Debates of the Senate (Hansard)
1st Session, 38th Parliament,
Volume 142, Issue 60
Monday, May 16, 2005
The Honourable Daniel Hays, Speaker
Monday, May 16, 2005
The Senate met at 6 p.m., the Speaker in the chair.
Hon. Jack Austin (Leader of the Government): Honourable senators, I
wish to draw to your attention the Government of Canada policy document tabled
in the Senate on April 19, 2005, entitled "Canada's International Policy
Statement — A Role of Pride and Influence in the World."
As announced by the Honourable Pierre Pettigrew, Minister of Foreign Affairs,
...represents Canada's first fully integrated government wide international
policy framework. It provides us with the tools and policy focus we need to
meet our responsibilities in making a difference in the world.
The Canadian consensus is clear. We need to understand and adapt to the
realities of this part of the 21st century. To maintain our prosperity we must
remain competitive in global markets and improve our export development by
higher levels of productivity and penetration.
To meet these objectives, our strategies include a priority focus on the
North American market; more engagement in multilateral processes, including the
World Trade Organization and its processes; and closer engagement with the
largest developing countries of China, India and Brazil.
Canada will accord an equal priority to respecting human rights and to
promoting democracy and the rule of law throughout the global community. We have
a real role to play in capacity building in fragile states. In this respect, the
Government of Canada is creating the START program, the Stabilization and
Reconstruction Task Force, and will back it with a $500-million Global Peace and
Across the government, we are establishing a rapid deployment team that will
help us deal with crises and major disasters.
Canada's International Policy Statement brings together our diplomatic,
defence, development, trade and investment strategies.
The defence section of the statement, supported by the defence spending
increases announced in budget 2005, is the departure point in establishing
enhanced military capacity and capability. As National Defence Minister Bill
Graham has stated, "The result will be a more relevant, responsive and effective
Canadian Forces capable of meeting the increasingly complex needs of the new
I know honourable senators recognize the importance of the government policy
statement. We look forward to a careful examination of its purposes by the
Standing Senate Committee on Foreign Affairs and by the Standing Senate
Committee on National Security and Defence.
Hon. Donald H. Oliver: Honourable senators, in this chamber we have
farmers, lawyers, physicians and teachers. We have accountants, journalists,
generals, comedians, and even jazz musicians.
We also have a world-renowned heart surgeon, Senator Wilbert Keon, who, in a
recent Ottawa Sun poll of more than 500 Ottawa residents, was ranked
first by respondents aged 45 to 56 as the city's "greatest living hero."
Senator Keon also placed second in the poll of 18-to-34-year-olds, just
behind international rock star and Ottawa native Alanis Morissette. The bold
headline in the Sun read: "If young Ottawa residents just want to rock,
middle-aged folks just want to keep on ticking."
Senator Keon is one of the world's leading heart surgeons and researchers in
the cardiovascular field. He was the founder of Ottawa's Heart Institute, an
international centre of excellence for the diagnosis, treatment, rehabilitation
and prevention of heart disease through patient care, research and education.
Since the founding of the Ottawa Heart Institute in 1969, it has become a
global leader in the creation of programs designed to prevent heart disease. It
is Canada's only complete cardiac centre, with the country's largest artificial
Honourable senators, it was May 1, 1986, 19 years ago on Sunday, when Dr.
Keon became the first Canadian surgeon to successfully perform an artificial
heart transplant as a bridge to a human transplant. Though his efforts and
abilities, he has helped to prolong the lives of thousands of Canadians.
However, Senator Keon's accomplishments are not limited to Canada's medical
field. He has also supported African development by selflessly donating his
library of medical textbooks to the Association for Higher Education and
Development, AHEAD. Thanks to his generosity, thousands of students at Addis
Ababa University in Ethiopia will receive medical instruction in a country that
desperately requires it.
Honourable senators, Senator Keon has many titles: doctor, author, professor,
philanthropist and parliamentarian. Now he has one more title — he is one of
Ottawa's greatest living heroes.
Hon. Bill Rompkey (Deputy Leader of the Government) presented Bill
S-33, to amend the Aeronautics Act and to make consequential amendments to other
Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the second time?
On motion of Senator Rompkey, bill placed on the Orders of the Day for second
reading two days hence.
Hon. Anne C. Cools presented Bill S-34, to amend the Department of
Justice Act and the Supreme Court Act to remove certain doubts with respect to
the constitutional role of the Attorney General of Canada and to clarify the
constitutional relationship between the Attorney General of Canada and
Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the second time?
On motion of Senator Cools, bill placed on the Orders of the Day for second
reading two days hence.
Hon. Lise Bacon: Honourable senators, I give notice that, at the next
sitting of the Senate, I will move:
That the Standing Senate Committee on Legal and Constitutional Affairs be
authorized to invite, when appropriate, the Minister of Justice and Attorney
General for Canada, the Minister of Health, their officials, as well as other
witnesses to appear before the committee for the purpose of examining the
provisions of the Criminal Code related to mental disorder, and in
particular to consider the increasing use of the criminal justice system to
address issues of mental health; and
That the committee continue to monitor developments on the subject and
submit a final report to the Senate no later than May 19, 2006.
Hon. Lise Bacon: Honourable senators, with leave of the Senate and
notwithstanding rule 58(1)(a), I move:
That the Standing Senate Committee on Legal and Constitutional Affairs have
the power to sit at 4:00 p.m. tomorrow, Tuesday, May 17, 2005, even though the
Senate may then be sitting, and that rule 95(4) be suspended in relation
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Terry Stratton (Deputy Leader of the Opposition): I would expect
that the reason for the honourable senator's request is that the minister will
be in attendance. Is that correct?
Senator Bacon: Yes.
Hon. Marcel Prud'homme: Honourable senators, I would like to know if
there are other committees intending to seek leave to meet while the Senate is
sitting. My concern is always the same; that only a few of us would be able to
be here to constitute a quorum.
I have no objection to someone seconding Senator Bacon's motion, but I am
being a bit daring in asking questions not related directly to her request. What
I would like to know is whether several committees are intending to meet
tomorrow while the Senate is sitting.
I do not know what is happening on the Hill. I do not let myself get stirred
up about things that might happen — it is pure speculation. I wonder how leave
can be sought to meet in connection with a bill that has not yet been
introduced. This is a bill that has just been passed in the House of Commons and
most definitely has not yet made it to the Senate.
I would like Senator Bacon to confirm that we are indeed talking about the
bill to which I am referring.
Senator Bacon: Honourable senators, I am no more concerned than the
senator is, but I am sufficiently realistic to realize that, if the order is
adopted, we will need to meet tomorrow at 4 p.m.
The Hon. the Speaker: Is leave granted, honourable senators?
Some Hon. Senators: Yes.
Motion agreed to, on division.
Hon. Viola Léger: Honourable senators, I give notice that, on May 19,
I will call the attention of the Senate to the importance of artistic
creation to a nation's vitality and the priority the federal government should
give to culture, as defined by UNESCO, in its departments and other agencies
under its authority.
Hon. Donald H. Oliver: Honourable senators, my question is for the
Leader of the Government in the Senate. I wish to ask the government leader some
questions to help me understand some of the numbers and projections in the
budget concerning the promised money for infrastructure.
The government is attempting to show and make the case that, if the budget
bill dies, the five-year commitments that it has signed for infrastructure will
be in jeopardy. However, of the $5 billion in gas tax money promised for
infrastructure in the budget, the budget implementation bill, Bill C-43, only
delivers $600 million, and this is only for this year.
Could the government leader confirm that the proposed Budget Implementation
Bill does not deliver funds necessary to meet the five-year commitments that the
government is now making? Could the minister also advise the Senate as to why
the government is unwilling to legislate gas tax money beyond the current fiscal
Hon. Jack Austin (Leader of the Government): Honourable senators, I
thank Senator Oliver for his question. I should like to take the honourable
senator's question as notice so that I can consult the Minister of Finance to
obtain his answer.
Hon. Marjory LeBreton: Honourable senators, my question is for the
Leader of the Government in the Senate and follows up on a question posed by
Senator Keon last week regarding the delivery of health care in our country.
Health Canada has announced that it will fine the Governments of British
Columbia, Nova Scotia, and Newfoundland and Labrador for allowing private
clinics to operate in their provinces. This announcement has led to speculation
as to why some provinces are repeatedly fined for violating the Canada Health
Act while other provinces are not penalized, despite the continued presence of
Could the Leader of the Government in the Senate describe to us the process
by which the Minister of Health decides to fine a province for Canada Health Act
violations, in other words, could he define the criteria?
Hon. Jack Austin (Leader of the Government): Honourable senators, of
course, under the Canada Health Act, the Minister of Finance has the authority
to withdraw funds from transfers to provinces as a result of inappropriate
actions by those provinces under that legislation. I am not aware that the
Minister of Health has said that he would proceed to fine any province. I am
aware, however, that the minister has written to provinces asking for
discussions with respect to the way in which private clinics operate. Senator
LeBreton may be aware that the provinces administer health care. The Government
of Canada does not have a separate investigatory process; rather, it relies on
information provided by the province in response to its queries.
Hon. Gerry St. Germain: Honourable senators, my question is to the
Leader of the Government in the Senate. In recent weeks, we have witnessed a
Liberal government that is so desperate to remain in power that it seems to be
spending billions of tax dollars to buy support for the next general election.
However, even more disturbing is the government's knee-jerk reaction to a major
humanitarian crisis, all in the name of currying political favour. The
Government of Canada has said that it will send 30 military advisers to Darfur.
Last week, that figure rose to 60; now, I believe, the number of military
advisers has climbed to 100, along with $170 million in aid.
I also believe there is no ratified UN resolution sanctioning the sending of
soldiers, that the Khartoum government along with the African Congress have not
been involved in the determination of what Canada could do. Why did the federal
government virtually ignore the crisis for two years and then respond only when
it seemed politically expedient to member of Parliament Kilgour?
Hon. Jack Austin (Leader of the Government): Honourable senators, the
honourable senator has his facts wrong. This government has been the leader in
dealing with the situation in Sudan, first of all in the south where Canada has
been instrumental in assisting in the conclusion of a peace agreement between
the government in Khartoum and the people of southern Sudan.
With respect to Darfur, an issue has arisen in the past few months, and
Canada has proceeded to respond ahead of all other countries. The African Union
was given the mandate by the United Nations to take a position in Darfur and to
put troops there. No other country has a UN mandate to be there. Sudan is
relying on the position taken by the United Nations with respect to refusing the
presence of all military personnel except from the African Union.
