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Debates of the Senate (Hansard)

Debates of the Senate (Hansard)

1st Session, 38th Parliament,
Volume 142, Issue 80

Monday, July 4, 2005
The Honourable Daniel Hays, Speaker



Monday, July 4, 2005

The Senate met at 4 p.m., the Speaker in the chair.



Live 8

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to pay tribute to the organizers, artists and attendees of the Live 8 concert series. More importantly, I rise as an African Canadian to draw attention to its important message. Live 8 was put together by Sir Bob Geldof, Bono of U2 — both Irish — and many other artists around the world.

In last Friday's Globe and Mail, John Doyle eloquently set out the challenges faced by the Irish people during the great famine of the mid-19th century. He wrote:

What happened in the Irish famine of the 1840s began with a force of nature, but was exacerbated by economic policy and political philosophy. That is precisely why the memory of it motivates Geldof and Bono to act on behalf of the people in Third World countries who suffer not only natural disasters, but are at the mercy of foreign governments and policies that are remote from them.

As someone who comes from Africa, I can tell senators that anything that can be done to raise awareness is more than welcome. I stand in this chamber to add my voice to the voices of thousands of Canadians that say we need to look at solving these problems not piecemeal but as a whole.

As Canada's envoy for peace in Sudan, it was with great sadness when I learned in 2001 of the loss of 2 million people in southern Sudan and the displacement of another 4 million from their homes while the world was silent.

Over the last few years Canada has been engaged in the Sudan and has provided resources to assist in forging peace. However, while our attention was focused on the conflict in southern Sudan, the world ignored the problems of Darfur, which lead to the needless suffering of many Darfurian men, women and children. Again, as we assist in Darfur the problems in eastern Sudan are on the rise. Fighting has broken out between government forces, the Free Lions and the Beja Congress. This illustrates that when such a problem is addressed in a piecemeal way, the suffering continues.

Recently I was in eastern Sudan. Each night when I go to sleep, I literally feel the tug of the pregnant mother, surrounded by her three small children, who grabbed my wrists as I walked through Kassala. She had heard that I was Canada's envoy and she pointed me toward the trucks being loaded to send food and other supplies to Darfur. Obviously, it had been many days since she and her children had eaten, and she pleaded with me, "When will my children be allowed to eat? " I did not have an answer; and I still do not have an answer.

Honourable senators, it is important that we take the message of Live 8 to heart. We have it in our power to address these issues as a whole. I urge all senators to add their voices to those of all Canadians to help make poverty history.

Inter-Parliamentary Union Human Rights Committee for Parliamentarians

Hon. Sharon Carstairs: Honourable senators, for the last year or so I have had the privilege of serving on the Human Rights Committee for Parliamentarians of the Inter-Parliamentary Union, which is why I was notably absent for a period of about 10 days. I was in Samoa on an IPU mission. The Leader of the Official Opposition had launched a complaint about issues governing that nation, and so I was sent to investigate.

I do not believe that many honourable senators have a conscious idea of what this human rights committee is all about, so I will explain. The IPU is comprised of 143 nations and is sometimes referred to as the United Nations of parliamentarians. A parliamentarian who for whatever reason thinks that his or her rights have been denied can make application to this committee for an investigation. The committee deals with cases of members of Parliament who have literally disappeared off the face of the earth. We deal with parliamentarians who have been incarcerated for extraordinarily long periods of time. We deal with parliamentarians who think that their voices are not heard in the legislature or the Parliament to which they have been elected.

Honourable senators, Canada is a fortunate country. We have the opportunity to serve on such committees so that we can help and assist parliamentarians from countries such as Burma, the former South Africa and Zimbabwe, where parliamentarians do not have their rights recognized by the parties in power. Thus, it is a great honour and privilege to serve on this committee, to represent Canada, which has so much, and to help those who have so little.


Canada Day

Hon. Marie-P. Poulin: Honourable senators, last Friday I celebrated Canada Day, as did you all. The celebration I attended was in Sudbury, and what a fine celebration it was. The success of the event was in large part due to all the time so generously contributed by Sudbury's many visible minorities. This again made me aware of the great changes taking place in all of Canada, in all regions.

I have introduced a motion in the Senate calling for a special committee of the Senate to be appointed to examine the growing gap between regional and urban Canada. In the context of globalization and of our desire to improve productivity, it is important that we, as an institution, take the time to step back for a look at our country and the balance we want to see between our major centres and smaller ones, as well as for a closer look at the regions where all of our natural resources are found.

Honourable senators, on this day, the national holiday of our neighbours to the South, we must take this opportunity, not only to extend our best wishes to them, but also to realize that, as partners in North America, we must play a major role in the current context of globalization.


Location of Shriners Paediatric Hospital

Hon. Marcel Prud'homme: Honourable senators, I hate to stir things up after all this applause, but the last two senators to speak raised two issues that I find particularly interesting, including one on the Inter-Parliamentary Union.

The independent senators have been eliminated from this association through an extraordinary sleight of hand, while I have given 40 years of my life to the Inter-Parliamentary Union. I will talk about that when I take part in the debate on the Inter-Parliamentary Union. I will tell you some great stories and also some horror stories.

There is one issue that really infuriates me, especially now when we are celebrating our friends from the United States. I will be going to the United States shortly, since I always go there to celebrate their Independence Day.

I find this dispute between Ontario and Quebec over the Shriners hospital despicable. This bickering between the two premiers really disgusts me. It makes me sick and it makes me want to throw up. Every effort is being made to save this great and wonderful Canada from sea to sea, but sometimes I wonder when that argument is appropriate. When is it appropriate, honourable senators? Was it appropriate for Mr. Charest to tour Quebec to boast about the Canadian passport on the eve of the referendum? Was that appropriate?

And now, when we are still faced with so many crises in Quebec, two premiers are fighting over a hospital that should be located in Montreal. I find it disturbing to watch these two premiers get involved in this issue, especially that lame-brained Premier of Ontario.

I heard the tape from London, Ontario. I heard it on Radio-Canada. Honestly, honourable senators, is this how we are going to save this beautiful, great and noble country called Canada? I can assure you that what I heard on Radio-Canada, in other words, pitting London's beauty against Montreal, will not help.

Given the support of the Premier of Ontario, I find this situation quite revolting. These people will return yet again with their hands on their hearts, before future referendums in Quebec, to profess their great love for us, only to forget it the very next day! Both premiers should have stayed out of the debate: Mr. McGuinty, with his provocation and the natural provocation in Mr. Charest's response.

We French-Canadians here are trying to build this country; we are trying to build it with our friends in Alberta and we are trying to set an example for the rest of the world, as Senator Carstairs said. And here are two — I was almost about to say two morons — battling each other for a hospital that should remain in Montreal forever!


Removal of Farm Subsidies

Hon. Mac Harb: This will be an unusual statement for me, as I wish to pay tribute to George Bush of the United States. I want to pay tribute to him as a Liberal, by extension a democrat, an internationalist and a capitalist with a social heart. I want to congratulate the President of the United States, George Bush, on a statement he made recently, and that is, for the rich world to remove the subsidies in the farming industry.

Some Hon. Senators: Hear, hear!

Senator Harb: I think this is by far the boldest statement we have ever heard from a leader of a great country such as the United States. Frankly, honourable senators, if we are serious about helping the least developed nations, we have to remove trade barriers so those countries can sell their products in our markets. Therefore, the removal of US $350 billion in subsidies that go to farming industries in the European Union and the United States, as well as in Canada and Japan, I would say, will go a long way to helping the poorest nations in their fight against poverty.

Furthermore, honourable senators, rich nations have to go one step farther and not only talk the talk but also walk the walk. Trade barriers that are not necessarily on the books but are obstacles nonetheless as a result of flaws in the European Union system, and to a large extent in the United States as well, the precautionary clauses, must be removed. Notwithstanding the rule of law, farmers and producers in poor nations find themselves subject to what is not in the law. Therefore, I hope that the statement of the President of the United States will be taken to heart by the leaders of the European Union, Canada and Japan, and implemented, moving us one step forward toward creating a level playing field for all around the world.

Honourable senators, that brings me to the next step. When I say not only talk the talk but also walk the walk, I also want to pay tribute to the government of this country that only recently removed trade barriers on all goods and products that come from least-developed countries, whereby countries such as Bangladesh have been able to quadruple their exports to Canada. As a result of that initiative, some 1.8 million people, most of whom are young females, were able to keep their jobs to support their families.

The Honourable Landon Pearson

Congratulations on Being Nominated Among Group of 1,000 Women to Receive 2005 Nobel Peace Prize

Hon. John G. Bryden: Honourable senators, I want to refer briefly to the fact that my seatmate, Senator Landon Pearson, has been nominated, as one of 1,000 women from around the world, for the 2005 Nobel Peace Prize.

