else in the area of Ottawa, then we can work together and identify issues that are of concern and work creatively on some of the ethical dilemmas and deal with the ambiguities in a very pragmatic way.

I suppose I am sort of a practical idealist. I do believe that one can deal with issues, however sensitive or however complex. Otherwise, I do not think I would have spent the time I did in Indian and Northern Affairs and still enjoy it, or that I would have dealt with issues as complex as the Canadian Multiculturalism Act, Japanese-Canadian redress, pension reform, development of the DNA data bank or the FINTRAC agency. These were all leading-edge, pioneering issues with their own sets of problems.

Through a lot of goodwill and with a lot of hard work on the part of many people, we were able to develop positions, policies, legislation and agreements that have stood the test of time. I hope I am able to earn your trust, senator, and exceed your expectations in the weeks and months to come.


Senator Corbin: Mr. Fournier, I know you for a man of principle. I worked on the committee with Senator Kelly and it was a very enriching experience. I have always appreciated the frankness of your answers and comments.

I would ask you not to think of the comment which follows as being addressed to you personally; rather it concerns the function of ethics officer. In fact, I am somewhat hesitant to approve your appointment today, for the simple reason that I do not yet know the final form of the code which you will enforce and by which I must abide.

Do you feel comfortable today going through this examination while the code is not yet in place? Have you discussed this problem with the people who invited you to appear here in the Senate today?

Mr. Fournier: As I replied to another senator, I would say that as a senior public servant, I have, over the years, become used to dealing with ambiguity. That said, I am convinced that in the end, the Senate, which has been working on ethical issues for years, which played a very important role in drafting the law that Parliament has passed, and which is working flat out on a code, will end up with an excellent code, on the leading edge among codes of conduct.

It is with that confidence and optimism that I appear before you today and I will be proud and eager to work with you in implementing this code.

To return to what I was saying previously in reply to Senator Sibbetson, I would say that the code will have some flexibility. Based on experience, we will have an opportunity to work together to fine tune it if necessary. However, if the code is simple and practical, does not require excessive spending, and is based on thorough research and reflection, I have every reason to be confident. I would accept this appointment with pleasure, if that is your wish.

Senator Corbin: There are some 16 empty seats in the Senate. People may soon be called by the Prime Minister to fill these empty senatorial seats. Do you think that all potential candidates for a Senate seat should be obliged to familiarize themselves with the code before accepting appointment to the Senate? Would you be ready to make this kind of recommendation to the Prime Minister so that potential senators would know what they were agreeing to, in terms of both public life and disclosure of their personal assets?

Mr. Fournier: I understand the meaning and importance of your question, Senator Corbin. It would probably be presumptuous of me to want to make recommendations to the Prime Minister on this.

I think in time, once the code is in place and has been put to the test, it will go without saying that any prospective senator will want to read the code, since it will be a public document. First we need to have that document. I know you are working on it. I am anxious for you to finish your work on this code. I am certain the Prime Minister will recognize the Senate's good work on this issue.



Senator Forrestall: I have a vast, incalculable wealth, and I truly do not know how Mr. Fournier will keep me on the straight and narrow. My concern for that wealth is without bounds — called five children, seven grandchildren and a wonderful wife. I may love you dearly, but I cannot speak for them because they are quite independent.

I wish to follow up on a couple of questions that were asked earlier. How do you view your relationship with this new committee, as you grow together? I do not believe that committee has a name yet. Perhaps you could give some thought to a name. In any event, how do you think your office should properly be related to that committee? Is it a conduit, or is it more than that?

Mr. Fournier: Senator, you are indeed blessed in the many ways that you have described.

The Parliament of Canada Act is quite clear on that relationship. Section 20.5.3, I believe — I stand to be orrected on the section — establishes that the Senate Ethics Officer is to work under the general direction of the committee. As an officer of the Senate, like other officers of the Senate, I will be here to support and serve senators. The specifics of that relationship will evolve over time, but it will be open, transparent and based on mutual respect in trying to deal with issues in a creative way that will be respectful of the individual situations of senators and of the independence of all the members of your wonderful families.