Given that this is the case, the Canadian government has been in active
cooperation with the African Union. In delivering resources, we have provided
transportation for African Union troops. We leased helicopters and provided
those helicopters to them. We have put advisers on the ground in neighbouring
countries to assist them.
NATO has been asked to give assistance to the African Union. The diplomat
Alpha Konare has asked NATO for Canada-type logistical pledges to help Africa
ramp up its Darfur force to 12,000 troops and police from the current 2,400. If
every NATO member adopts Canada's approach, then the African Union will receive
$4 billion in aid and an offer of 2,500 NATO advisers and much-needed equipment.
Honourable senators, the truth is that Canada is playing a strong supporting
role and is doing its share in Darfur.
Some Hon. Senators: Hear, hear!
Senator St. Germain: I do not know why the Liberals are clapping.
Canada seems to be leading the parade, yet 300,000 people have died, apparently,
since the Prime Minister's last visit. The raping and murdering continues. The
Prime Minister has been over there. It was not until David Kilgour made his
demand that we had additional advisers put on the ground and an additional $170
million in funding.
Honourable senators, Senator Fairbairn was Leader of the Government in the
Senate when I was asking similar questions on Rwanda. I asked her day after day,
the same way I am doing now. What is happening is totally unacceptable. NATO
went into Serbia. Was it because the people there are White and these are people
of colour? Was there an ulterior motive?
Senator Rompkey is shaking his head. Why is it that we are not doing
something? Whenever it is Africa, we do nothing. Day after day we stand by and
watch the murders and the rapes; we do nothing. Yet when Bill Clinton decided to
go into Serbia, we were right there with him. I am not saying that was wrong.
Why is it that when Africa is involved, we drop the ball?
Why is it that the government sent two emissaries, both of whom are Liberals?
Why not send an independent or an opposition member so that at least the
reporting would be perceived as fair? I am not questioning the credibility of
Senator Jaffer or Senator Dallaire. Why only Liberals? Is there something this
side should know?
Senator Austin: Honourable senators, it is very difficult to deal in a
rational way with an emotional outburst such as we just heard.
The truth is that the Government of Canada cannot handle Darfur's problems by
itself. The truth is that it takes an international agreement. The truth is that
the African nations asked the United Nations for a mandate to deal with issues
in Africa, and the United Nations responded to the African Union by giving them
the mandate. It is the African Union that has the responsibility of organizing
resources from the world community. Canada has done its share, and the African
Union has said just that. Canada is assisting the African Union in approaching
NATO countries to add to Canada's contribution.
Honourable senators, we all share the moral indignation concerning events
taking place in Darfur. It is regrettable that the United Nations does not have
an instrument that allows an immediate capability to respond. We in Canada are
very concerned with Darfur, but the suggestion made by Senator St. Germain that
somehow Canada, alone in the world, can carry all the responsibility for dealing
with the problems in Darfur is erroneous, to put it nicely.
With respect to the question asked, the government has chosen a career
diplomat, Robert Fowler, to lead a task force to review events in Darfur, to
review Canada's contribution, and to intercede where possible to ameliorate the
situation. We have two honourable senators on this side with expertise in these
specific situations, as Senator St. Germain has, I believe, indicated.
The government chooses its advisers as best it can, and it has chosen wisely
in this case. I do not know if Senator St. Germain has noticed the adversarial
character of Parliament today and the efforts of the party he supports in the
other place to vote non-confidence in the government. In our parliamentary
process, that is the nature of the Westminster model. It is not likely in these
political circumstances, therefore, that the government would choose someone who
is determined to bring the government down.
Senator St. Germain: I can guarantee that if senators on this side of
the chamber were with Senator Jaffer and Senator Dallaire, they would do their
duty in a non-confrontational and non-combative way. The honourable leader
implies that we cannot get proper representation in this place. We have always
said that what they do in the other place stays in that place; what we do here
is completely different. I think it is a shame that the senator opposite would
put matters in that context.
We are told Robert Fowler is reviewing the events. What will he review — more
murder, more rape? We know what is going on there. The Prime Minister was there.
Ask Senator Jaffer. I am asking the minister to give us a report. We do not need
Mr. Fowler there. If he can help, that is great.
We were talking about emotions. Many issues in this world, honourable
senators, require emotions to get something done. We can all sit back on our
hands. We did it in 1939, and we have done it at other times. I say to you that
this is not a political issue. This is about the lives of people — people who
are the same as you and me. They raise their families, go to church and believe
in their God. We are told not to get emotional about this situation. If we do
not get emotional about this, there is nothing in the world we should ever get
emotional about, because they are being murdered and raped. We, in the free
world, are basically standing by, saying it is someone else's responsibility.
The African Union is not doing the job. Let us get it out of the way and do
something proper. Let us take the lead.
Senator Austin: Following Senator St. Germain's emotional outburst, I
wonder how one would get the African Union out of the way.
Senator St. Germain: We went into Serbia with NATO, and we could do
the same there, without a question of doubt. If NATO cannot do it, no one can do
it, because the greatest powers in the world belong to NATO.
Senator Austin: Honourable senators, history will show that even the
Europeans, with the war in Yugoslavia going on in their backyard, took no action
until President Clinton forced the issue on them. Canada, of course, was with
the United States as part of a consortium to deal with that issue.
We are waiting in this case for major country leadership by the United States
or Europe. We are not a major power in the world, but we are a power of high
human value. I keep repeating to the honourable senator, but he does not want to
hear it, that Canada has done more than any other country to assist in Darfur.
We have accepted the UN's direction. We assist the African Union in every way we
possibly can, and they have shown tremendous appreciation for what we have done.
Some Hon. Senators: Hear, hear!
Senator St. Germain: We may have done as much as we can, Senator
Austin, but are we doing enough? That is the question. I rest my case.
Senator Austin: Honourable senators, I wanted to clear up one point
that was not made by Senator St. Germain, as he says, of a political nature,
because none of the questions he has asked have political character, and that
relates to David Kilgour in the other chamber. Canada's decisions with respect
to Darfur are made on the situation as we can develop it. So far, the honourable
senator may have noticed, Mr. Kilgour has not spoken with approval of Canada's
Hon. Marcel Prud'homme: I would like agreement of the Senate on one
issue, which is to thank Senator Smith for being present. It is his birthday
Senator Austin: It is his duty to be present on his birthday.
Senator Prud'homme: There is always the possibility of unanimity in
Was independent MP Carolyn Parrish consulted about joining the group, with
Senators Jaffer and Dallaire, on the matter of Darfur?
Senator Austin: Honourable senators, that is not a question properly
put to me.
Hon. Noël A. Kinsella (Leader of the Opposition): Honourable senators,
the Leader of the Government's colleague, the Minister of Justice, is reported
in today's Montreal Gazette as stating that he had found a willingness on
the part of Vatican officials to listen to his arguments concerning the same-sex
marriage bill. Could the minister find out to which officials in the Vatican Mr.
Cotler was referring?
Hon. Jack Austin (Leader of the Government): We will certainly make
inquiries, honourable senators.
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable
senators, I have the honour of presenting two delayed answers to oral questions
raised in the Senate. The first is in response to an oral question raised on
March 22, 2005, by Senator Kinsella regarding the Halifax Port Authority,
cutback in number of patrolling police officers.
I also have the answer to an oral question raised by Senator Comeau on May 4,
2005, regarding the protection of inland fisheries.
(Response to question raised by Hon. Noël A. Kinsella on March 22, 2005)
The port of Halifax is managed, including its security programs, by an
autonomous port authority, and questions relating to security decisions are
the responsibility of that authority. Questions relating to the number of
Halifax Regional Police Service (HRPS) officers in the port should be directed
to the Halifax port authority or the HRPS.
Transport Canada is responsible for developing and administering specific
acts and regulations that support security and safety within Canada's marine
transportation system, including the ports. This includes the overall
responsibility of regulations respecting the transportation of dangerous
cargos/goods, ship safety and navigation service regulations.
The Halifax port authority shares in this responsibility by ensuring that
port facilities, infrastructures and plans meet the required security
standards set by Transport Canada.
The RCMP is responsible to lead criminal investigations at the Halifax port
to address threats relating to national security, organized crime and other
federal statutes. The RCMP also partners with other organizations, such as the
Halifax Regional Police Service, in activities relating to intelligence
gathering/analysis, emergency response and interdiction efforts at Canada's
The Canada Border Service Agency (CBSA) is responsible for ensuring that
the goods and people entering and exiting the Halifax port are in accordance
with Canadian law and do not present a risk to the safety of Canadians. The
CBSA conducts activities relating to the screening and examining of
passengers, crew, marine vessels and cargo, and partners with other agencies
in intelligence gathering or analysis at Canadian ports.
The Halifax Regional Police Service, as the police force of jurisdiction
for the port of Halifax, is responsible for investigating matters under the
Criminal Code such as thefts and assaults. The HRPS works closely with federal
agencies to promote security within Canada's ports. This work includes
assisting with intelligence efforts and acting as first responders in
(Response to question raised by Hon. Gerald J. Comeau on May 4, 2005)
As the Prime Minister and the Minister of Fisheries and Oceans have made
clear — strengthening international fisheries and oceans governance is
necessary — not only on the Nose and Tail of the Grand Banks, it's also
necessary in high seas around the world.
During May 1-5, 2005, the Government hosted a major international
conference in St. John's, Newfoundland and Labrador, on the Governance of
High Seas Fisheries and the United Nations Fish Agreement — Moving from Words
to Action. This conference was a key activity in Canada's strategy to
combat global overfishing and improve international fisheries governance. This
conference has launched an international process that will lead to
strengthened governance and updated high seas fisheries management.
Prime Minister Paul Martin has lent his full support to this process from
the beginning. Cabinet has approved funding for this — $15 million annually in
the February budget to combat overfishing, and increase surveillance and
monitoring in the NAFO Regulatory Area, and recently an additional $20 million
over the next three years to fight this problem and improve international
fisheries governance. This priority area is also featured in the Government of
Canada's new International Policy Statement. The Prime Minister also
demonstrated his commitment to this process by addressing the conference
delegates at the opening on May 1, 2005.