Hon. Senators: Hear, hear!

Senator Bryden: Senator Pearson's inclusion in the nomination is due to her efforts to protect and promote children's rights, both in Canada and abroad — her long-term commitment to, and deep understanding of, the cause of children's rights. Involved with public policy related to children's issues since the 1960s, Senator Pearson co-founded a children's mental health prevention program in Ottawa, Canada, in 1974. As the Vice-Chair of the Canadian Commission on the International Year of the Child, she travelled across Canada from 1978 until 1980, consulting with Canadians to draft the national agenda for action under the administration of Prime Minister Pierre Elliott Trudeau. Senator Pearson was successful in convincing the commission of the importance of consulting the opinions of children and young people as well, long before children's right to participate was entrenched in article 12 of the Convention on the Rights of the Child.

Just as I and all of you are proud of being one of the 105 people who are chosen to be members of this chamber, I think all of us are proud that Senator Pearson is one of the 1,000 women in the world nominated for the Nobel Peace Prize.



Bill to Authorize Minister of Finance to Make Certain Payments

Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Eggleton, P.C., seconded by the Honourable Senator Baker, P.C., for the second reading of Bill C-48, to authorize the Minister of Finance to make certain payments.

Hon. Joseph A. Day: Honourable senators, we had a good, fulsome debate on this bill on Thursday last, and a number of questions were raised. I had an opportunity to study those questions and the transcript and perhaps I could touch on a few of those questions in my time in debate on this particular bill, Bill C-48.

Honourable senators will recall Bill C-48 is entitled, An Act to authorize the Minister of Finance to make certain payments. Usually, the Senate Standing Committee on National Finance will look at a bill like this — that is, one that authorizes payments or purports to authorize payments — to see if it has a Royal Recommendation. That does appear and so, from a form point of view, the bill appears to be in order.

The recommendation reads:

Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled: "An Act to authorize the Minister of Finance to make certain payments".

Honourable senators, this bill is three clauses long and comprised of two pages. The first part authorizes the minister to make certain payments. In the second part of the bill, I should like to draw your attention to clause 3, which provides as follows:

3. For the purposes of this Act, the Governor-in-Council may, on any terms and conditions that the Governor-in-Council considers appropriate, authorize a minister to...

It then goes on to state that any minister of the Crown "develop and implement programs and projects." One of the questions raised on Thursday was: Are these new programs or can this money that is allocated in this particular bill be used to supplement existing programs? The first paragraph states:

(a) develop and implement programs and projects;

The Governor-in-Council may authorize a minister to enter into agreements "with the government of a province, a municipality or any other organization or any person." That is similar to several agreements that have been signed with respect to provinces. That is to catch that kind of situation, for example, the new deal for municipalities, the GST rebate arrangements and other transfer payments.

Paragraph (c) states:

(c) make a grant or combination or any other payment;

The authorization to make the payment comes from the Governor-in-Council. Although the Minister of Finance is authorized in this bill to release those funds, there is a check on the Minister of Finance by requiring the Governor-in-Council to authorize the grant, contribution or other payment.

Finally, paragraph (d) states:

(d) subject to the approval of Treasury Board, supplement any appropriation by Parliament;

That is the second aspect of the question that was raised the other day. Is this a new program or is this a program that would supplement an existing program? The answer is clear. In paragraph 3, it can be either. The option would then be for the Minister of Finance, in conjunction with the Governor-in-Council, to make that determination after consultation with all of the stakeholders in that particular area.

Honourable senators will recall that, the upper limit with respect to Bill C-48 is $4.5 billion. However, there are other requirements. That is over a two-fiscal-year period. Starting in the first year, there must be a surplus in excess of $2 billion before that particular bill is triggered. Bill C-48 provides that, over two years, there will be a surplus of $4 billion before any funds can be disbursed with respect to this particular bill. The government has traditionally used part of the surplus. There has been an unwritten custom that up to 50 per cent of the surplus in any year goes to pay down the accumulated debt. Honourable senators can see that tracking the surplus must be there as another activity of government before this particular bill is triggered.

There are other requirements in the wording of this bill. There are certain categories where these initiatives must take place, and a certain limit on each category. Honourable senators will recall that for the environment there is $900 million; for training and post-secondary education, $1.5 billion; for housing, $1.6 billion; and for foreign aid, $500 million. This is legislated spending authority.

We dealt with the supply bill two weeks ago. That bill is another manner in which authority is given by Parliament to the government to appropriate and spend funds. This bill constitutes legislated spending authority and, if all the other conditions are met, it will allow the minister to spend that amount of money.

There was a question as to whether the initiatives are new or will supplement existing programs. I have touched on that. It is found in clause 3, paragraph (c) of the bill. There were questions as to how one determines if there is a surplus and if one must wait until after the fiscal year, in March. When all the outstanding bills are in, somewhere in the period of September or October, the government will typically determine roughly what the surplus or the deficit will be. The Auditor General has stated that the current fiscal year must be closed out before the new fiscal year begins. There is a period of time from, say, September to the end of March, when the funds could be disbursed. This disbursement period lags the fiscal year by six months.

There is nothing in this bill that prohibits a disbursement prior to that time, but it will take a very confident Minister of Finance to determine this surplus in excess of $2 billion and make the disbursement before the Department of Finance states that there will be a surplus.


The answer is yes, the funds can be disbursed before the end of the fiscal year. However, in all likelihood, all funds will not be disbursed. I think the minister would want to be prudent in that regard.

There were a good number of other questions concerning specific plans regarding the environment. There were questions concerning specific plans relating to training, low-income housing and post-secondary education for Aboriginals.

Honourable senators, these are all very good questions. However, in my respectful submission, those are questions that should be put to witnesses at the committee. We assume that the bill will be referred to the Standing Senate Committee on National Finance. Those are the types of questions that we would ask of witnesses who appear before the committee.

This being second reading of the bill, we look at it from the point of view of its structure. Is there a recommendation from the Crown? There is. We also look at the bill from the point of view of principles. Principles are typically debated at second reading.

Honourable senators are undoubtedly in support of the principles of this bill. It would provide more funds for environmental initiatives, post-secondary education, affordable housing and foreign aid. As the Honourable Senator Dyck stated in this place on Thursday, June 30:

This bill contains items with which no one in this house would disagree. They are motherhood issues. The questions are with respect to the process and the plan.

Honourable senators, I do not disagree with those remarks. The questions with respect to process and plan are developed at committee and are best put at committee where we can deal with them.

It is my submission that we get this bill to committee. Typically, the Standing Senate Committee on National Finance meets on Tuesdays and Wednesdays, and the committee is anxious to proceed with this bill. I submit that the time has come for this three-clause bill to be sent to committee so that the committee can deal with the questions as to plan and process that so many honourable senators have raised.

Hon. Donald H. Oliver: Honourable senators, I wish to commend Senator Day on his remarks on this important piece of legislation. I do note, however, that many of his remarks dealt with the power and the authority of the executive branch while not many of his remarks dealt with the power of the legislative branch, in particular in relation to concepts of accountability. It is about the latter that I wish to make a few remarks in joining this debate.

We now have before us a copy of Bill C-48, to authorize the Minister of Finance to make certain payments. The intent of the bill is to allow the federal government to spend up to $4.5 billion for specific purposes over the next two fiscal years. These payments will be drawn from any unplanned fiscal surpluses that exceed $2 billion, as set forth by Senate Day.

According to clause 2(1) of the bill, the new spending is to be allocated to the following initiatives: $1.6 billion for affordable housing; $1.5 billion for post-secondary education and training; $900 million for the environment, including public transit and an energy-efficient retrofit program for low-income housing; and $500 million in foreign aid.

While Bill C-48 covers important areas of public spending, it contains numerous flaws. I am concerned that Bill C-48 contains no explanation of the mechanisms for spending. It does not provide sound accountability mechanisms. It offers little provision for adequate parliamentary oversight. I also believe that Bill C-48 raises issues of fiscal responsibility.

I will now address each of those concerns in turn. It is unclear how the new spending will be allocated. For example, how will the $1.6 billion for affordable housing initiatives be spent? Will it be invested in cities, in small villages or remote communities? Will new programs be put in place or will existing programs see their funding increased? Will the new investment help alleviate homelessness in Canada? Bill C-48 does not provide any answers to any of these questions.

Similarly, Bill C-48 does not describe a mechanism that spells out how investment will be made in the area of post-secondary education and training. How will this new spending supplement the existing measures provided, for example, under the Canada Health Transfer and financial assistance to students? Which Canadians in particular will benefit from this new investment? How will funding be allocated to them and on what basis? What proportion of these new funds will help support students from low-income families? What type of training support is intended to be provided?