Senator Forrestall: I wish you good luck in your endeavours, sir. Probably you will never hear from me once we have had an initial interview.


Senator Prud'homme: I wish you a warm welcome. You mentioned the committee of Mr. Oliver and Mr. Blenkarn. I sat on another committee 20 years earlier. Two of us remain in the Senate: I and my very dear friend, Senator Callbeck, former Premier of Prince Edward Island. We were on the Stanbury-Blenkarn committee in the 1980s. The term "jurisconsult" was created at that committee. I must say, and I will be brief, we had a harder time getting that term accepted than the code itself. People thought it smacked too much of Quebec terminology. I thought this was rather rash because Quebec already had an excellent code. I think I had a word with a few people about this.

Quebec has excellent experience. Justice Albert Mayrand, a very noble and well-respected judge, like yourself, was a jurisconsult who, as part of his job, enforced very strict rules. I was struck by one of your responses when you said "this should be simple." A code should be simple.

You have made reference three times, I think, to "the office." I know that your office will probably be located in the East Block, which is an excellent location for discretion. Were you advised that the position of Senate Ethics Officer would be full time? We will know how to get in touch with you. What do you think of the simplicity, not only with regard to the code but also the bureaucracy?

It is no secret that, in the lower chamber, the Office of the Ethics Commissioner has over 30 employees, or so I am told. It is true that it has more work to do, given all the appointments by the Governor-in-Council, cabinet and so forth. In the future, do you think it will be possible not only to have a simple, clear, precise code of conduct that the public and the honourable senators will be able to easily understand, but also to maintain simplicity at your office and ensure that no additional levels of bureaucracy are added, which would only make it more difficult for us to get in touch with you directly, without having to go through A, B and C?

I am asking you all my questions at once. I am convinced that we will be well served by your appointment and that the public will be satisfied. I would have preferred, as other colleagues mentioned, for you to have a code. Now that this code is in the works, I am starting to really think about it and I hope — I am saying so publicly, not privately — that you and those writing the code will be able to meet in private. I think that your vision of it is simpler than theirs. Since your appointment is for seven years, if the majority so wishes — and it will, I am sure — the code should be simple. It might be good to allow for an immediate dialogue, to identify the kind of code of conduct able to meet the two objectives you have set, in other words, that it is satisfactory to both senators and the general public, who should have confidence — as opposed to that other faculty known as "titillation."


It would be simply for the pleasure of titillating the public or the press. I can say that full face to the television camera, because I am not shy about it.


Last week, we saw an unfortunate example of people who complied with the law in the House of Commons. They complied by filing declarations of gifts in excess of $500, and now western newspapers are running some unbelievable stories about them.

That point of view worries me somewhat. I do wish you luck and would appreciate it if you could give me your definition of what is simple for you and for your office.

Mr. Fournier: Thank you, Senator Prud'homme. I should begin by acknowledging your expertise in the field of ethics. I hope you and I, and the other senators as well, will have an opportunity to exchange views and to develop a close relationship. I fully intend to make myself accessible. I trust we will have the opportunity to speak again.

You have asked me several things. It is up to the Committee on Rules, Procedures and the Rights of Parliament, to determine whether it thinks I can do anything to help with its work. So far, it is the senators who have been involved in drafting the code in camera, and I wholly respect that. If, at some point, they want me to attend one of their in camera meetings, I would be only too pleased. I am at the service of the committee and of this chamber, and will certainly make myself available.

Returning to your question on simplicity; yes, I expect my office to be of modest size. That will depend on the nature of the code itself and the obligations you impose on me, so I have no preconceived idea about that.