Ministers or their representatives from 19 countries outlined a vision for
reforming high seas fisheries governance in a Ministerial Declaration. This
document was the result of proceedings chaired by Minister Regan at the
conference. The Declaration sets a number of political commitments and a
strong global consensus to modernize the organizations that we use to manage
the world's fish stocks. It sets out the goals we want to achieve and how we
want to achieve them as a global community.
In the declaration, ministers urged all states to ratify international
agreements, such as the UN Fish Agreement. They also agreed to modernize the
regional fisheries management organizations used to manage high seas fisheries
- Making decisions based on sound science;
- Using the precautionary approach to ensure the conservation of fish
- Ensuring the rules of these organizations are clear, understandable and
consistent with international agreements; and
- Enforcing catches and fishing effort to ensure compliant fishing
As a follow up to the Ministerial Declaration, there were five workshops
where international representatives, academics and ENGOs discussed ecosystems
considerations, compliance and enforcement, decision-making processes,
balancing capacity and aspirations of developing states and new areas and
gaps. A summary report entitled "The Way Forward" was prepared on the main
conclusions of these workshops.
The government will be using the Ministerial Declaration and the summary
report "The Way Forward" as a roadmap. We will be working with other members
of the Northwest Atlantic Fisheries Organization (NAFO) on strengthening NAFO,
to improve its ability to manage fish stocks under its jurisdiction, modernize
its management practices—including the application of ecosystem-based
management and the precautionary approach—and improve compliance and
enforcement. The additional $20 million over three years investment recently
announced will help us to move forward on a number of fronts, including more
scientific research on the Grand Banks, and the creation of a global advocacy
campaign to curb overfishing around the world.
We will be taking a number of follow-up initiatives consistent with the
objectives of the conference to move toward concrete actions. In addition to
NAFO, we will work to make all regional fisheries management organizations and
fisheries mechanisms more effective and accountable through modernizing their
roles, mandates and approaches. Canada also will seek to foster cooperation
and synergies between regional fisheries management organizations to take
action on areas of mutual concern, such as Illegal, Unreported and Unregulated
(IUU) Fishing. Given the diverse capacities of regional organizations to take
on these challenges, a rigorous international regime cannot be expected to
emerge within five years, but will take ongoing efforts.
Other delegations also announced specific steps that they will be taking in
the next two years to follow up on the commitments in the Ministerial
Declaration. These steps are outlined in the summary report.
In addition to the foregoing, the Advisory Panel on the Management of
Straddling Stocks in the Northwest Atlantic, which Minister Regan established
in December 2004, is expected to report to the minister in early June. The
conclusions and recommendations of the Panel will be important as we move
Hon. Catherine S. Callbeck moved third reading of Bill C-10, to amend
the Criminal Code (mental disorder) and to make consequential amendments to
An Hon. Senator: Question!
Senator Prud'homme: Question!
The Hon. the Speaker: Some senators are rising.
Hon. A. Raynell Andreychuk: Honourable senators, I do want to put a
few comments on the record with respect to Bill C-10. This bill is in response
to a bill that was passed in 1992 when a bold step forward was taken on how we
handle those with mental illnesses or mental disabilities in courtrooms across
Canada. There was a review process built into that bill. The review did not
occur when it should have; there was some time delay. However, as I said in my
initial speech, I give credit to the House of Commons committee for bringing
forward witnesses and for analyzing the new changes that were being proposed
with respect to this procedure.
In our study in the Standing Senate Committee on Legal and Constitutional
Affairs, a number of points came home to me, and I think they are worthy of
note. The first is that our courts are being used as an answer to the needs of
the mentally ill. In our zeal and zest to release those from our mental
institutions who perhaps could have had the benefit of other resources and been
handled in other ways, we have put them into our communities without proper
resources. We heard that those with mental disabilities often did not have
housing and the support and supervision that they needed to cope in the
community. Therefore, mental health issues continued to plague these people to
the point where they were coming into conflict with the law. They were ending up
before the courts rather than being channelled to an institution or to medical
supervisors who could help them.
We created victims of people who suffer from a mental incapacity that
precluded them from knowing right from wrong, in some cases, or from functioning
appropriately, in other cases. We should have realized that we would need more
resources in the community if we did not want to find these people before the
criminal law system. We did not afford them what a modern society should do for
its citizens, at least those citizens who are least able to help themselves. In
fact, we reduced the number of health facilities over the last number of
decades, and as a result, those who needed them most suffered most.
We created a second category of victims — those who found themselves in
conflict with those who had disabilities. Some of those people lost their lives,
some were raped, some were assaulted and others were affronted in less serious
ways. These people suffered unnecessary and often long-term debilitating
conditions. They could not cope with their lives as a result of being impacted
by a person who could not cope with life in the community. In this proposed
legislation, we were dealing with two sets of circumstances and two sets of
Bill C-10 is a fair and balanced attempt between the mentally handicapped
person and the person who is the victim. There was some discussion as to whether
victim impact statements would be appropriate. In my opinion, victim impact
statements in a mental review situation are appropriate. If these reviews are
harmful in any way to accused persons who find themselves the subject of a
review process, then the review board or the court in the first instance could
opt to not allow victim impact statements. However, the chairman of the review
board came before us and said that he could contemplate few cases where a victim
impact statement would not be in the best interests of the person with the
mental disability as well as the victim.
We found that 80 per cent of victims of those who come in conflict with the
law and have a mental disability are either family members, friends, close
associates or neighbours. It was found that most often there had been a prior
relationship between those involved and that that relationship, in all
likelihood, continues. Therefore, it is not as traumatic as it would appear at
first blush. While there may be some legal arguments to be made against it, in
weighing the information it would appear that the victim impact statement is
necessary, and in some cases even for the rehabilitation of the person who was
the subject of the review. However, the victim does need to go through the
process of knowing where this person will be and how he will be handled if the
rehabilitation is to be appropriate.
Honourable senators, I believe that we are moving in the right direction to
take away the need for constant reviews when we know that the person's condition
will not change or vary and the person will not recover. In such cases, an
absolute discharge could be given by review boards, which is the appropriate
I will not repeat what was said by witnesses before the committee. Valid
points were made. I thank the Honourable Senator Bacon, Chair of the Legal
Affairs Committee, for extending the hearings so that members could hear from
the Barreau du Québec and many others on the legal points of Bill C-10. No doubt
this bill could be and should be improved, because understanding mental illness
and how its conditions can adapt is an ongoing process. We must continue to
review our legislation to ensure that we are doing our best for those who come
into conflict with the law.
Honourable senators, the criminal court system is becoming the repository for
all other ills in society. When we fail in our social services, people
inevitably come before the courts because they are static. When one comes in
conflict with the law, one will be dealt with. This is not the way in which
society should move forward; in fact, it is a regression.
We use the youth court system rather than provide preventive services early
on in the lives of young people. We have more young people in conflict with the
law. We have an increase of people with mental problems before the courts
because they do not have access to the medical facilities and treatment that
they need. This situation cannot continue. We are a modern, advanced society
with an excellent social safety net, but that net has too many holes in it
through which many individuals fall, and the only place to land is in court.
This cannot continue.
I am pleased that the committee will continue to monitor this situation and
be a signal to government that the current system cannot continue to expand the
options under the Criminal Code and treat as criminal acts behaviour that should
be treated in other arenas. I am also pleased to know that the Standing Senate
Committee on Social Affairs, Science and Technology is looking into mental
illness as well. Perhaps the two committees will be able to shed some light on
the issues and develop possible recommendations to pressure the government into
dealing with the matter.
We have too many categories of victims in society. We need to exercise more
preventive services and work with the provinces to develop better ways to look
after people. Perhaps then we would not put such a strain on the courts and we
would not have such an outcry from people to toughen the criminal justice
system. We would allow the criminal justice system to do what it is supposed to
do. We would not have to hear the kind of testimony that we heard before the
Standing Senate Committee on Legal and Constitutional Affairs in respect of Bill
Honourable senators, Bill C-10 is a good attempt. It was amended in the other
place and we need to follow it through. Bill C-10 is not a problem; rather, the
problem is a lack of services.
The Hon. the Speaker: Seeing no senator rising, I will put the
Is it your pleasure, honourable senators, to adopt the motion?
Motion agreed to and bill read third time and passed.
Hon. Bill Rompkey (Deputy Leader of the Government): Your Honour, I
should like to call the orders in the following sequence: Item No. 3, Bill C-13,
and then Item No. 2, Bill S-31.
Hon. Landon Pearson moved second reading of Bill C-13, to amend the
Criminal Code, the DNA Identification Act and the National Defence Act.
She said: Honourable senators, I rise to speak in favour of Bill C-13.
Canada's DNA data bank legislation was enacted in December 1998 and came into
force on June 30, 2000, when the National DNA Databank opened for business.
It is safe to say that DNA was new then, and there were many concerns
regarding its use and how the courts would accept the compulsory taking of DNA
samples. I remember well the discussions we had on this issue in the Standing
Senate Committee on Legal and Constitutional Affairs.
Because of these concerns, great care was taken in the design of the
legislation. The definition of "designated offence" is central. The police can
only obtain a DNA warrant for a designated offence, only persons who have
committed a designated offence are eligible for inclusion in the National DNA
Data Bank, and only DNA derived from evidence related to a designated offence
may be uploaded into the National DNA Data Bank.
The designated offences are divided for purposes of making a DNA data bank
order into primary and secondary designated offences. The distinction between
the two categories of designated offences is that the court is required, subject
to a limited discretion, to make a DNA data bank order against an offender
convicted of a primary designated offence, while, in the case of secondary
designated offences, the prosecutor has discretion to seek a DNA data bank order
and the court has a broader discretion not to make the order.
The legislation also contains important protection against misuse of DNA
profiles. It is an offence to use a DNA profile for any other purpose than the
investigation of crimes. The National DNA Data Bank has developed a system of
separating the DNA profile from the identifying information. This is the way it
works. The bodily sample that is to be analyzed and the identifying information
on the offender, which is based on fingerprints, are both identified by the same
The DNA data bank keeps only the sample and sends the identifying information
to the criminal identification branch. The analysis is tracked by bar code; the
DNA data bank does not know who the offender is. When there is a match, the data
bank advises the criminal identification branch of the bar code and the criminal
identification branch identifies the convicted offender.