Bill C-48 is just not detailed enough to provide clear answers to these questions. Senator Day has said the place for raising questions like this is not in the chamber but in the committee. Why was it not in the bill in the first place?

What about the environment measures aimed at public transit? Which federal department will be responsible for administering the proposed $900 million?

Similarly, with respect to foreign aid, is the proposed $500 million intended for a specific type of initiative or a particular country or region? If so, which department or agency will be responsible for administering these funds?

Parliamentarians are given no information whatsoever to help us make a deliberate opinion. There is no answer to any of these questions. How to best deliver on these commitments is not specified in the proposed legislation.

At this point in time, it is unclear whether it will be determined through consultations with affected parties and the various departments involved or done unilaterally by the government. In other words, we are asked to vote on legislation worth $4.5 billion with virtually no information as to how it is to be delivered, to whom it is to be provided and which departments will manage the funds.

This is in sharp contrast to the estimates process and estimates documents which are provided with a full and detailed account of each department's spending. It is my view that not providing the details on programs or how the programs are to be administered is irresponsible use of taxpayers' money. Canadians expect and deserve accountability and transparency as to how their tax dollars are being spent.

Concerning accountability, honourable senators, not only are we asked to vote on a bill that sets out spending without the appropriate information, such as the terms and conditions of payment and the details on specific program parameters, but we must also vote on a bill that contains neither provisions for audit, evaluation or reporting. In other words, Bill C-48 contains no clear measures for government accountability.

Through Bill C-48 the federal government seeks authority to spend some $4.5 billion without a plan and without offering Parliament the necessary information as to what the executive can be held accountable for. As Chair of the Standing Senate Committee on National Finance, I am greatly concerned about this lack of accountability.

As to lack of parliamentary oversight, Bill C-48 gives the Minister of Finance the authority to spend part or the total to a $4.5-billion threshold. This will be at the discretion of the minister.

Moreover, clause 2(2) of Bill C-48 contains this open-ended statement: "...the Governor-in-Council may specify the particular purposes...." In other words, the "particular purposes" are not specified for which funds are to be made available nor are the "amounts of those payments for the relevant fiscal year." In other words, cabinet can choose to spend the money as it sees fit. As such, parliamentary oversight has been sacrificed. It can hardly be considered fiscally responsible for the Minister of Finance to act in this fashion.


Honourable senators, I find Bill C-48 to be poorly drafted. The government can do whatever it decides. As parliamentarians, we are only asked to rubber-stamp the proposed legislation. This is not the way that budgets are supposed to be made. Spending decisions are usually based on a process of prioritization. For each decision, each initiative, there is debate internally, within departments and within the cabinet, and there is wide consultation with parliamentary committees. This process has not taken place on Bill C-48. There has been little opportunity for any kind of open debate. There is a clear lack of parliamentary input into the budgetary-making process for Bill C-48.

As I mentioned earlier, the $4.5 billion in new spending under Bill C-48 is conditional upon there being a surplus of at least $2 billion in the next two fiscal years. We are told that otherwise this money will not be spent. Senator Eggleton made that clear on several occasions when he gave his introductory remarks at second reading on this bill.

In other words, the federal government needs to be assured that the $2-billion threshold will be met before any payments proposed under Bill C-48 can be made. This raises three issues. The first issue is year-end spending. It is my understanding that the government will not plan to spend any money if the money is not in place. The Minister of Finance will be in a position to make some or all of the payments set out in clause 2 of Bill C-48 only once the surplus is known. Senator Day has told us that the government will know the surplus six months in advance of the end of the fiscal year. I do not know how that can be done. This may re-open the door to irresponsible year-end spending where departments have little time left to spend their budget.

The second issue is broken promises. What if the $2-billion threshold is not met? What then would the government's priority be? Would it be environment or post-secondary education? Would the proposed spending be apportioned at that point between the specific sectors mentioned in the first clause of Bill C-48? Would it be proportionate to the amount specified in the bill? We do not know. There is no certainty that the federal government will honour its commitments. Many Canadians, particularly those in need of affordable housing, and students from low-income families may see their hopes fade away if the $2-billion threshold is not met.

The third issue is that Bill C-48 is unique in that it is the first time that spending authority would be provided that is subject to there being a minimum fiscal surplus. Is this really a prudent approach to fiscal management? In his brief to the House of Commons Finance Committee, Michael Murphy, Senior Vice-President (Policy), Canadian Chamber of Commerce, stated:

Bill C-48...was concluded so quickly with little effort to determine whether the new spending initiatives are effective in boosting productivity and fostering long-term economic growth. It showed a clear lack of planning and long-term strategic thinking on the part of the federal government.

Honourable senators, it is my view that the proposed legislation will make it very difficult to continue on a path of debt reduction and tax relief, a path that is so crucial to ensuring economic prosperity. Honourable senators will be aware that usually any unanticipated surplus at the end of fiscal year is automatically directed to debt reduction. Over the next two fiscal years, a good part of any surplus will be used to fund the new spending initiatives contained in this bill and totalling $4.5 billion. The pace of debt reduction will accordingly be slower.

Honourable senators, Bill C-48, as it is currently drafted, may appear like a statement of broad generalities. It does, however, raise numerous concerns related to a lack of accountability and most of all a lack of opportunity for parliamentarians such as us to have some oversight. It also mitigates long-term planning that is necessary for fiscally responsible government and creates uncertainty with respect to debt and tax reduction.

There are many problems with Bill C-48. In particular, we need to ask ourselves whether Bill C-48 sets a dangerous precedent for Canada, as it provides the federal government with the authority and flexibility to spend, as it sees fit and without parliamentary scrutiny, up to $4.5 billion in the next two years without requisite transparency or accountability.

Honourable senators, when this bill goes to committee, as Senator Day has suggested, I hope the committee will hear many witnesses who will speak to many of the unanswered questions that this hurried piece of legislation provokes. I am not suggesting in any way that it is up to the standing committee to bring in amendments to alter or change a budget bill. However, the failure of important concepts of transparency and accountability, parliamentary oversight and systematic-payment mechanisms must not be allowed to be repeated. It is my hope, therefore, that the Senate committee will at least consider drafting observations to accompany the report, which observations will comment on the fact that the Senate frowns upon leaving so much spending discretion to the executive.

Hon. Noël A. Kinsella (Leader of the Opposition): Honourable senators, I wonder whether the honourable senator would take a question or two.

Senator Oliver: Yes, I will try.

Senator Kinsella: Would the honourable senator remind us as to how many dollars are covered by the NDP budget? After he tells us how many dollars are involved, would he tell the chamber how many pages make up Bill C-48?

Senator Oliver: Honourable senators, the amounts included in Bill C-48 are $4.5 billion, and the bill covers roughly two pages.

Senator Kinsella: Honourable senators, clearly this must be some sort of a record in Canadian financial planning. I do not know, but I am sure honourable senators would agree that, whether in their own domestic budgets or in budgets they dealt with in other roles they have played throughout their respective careers, nothing would be as irresponsible as that kind of planning.

I asked Senator Eggleton, the sponsor of the bill, a question the other day. I was interested in the $900 million that he told us would be made available under the NDP budget for public transit. Given Senator Eggleton's distinguished career, he has an interest in one major metropolitan community. Senator Oliver comes from the city of Halifax. Can he tell us whether there is anything in this bill that would give the people of Halifax any confidence as to available funds for the needs of transit service upgrading in Halifax?

Senator Oliver: That is an extremely good question. Regrettably, however, this legislation gives no indication whatsoever as to what kind of assistance in transit there can be for rural areas or smaller cities. What will likely happen is that the larger cities, such as the city of Toronto, will see the bulk of those funds going in their direction.

Senator Kinsella: I have another question for Senator Oliver, who so capably chairs the Standing Senate Committee on National Finance and who quite often has the Minister of Finance before his committee. Is it not Senator Oliver's experience that the Minister of Finance, when he appears, is well briefed and is able to articulate in great detail the various files that the committee would be examining? How does the honourable senator feel that the Minister of Finance, intellectually and based upon his previous outstanding performance, could consent to this kind of a budget presentation being laid before Parliament?

Senator Oliver: That is another excellent question.

The Minister of Finance has indeed appeared before the National Finance Committee on previous occasions. He has addressed government legislation both directly and precisely, and in a very concise way. In his past, the Minister of Finance has held a number of other portfolios and has, according to media accounts, discharged them in a specific way.


Bill C-48 seems uncharacteristic for this particular minister, who is used to having detail, precision and answers given in the legislation, so that the kinds of questions asked in this debate on both sides of the chamber in the last few days would not be raised.

It is my submission, therefore, that the hand of this finance minister does not seem to be so clearly put on this two-page masterpiece as has been the case in the past.

The Hon. the Speaker: I regret to advise that Senator Oliver's time has expired.

Senator Day: Honourable senators, I wonder if Senator Oliver could ask for an extension of time so that I could ask him a question.