As to the position itself, what I envisage and what I have discussed with Senators Austin and Kinsella, is that this will be a permanent position for me for the first two years, which will give me time to set up the office, physically and otherwise, and to develop close relations with you and your colleagues.

I also want to travel a lot across Canada to meet experts, some of whom appeared before the committee chaired by Senator Milne; for instance, Mr. Ted Hughes in British Columbia, Mr. Clark in Alberta, people in practice in Quebec and Ontario, and people in academia. I think it is important that I have these meetings as quickly as possible.

However, once the offices are set up and the machinery is in place, I think it will be a part-time position. I hope that answers your questions.


Senator Trenholme Counsell: Thank you for accepting our invitation today.

Like Senator Forrestall, I have great wealth in my children. I also have another great wealth, and that is with a considerable number of volunteer organizations in the non-profit sector, such as organizations involved with early childhood development, literacy, et cetera. One wonders whether there is any source of possible conflict between the fact that these organizations pursue sources of revenue sometimes from government, as in the case of literacy organizations, and my role as a senator.

Do you have a view on that kind of relationship for a Canadian senator?

Mr. Fournier: That is a question that is very dear to my heart, and not just because of my interest in literacy. I was very much involved, when David Crombie was my minister, in establishing the literacy secretariat during the International Year of Literacy, and it is a subject that continues to be of great interest to me.

More to your point, on the issue of volunteer organizations and non-government organizations, I am a member of the Vanier Institute of the Family, an organization of which you probably know, named after Governor General Georges and Pauline Vanier as their legacy after serving our country. I was a member of the board when I was Deputy Solicitor General, and they very kindly invited me to resume my position as a member of the board now that I have returned to Canada.

I did discuss, when I was a deputy minister, the issue of the relationship, what you should do and what you should avoid, with Howie Wilson, who at the time was the government's Ethics Counsellor. He asked me to abide by fairly simple rules so I would not get myself into trouble. I am not sure that I can recollect them here and now, but there are some simple, common-sense rules that can be followed so that the expertise of members of this house, your own, continues to be available to volunteer organizations and non-government organizations in a way that is transparent and that recognizes that senators have a wealth of knowledge and that this knowledge ought to continue to be available to volunteer and non-government organizations.

Over the years, I have derived a great deal of satisfaction from the time that I have spent on the board of the Vanier Institute. I look forward to continuing to serve and, if you so wish, I will be happy to have further discussions with you or any senators who are members of volunteer boards and define the ways that will ensure that those relationships continue.

Senator Trenholme Counsell: You do not draw a hard and straight line between holding only an honorary position in an organization such as the Vanier Institute or any one of the thousands of others; you entertain the possibility that active membership can be undertaken?

Mr. Fournier: I was a very active member of the board of the Vanier Institute during my time as Deputy Solicitor General. I believe that the reason they asked me to come back was so that I would continue to be active. I see no conflict between those roles. There are certain precautions — "précautions" in the French sense of the word — that one should probably follow, but those would not prevent a member of this house from being an active member on such a board.

The Chairman: Honourable senators, I will now start a second round, starting with the Honourable Senator Cools.

Senator Cools: Mr. Fournier, I will ask you to remember that we collectively have 10 minutes. Share it with me.

Mr. Fournier: I promise to be brief.

Senator Cools: I will throw out a few ideas. I will begin with a word of advice for you in respect of your office — and I am not speaking of the size of the room. In respect of staff, take my advice; small is better. I say this because of my knowledge and understanding of the nature of human beings. You told us that you wish to serve the Senate. The officers of Parliament are called servants of Parliament, but we have seen many situations where the servants quickly become the masters.

My concern comes from the fact that I have read a lot and experienced a fair amount politically. I will ask you to comment in a second.

We are living in an era where the diminution and degradation of Parliament and members of Parliament is profound. There are times when I feel that the system is almost irretrievable. I had viewed the creation of this ethics bill as a further diminution of Parliament to the extent that it purported to subjugate members of Parliament to the Prime Minister's Office and to the Prime Minister's appointment.