I understand that the Standing Committee on Justice, Human Rights, Public
Safety and Emergency Preparedness in the other place heard from witnesses
involved with the British DNA data bank and learned from them that Canada's
protections against misuse of DNA profiles are superior to those in existence in
the United Kingdom, where they do not separate the profiles from the identifying
In Hendry, a decision of the Ontario Court of Appeal widely quoted in
decisions in other provinces upholding the legislation, the court considered
these protections and held the following:
In balancing the offender's right to privacy and security of the person
against the state interests in obtaining the offender's DNA profile, the court
must consider the following. The legislation offers significant protections
against misuse of the DNA profile information, thus minimizing an improper
intrusion into the offender's privacy. Having been convicted of a designated
offence, the offender already has a reduced expectation of privacy. In the
ordinary case of an adult offender, the procedures for taking the sample have
no, or at worst, a minimal impact on the security of the person. Thus, in the
case of an ordinary adult offender, there are important state interests served
by the DNA data bank and few reasons based on the privacy and security of the
person for refusing to make the order.
The existing legislation contains a limited retroactive provision. A DNA
sample could be obtained on application to a provincial court judge where a
person was a dangerous offender, had committed two murders at different times or
two sexual offences at different times.
Today, after almost five years of experience with the legislation, with
strong support for the use of DNA by the courts and, I believe, greater
appreciation of the potential of DNA to solve crimes and to exonerate the
innocent, we have the basis to build on to make greater use of this important
As honourable senators know, the National DNA Data Bank includes a crime
scene index, containing DNA profiles derived from bodily substances found at a
place where an unsolved crime was committed, and a convicted offenders index,
containing the DNA profiles of persons who have been convicted of designated
The DNA data bank works by comparing all new profile entries to all previous
ones and determining whether any genetic profiles match. If there is a match
between a profile in the convicted offenders index with a crime scene profile,
the police are advised of the identity of the convicted offender. The police can
then focus their investigation. There may be an innocent explanation for the
presence of the offender's DNA, but in many cases the police are able to solve a
crime that was otherwise a cold case. Similarly, if there is a match between two
profiles in the crime scene index, the police investigating both crimes are
advised. They can discuss with one another the evidence they have accumulated in
both cases and perhaps their joint work will solve the cases and lead to the
arrest of a serial offender.
As of May 9, there were 77,255 profiles entered into the convicted offenders
index and 21,424 entered into the crime scene index. There have been 3,270 crime
scene-to-offender hits and 408 crime-scene-to-crime-scene hits. In total, the
National DNA Data Bank has assisted almost 3,700 police investigations,
including 210 murder investigations, 74 attempted murders, 507 sexual assaults
and 417 armed robberies.
Honourable senators should also remember that a negative result can be
valuable to the police. A DNA sample found at a crime scene can be quickly
compared against those in the current data bank, allowing police to narrow their
investigation, which will avoid the questioning of past offenders in the data
bank who are trying to live normal lives. This process saves valuable time and
resources, ensuring greater protection for the public.
Bill C-13 is the fruit of a lengthy process. In August 2001, when the
legislation had been in force for little over a year, the Uniform Law Conference
passed a number of resolutions calling on the government to consider, in
consultation with the provinces and territories and other stakeholders, changes
to the DNA data bank legislation on a priority basis. The consultations were
delayed until late 2002 as the government dealt with the consequences of 9/11.
They were somewhat broader than the resolutions passed by the Uniform Law
Conference, but the government found a large consensus to deal with certain
issues in advance of the five-year review, which is to take place this year.
Specifically, the consultations showed support for the changes recommended by
the Uniform Law Conference.
These changes are as follows: One, the inclusion of the historical offences
of indecent assault female, indecent assault male, and gross indecency in the
list of designated offences; two, the inclusion of those individuals found not
criminally responsible by reason of mental disorder within the DNA data bank
scheme; three, clarification of the method of compelling the offender's
attendance in court at a hearing to determine whether a DNA data bank order
should be made; four, the creation of a process that would permit a judge to
make a second DNA data bank order where the National DNA Data Bank has declined
to process the first one because of police error in completing the forms that
must accompany the bodily substance submitted for analysis; five, a creation of
mechanisms to require the offender to appear for the purpose of providing a DNA
sample; six, the inclusion of persons declared dangerous offenders otherwise
than under Part XXIV of the Criminal Code and those offenders convicted of break
and enter and commit a sexual offence; and finally, the inclusion of the
historical offences of indecent assault female, indecent assault male, and gross
indecency in the definition of sexual offence in section 487.055(3) for the
purposes of the retroactive scheme.
In addition, there was support during the consultations for the following:
First, to add offences to the list of "designated offences" covered by the DNA
data bank scheme including organized crime, "participation offences," uttering
threats and criminal harassment; second, support to move "robbery" and "break
and enter into a dwelling house" offences from the list of secondary designated
offences to the list of primary designated offences so as to increase the
likelihood that a court would make a DNA data bank order; third, to expand the
retroactive scheme; fourth, to create a procedural mechanism to have a DNA data
bank order that appears on its face to have been made for a non-designated
offence reviewed and, where it is shown the court lacked authority to make the
order, to authorize the destruction of the bodily substances taken under its
authority; and fifth, to ensure that an offender's DNA profile remains in the
DNA data bank until all orders against the offender have been quashed.
All of these changes were contained in Bill C-35, which died on the Order
Paper in May 2004. Bill C-13 in turn built on what was in Bill C-35. It proposed
significant changes to the list of primary designated offences, including all
child pornography offences, sexual exploitation of a person with a disability,
Internet luring of a child, living on the avails of prostitution of a person
under 18, overcoming resistance to the commission of an offence, breaking and
entering into a dwelling house, and extortion.
In addition, Bill C-13, as originally introduced, made additions to the list
of secondary designated offences, including criminal harassment, uttering death
threats and being unlawfully in a dwelling house.
Clearly, these changes were not made arbitrarily by the government. The
changes were made as a result of concerns expressed by the provinces, victims'
groups and other stakeholders that serious offences had been omitted from the
list. After extensive hearings, all parties in the other place came to an
agreement to strengthen even more the DNA legislation, while remaining within
the existing framework and respecting Charter rights.
Four major changes have been made. First, a procedure has been developed to
allow the data bank to engage in communications, including the exchange of DNA
profiles, without identifying information with regional forensic laboratories in
cases where the DNA profiles supplied by those laboratories were less than
complete and so there is some doubt whether a profile in the DNA data bank is a
Second, the retroactive scheme is to be expanded to cover all murderers and
sex offenders, as well as persons convicted of manslaughter, who were convicted
prior to June 30, 2000, when the proposed legislation came into force, rather
than requiring that the offender have committed two murders, two sexual offences
or one murder and one sexual offence. The making of the order is not automatic.
The Crown will have to apply, and a provincial court judge will have to conclude
that it is appropriate in a given case to make the order given the potential
danger the offender will represent to society if he or she is released into the
community. This amendment will make approximately 4,700 more offenders eligible
for the DNA data bank.
The procedure, which has been found to be constitutional, has not been
changed. The Crown will have to convince a judge on the basis of the offender's
record and the circumstances of the offences committed that the person's DNA
should be included in the convicted offenders index. The judge will take into
account the entire record.
This expansion of the retroactive scheme does not change the sentence imposed
on the person. It is a procedural provision that does not affect day-to-day life
if an individual has been paroled. The DNA simply will be on file should the
individual commit an offence in the future.
Third, the bill before us contains an amendment to remove judicial discretion
with respect to persons convicted of the worst primary designated offences,
including murder, attempt to commit murder, manslaughter, assault causing bodily
harm, aggravated assault, sexual assault with a weapon, aggravated sexual
assault, kidnapping, robbery and extortion. What characterizes these offences is
that they are the most egregious of the primary designated offences and they
involve terrible acts of violence against the person.
This amendment responds to the concern that, even for the most heinous
crimes, the National DNA Data Bank does not appear to be receiving as many
profiles as would be expected. It appears that DNA orders are being made in only
about half the cases of a primary designated offence conviction. No one is
absolutely sure why the limited discretion for making a DNA data bank order
appears to have led to an underutilization of the legislation, but the creation
of a mandatory category for the worst offences should result in significantly
more orders being made.
Fourth, under Bill C-13, all indictable offences under the Criminal Code
punishable by a maximum of five years' imprisonment or more would be secondary
designated offences. The indictable offences of trafficking, possession for the
purpose of trafficking, importing, exporting or production under the Controlled
Drugs and Substances Act would also be listed as secondary designated offences.
The choice of a five-year cut-off has constitutional significance in terms of
Charter consistency. Five years is not only a recognized borderline in terms of
specifying the seriousness of the offence, but it is also the point of
demarcation that the Charter specifies in terms of entitlement to trial by jury.
Because the order is made on only application to a judge and must consider the
nature and circumstances of the offence and the criminal record of the offender,
and the application can be made only if the offence has been prosecuted by
indictment, it is expected that this change will be Charter consistent.
Honourable senators, this is an overview of the significant improvements to
Canada's DNA data bank legislation contained in Bill C-13. The bill does not
alter the protections of the Charter rights and privacy protections that have
been central to the acceptance of the existing legislation by the courts.
There is no doubt that, if Bill C-13 is adopted, many more DNA data bank
orders will be made and this will increase the number of profiles in the
convicted offenders index. In addition, the police will be able to obtain DNA
warrants for more offences and upload more profiles to the crime scene index.
With more profiles in the data bank, there will be more hits and more police
investigations assisted. With more offenders identified through their DNA,
Canada will be safer.
I urge all honourable senators to give speedy passage to Bill C-13.
Hon. Noël A. Kinsella (Leader of the Opposition): Honourable senators,
I would like to join in the debate at second reading of this bill. In the
summary that precedes the text of the bill, we see that it amends the provisions
in the Criminal Code respecting the taking of bodily substances for forensic DNA
analysis and the inclusion of DNA profiles in the National DNA Data Bank and
makes related amendments to the DNA Identification Act and National Defence Act.
It clarifies that the forensic DNA analysis of the bodily substances taken from
convicted offenders for the purposes of the National DNA Data Bank will be
conducted by the Commissioner of the Royal Canadian Mounted Police.
Honourable senators will recall previous legislation covering the use of DNA
in criminal investigations, including Bill C-104, which came into effect in
1995. That legislation gave judges the ability to issue a warrant for police to
collect biological samples for DNA analysis for use in criminal investigations.
Then we had Bill C-3, the DNA Identification Act, which received Royal Assent
in 1998. That legislation established the National DNA Data Bank — the NDDB —
the repository for bodily fluid samples obtained from criminals convicted of
certain offences for DNA analysis, as well as samples from crime scenes.