Senator Oliver: I would be pleased to hear from my learned colleague Senator Day.

Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, I think you would find agreement to have the time extended for five minutes.

Hon. Senators: Agreed.

Senator Day: Honourable senators, my question will be asked after a short preamble. I thought I heard the honourable senator say that I had earlier stated that the surplus could be determined six months before the fiscal year-end.

Senator Oliver: That would be September.

Senator Day: I wish to suggest that I said the opposite, that is, that it would be six months after fiscal year-end. Perhaps I was not enunciating clearly enough.

Does the honourable senator agree with my comment now, that approximately six months following fiscal year-end the government can determine what its surplus is likely to be?

Senator Oliver: I agree entirely with the honourable senator. I apologize if I misinterpreted. I thought I heard Senator Day say that governments are always reviewing spending, such that if the budget comes in in March of one year, by September of that year, six months hence, they have a pretty good idea of what they will have left for the rest of that fiscal year, before March, so they can start spending in September, before the end of that fiscal year. That is what I heard the honourable senator say, and if he did not say that, I deeply apologize.

Senator Day: I apologize for not being clear enough on that point, but being on the same committee, we both understand one another.

My question for the honourable senator is this: As Chair of the National Finance Committee, would the departmental performance reports — which are filed by each department — not provide for parliamentary oversight with respect to expenditures?

Senator Oliver: That is certainly one form. As honourable senators know, the mandate of the Standing Senate Committee on National Finance is to deal with budgets and estimates of government as well as the tabled report of the Auditor General of Canada. If the Auditor General were to do an audit of the money that flows from Bill C-48 and table her report, we could have the Auditor General appear, as we do each year, to comment on it. That is another avenue.

However, many other more direct avenues would have been appropriate, such as pre-budget consultations.

Hon. John G. Bryden: I am curious as to the source of that $4.5 billion. Given that the honourable senator is on the public record for being able to save taxpayers billions of dollars in his capacity as chair of the Finance Committee, has he saved enough yet to pay $1 billion or $2 billion of the $4.5 billion?

Senator Oliver: That is an excellent question. As the honourable senator knows, the government itself, through the Treasury Board, has created the new Expenditure Review Committee, chaired by Minister McCallum, and it has gone to many government departments. In the first year, the Expenditure Review Committee has already found more than $5 billion that can be reallocated, and that is an internal process done by the government itself, which demonstrates that billions of dollars are to be found and saved. The committee is continuing its search in those directions.

Senator Bryden: That committee gets the honourable senator off the hook, then, of having to save billions of dollars. It is doing it for him.

Senator Oliver: I do not think it gets us off the hook. The committee is still charged with the mandate of looking into estimates and government spending, and that is ongoing.

Hon. Anne C. Cools: Honourable senators, I rise today to join this debate at second reading of Bill C-48, to authorize the Minister of Finance to make certain payments — which, according to Senator Oliver, is uncharacteristic of this Minister of Finance. It is an interesting concept, one that we can pursue perhaps at some point in time.

I rise to record my objections to the bill and the mode of its creation and its purpose.

I begin by noting that Senator Day mentioned in his comments of a few moments ago the Royal Recommendation, which is the requirement of section 54 of the BNA Act. I was hoping and anticipating that Senator Day would tell us how it is that the leader of a fringe party, or the fourth party in the House of Commons, was able to have influence with the Governor General to obtain a Royal Recommendation since, as we know, there is no role for the leader of a fringe party in the House of Commons to have a role in what we call the financial initiatives of the Crown. The term that Senator Oliver often uses is "transparency and parliamentary oversight." The term that I was trained and raised to use is "control of the public purse." There is quite a difference between "oversight" and "control."

Honourable senators, Bill C-48 is a budget arrangement that was cynically forged by a foundering Liberal minority government in an effort to obtain support.

On February 23, 2005, the Minister of Finance introduced his real budget bill, Bill C-43, in the other place, at which time he outlined the financial requirements and priorities of the government. Some months later, on May 6, 2005, Bill C-48, the bill now before us, received first reading in the House of Commons. The government's new set of financial requirements and necessities worth $4.6 billion were revealed in C-48. This, to my mind, was occasioned by a strange, bizarre and unprincipled budget bill arrangement between the Prime Minister and the leader of the fourth party.

Honourable senators, a few moments ago, we were talking about the size of the bill. For the record, Bill C-48 is exactly three clauses in length. By my reckoning, each clause is worth $1.5 billion. I do not know how often we have such expensive clauses.

As I said, honourable senators, the bill revealed the government's new set of financial requirements and necessities worth $4.6 billion, and it is a product of the strange arrangement forged between the Prime Minister of Canada, Paul Martin, and Jack Layton, the leader of the New Democratic Party — the NDP having received the lowest number of votes in the House of Commons in the 2004 election.

Consequently, Bill C-48, which is the parliamentary expression of this arrangement between the Prime Minister and Jack Layton, undermines our parliamentary notions of the financial initiatives of the Crown. Bill C-48 has also undermined the Minister of Finance himself and, most important, has undermined Parliament and the constitutional notion of Parliament as the controller of the public purse.


Honourable senators, the notion of financial initiatives of the Crown demands that the appropriation expenditure of tax dollars be at the initiative of the Crown, meaning ministers. Mr. Jack Layton, as leader of a fourth party, and not the leader of the opposition, has no role in any financial initiatives of the Crown. I am hoping that Senator Day or Senator Austin will give us an explanation of this rather bizarre leap. It is rather strange and odd, unprecedented and improper.

Honourable senators, I believe that Bill C-48 is improper and unparliamentary. I will cite some constitutional authority for the notion of the financial initiatives of the Crown. I cite Beauchesne's Parliamentary Rules and Forms, 6th edition, paragraph 595:

The Crown, being the executive power, has the responsibility for the raising and spending of money. Acting through responsible Ministers, the Crown makes known to the Commons the financial necessities of the government.

It does not say that Jack Layton should make known his financial necessities.

I continue in this vein with Marleau and Montpetit. In their House of Commons Procedure and Practice at page 697 they state:

As the Executive power, the Crown is responsible for managing all the revenue of the state, including all payments for the public service. The Crown, on the advice of its Ministers, makes the financial requirements of the government known to the House of Commons which, in return, authorizes the necessary "aids" (taxes) and "supplies" (grants of money).

Honourable senators, budgets for a government are very serious undertakings, made by a government to a Parliament and to the people of Canada. They are not arrangements to be conceived hastily for the purposes of ambition or naked power. On the purpose and function of government's budgets, Marleau and Montpetit inform us at page 699:

The Budget outlines the government's fiscal, social and economic policies and priorities...

Bill C-48 was conceived in a set of realities that do not uphold the principles and maxims that constitute a proper budgetary process formed under the financial initiatives of the Crown.

Honourable senators, the financial initiatives of the Crown are the most serious responsibility of the government, coupled with the notion of ministerial responsibility to Parliament and ultimately to the Canadian people.

The requirements and necessities that drove Bill C-48 were not part of the budgetary process formulated for the benefit of all Canadians, but formed, rather, the requirements and necessities for Mr. Paul Martin and his government to maintain power and to stay in power.

I believe that the Prime Minister abused his powers under the financial initiatives of the Crown to engage in an exchange of raw political self-interest in order to survive confidence votes on the budget bills in the House of Commons. Mr. Martin subjugated the country's finances to the vanity of the leader of a fringe party, the fourth party in the other place. This shoddy, unparliamentary act has underscored the moral and intellectual paucity that is the hallmark of this government. Paul Martin pledged to Mr. Layton the outcome of votes on financial matters. I would have thought it was inconceivable that a prime minister could commit Parliament in such a shoddy and hasty way. No Prime Minister is supposed to pledge Parliament in this way. It is unheard of, and extremely hard to find material.

Honourable senators, recorded in The Opinions of Sir Robert Peel Expressed in Parliament and in Public, published in 1843, Sir Robert Peel, Prime Minister of the U.K., described this phenomenon of a prime minister's pledges and commitments of Parliament's own actions and decisions. Condemning parliamentary pledges, Sir Robert Peel said:

I own that abstractedly, and on general principles, I object to pledge the House prospectively to the adoption of any particular course at a future period. I have uniformly objected to the course. I can scarcely recall to my recollection a single instance in which I have been a party to a pledge that the House would on a future occasion adopt a certain measure.... I object to such a course, Because I think it is an improper mode of relieving ourselves from present difficulties to enter into engagements when we are not prepared with measures of practical detail, without the accompaniment of which those engagements cannot be redeemed. The whole history of parliament has a tendency to discourage the hasty adoption of pledges of this nature.