I have another word of advice. I heard you mention the Leader of the Government in the Senate several times in your remarks. I am aware that you are a former deputy minister, so I would urge you and advise you strongly not to see Senator Austin, the Leader of the Government in the Senate, as perhaps your new minister. I put that to you.

My concerns come from a number of areas. This bill was called "ethics." We tried to persuade the government that the term "ethics" should not be used because the declarations that members will be making are in respect of financial interests. Ethics includes a vast set of areas other than financial interests.

I would like you to comment on the fact that this is not a neutral environment. If a senator or colleague in this place runs into difficulty, that difficulty is not dealt with in a neutral atmosphere. The situation would be an extremely politically charged one. The senator of whom I think Senator De Bané was speaking I do not believe ever really had a fair chance. I do not believe he was dealt with fairly. I do not think so — that is, if we are thinking of the same person, and we may not be.

My question to you is in the instance of your giving senators advice, particularly if a senator finds himself or herself in trouble.


One understands that the situation would be very charged. The media and everyone else would be all over you. In addition, colleagues would begin to have very interesting reactions, many of which are not very nice, many of which are spiteful, many of which are vindictive. I have seen these situations. You said yourself this is pioneering. Where would you look for guidance to discover how to deal with these kinds of situations?

I will throw out my next question, and then I will sit down and wait for your answer. In the event of a very highly charged political situation, where many people are calling for blood both inside and outside of the Senate, where would you look for a conceptual framework and guidance to make sure that you yourself would not come into conflict with the Senate? It has been a concern of many senators that sooner or later the Senate or senators will find themselves in conflict with their own Senate Ethics Officer. We are musing here and sensing how we think and how we problem solve in difficult circumstances.

If you had a spiritual problem, I would say look to certain passages in Psalms or in the scriptures. Where would you look for guidance or templates or models to be able to manage problems that could, in a split second, reel totally out of control?

Mr. Fournier: Thank you, Senator Cools, for your question. I would hope that the kinds of situations that you describe will be few and far between. I see the code as being preventive to a very considerable extent. I would hope that the exchanges that I will have through this committee that we talked about and with individual senators on their own particular ethical dilemmas will be fulsome and complete, and that we will be able to identify, well ahead of time, if not all, most of the ethical dilemmas and concerns that their own personal situations might give rise to.

It is hard work, but it can be done, and therefore would avoid feeding the voyeuristic expectations of the media, if I can use that expression within these four walls. That is best done through an honest and fulsome exchange of views. Individuals, and I include myself, often find it difficult to deal fully and honestly with their own particular situation. A third party, to the extent that the third party is cognizant of the facts, can assist in determining whether the particular issue or concern or situation will stand "The Globe and Mail test," as it is often referred to. We can engage in discussions so that parliamentarians can arrange their affairs in a way that will minimize risk.

That being said, in the event that there are these kinds of incidents or media situations, I would consider it to be one of the jobs of my office to assist, to the extent that my office can, in ensuring that the senator's particular position and situation is well understood out there. In these kinds of crises, it is difficult for a minister, a member of the House or a senator to defend himself publicly. That is an unfortunate fact of our public life. It is often possible for an independent and impartial body, such as the office that you are proposing to create, to provide a value-added and to try to redress the balance of public opinion by providing facts. Perhaps I am showing some naiveté here, but I have optimism that through a well-functioning office we can help to manage these kinds of situations as they arise and, more important, avoid them together.

Senator Banks: In the kind of show business that I was in previously, as opposed to this kind, I occasionally was obliged to act in films, in order to be able to buy Kraft Dinner and keep the rain off. When I did that, I learned that the person who was responsible for staging the fights in films is called the fight choreographer. The fight choreographer with whom I had the pleasure of working frequently was Jean P. Fournier. I hope you will not follow in his footsteps in this place.