We then had Bill S-10, which amended the National Defence Act. Honourable
senators will recall that bill received Royal Assent in the year 2000. Under
that legislation, military judges could now issue DNA warrants to investigate
designated offences by persons subject to the Code of Service Discipline and
make DNA data bank orders.
These bills, at the time, were unprecedented in the extent to which they
intruded into a person's private information, his or her DNA, his or her genetic
code, as it were. This code contains not just distinguishing information such as
in a fingerprint, but also information with potentially wide-reaching
consequences, information that could one day include predisposition to disease
or even perhaps predict behaviour.
Honourable senators, while these bills, which are now statute, did improve
the criminal justice system, they raised concerns about a person's right to
privacy and right to security. Senator Grafstein stated the following to the
Standing Senate Committee on Legal and Constitutional Affairs on November 25,
1998, while discussing the DNA Identification Act:
...DNA has the potential to reveal much more about a person than a breath
sample, a fingerprint or even a routine blood test. DNA can be a source of
great exploitation of the privacy of the individual. Most of us here are
concerned that information gathered as a result of DNA testing is used only
for the purposes set out in this bill.
To date, these intrusions into a person's privacy have been found
constitutional by our courts. The warrant scheme has survived a Charter
On October 31, 2003, the Supreme Court of Canada in R. v. S.A.B. ruled
unanimously that seizing bodily samples from a suspect for DNA analysis,
pursuant to a DNA warrant issued under the Criminal Code, does not violate the
suspect's constitutional rights against unreasonable search and seizure. Madam
Justice Louise Arbour wrote:
The factors that favour the importance of the search for truth ... outweigh
the factors that favour protecting the individual against undue compulsion by
the state.... On balance, the law provides for a search and seizure of DNA
materials that is reasonable.
Honourable senators, we need to be certain that we are not contributing to
the erosion of human rights in Canada. In the interests of public security, we
have handed over broad powers to authorities of the state at the cost of our
human rights. These are powers that we need to introduce very cautiously,
because once they are out there, they are very difficult to rein in.
We also need to recognize that democracy is based not only on trust but on
verification, justification, accountability and reliability. It is not enough
for us to "trust" that authorities will not abuse their powers like some
benevolent dictator. We need to have checks and balances in place to ensure that
fundamental rights and, in this case, privacy rights are protected.
We are dealing clearly with a scientific field, the sampling and analysis of
DNA, which is in a state of flux, with advances being made on a continuous
basis. The tiny sample of DNA that today serves only to link a person to a crime
scene may tomorrow be capable of yielding a great deal more. The technology used
to study DNA is constantly changing and improving. With that in mind, we must be
ever vigilant that safeguards and oversight are in place to protect a person's
privacy, to protect even those found guilty of crimes from undue invasion of
their most basic identifying characteristics.
The Standing Committee on Justice, Human Rights, Public Safety and Emergency
Preparedness in the other place examined this bill and added a number of
amendments that they believed strengthened the bill to help ensure it will stand
up to a Charter challenge. We in our committee would want to pay special
attention to those provisions.
I would like to point out two major amendments. First, judicial discretion
remains to permit judges to disallow an application by the Crown for a DNA
sample. This is necessary to ensure that the law will survive a constitutional
challenge; but for the worst offences, this discretion will be gone.
Second, the bill, as passed by the House of Commons, now includes a
retroactive measure, alluded to by Senator Pearson, which will require inmates
convicted of a single murder, sexual assault or manslaughter to provide samples
for the DNA data bank.
I applaud the hard work of our colleagues in the other place that resulted in
these changes. However, I still have concerns regarding the proposed
legislation. They are the same concerns that I have had about the use of DNA
from the beginning. In 1998, when we were discussing Bill C-3, which created the
National DNA Data Bank, I noted:
The issue for parliamentarians is to determine whether or not DNA analysis
will be an instrument that is wielded as a scalpel to deal with those guilty
of serious crimes and not used to vilify all in society.
The DNA data bank has put into place several safeguards to help ensure that
privacy is protected. We will have to be vigilant in questioning whether they
continue to be sufficient to protect the privacy of a convicted offender.
A representative from the Office of the Privacy Commissioner of Canada
currently sits on the DNA Data Bank Advisory Committee, and the committee
reports annually to the Commissioner of the RCMP. This committee and the
representation of the Privacy Commissioner is not enshrined in the bill and may
not be sufficient to monitor issues. In fact, the Privacy Commissioner may not
have the resources needed to adequately monitor the work at the data bank.
Perhaps what is required is a stronger audit authority for the Privacy
Commissioner over the DNA data bank in light of the nature of DNA and the
potential for abuse.
This issue of privacy becomes more complicated when sharing information with
other countries to help solve crimes. Canada has no control over this
information once it leaves the country, unless that control is specifically
provided for in exchange agreements with other countries. The DNA Identification
Act itself deals with this matter in section 6. However, senators may recall
that Bruce Phillips, the former Privacy Commissioner, expressed his concerns
about the matter when he told our Senate standing committee in 1998:
With respect to informational exchanges that are made under agreements
between the Government of Canada, and not only international but also
provincial entities, yes, there is a very serious problem here. This statute,
along with many others, authorizes informational exchanges. In many of those
cases, we, as an office, have no right or role in their construction to ensure
that adequate privacy protection will exist in the hands of the recipient of
Bill C-13 does not touch on this issue at all. I believe this may be an area
that we need to revisit. I certainly hope it will be canvassed by the committee
examining this bill.
To a certain extent, even the use of DNA is left dangling under this bill.
The definition of "forensic DNA analysis" has not changed since the act was
first discussed in 1991. Some would argue there is a loophole connected with it
that leaves further use of DNA samples open to abuse. The former Privacy
Commissioner stated in his testimony on the subject of Bill C-3, which
established the National DNA Data Bank, the bill:
...does not adequately define what forensic DNA analysis is. It does not,
in this bill, specifically limit the use of that information to the
identification aspect. It leaves open the possibility of using the information
for other things.
Again, this is a matter that merits our attention, and it will need to be
reassessed on an ongoing basis.
I understand that due to cost considerations DNA profiles are developed in
groups of 36 or so. In other words, there is a bundling of profiles. As a
result, it may not be possible to destroy or dispose of one profile without
destroying all the profiles that were processed together.
While the techniques will doubtlessly change, in the interim a person who is
"finally acquitted of every designated offence in connection with which an order
was made" will find that it may not be practically possible for the implementing
authorities to comply with the bill that states in clause 18, in proposed
Access to information in the convicted offenders index shall be permanently
removed without delay...
The profile remains in place, but the identifying information is gone. Is
this sufficient protection for a person's right to privacy? The evidence seems
to suggest that it is, because the person is no longer linked to his profile.
This is yet another matter that warrants further investigation, which I commit
to our colleagues who will sit on the committee and undertake clause-by-clause
examination of this bill.
There is also the matter of the backlog in the DNA casework, although
Department of Justice officials assured the committee in the other place that
there is no backlog at the National DNA Data Bank. However, Bill C-13,
especially with the included amendments, will result in an increased workload.
If the investigative laboratories where the backlogs exist are unable to handle
the increased workload, the intent of the legislation may be compromised, as the
work will not be done.
As is usually the case, implementing legislation is insufficient without also
ensuring adequate resources. It is crucial that the data bank have adequate
resources to do the job that we are asking it to do.
It is worth underscoring that a review of DNA legislation is due to commence
later this year. No doubt we will have an opportunity to explore some of these
issues further at that time. Therefore, this may be something that our
colleagues on the committee that will examine this bill might also factor in.
The Senate will have a vital role to play in that larger review and examination,
and I look forward to that.
We have underscored a few questions and issues associated with the bill.
These issues have presented themselves as we examined other legislation on DNA
in the past. Anyone who wishes to examine the record of the Senate's examination
of those earlier bills will know that there is a certain corporate understanding
of this type of legislation and that we approach this examination with such a
background. I know that the honourable senators on the committee examining this
bill will canvass the subject matter assiduously and expeditiously.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and bill read second time.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the third time?
On motion of Senator Pearson, bill referred to the Standing Senate Committee
on Legal and Constitutional Affairs.
Hon. Pierre De Bané moved second reading of Bill S-31, to authorize
the construction and maintenance of a bridge over the St. Lawrence River and a
bridge over the Beauharnois Canal for the purpose of completing Highway 30.
He said: Honourable senators, I am pleased to rise at second reading of Bill
S-31, to authorize the construction of the bridges necessary to complete Highway
30 in the province of Quebec.
The completion of Highway 30 is of great interest to residents of the greater
Montreal area, and particularly to residents of the Montérégie and Suroît
regions. Between 1968 and 1982, four unconnected sections of Highway 30 were
built, since and then, residents of municipalities such as Châteauguay,
Beauharnois and Salaberry-de-Valleyfield, not to mention all the truckers who
have to go through the Island of Montreal, have been anxiously waiting for the
completion of this bypass route. Honourable senators, today the Government of
Canada is once again demonstrating its will to complete this major and strategic
The completion of Highway 30 includes two sections: an eastern section of 13
kilometres, between Candiac and Sainte-Catherine, and a western section of 35
kilometres, between Châteauguay and Vaudreuil-Dorion. This last section also
includes the construction of two bridges crossing respectively the St. Lawrence
River and the Beauharnois Canal.
Section 5 of the Navigable Waters Protection Act provides that no work shall
be built or placed over any navigable waters unless the work and the site and
plans thereof have been approved by the Minister of Transport. The bridges
necessary to complete Highway 30 fall into that category.
Section 13 of this same act stipulates, however, that no approval of the site
or plans of any bridge over the St. Lawrence River or the Beauharnois Canal
shall be given. Special legislation is therefore needed to authorize the
construction of these two bridges.
Honourable senators, there is nothing new about having new legislation passed
to allow the construction of a bridge over the St. Lawrence River. For over 90
years, governments have obtained similar legislation authorizing the
construction of other bridges over the St. Lawrence River, including the
Pierre-Laporte Bridge, which opened in 1970 near Quebec City; the Louis
Hippolyte Lafontaine Tunnel, which was inaugurated in 1967; the Laviolette
Bridge in Trois-Rivières, built in 1967; and the Quebec Bridge, which was
completed in 1917 and proclaimed an international historic civil engineering
site by the Canadian Society for Civil Engineering.