Honourable senators, I have observed very little condemnation of the fact that the Prime Minister committed a vote of Parliament on a whim to a leader of a fringe party. If he had really been brave, why did he not move his ideas as amendments to Bill C-43 on the strength of his own initiative and see how far he would have gotten? Not very far, I would suspect. It is a parliamentary abomination.

Honourable senators, in the past couple years with the Gomery commission much has been said about corruption. This has led Canadians to believe that corruption is always about money and graft and malversation. Corruption in a parliamentary sense has a much deeper and more profound meaning. Corruption in a parliamentary sense means to render proceedings and processes flawed, to render them tainted. The Shorter Oxford English Dictionary defines "corrupt" as:

1. To turn from a sound into an unsound impure condition; to make rotten; to putrefy. 2. To infect, taint...; 3. To render morally unsound; to pervert a good quality; to debase, defile... 4. To induce to act dishonestly or unfaithfully; to make venal... 5. To debase, destroy purity of... 6. To spoil... 7. To become corrupt or putrid; to putrefy, rot, decay.

Honourable senators, parliamentary proceedings have been corrupted and rendered flawed, as have many processes.

Honourable senators, I come to my conclusion by speaking to the issue of confidence, particularly the issue of confidence of the Houses of Parliament in the government of the day. To amplify my point about confidence, I should like to note the reaction of the finance minister to the overhaul of his budget bill, Bill C-43, and the incipient creation of an additional and a new budget bill, Bill C-48 now before us.

In The Toronto Star on April 28, 2005, Finance Minister Ralph Goodale responded to the so-called arrangement made by the Prime Minister with Mr. Jack Layton, saying:

This is not an ideal circumstance, this is not my first choice or my preferred choice.

Honourable senators, this is the same minister to whom this bill is directed. The bill is entitled, An Act to authorize the Minister of Finance to make certain payments.

Mr. Goodale, in the same interview with The Toronto Star, continued:

In light of Mr. Harper's decision, we obviously had to make our decisions and that is trying to find a different configuration of support that would allow for the passage of the budget.

Honourable senators, the Prime Minister and the Minister of Finance should go back to "Parliament 101" to reacquaint themselves, if they ever were acquainted, with the proper process of forming and formulating a budget and bringing it to Parliament to ask for support, and the thousands and hundreds of maxims and principles that expect to be adhered to, least of which should be vanity and ambition. I understand human beings are human beings and vanity and ambition are ever present, but it should be bounded and fettered by very important principles.

Honourable senators, the Prime Minister had completely changed the financial requirements and necessities of the government as outlined by the finance minister in the first budget, Bill C-43, and replaced them with financial priorities and necessities of a fourth party in order to maintain power. Honourable supporters on the other side may not see how wrong this is, but this is very, very wrong. The Prime Minister traded the objectives of the government and the finance minister for those of a political party that garnered the least amount of popular vote in the last federal election in order to maintain power.


Honourable senators, the tragedy of this whole thing is that this Prime Minister has a troop of supporters in the House of Commons and here ready to vote for whatever he puts before them. They do not seem to understand that it is their duty to question and to uphold the principles and, if necessary, condemn what is happening. This chamber should roundly condemn what happened because it is so very wrong.

Honourable senators, I was speaking about the question of confidence. This government, more than any predecessor government — this is one of the reasons I left sitting with my colleagues across the way — has contributed greatly to the corruption of the notion of ministerial responsibility, and also to the public understanding and the current members' understanding of confidence of the house. This government seems to want to reduce the matter of confidence to a single vote on a particular day, and that is not so. If one were to review the actions that took place, and even review the statements of the Minister of Finance, it becomes crystal clear that the House of Commons, not this house, has been existing in a state of want of confidence for many months now, which is extremely wrong and improper.

Honourable senators, in closing, I should like to record two authorities on the question of confidence, particularly Sir Robert Peel. However, before Sir Robert Peel, I should like to quote William Hearn, one of the great minds of the last century, in his book called The Government of England, its Structure and its Development, published in 1886.

The Hon. the Speaker: I regret to advise Senator Cools that her 15 minutes have expired.

Senator Cools: Honourable senators, I would require another few minutes and would request leave to continue.

Senator Rompkey: I think there would be general agreement to let Senator Cools conclude in five minutes.

Senator Cools: Honourable senators, I have received more telephone calls from all over the country on this phenomenon of confidence than on just about any other issue in the last many months, and I have spent a lot of time explaining and pointing inquirers to many sources.

In a chapter called "The Controlling Power of Parliament," William Hearn writes:

The confidence of Parliament is usually rather inferred from its conduct than expressed by open declarations.

Honourable senators, the notion was that once a minister or prime minister found himself in a state of non-confidence, he did not hang around to wait for a vote, he resigned. The matter was dealt with, because it was the operation of the house and the general state and condition of the house that informed as to the state of confidence. I am not even too sure that the Governor General knows that today.

Mr. Peel knew a little bit about confidence. He was brought down, and he brought down many governments in his time. He said the following, and this is to be found in the very same book that I mentioned previously:

A declaration of confidence in the executive government on the part of the House of Commons ought neither to be asked for nor given, except in extreme cases. Confidence ought rather to be inferred from the general support the House gives the executive government, from the manner in which it deals with the legislative measures proposed by government, than from any abstract declaration of opinion.

In other words, one looks to understand the state of confidence and non-confidence by the general operation of the House over a period of time, not to just one single day.

In my view, honourable senators — and I say this sincerely — the Liberal Party, as I once thought of it, was a great forerunner of upholding the notion of control of the public purse, and particularly the great commoner himself, none other than Mr. William Gladstone, Liberal Prime Minister of the U.K., who actually formed and articulated many of the principles around these issues. I believe Gladstone was the member who actually moved the motion to establish the first Public Accounts Committee back in the House of Commons. I could be wrong about that, and I can look it up and confirm it. The extent that the Liberal Party of Canada and the caucus have abandoned all those principles is the extent to which I think a great many Canadians have been extremely disappointed. In any event, as I said before, I do believe that this bill is a parliamentary abomination and an attempt at a very sad and pathetic compromise.

On the question of compromise, Sir Robert Peel also said the following:

I disapprove of compromises. When once they are made, they not only do not gain the confidence of an opponent, but they most certainly lose that of the men who were accustomed to follow and to rely on those who made them.

I hope the Senate committee will do justice with this bill and give it the kind of study and consideration that it properly deserves. I hope that the Senate committee will inquire into the formation of this bill and how it came into being. I hope that it will examine the notion of the financial initiatives of the Crown. I hope that the Senate committee, in doing all of this, will understand that in 1867, when the BNA Act was formed, the Fathers of Confederation intended the Senate to have greater powers in these financial questions than did the House of Lords, and it intended that the Senate would be an inquiring, thinking and functioning body. I invite honourable senators to exercise that role.

Senator Day says the bill ought to go to the committee. I want Senator Day to know that the committee is the servant of the house, not vice versa. The real debate should happen here. I encourage him to uphold those grand old traditions that were articulated by the great commoner. I dare him to stand up to defend them.

Senator Kinsella: Will Senator Cools accept a question?

Senator Cools: Happily.

The Hon. the Speaker: The five minutes that were extended earlier have expired.

Senator Rompkey: I know that the Leader of the Opposition has a serious and profound question to ask, and I would, for one, be glad to entertain it.

Senator Kinsella: Honourable senators, Senator Cools has obviously done a great deal of research into this area. I was wondering whether she canvassed the issue of budget secrecy, which is an important convention. In the circumstance of creating the budget bill now before us, Bill C-48, what guarantee would there be that no insider knowledge would be utilized? As was indicated, the leader of the party that was involved in the negotiation with the Prime Minister is not a member of the cabinet and therefore is not bound by cabinet secrecy. What kind of safeguard would be available in terms of protecting budget secrecy, which is so germane? As we know, and Senator Cools' research might have spoken to this as well, government and ministers have resigned when budget secrecy was breached.

Senator Cools: In my research, which focused on the issues that I mentioned, I was mindful of what I would describe as the question of not just secrecy but the propriety and the protocols that apply when the government is developing its budget. I was mindful as to how those questions were being handled. Mr. Layton, for example, is not a member of the Privy Council, as Mr. Harper is. The system does not anticipate that Mr. Layton would have such a role, whereas the process anticipates that the Leader of the Opposition would — although they say "official," there is only one opposition — at some time or the other be involved in dialogue with the Prime Minister, to be quite frank, at the council level. It worried me a great deal, as did the entire process, but I did not go into the issue of secrecy.


For all intents and purposes, Mr. Layton was treated as a credentialed member of Her Majesty's government. That is strictly forbidden and extremely wrong. I find it bothersome, improper and an affront to Parliament. He is not a minister; he cannot be a pseudo minister; and he cannot pretend to be a minister. That does not seem to bother honourable senators on the other side, but it certainly bothers me. Had I been sitting in the other place, I would have questioned the authority as to whether this bill should have been introduced in the House of Commons because it did not originate with a member of Her Majesty's Privy Council or a member of Her Majesty's cabinet.