The question I have is one that I wish we had asked Mr. Radwanski when he appeared before us in this exact same circumstance. Do you know of any reason that you ought not to be appointed to the position for which we are now questioning you?

Mr. Fournier: No, senator.

Senator Cools: I thank Senator Banks for his intervention. Mr. Fournier, I was listening to you very carefully. I began my previous question by saying to you that members of Parliament have, as has Parliament itself, been so diminished with the growth of the Prime Minister's Office and the bureaucracy. Bureaucracy in this place has grown manyfold since I arrived in the Senate.

To my mind, the weakest person in the House of Commons and in this place is invariably the individual member or senator. Those are my sentiments. You said that, in the face of very unfortunate and troubled circumstances where a senator has difficulties, you will avoid being carried by the herd into a lynch mentality. You said that part of your modus operandi will be your open, honest and professional relationship with individual senators. That is what I understood you to be saying.


In other words, you are not thinking of your ascending to this position in an aloof way; you are thinking of yourself as an adviser, as a person to assist. It would be your intention to maintain objectivity by maintaining relationships with each and every senator in an open, honest and professional way. Am I correct in that?

Mr. Fournier: Yes, senator.

Senator Cools: Then I thank you.


The Chairman: Mr. Fournier, on behalf of all honourable senators, I want to thank you for being here today.

Mr. Fournier: Thank you, Mr. Chairman.


Senator Austin: Honourable senators, I move, seconded by the Honourable Senator Kinsella, that in accordance with the section 20.1 of the Parliament of Canada Act, chapter P-1 of the Revised Statutes of Canada, 1985, the Senate approve the appointment of Jean T. Fournier, of Ottawa, Ontario, as Senate Ethics Officer for a term of seven years.


The Chairman: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to.

The Chairman: Honourable senators, shall I report the adoption of the motion by the committee?

Hon. Senators: Agreed.

The Hon. the Speaker: Honourable senators, the sitting of the Senate is resumed.

Report of Committee of the Whole—Adoption of Motion

Hon. Fernand Robichaud: Honourable senators, the Committee of the Whole has asked me to report the adoption of the following motion.

That in accordance with section 20.1 of the Parliament of Canada Act, chapter P-1 of the Revised Statutes of Canada, 1985, the Senate approve the appointment of Jean T. Fournier, of Ottawa, Ontario, as Senate Ethics Officer for a term of seven years, and that the committee has completed its proceedings.


The Hon. the Speaker: It is moved by the Honourable Senator Austin, seconded by the Honourable Senator Kinsella, that the report of the Committee of the Whole be adopted now.

Are honourable senators ready for the question?

Senator Murray, you have a comment.


Hon. Lowell Murray: Honourable senators, before speaking on the appointment of Mr. Fournier, I wish to say that I share the concerns expressed by Senator Lynch-Staunton, that it would have been preferable to hear Mr. Fournier after we had adopted our code of conduct.

That said, I do recognize that the process has been the object of consultation between the government and opposition leaders, and I respect that. There is, however, nothing to prevent us calling him back once we have enacted our code.


Honourable senators, I simply want to say that during his long and honourable career in the public service Mr. Fournier and I have encountered each other on various occasions. More than that, having been around here for a good long time, I am completely familiar with his excellent reputation for professionalism. Therefore, I have no hesitation at all in supporting his nomination to this important post in the service of Parliament and the Senate.

At the Committee of the Whole, he was asked the framework in which he would seek to address certain dilemmas that might occur, certain complex issues that might occur. He was perhaps too modest to say so, but I would hope and expect that what he would consult at the end of the day would be an informed conscience. Anything I know about him leads me to believe that, if Mr. Fournier is consulting his informed conscience, we can have complete confidence in the result of that consultation.