Despite its brevity, this bill is fundamental in order to ensure that the
next phases of the project are completed on schedule. Honourable senators,
without this bill, there can be no bridges, and without bridges, there can be no
First, this bill authorizes Quebec to construct and maintain a bridge over
the St. Lawrence River and a bridge over the Beauharnois Canal.
Second, it authorizes Quebec to construct and maintain any ancillary works
required during the construction and maintenance of such bridges and to limit
the scope of the project to the location identified for the completion of
Bill S-31 will also assure the Government of Canada the right to oversee the
various components of the Highway 30 project that might have an impact on
navigation, shipping or any other area of federal jurisdiction.
We will have those assurances because the bill requires Quebec to do four
things. First, it must submit to the Minister of Transport for approval the
plans and specifications for the bridges and a bathymetric chart of the streams.
Second, it must obtain approval from the Governor-in-Council before work may
begin for the location of the bridges and ancillary works as well as for their
plans and specifications.
Third, it must obtain new approval from the Governor-in-Council for any
substantial changes in the location of the two bridges and ancillary works or in
the plans and specifications for them. Finally, it must comply with all other
applicable federal legislation, including the Navigable Waters Protection Act
and the Canadian Environmental Assessment Act.
The shipping industry has long been recognized as a key to the national
transportation system and the Canadian economy. Safe and efficient operations
will always be vitally important to the transportation of goods.
Honourable senators, every year close to 2,600 commercial vessels travel
between Montreal and the Great Lakes through the Beauharnois Canal. Construction
of the two bridges needed to complete Highway 30 must protect the navigability
of such vessels so that the 29 million tonnes of commodities they transport can
arrive safely at their destination.
That said, we have here in Canada a public right to navigation. That right is
unwritten; it is a right of common law. If the waters are navigable, everyone
has the right to navigate them. The right can only be limited by an act of the
Parliament of Canada, such as the Navigable Waters Protection Act or this new
bill governing the construction of the two bridges. Such legislation ensures a
balance between the public's right to navigate and the need to build works in
navigable waters, such as the works required to complete Highway 30.
Finally, honourable senators, in adopting a legislative framework governing
the construction of the bridges needed to complete Highway 30, the Government of
Canada is fulfilling its commitment to Quebec to ensure the necessary
legislation authorizing the construction of the bridges is passed as quickly as
Along with shipping, this bill will also have a major impact on the ground
transportation of goods and passengers. Under the Canadian Constitution, roads
are a provincial and territorial responsibility. Therefore, Quebec will be
responsible for the construction and maintenance of Highway 30, including the
bridges over the St. Lawrence River and the Beauharnois Canal. Nevertheless,
these works will have to comply with applicable federal and provincial laws and
with federal requirements on navigation and navigation's safety.
Honourable senators, an efficient, integrated and flexible transportation
system is vital to the economic development of the country, the Province of
Quebec and the major metropolis of Montreal. Completion of Highway 30 is vital
to the efficient movement of people and goods from Eastern Canada, Quebec,
Ontario and the United States. This bypass route will thus enable trucks and
through traffic to avoid downtown Montreal and save time and money, while
reducing congestion on roads and bridges.
Much of our quality of life is moved by road. If the highway network is not
operating up to speed, the quality of life of users and residents suffers
accordingly. We have only to consider the time wasted by thousands of commuters
morning and night or the increased cost of the goods we buy due to the
additional time required to deliver them.
Honourable senators, Bill S-31 is a vital stage in the completion of Highway
30, a project that will reduce congestion in the greater Montreal area. The
Government of Canada has a commitment to Quebec to have this bill passed, and,
in this regard, honourable senators, I strongly urge you to support this
initiative, which will permit the continuation of the long-awaited highway
On motion of Senator Stratton, for Senator Nolin, debate adjourned.
Hon. Grant Mitchell moved second reading of Bill C-40, to amend the
Canada Grain Act and the Canada Transportation Act.
He said: Honourable senators, I am pleased to move second reading of Bill
C-40, an act to amend the Canada Grain Act and the Canada Transportation Act. It
is a great honour to sponsor a bill, and this is the first bill I have sponsored
in the Senate. This bill touches on one of Canada's most important economic
sectors, the agriculture and agri-food sector, and, in particular, the Canadian
grain sector, which is a success story in its own right.
I am especially honoured to present this bill because it addresses an area of
the economy that is of such importance and significance to my home province of
As we all know in this place, the Canadian grain industry has worked
painstakingly over the years to build a reputation for quality and purity that
is the envy of the world. The payoff is a $10-billion industry that creates jobs
and prosperity for many Canadians.
Bill C-40 will amend the Canada Grain Act and the Canada Transportation Act
in direct response to a WTO Dispute Settlement Body ruling on February 10, 2004.
The ruling arose out of a request or, should I say more appropriately, a
challenge by the U.S. government for the Dispute Settlement Body to examine two
things; the role of the Canadian Wheat Board under GATT and certain trade issues
related to the handling and transportation of imported grain. The ruling
represented very good news about the Canadian Wheat Board and some entirely
manageable news about the grain handling issues.
First, the good news: The Canadian Wheat Board has been the target of a
number of challenges by the United States, both at the WTO and NAFTA, and in
every case, including this latest ruling, Canada's right to market wheat through
the Canadian Wheat Board has been upheld. Once again, we have been exonerated in
this view by the most important trading authority, the WTO. The WTO ruled that
the Canadian Wheat Board is a fair trader that meets all of its WTO commitments.
It went on to rule that the U.S. did not provide any credible evidence
whatsoever that the Canadian Wheat Board acts in a manner contrary to Canada's
A second important point in the ruling was the insistence that Canada be
entitled to safeguard and to protect the quality assurance systems that we have
developed in the grain sector. These are immensely important. On the other hand,
the panel did rule that certain Canadian grain handling practices, specifically
around mixing different grains, entry authorization and rail transport, are in
fact discriminatory against imported grains. Bill C-40 rectifies these practices
and puts Canada in compliance with the ruling without — and I strongly stress
"without" — compromising our grain quality assurance systems one iota.
Bill C-40 will bring our treatment of imported grain in line with our
treatment of domestic grain, thereby achieving consistency with the national
treatment doctrine of the WTO in the following ways: First, certain provisions
of the Canada Grain Act will be repealed so that licensed elevator operators
will no longer have to have Canadian Grain Commission permission before foreign
grain can enter their elevators. That will be accomplished by repealing
paragraph 57(c) of the act.
Second, licensed terminal and transfer elevator operators will no longer
require Canadian Grain Commission authorization to mix grain of different
grades. That will be accomplished by repealing paragraphs 72(1)(a), 72(2) and
(3), and section 56 of the Canadian Grain Act regulations.
In addition, certain regulations of the Canadian Grain Act will be written to
require that elevator operators report the origin of all grain. If they mix
Canadian and foreign grain, they will be required to identify that grain for
what it is — mixed. This is designed to ensure that the origin of grain is not
It is essential that Canada continues to have the capacity to assure our
buyers that they are getting what they pay for, namely, the consistent high
quality they have come to expect from Canadian grain. The Canadian Grain
Commission is confident that these changes in no way compromise our ability to
In addition to the amendments to the Canada Grain Act, amendments are
required to the revenue cap provisions of the Canadian Transportation Act in
order to bring the cap into compliance with the WTO decision. Canadian railways
must operate under this cap when they ship grain in Canada. It ultimately puts a
limit on how much they can charge for that service under certain circumstances.
Under Bill C-40, the cap will be extended to include foreign grain that is
imported into Canada. It will not, however, apply to foreign grain that is
imported into Canada, then through Canada and out of Canada to some other
I want to take a moment to acknowledge the hard and expeditious work that has
been done in the other place to make sure that this bill was passed quickly and
without undue delay. As my honourable colleagues may be aware, there is a good
deal of urgency to secure timely passage of this bill because Canada and the
U.S. have agreed on a compliance date of August 1, 2005. One might ask, "So
what?" Failure to put the required changes in place by this date could open
Canada to potential retaliatory action on the part of the United States. This
retaliation could be authorized by the WTO as early as October 1, 2005, and
would likely take the form of punitive tariffs on Canadian grain exports.
Moreover, as a medium-sized economy, but one so reliant on exports, Canada
needs to be vigilant about ensuring other countries abide by the rules-based
trading systems, especially in regard to international trade disputes. Failure
to comply with this ruling would put Canada in an unaccustomed and uncomfortable
position vis-à-vis our trading partners, including the United States. I commend
our colleagues in the other place for passing this bill unanimously last week
with no debate at both the report stage and third reading.
The grain sector, which includes farmers, elevator operators and other
stakeholders, is certainly on side. This is reassuring. It is very much on side
in supporting prompt action on Canada's part to comply with this WTO ruling.
On May 4, the Standing Committee on Agriculture and Agri-Food in the other
place heard from a number of key stakeholder representatives, including the
Grain Growers of Canada, the Western Grain Elevator Association, the Inland
Terminal Association of Canada and Canadian Pacific Railway. There were a number
of written submissions as well. All stakeholders expressed a common desire to
implement the changes as quickly as possible and bring Canada into compliance.
If I could just briefly quote from testimony by Mr. Cam Dahl, representing
the Western Grain Elevator Association:
Western Grain Elevator supports passage of Bill C-40 as quickly as
possible... U.S. retaliation would not be in the interest of the Canadian
agriculture value chain, and we would wish that the Government of Canada will
take the necessary steps to comply with the World Trade Organization ruling.
In addition to the Standing Committee on Agriculture and Agri-Food hearings,
the Parliamentary Secretary to the Minister of Agriculture and Agri-Food
conducted extensive consultations in January of this year on these changes to
the Canadian Grain Act and the Canadian Transportation Act. Farmers, producer
organizations, general farm groups, elevator operators, the railways and private
grain companies were all consulted. They were broadly supportive of this
approach, the approach embodied in Bill C-40, to dealing with the issues
outlined in the WTO ruling. There was strong support for Canada to meet its WTO
Important questions were raised in the committee in the other place, as well
as in the consultations, as to whether the changes would result in increased
imports of grain from the United States and whether this would impact on the
volume of Canadian grain moving to export during peak periods. Would it create
undue congestion and in some way disadvantage Canadian grain growers? It is
clear that the changes proposed to the Canada Grain Act will not result in
increased imports. The situation is somewhat less clear for the change to the
revenue cap in the Transportation Act. However, on balance, the potential for
increased imports is not expected to be significant, at least in the short term.