I see Senator Day smiling, but this is a serious matter and the Senate should undertake a study of the issue. In truth, it seems that these days most Canadians and members of Parliament are unfamiliar with the language of Parliament, and the principles are no longer widely known or understood. Thus, this government can get away with such an action. The Senate should ensure that the method of creation and development of Bill C-48 becomes a part of the record of this place. In that way, the Senate would perform its intended role in matters of the financial initiatives of the Crown because the Senate is a chamber of the Crown.

On motion of Senator LeBreton, debate adjourned.

Civil Marriage Bill

Second Reading—Debate Adjourned

Hon. Serge Joyal moved second reading of Bill C-38, respecting certain aspects of legal capacity for marriage for civil purposes.

He said: Honourable senators, Bill C-38 essentially establishes the legal capacity for persons of the same sex to enter into the institution of civil marriage. By making civil marriage accessible to persons of the same sex, Bill C-38 recognizes that discrimination based on sexual orientation is a form of social exclusion that is degrading to the persons involved and unacceptable in a free and democratic society, based on the constitutional equality of everyone before the law and with equal access to all its benefits. That recognition, as the Supreme Court noted last December, flows from the Canadian Charter of Rights and Freedoms. Bill C-38 is about restoring full human dignity to a minority that has long been the object of persecution, marginalization and outrage. It is an issue of minority rights.

There are three aspects to the speech that I would like to share with honourable senators this afternoon. The first aspect is the constitutional principles underlying the establishment of civil marriage as provided in Bill C-38. The second aspect is the judicial and parliamentary process that led to the introduction of Bill C-38. The third aspect includes the differences between the rule of law and the religious norms pertaining to marriage in our contemporary society.

Honourable senators, the issue of protection of minority rights goes back almost to the first days of Canada. I would remind senators that the Supreme Court of Canada has on many occasions had the opportunity to address the following issue: What is the importance of the protection of minority rights in the Constitution? I would like to quote from the Judicial Committee of the Privy Council in 1932, which established quite clearly the following:

Inasmuch as the Act (The Constitution 1867) embodies a compromise under which the original Provinces agree to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation, and the foundation upon which the whole structure was subsequently erected.

There are two aspects: the foundation of the whole structure of our system of Parliament and, second, the reasons for which the four original parties to the Confederation — the original provinces — joined together to form a new country.

Honourable senators, this is a highly important principle because it was one of the key reasons for judgment in the 1998 Supreme Court ruling in a famous case that many will remember: Reference re Secession of Quebec. When the Supreme Court pronounced on the secession reference issue, it established four underlying constitutional principles for the Constitution of Canada. The first was federalism; the second was constitutionalism; the third was the rule of law; and the fourth was the protection of minorities. I would quote the Supreme Court, 1998, in respect of the four underlying principles. Paragraph 80 of the decision states:

We emphasize that the protection of minority rights is itself an independent principle underlying our Constitutional order. The principle is clearly reflected in the Charter's provisions for the protection of minority rights.

Paragraph 81 of the decision states:

The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities...Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation:...The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution.

Honourable senators, it is clear that the protection of minority rights is central to the nature of our system of government and the structure of our Parliament. Honourable senators are well aware that the Senate was structured to provide for the protection of minorities. For instance, as you know, at the time of Confederation, Quebec was the only province provided with 24 senatorial districts, to protect the English-speaking minorities in Quebec, which were of a different faith than the majority of the French-speaking population.


We know that. Our appointments to the Senate reflect that when we are called by the Governor General; it is under a specific district, contrary to the nine other provinces.

Honourable senators, this was clearly mentioned by the Supreme Court of Canada in 1980 in a famous ruling called the Senate Reference. It is important to remember that because here in the Senate we have a particular sensitiveness to the plight of minorities in Canada. In fact, in the same secession reference I was quoting earlier, the court mentioned specifically the case of the Aboriginal people. This is, of course, not the subject of today, but the court clearly recognized that, since the enactment of the Charter, Parliament has a special responsibility in the protection of the Aboriginal people. It is paragraph 82 of the Supreme Court ruling. Therefore, honourable senators, this is central; it is the starting point of this bill.

The second element, which is, in my opinion, at the origin of this bill, is the evolutionary nature of the Constitution of Canada. This is a fundamental fact that has been recognized from the time of the Fathers of Confederation to, more recently, the Charter framers — and I was one of those, as were many others in this chamber, including Senator Austin, Senator Corbin, Senator De Bané, Senator Hervieux-Payette, Senator Watt and even our Leader of the Opposition, Senator Kinsella, who appeared before the committee that framed the Constitution. One of the key natures of the Charter is its evolutionary nature. There is no section of the Charter that speaks more eloquently about that than section 15. What is section 15 of the Charter? I will read it, honourable senators, because it is key to the ruling of the Supreme Court of last December. Section 15 reads as follows:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

I want to underline in that list of prohibited grounds of discrimination the word — in particular, in the French version, the corresponding word is "notamment," meaning that those prohibited grounds are illustrative of grounds that are prohibited but there might be others.

In fact, that was the key question of a 1985 parliamentary committee. However, before I go on with that parliamentary committee, I should like to use this opportunity this afternoon to remind honourable senators how we came to draft section 15 of the Constitution. Some of you were there, especially Senator Corbin. The minutes of a January 28, 1981, committee meeting reveal that Senator Corbin proposed the last version of section 15, which included the second part of section 15, which is the equal right to benefit of the law. At that time, Senator Corbin was a member in the other place, as I was and Senator Austin was already a senator, and there was ample discussion at the committee that we should add to the list of prohibited grounds. In fact, a member of Parliament at the time, Mr. David Crombie, introduced an amendment to include physical or mental disability as a prohibited ground, and we accepted that.

It was at that time a very new prohibited ground. We were coming out of the International Year of Disabled Persons — 1981. As well, an all-party parliamentary committee recommended that that ground be added to the Canadian Human Rights Act. We accepted that ground at the joint committee in 1981.

There were many other proposals to add other prohibited grounds. There were five others, as a matter of fact. One of them was sexual orientation. A discussion took place at the committee. The then Minister of Justice, Jean Chrétien, came to testify on each and every one of those grounds, especially because some of them were issued from the new international instruments — for example, the International Covenant on Civil and Political Rights and the second protocol. There was concern at that time among the committee members that we should try to cover as wide an area as possible, in order that the Charter be as vivid as possible and as much adapted as possible to future situations.

We were wrestling with that. The then Minister of Justice, Mr. Chrétien, said that if we add the five other grounds, we would be accurate for the time but that, 10, 20 or 30 years down the road, there might be other prohibited grounds of discrimination that will appear as being unacceptable to the society of that day. Therefore, he said, it is better to have an open-ended list and leave the court of the day to decide whether, within section 1 of the Constitution, within a free and democratic society, those grounds are acceptable or not. That is how we resolved the issue of section 15 and why section 15 is open-ended.

However, there was a second problem that Parliament has to address. I come back to the special committee. Section 15 was to come into force only three years after the proclamation of the Constitution because it was new law and Parliament was not ready immediately to accept it. There was a delay of three years to allow the federal government to change and amend all the legislation that could be covered by the protection of section 15. What happened? How did Parliament wrestle with that issue of a three-year delay?

I checked my files of the period and I found that the then Minister of Justice, in 1985, Mr. John Crosbie, published a document, a kind of white paper, entitled "Equality Issues in Federal Law: A Discussion Paper." That discussion paper clearly addressed at page 10 the open-ended list of prohibited grounds included in section 15.

What did the Prime Minister of Canada do at that time? The Right Honourable Brian Mulroney established the Parliamentary Committee on Equality Rights, chaired by a very able gentleman, Patrick Boyer, the Etobicoke-Lakeshore MP of the day. I want to remind honourable senators of the names of some of the people who sat on that committee. Mr. Boyer was assisted by Pauline Browse, Maurice Tremblay, Roger Clinch, Mary Collins, Svend Robinson and Sheila Finestone.

The committee published a unanimous report, entitled "Equality for All," at the end of 1985. What did they say about section 15? They said the following: "We have therefore concluded that sexual orientation should be read into the general open-ended language of section 15 of the Charter as a constitutionally prohibited ground of discrimination."

In other words, three years after we voted in section 15, the Parliamentary Committee on Equality Rights, in its unanimous report, published in October 1985, recommended that section 15 be read as including sexual orientation as a prohibited ground of discrimination.