Honourable senators are aware that whenever the issue of privacy versus access to information is raised — the normal tensions arise here — I always lean to the side of privacy, and that includes everybody else's privacy and my own. However, if the code of ethics that eventually will be passed here requires me to disclose personal information of various kinds to somebody, as I expect it will, there is nobody to whom I would confide this information with more confidence in his discretion and integrity than Mr. Fournier.

I will leave you only with a brief anecdote concerning Mr. Fournier. Some time in the late 1980s, I cannot recall exactly the date, he, as Under Secretary of State, and I, in a ministerial capacity, were dispatched by the then Prime Minister to Saskatchewan and Alberta to discuss with ministers and officials in those provinces the possibility of improving services to the francophone minorities there, and ways in which the federal government, financially and otherwise, might help. The negotiations were proceeding when, for some reason I cannot recall, I was summoned back to Ottawa suddenly. I said to Mr. Fournier, "You are on your own, I have to go back to Ottawa," and he asked me a question, which I think was quite a reasonable one, which was, "What is my mandate?" I replied, "Do the best you can." I did that knowing full well that Jean Fournier's best would be surpassingly good, and so it turned out to be.

Honourable senators, again, I simply wanted to take the occasion, as one of the more senior members of this place now, and one who has been around Ottawa and politics and public life for a long time, to say that I am quite happy to support the nomination of Mr. Fournier. I believe he has given every indication in his dialogue with us this afternoon that he understands and is well aware of the complexity, the sensitivity and the importance of the position to which he may now be called, and that he will carry those responsibilities with great integrity and sensitivity. Therefore, I support the motion.

Senator Austin: I do not close debate by speaking, do I?

The Hon. the Speaker: There is a right of reply, so I will see Senator Cools.

Hon. Anne C. Cools: Honourable senators, I should like to say that I share some of the concerns that were raised. I was able to record some of my own concerns, but I do believe that perhaps this meeting today was a little premature. It could have been better, and enhanced, had it awaited the existence of the actual code of ethics.


Perhaps this meeting should have awaited that fact, and perhaps more senators would have been able to take part.

Another matter I would like to raise is that, to my mind, the creation or the choosing of the person to be appointed the Senate's first Ethics Officer is of such great moment and such enormity that it would have been better, I believe, had we chosen a time other than Thursday at four o'clock to have this meeting. Perhaps more senators could have been present. We all know that this time on Thursday evening is a very bad time for senators in respect of presence. I would hope that in the future such decisions of moment would be a little bit more sensitive to the attendance of senators. We could have been better served by even fuller debate.

Honourable senators, I would have liked to have seen, in advance of the decision to go into Committee of the Whole, some debate on the actual motion itself, so that the record would show senator participation. I had hoped it would not just be the government doing the skeletal things, basic minimal things to get a decision. As much as we disagree, it is very important that when we come to these sorts of choices some attempt at harmony, though not unanimity, be made. I would have thought that the situation could have been better served and better handled in a parliamentary way. The record would read a lot better if it would show more debate from senators. In point of fact, Mr. Fournier's qualifications should have been put onto the record by the senator moving the motion rather than Mr. Fournier sitting there and having to recite things he did. In that way both Mr. Fournier and the Senate would have been better served.

This is perhaps my big burden in life, but I really do believe, honourable senators, that it is always better to do things properly.


Hon. Marcel Prud'homme: Honourable senators, I would like to thank everyone who has been so kind as to keep us, the non-aligned, informed.


I still do not consider myself an opposition member. I consider myself non-aligned. We are eight, almost 10 per cent of the Senate, which is a variety of opinion. I would say that I am very close to totally satisfied to have been consulted. I had occasion to say my piece. I expressed my views as to what this office should be. I got up, knowing Mr. Fournier will read every word of what was said before and after his nomination, and that he will also consider the fact that there are eight non-aligned people. The only cloud in my mind is this representation of a committee of senators. I am concerned about those who are implementing the rules in this place because, after all, they will be different from us. I hear it will be a committee of three. These three will be different senators than us; there is no doubt about that. Mr. Fournier, whom I prefer to call "le jurisconsulte," must be made well aware that there are eight non-aligned senators who must address ourselves individually and who may not have the same services as others. It is a choice we made, but I am sure he is a good person who will understand the nuance I have just expressed.