There is potential for U.S. grain to be diverted here to take advantage of
lower freight rates which could add to congestion during peak periods. However,
grain companies and railways have the flexibility to use commercial pricing to
adjust to this if congestion warrants it. This commercial pricing operates
within a free market model and therefore would not be in contravention of WTO
As there is some question about this change in the longer term, stakeholders
expressed the need to review the Canada Grain Act and the bill and, as a result,
the bill was amended in committee in the other place to provide for such a
review. That review is provided to be undertaken within a year of the passage of
It has been some time since the Canada Grain Act was amended, so the Minister
of Agriculture and Agri-Food believes such a review is appropriate and supports
its inclusion in the bill before us today.
In closing, I urge honourable senators to support this bill, especially given
the urgency that it should be in force in time for the August 1 deadline.
Canada's commitment to meeting our trade obligations will ensure that we can
continue to lead by example. Not only does Bill C-40 illustrate Canada's
commitment to meeting these obligations, it also holds Canada up as an example
for other nations to follow.
Our quick and responsible response to the ruling has, I believe, farther
reaching implications for our relations with the United States in particular. At
a time when there has been some debate about whether Canada is a good neighbour
to the U.S., this is further evidence that in fact we are.
Bill C-40 ensures that our world-class grain quality system continues to
support Canada's $10-billion grain industry, an industry that has succeeded on
the basis of offering consistent and uniform quality on world markets load after
load, year after year. It is the envy of other producers around the world.
In some sense, the changes are secondary to the breakthrough feature of the
ruling, which vindicates the operation of the Canadian Wheat Board under GATT.
That is extremely important. When it comes to the grain handling and grain
transportation aspects of the ruling, we have little reasonable alternative but
to implement the changes due to our WTO obligations and the spectre of U.S.
retaliation. At the same time, the changes will have been implemented with
extensive consultation and with the broad agreement of the industry.
In addition, these changes will result in minimal disruption, no increase in
red tape to speak of, and will be the subject of a review within a year. This
bill is certainly worthy of our support in the Senate, and I would urge my
colleagues to do just that.
Hon. Terry Stratton (Deputy Leader of the Opposition): Honourable
senators, I want to speak today to Bill C-40, to amend the Canada Grain Act and
the Canada Transportation Act.
Bill C-40 amends the Canada Grain Act and the Canada Transportation Act to
make minor adjustments to Canada's system for handling and transporting foreign
grain and grain products in Canada. These measures reflect a recent decision
made by the World Trade Organization Dispute Settlement Body.
The amendments to the Canada Grain Act, the CGA, as outlined in Bill C-40,
removes the requirement that authorization must be sought from the Canadian
Grain Commission, the CGC, before foreign grain can enter licensed grain
elevators. Bill C-40 amends the CGA and the Canada grain regulations to remove
requirements that operators of licensed terminals or transfer elevators must
seek CGC permission to mix grain.
Also of note, according to government background documents that have
accompanied the release of Bill C-40, in place of the previous provisions
dealing with foreign and mixed grain, a regulation will be introduced requiring
elevator operators to report to the CGC the origin of all grain. If they mix
Canadian and foreign grain, that grain will be required to be identified as
mixed. According to the government, this regulation is meant to ensure that
Canadian grain is not misrepresented.
Also related to the substance of this legislation, Bill C-40 amends the
Canada Transportation Act, the CTA, so that the railway revenue cap will be
extended to imported grain. I believe CPR expressed concerns about that.
As mentioned, the changes contemplated in Bill C-40 are a response to a
decision made by the WTO Dispute Settlement Body on a dispute between Canada and
the United States. On March 31, 2003, the American government requested that the
WTO examine the consistency of certain activities of the Canadian Wheat Board
and other Canadian policies affecting the importation of grain for their
adherence to WTO rules. Although the WTO subsequently ruled in favour of Canada
on the CWB issue, it ruled for the United States on some aspects of Canada's
policies related to the handling and transportation of foreign grain and grain
products in Canada.
In response to these rulings, on November 12, 2004, Canada and the U.S.
reached an agreement to implement the WTO's decision on grain sector policy
The Conservative Party of Canada supports Canada's adherence to our WTO
obligations and maintaining strong multilateral and bilateral trade relations
with other countries of the world and the United States. In this regard, the
Conservative Party is supportive of the general thrust of Bill C-40. We also
understand that there is an issue with respect to the fact that the deadline for
Canada to bring itself into compliance with the WTO ruling and the agreement
with the United States is August 1, 2005. According to the government:
...if Canada does not implement these changes by August 1, 2005, Canada
would risk the imposition of retaliatory measures by the U.S. This retaliation
would likely take the form of punitive tariffs on Canadian exports to the
U.S., although it's difficult to say what value of trade would be affected.
In this regard, the matter of a possible impending election must be
considered. What must be remembered, however, is that the chances and risk of
retaliatory measures by the U.S. is a constant hazard, regardless of any
domestic political events in Canada. As pointed out in the Library of Parliament
legislative summary for Bill C-40:
...the CWB alone has faced 13 investigations or studies by various arms of
the U.S. government. Perhaps more importantly, it appears that the incidence
of non-compliance with similar WTO decisions is rising over time. The European
Union ambassador to the WTO, Mr. Carlo Trojan, has observed that "the United
States has a quite depressing record when it comes to obeying WTO rulings."
It has to be stated that should Canada not comply with the WTO decision
within the timeline established at the November agreement, it will not be alone
in the league of non-complying countries.
However, with Bill C-40, there is no excuse for Canada to be in this
position. After all, when we speak of the tight timeline we are facing, it
should be pointed out that it took this government four months from the date of
the Canada-U.S. agreement to introduce this legislation which implements the
agreement. It is not like this is a very long piece of legislation. After all,
Bill C-40 consists of a mere four clauses. This bill is just a few pages long,
including the summary and explanatory notes.
Honourable senators, we are in a minority government situation and Paul
Martin is well aware that his government could fall at any time, killing all
legislation on the Order Paper. He also knows that Parliament rises at the end
of June and, as I said earlier, the changes in this bill must be in place by
August 1. Why, despite the fact that we are facing an impending election, would
it take so long to get this process started? If the bill had progressed through
the normal process in the House of Commons, it would have gone through committee
hearings and, given the normal process here, we would not have finished this
bill until the end of this month or early June. This is a cliff-hanger
situation, even without the fear of the government falling. I really question
However, the fact remains that the machinery of government could have moved
slightly faster than it did in order to avoid this legislative suspense.
Honourable senators, it is essential that, for every piece of legislation
brought before us, we take the time needed to examine it carefully and with due
diligence. The legislative process should not be an afterthought.
I would like to applaud the efforts of the Honourable Conservative Member of
Parliament for Haldimand—Norfolk in pushing her amendment through, which will
reinforce parliamentary oversight of the legislation. A review of the act with a
report to both Houses of Parliament will now be required within a year after
this section has come into effect.
The Conservative Party supports Bill C-40, but with the admonishment to this
Liberal government to recognize that it should not be playing politics with a
bill that has looming deadlines, especially when this government has lost or is
in danger of losing the support of Parliament.
The Hon. the Speaker: It was moved by the Honourable Senator Mitchell,
seconded by the Honourable Senator Downe, that this bill be read the second
Is it your pleasure, honourable senators, to adopt the motion?
Motion agreed to and bill read second time.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the third time?
On motion of Senator Mitchell, bill referred to the Standing Senate Committee
on Agriculture and Forestry.
On the Order:
Resuming debate on the motion of the Honourable Senator Smith, seconded by
the Honourable Senator Robichaud, P.C., for the adoption of the third report
of the Standing Committee on Rules, Procedures and the Rights of Parliament, (Conflict
of Interest Code for Senators) tabled in the Senate on May 11, 2005.—(Honourable
Senator Robichaud, P.C.)
Hon. Fernand Robichaud: Honourable senators, last week when I moved
that the continuation of the debate be deferred, I was acting on a suggestion by
the leadership of the government party and the opposition. Their intention was
to ensure that honourable senators had a few days available to them in order to
examine the document before speaking this week, if that was their intention.
If I were to speak today, honourable senators, I would speak along the same
lines as the committee chair and vice-chair. If it were up to me alone, I would
be prepared to vote on this matter immediately. I do, however, believe that some
senators would like to have an opportunity to speak, and I encourage them to do
Hon. Marcel Prud'homme: Honourable senators, I do not wish to speak to
the report, but I have a question of definition. The word "family" is well
defined in the proposed code, but the word "guest" is not defined. That is my
sole concern, without debate. It is important because the matter concerns
travel. The word "guest" is used, and I would like to have its definition
included in the code. I read the English and French versions of the proposed
code last night and found a few small discrepancies. Without a definition of
"guest," an honourable member could have difficulty when registering with a
guest. Perhaps each person has to register. I would like to know how to proceed.
Senator Joyal will make a great speech on this. He has a good legal mind and
perhaps he will provide an answer to this.
Hon. Serge Joyal: Honourable senators, I am preparing my notes at the
invitation of Senator Robichaud, and I have taken the point raised by Senator
Prud'homme. I would like to speak to the report of the Rules Committee tomorrow,
when the Senate resumes its sitting. I have reviewed the 26 meetings of the
committee, all of which I attended, and in the 15 minutes that will be allotted
to me I will share with the house why I support the report.
On motion of Senator Joyal, debate adjourned.
On the Order:
Resuming debate on the motion of the Honourable Senator Di Nino, seconded
by the Honourable Senator Stratton:
That the Senate call on the Government of Canada to support the request of
the Government of Taiwan to obtain observer status at the World Health
Organization.—(Honourable Senator Downe)
Hon. Percy Downe: Honourable senators, I rise to give my support to
the request of the Government of Taiwan to obtain observer status at the World
Health Organization. The World Health Organization is an agency of the United
Nations that was created in 1948 with Canada as a founding member. The request
from Taiwan has been a matter of debate for many years. On the one hand, it can
rightly be seen as a matter of human rights but, on the other hand, the
political dimension cannot be ignored. As many honourable senators have done in
the past, I call the attention of honourable senators to the preamble of the WHO
constitution, which states:
The enjoyment of the highest attainable standard of health is one of the
fundamental rights of every human being without distinction of race, religion,
political belief, economic or social condition.