What happened following that? It is strange to discover that it took many years for the Parliament of Canada to act on that issue. In fact, I realize that the provinces were much more prone to recognize sexual orientation in their provincial human rights codes than was the Canadian Parliament in relation to the Canadian Human Rights Act. It took 10 years before the federal Parliament amended the Canadian Human Rights Act to give effect to the conclusion of the report of the Equality Rights Committee that I referred to above.

Honourable senators, it is a testimony to the Senate to remember who was instrumental in changing the Canadian Human Rights Act to include sexual orientation as a prohibitive ground of discrimination. The book Protecting Canadian Democracy contains a chapter by Professor C.E.S. Franks who was, for 35 years, a professor at Queen's University. He is a very learned expert who has testified many times both in this place and in the other place.

What does Professor Franks say about the role of the Senate in amending the Canadian Human Rights Act? I read from page 174, which states:

Sexual Orientation Bills. The federal legal provisions regarding discrimination on the basis of sexual orientation only exist because of six years of persistent effort on the part of the Senate. After the Ontario Court of Appeal ruled in Haig and Birch that sexual orientation be read into the Canadian Human Rights Act, Senator Kinsella, a Conservative who disagreed with his government's views that this sort of legislation was unnecessary, introduced Bill S-15 into the Senate in order to insert sexual orientation as grounds into the Act.

The chapter then continues. I advise senators to read this because, without the persistence of Senator Kinsella, who introduced his bill three times — under different numbers, such as Bill S-15, Bill S-2, Bill S-5 — we would have neither the protection in the Canadian Human Rights Act nor the benefits that we enjoy today as Canadians.

Hon. Senators: Hear, hear!

Senator Joyal: Honourable senators, I want to say, in all courtesy, that I informed Senator Kinsella that I would quote from this passage of the book. It is not done at all to embarrass him. On the contrary, I think it is a testimony to this place and we owe it to Senator Kinsella.

I now return to my original point, which is the evolutionary nature of the concept of human rights in Canada. One of the key features of our Constitution is that it is not frozen in time. Our Constitution evolves as much as Canadian society evolves. This essential element was brought back to our minds last December. I would like to quote again the Supreme Court in Reference re Same-Sex Marriage, paragraph 22 of which states:

The "frozen concepts" reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.

Honourable senators, there is no more telling example of evolution of the Canadian Constitution in terms of its concepts than the one dealing with the definition of women in the Constitution, as persons, in 1930. This was a fight that again involved the Senate. The government was opposed to reading in the Constitution the word "person" as including women. At that time, the Government of Canada fought, all the way up to the Judicial Committee of the Privy Council, to prevent women from sitting in the Senate. It took the Judicial Committee of the Privy Council to come forward with the famous quote that the Canadian Constitution is a living tree, capable of adaptation to contemporary reality.

Honourable senators, we are dealing here with the concept of marriage. Some might be tempted to see it as a frozen concept — that is, a concept that is defined in time. In reading the debates and the pleadings in the Supreme Court of Canada and in the Judicial Committee of the Privy Council, it was alleged that it was against "natural law" to allow women to exercise public functions that were up to then exclusively and totally occupied by men. It took foresight to be able to understand that contemporary society was open to the full participation of women.

About 10 years later, when the Quebec legislature had to debate the capacity for women to run provincially — and I invite honourable senators to read the brief presented at the committee against the participation of women — once again, there was the same argument of natural law. It was against natural law to pit the wife against the husband by giving the wife the right to vote. That would bring discord and disagreement within the family unit.

Some Hon. Senators: Oh, oh!

Senator Joyal: You laugh today about that, but that was the opinion defended in public debate by the Cardinal of the Roman Catholic Church at that time. I say that with the greatest respect for the opinion of those contenders of that time, but there is a long way to go. It took another 20 years before another woman was elected to the Quebec provincial assembly, Madame Casgrain, in 1961.

Honourable senators, it sometimes takes a long time to come to recognition of a situation that, to date, looks as natural as the sun over the prairie. It is time we recognize that the long evolution of the concept of human rights, once seen as contrary to "natural law," becomes something we live in not only acceptance of but also in praise of. It is interesting to realize that this issue of sexual orientation was recognized by the provinces long before the federal government. The first province to recognize in its human rights code that sexual orientation was a prohibited ground of discrimination was the province of Quebec in 1977, followed almost 10 years later by Ontario in 1986, Manitoba in 1987, Nova Scotia in 1991, New Brunswick and British Columbia in 1992, Saskatchewan in 1993, and then by the federal Canadian Human Rights Act, through the amendments to which I have referred. Newfoundland followed in 1997, P.E.I. in 1998 and Alberta, through the famous Vriend case of the Supreme Court of Canada, on April 2, 1998.

Those issues, honourable senators, evolve. They evolve because they are not easy issues with which to grapple. They are emotional issues. Everyone has an opinion on this issue. Everyone has a stamp on this issue. Everyone sees the issue on the basis of his or her own personal experience, personal education and faith. I say that because we live in a society in which those issues are often brought to bear in the deliberations of the courts.


There has not been an issue more litigated in the last four years than the issue of the rights of same-sex couples in relation to marriage. In reviewing the court decisions, I noted that more than 30 Canadian judges have considered the issue. There were four in British Columbia and six in both Ontario and Quebec. In each of Saskatchewan, Yukon, Manitoba, New Brunswick, Newfoundland and Labrador and Nova Scotia there has been one. Those 21 provincial and territorial judges, together with the nine justices of the Supreme Court of Canada, add up to 30 judges at the superior court, Court of Queen's Bench, appeal court and Supreme Court of Canada levels which have considered this issue since 2002. In other words, as my professor would say, the matter has been litigated ad nauseam. There has not been a single court that has not had the opportunity to reflect on this issue on the basis of previous decisions.

In my recollection, there were four key decisions that finally led the government in 2000 to bring forward legislation in relation to same-sex couples. That legislation was the famous Bill C-23, the Modernization of Benefits and Obligations Act that we all remember. Most of the decisions came from the Ontario court system, from either the divisional court or the appeal court. They were the famous cases of Haig and, in particular, Egan, in which the protection of sexual orientation was read into section 15 of the Charter. There was also the Rosenberg case that recognized that same-sex couples were to benefit from some of the provisions of the Income Tax Act. Finally, in 1999, there was the decision of the Supreme Court of Canada that recognized that the family law of Ontario had to provide equal benefits to same-sex and opposite-sex couples in common-law situations. Following that, in 2000, Parliament enacted the Modernization of Benefits and Obligations Act in relation to same-sex and opposite-sex couples living in a common-law situation.

Honourable senators, in July 2003, the Government of Canada referred its three fundamental questions to the Supreme Court of Canada in relation to the bill that is now under consideration. The first question was: What is the extension of federal competence in relation to marriage, i.e. section 91(26) of the Constitution? That is to say, what do we mean when the federal Parliament has competence in relation to marriage and divorce?

It is a testament to the Honourable Senator Cools tohave petitioned the courts to intervene and to have deposited a well-articulated factum which I read at that time. I say that to Senator Cools personally. As well, I want it to be on the record. She had a line of thought that was very well articulated. There was an argument there. Although the court did not retain her argument, it was very well presented.

The second question was: What is the relationship between the rule of law and church doctrine? In other words, how can we reconcile a rule of law, an act of Parliament that might seem to enter into a domain that is already defined by church doctrine?

The third question was this: When there is an apparent conflict between two rights, such as the equality rights set out in section 15, and other rights, such as those set out in section 2(a), which deals with freedom of conscience and religion, how do we reconcile the two within the Charter?

The court addressed those three fundamental questions. If the bill is referred to committee through the will of this chamber, I think those issues should be reviewed by the committee. They are key to understanding this decision that would extend the right to civil marriage to persons of the same sex.

There are other aspects that I would like to share with honourable senators. They deal with the kind of difficulty that one faces when reconciling principles that are implemented through a system of civil norms, like the one enshrined in the Charter of Rights and Freedoms, and another system of norms that is of a religious origin. How do we reconcile the two? In my opinion, this bill does not infringe at all on the rights and the capacity of the various churches to continue to maintain their faith, doctrine and teaching as they have up until now. By the way, there are three different denominations in Canada. Thus, there are many different doctrines.

Let me give honourable senators some examples. In 1967, following the report of the Royal Commission on the Status of Women chaired by Ms. Florence Bird, Parliament decided to recognize the equality of men and women. The recommendation was made to establish the relations of spouses in the couple on an equal footing. This was the key change in regard to the nature of marriage. In some churches, the status of the two members was not defined on the basis of full equality the way we understand it in the civil context of today. That was changed in the 1960s. The church could continue to teach its doctrine. For instance, the Roman Catholic Church, in which I was educated and brought up, continued to teach exactly the same concept as they had always taught, even though in civil society there were fundamental changes to the Civil Code of Quebec that placed the two members of a couple on an equal footing.