Senator Austin has been, as usual, courteous and cooperative in giving me answers. Perhaps I did not know what questions to ask. That is my problem, but at least I am satisfied he answered the questions I asked him.

The Hon. the Speaker: Honourable senators, I remind you that when a mover of a motion has a right of reply, if he speaks, his speech has the effect of closing the debate. Is that understood?

Hon. Senators: Agreed.

Hon. Jack Austin (Leader of the Government): Honourable senators, I want to make a key point. What we are doing here is of institutional importance. It has no party or partisanship aspect to it whatever. We are acting in the best interests of this institution and its reputation for integrity and competence. We are acting together. Each of us has the same relationship to the Senate Ethics Officer and to the rules that will be produced by the Senate. There is no difference in the standing of any of us with respect to these matters.

I want to thank all colleagues for their participation here. I want to thank Senator Kinsella, who has worked with me side by side on the selection of a Senate Ethics Officer.

I will even confess to the Senate, Senator Kinsella, that you initiated the suggestion of Jean Fournier with me. We have both known him in past careers. I was delighted with that fact.

I want to thank Senator Lynch-Staunton, who, before he became leader also worked with me, and we worked very effectively with respect to the possibility of another eminent person, but that was not to be.

Honourable senators, I think we have done very good work in this process. I believe that the majority of our colleagues will accept that we are moving in an appropriate order with respect to the Senate Ethics Officer and then the rules of conduct. When the Rules Committee reports to us, we will again engage in the nature of those rules, and I am sure that Jean Fournier will take great interest in following that debate. Honourable senators, I thank you again.

The Hon. the Speaker: I will put the question. It was moved by the Honourable Senator Austin, seconded by the Honourable Senator Kinsella, that the report be adopted now.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to and report adopted

The Senate

Certain Select Committees and the Special Committee Authorized to Meet During Adjournment of the Senate

Hon. Bill Rompkey (Deputy Leader of the Government), pursuant to notice of February 23, 2005, moved:

That the Standing Senate Committees on Human Rights, National Finance, National Security and Defence, Official Languages, as well as the Special Senate Committee on the Anti-terrorism Act, be empowered, in accordance with rule 95(3), to sit on Monday March 7, 2005, even though the Senate may then be adjourned for a period exceeding one week.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to.

Business of the Senate

Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, could we get agreement to stand the other items on the Order Paper in their place until the next sitting of the Senate?

Hon. J. Michael Forrestall: Honourable senators could we deal with No. 1, Reports of Committees?

Senator Rompkey: Honourable senators, is there agreement that we would call and deal with that item and then stand other items on the Order Paper until we come back?

The Hon. the Speaker: Is it agreed, honourable senators?

Hon. senators: Agreed.


National Security and Defence

Budget and Authorization to Engage Services—Report of Committee on Study of Veterans' Services and Benefits, Commemorative Activities and Charter Adopted

The Senate proceeded to consideration of the sixth report of the Standing Senate Committee on National Security and Defence (budget—Subcommittee on Veterans Affairs—Study on the services and benefits provided to veterans) presented in the Senate on February 23, 2005.—(Honourable Senator Meighen)

Hon. J. Michael Forrestall: Honourable senators, I wish to move this motion standing in the name of Senator Meighen.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to.


Leave having been given to revert to Government Notices of Motions:

Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, with leave of the Senate and notwithstanding rule 58(1)(h), I move:

That when the Senate adjourns today, it do stand adjourned Monday, March 7, 2005, at 8 p.m.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Motion agreed to.

The Senate adjourned until Monday, March 7, 2005, at 8 p.m.