Clearly, this highlights the emphasis on health and human rights over the
political issue that drives the opposition to Taiwan. In today's globalized
world, health is a concern for all people around the world. Diseases do not
follow state borders and cannot be confined within them. This reality was seen
during the outbreak of SARS and its rapid spread across the world. It is in
times such as the SARS outbreak that the need for information sharing and
cooperation is highlighted. Taiwan required the assistance of the WHO during
this crisis but was unable to receive the full support needed because it was not
a member or observer of the WHO. While opposition continues from China, there
are precedents in the organization of participants receiving such status.
Currently, there are five entities that have observer status in the WHO.
Another important point made by Senator Di Nino in the past is the
contribution Taiwan would make to the World Health Organization. Taiwan has a
well-established and advanced health system that would provide information and
knowledge to the international organization and its members. Rejecting the
participation of Taiwan in the WHO puts its population of 23 million at risk,
including all the Taiwanese who visit Canada and other parts of the world. There
is no reason to take such a risk.
Canada has supported Taiwan's request in the past, as have other countries
and organizations such as the United States, Japan and the European Union. On
May 27, 2003, the House of Commons passed a resolution in support of the
Government of Taiwan's request. On June 12, 2003, this chamber unanimously
passed a similar resolution. I speak this evening in the hope that the Senate
can once again give support to Taiwan's request for observer status at the WHO.
On motion of Senator Rompkey, debate adjourned.
On the Order:
Resuming debate on the inquiry of the Honourable Senator Mitchell calling
the attention of the Senate to the Province of Alberta and the role it plays
in Canada.—(Honourable Senator Prud'homme, P.C.)
Hon. Shirley Maheu: Honourable senators, I rise to participate in this
inquiry — I might say that I was not expecting to do this — in response to a
very fine maiden speech of our distinguished new colleague, the Honourable
Senator Grant Mitchell.
Hon. Marcel Prud'homme: As senators may have noticed, I am more than
delighted to give the floor to Senator Maheu, but I point out that this item
stands in my name. I had intended to stand this inquiry today, but, as an act of
courtesy, of course Senator Maheu may speak. I will take the adjournment when
she has completed her comments.
Senator Maheu: Honourable senators, among the subjects broached by
Senator Mitchell, three in particular have incited me to speak. They are the
attitude of Quebecers and Albertans toward the Canadian reality, Senate reform,
and the importance of the Canadian Charter of Rights and Freedoms in the face of
I would like to echo Senator Mitchell's comments about the major contribution
that Quebec and Quebecers make to our national uniqueness. I thank him for these
comments. He reminds us that the Quebec fact promotes positive differences
between ourselves and our culturally aggressive southern neighbour, while at the
same time the Quebec reality never ceases to enrich our own collective
Senator Mitchell applauds the way in which we Canadians have, in his words,
blended minority and collective rights, the way that we have elevated culture
and multiculturalism, the way that we are decent and dignified, and the way we
have created a judiciary premised upon fairness and justice.
I note in particular his reference to the so-called alienation among a few
Canadians toward the Charter of Rights and Freedoms, about which I want to speak
especially. I hope that such alienation is of a passing nature. The Charter is
still young and human rights continue to evolve at too much of a whirlwind pace
Much of the alienation is generational based. There are, I believe, some
remedies to this alienation. The current Chief Justice of Canada declared in
1994 that the passage of Canada's Charter of Rights and Freedoms was the
equivalent of a revolution on the scale of the introduction of the metric
system, the great medical discoveries of Louis Pasteur, and the invention of
penicillin and the laser.
Prior to the Charter's adoption, the courts had the benefit of the
Diefenbaker Bill of Rights. We should not forget that this was a noble
development and that its text suggested the possibilities of practical and
Unfortunately, the enlightened changes expected were not to be implemented so
quickly. During the post-Diefenbaker period, the Supreme Court of Canada was
dominated by judicial conservatives, and there were no details in the document
itself to save the high purposes of this noble effort from being distilled by
these reactionary elements of our top court.
In giving us the Charter, Prime Minister Trudeau successfully remedied the
deficiencies of the Diefenbaker document with seven pages of fine print that
have forced our senior judges since 1982 to focus more broadly on the great
human rights controversies of the day. Of course, this broad focus has enabled
the opponents of the evolution of human rights law to pour derision on the
Charter. Some of this has come from Alberta, but by no means exclusively from
there. As I have said optimistically before in this chamber, the thrust of
reactionary elements from an ever-dwindling minority will continue to lead to
the impotence of these reactionary interests as we move forward to embrace the
natural expansion of human rights.
Today, Canadians have great respect for the Charter. It is recognized not
only as a symbol, but also as a document of great practical importance. In fact,
the Charter is the cornerstone of our national unity. Its message extends to
Alberta, Quebec and all of Canada. It is truly an essential force that unites us
from coast to coast.
Honourable senators, it says to Canadians that rights are rights are rights.
It affirms that not a single Canadian is expected to sit at the back of the bus.
To even think of using the notwithstanding clause in a human rights context is
indeed an awesome, unwelcome and destructive challenge to our overarching
Still, as Senator Mitchell has mentioned, some Canadians regard the Charter
as a thorn of alienation and are eager to claw away at its unifying influence. I
have said before in this chamber that our Canadian Constitution, and in
particular our Charter, is a living, breathing and evolving document, but at the
same time, there are several realities that challenge the ultimate effectiveness
of the Charter.
Alienation toward the Charter cuts two ways. On the one hand, there are those
in a variety of positions of authority who are incapable of fully embracing the
sense of broadly based rights. On the other hand, there is an uneven
distribution of the resources that can effectively implement the promises that
Charter decisions make. On both hands, these shortcomings stem from
geographical, religious, generational, as well as cultural realities and
notions. The blending of minority and collective rights is a never-ending
Senator Mitchell appropriately reaffirms that negative views of Albertans on
Charter issues are not monolithic. Every corner of this nation holds socially
progressive pan-Canadian views, and Quebecers take a back seat to no one in the
socially progressive theatre.
For effective access to the Charter's promise, there are three essential
elements that must be present. The first element is organized group support for
Charter litigants. That means that such group support must be active, in all
parts of Alberta and everywhere else, to challenge Charter-motivated grumbling
and blocking. The second element is the financing necessary for Charter appeals
by individuals who are not supported by groups; and the third element is the
urgent need for the structural renewal of the legal profession to enable
Canadians everywhere to enjoy the promise of the Charter. These three elements
are the new frontier of the application and expansion of human rights in Canada.
Obviously, those who repeatedly pursue Charter remedies to resolve their
disputes seem to have greater success.
When poor litigants pursue Charter remedies, they do not fare well because
challenges are costly, requiring expensive legal representation, and are very
time-consuming. The extent of diversity in the legal profession, particularly in
the larger law firms, seems to dictate the degree to which Charter cases are
moved forward, particularly when women's or multicultural issues are at stake.
Women promote women's issues. Visible and other minority individuals as legal
practitioners promote multiculturalism and a wide range of cultural interests.
Here, Senator Mitchell's comment about the blending of minority and collective
rights is particularly appropriate.
It seems to be a law of nature that renewal occurs when there is a critical
mass that seeks change. Most likely, a critical mass of 30 per cent is the
launching pad for meaningful renewal. Senator Mitchell refers to a favourite
preoccupation of Alberta's, what I will call "chattering classes" — the issue of
As an aside, I would suggest to our new Senate colleagues that change and
renewal in this chamber has flowed from the attainment of a more than 30 per
cent presence of women, which occurred in the last 12 years, and for which we
can thank Prime Minister Chrétien. As well, Prime Minister Martin has already
shown his interest in continuing in this direction.
The greatest Senate reform ever was not the capping of Senate terms at the
age of 75 but, rather, the creation of a critical mass of women here. This is
major Senate reform happening here and now. We are living this reform.
On this issue, what can be said about municipalities in Alberta, Quebec and
elsewhere, where only 10 per cent of the mayors are women? What about our
diplomatic corps, where only about 17 per cent of our ambassadors abroad are
women? What about our senior civil service, where fewer than 25 per cent of the
deputy ministers at the national level are women and fewer than 19 per cent of
the federally nominated judges are women? What about the number of women elected
to the House of Commons never exceeding 20 per cent? What about the equally
dismal record of women's representation in our provincial legislatures? The
Senate is the very last place in our nation to which any finger should be
pointed by anyone when discussing the reform of political institutions in
Let the government and the people of Alberta, as well as every other
province, provide a more welcoming climate for women as legislators, mayors and
senior bureaucrats. The Senate of Canada is the leader in Canada when it comes
to the rights of women and the broad promise of the Charter of Rights and
Of course, Charter decisions make changes only on paper; it is people that
make changes in practice. The absence of a critical mass dedicated to the
implementation of change simply means that Charter decisions are dispatched as
hollow victories to the realm of never-never land.
Without active women's associations, without active financing for legal
challenges and without the presence of women in the local legal firms, the
promise of the Charter is all too often an empty one. Uneven access to the
application of Charter laws promotes Charter alienation. Canadians in small-town
Alberta and other small communities everywhere cannot embrace the promise of the
Charter under these circumstances.
Honourable senators, the Charter must have fuel to function. The fuel will
come from the proliferation of Charter-oriented interest groups, from
well-funded court challenge programs and from reconstructed law firms. I am
confident that the Charter will continue to be a major instrument to pull
together the disparate elements of our nation.
Senator Prud'homme: Honourable senators, Senator Mitchell should know,
and they should know in Alberta, how strongly I feel as a French Canadian from
Quebec. I want to make a good speech and, as such, would ask for the adjournment
of the debate.
On motion of Senator Prud'homme, debate adjourned.
Hon. Eymard G. Corbin, pursuant to notice of May 10, 2005, moved:
That the Standing Senate Committee on Official Languages be empowered to
meet on Monday, May 16, 2005, from 9:30 a.m. to 5:30 p.m., to consider a draft
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable
senators, as this has now been overtaken by events, I would move that it be
stricken from the Order Paper.
The Hon. the Speaker pro tempore: Is it agreed,
Hon. Senators: Agreed.
Hon. Tommy Banks, pursuant to notice of May 12, 2005, moved:
That the Standing Senate Committee on Energy, the Environment and Natural
Resources be instructed to meet at 9:00 a.m. on Tuesday, May 17, 2005 for the
purpose of clause-by-clause study of Bill C-15.
Motion agreed to.
The Senate adjourned until Tuesday, May 17, 2005, at 2 p.m.