When Parliament adopted the Divorce Act in 1968, it was in clear contradiction of one of the essential elements of the definition of religious marriage in the Roman Catholic Church. Why? According to the Roman Catholic Church, one of the key features of marriage is its indissolubility. At the very moment we voted an act of Parliament to provide for divorce, we allowed a change to the nature of a marriage. The same applies to family planning and abortion.

Let us talk about abortion, honourable senators. You know that if abortion was not recriminalized, it was due to the Senate. Some honourable senators might remember voting in 1991. I see our colleague Senator Murray. What happened? The vote was tied 43 to 43. Because it was a tie, there was no recriminalization of abortion. That was due to the Senate of Canada.

We played a significant and important role to establish the kind of system we have today in relation to abortion. Abortion is not only totally legal today, it is covered by health insurance plans.

The same applies to family planning. As honourable senators know, family planning is covered by social measures in all the provinces. That runs contrary to the teachings of my own church that established procreation as one of the key features of marriage.


The Hon. the Speaker: Honourable senators, I rise to draw your attention to the fact that it is six o'clock.

Hon. Bill Rompkey (Deputy Leader of the Government): Your Honour, I believe that if you were to seek it, you would find a consensus not to see the clock.

The Hon. the Speaker: Honourable senators, is it agreed not to see the clock?

Hon. Senators: Agreed.

Senator Joyal: Honourable senators, I will try to conclude.

Since 1989, abortion has been free on demand. This is an important element that changed some religious teachings. The Roman Catholic Church did not have to change its faith and doctrine because of that, not at all. The church is protected by section 2(a) of the Charter. The church can decide how to act in the case of a person who is a divorcee; the church will refuse to marry them. A person cannot bring an injunction to court and allege a breach of his or her Charter rights to compel the church to marry that person. A woman cannot go to court to seek an injunction to be admitted into the hierarchical structure of the church, which prevents women from being priests or occupying any of the church positions in its government. The church is protected by religious freedom. This is totally in conformity with the present Charter of Rights and Freedoms. A church will not be compelled to marry two persons of the same sex any more than they can be compelled to marry a divorcee, which, in the doctrine of the church, is against the nature of marriage.

Honourable senators, I want to illustrate that the norm in civil society evolves. We all know that. We have parents and they lived in particular relationships. They have had faith. They have educated their child or children in conformity with moral principles. Some Canadians do not adhere to any religion. Thus, when we define an institution as marriage, we must define it so that it is open and accessible to all those who wish to benefit from it; all those who wish to state that this is an essential institution in society and that they value marriage.

This bill does not stand against marriage; this bill is about valuing marriage. It is important to understand that. This bill does not compel any of the 33 churches I have quoted to celebrate marriage differently tomorrow than they have before. Honourable senators, 92 per cent of Canadians now have access to civil marriage for same-sex couples; that means all provinces, except Prince Edward Island and Alberta. In the two territories that have not had judgments, the Nunavut minister has stated that he would give way to civil marriage if that would happen. In the Northwest Territories, there is a case in court due to be decided this month.

All the decisions of the provincial and Supreme Court I have referred to have not prevented those churches to refuse to marry same-sex couples. There must be a provision to allow a person who is called to solemnize marriage to refuse, if that is in contradiction with his or her faith. The bill recognizes that. This is the responsibility of the provinces to provide for that protection.

On March 5, the Ontario legislature adopted Bill 171 to protect the commissioner appointed to celebrate or solemnize marriage to refuse to solemnize marriage if that hurts their own personal faith. There is an easy possibility in our system of law for provinces that are responsible, according to section 92(8), to solemnize marriage, to allow civil servants to refuse to celebrate marriage. The protection is there and it is well stated in the various sections and in the preamble of the bill. Some provinces have already acted on it. I have mentioned that Ontario has exercised a leading role through all of the court case decisions that led to the Supreme Court reference of last December.

Honourable senators, in closing, I would like to quote a decision from 1955 of Mr. Justice Taschereau, the famous case of Chaput v. Romain. I am sure my colleague Senator Murray will remember the statement:

In our country there is no state religion. All religions are on an equal footing, and Catholics as well as Protestants, Jews, and other adherents to various religious denominations, enjoy the most complete liberty of thought. The conscience of each is a personal matter and the concern of nobody else. It would be distressing to think that a majority might impose its religious views upon a minority, and it would also be a shocking error to believe that one serves his country or his religion by denying in one Province, to a minority, the same rights which one rightly claims for oneself in another Province.

This is the core of Bill C-38. It is possible that this bill may not be in conformity with your own religious beliefs. This is a simple bill with few clauses. The language is clear and plain, but that is not the issue. The issue is not what is your faith, personally; the issue as a legislator is, in a civil society, where there are so many different Canadians adhering to so many different faiths, some having no faith, all the institutions that define, and that are as important as marriage, should be made accessible. That is the essential question. You will not have to marry someone of the same sex; this bill has nothing to do with that. You will decide the way you want to decide. This bill restores the dignity of persons who might have a different view than you on the essential choice of life.

Bill C-38 is a fundamental bill for us, honourable senators, especially with the history and tradition of this place. I sincerely appeal to your good judgment and to your balanced views in determining minority rights. The Charter contains a significant amount of protection for various minorities. It contains protection for women, for people of different races, for people of different religions and for the Aboriginal people of Canada. The Constitution provides that, which is one of the major changes in the last 25 years. We are in the process of achieving the recognition of that right.

We have gone a long way in the recognition of the rights and dignity of people having probably a different sexual orientation than your own. Honourable senators, this is the right thing to do. As this is a free vote, you will make your decision based on your soul and conscience.

I understand the strong belief and religious conviction that many of us have. However, that is not in contradiction with the objective of this bill.

The Hon. the Speaker: Senator Joyal, I regret to advise that your 45 minutes have expired.

Senator Joyal: Honourable senators, I sincerely hope that in the days to come, you will have a moment to reflect on the decision you will take soon.

Some Hon. Senators: Hear, hear!


Hon. Noël A. Kinsella (Leader of the Opposition): I wonder whether the honourable senator would ask for a little bit more time, such that he might entertain a couple of questions for explication.

Senator Joyal: Honourable senators, I am in a conundrum because I have spoken for more than 45 minutes. I know that food is being served in the library; I do not want to keep anyone here. There are other senators who might want to speak. Maybe I should limit the questioning; otherwise, it might go on for a long time. I trust the honourable senator will not be offended by that.

Hon. Gerry St. Germain: Honourable senators, I rise today to speak at second reading of Bill C-38, respecting certain aspects of legal capacity for marriage for civil purposes — otherwise known as the proposed civil marriage bill.

This bill has created undoubtedly one of the most polarized debates in our history. However, like Senator Joyal, I, too, urge good judgment and a balanced view on human rights, and a good level of civility in this debate. This is a debate about faith, about how one sees the world from a different perspective — and I believe and hope that it will be a free vote.

Perhaps Senator Austin can enlighten me as to whether there will be a free vote on this bill.

There are two entrenched views in Canada today as to what marriage really constitutes. I hope, as do most Canadians, that the Senate will vigorously study Bill C-38 in depth at committee by holding extensive hearings of expert witnesses. This bill is not a matter to be fast-tracked through the Senate debate process. It is not a matter that can be properly considered by Committee of the Whole. As a matter of fact, we possibly should have been travelling on this issue.

If the Senate has to sit throughout the summer and into the fall to ensure a comprehensive hearing, then so be it, because it goes to the fundamental core of what it means to be a Canadian to deal with this particular piece of legislation.

What is before us, honourable senators, is undoubtedly the most important subject to come before this place in quite some time. Honourable senators, in my preliminary review of this bill, two issues present themselves immediately: first, the issue of human rights, and second, the issue of religious freedom.

I do know that Bill C-38 is the government's response to a legislative vacuum in the area of recognizing in law the union of homosexual couples. Last fall, the Supreme Court affirmed that Parliament has the authority to legislate over the civil institution of marriage. On the crucial question of whether restricting the definition of marriage to the union of a man and a woman is constitutional, the Supreme Court was silent. The court implied that it is up to Parliament to rectify this situation.

The government has said that extending the right to civil marriage for same-sex couples is an affirmation of Canada's commitment to protecting minority rights and guaranteeing equality for all, that this proposed legislation will ensure the protection of minority rights and that the government cannot and should not pick and choose whose rights it will defend or ignore.

However, by introducing Bill C-38, the government is attempting to link Charter rights and human rights to the sacrament of marriage. Marriage has nothing to do with Charter rights or human rights, in the view of many of us. This debate is about a political and social policy decision made by the government.

Let me present several reasons why the issue of same-sex marriage is not a human rights issue and why defining the traditional definition of marriage would probably not violate the Charter.

First, no internationally recognized human rights document has ever suggested that there is a right to same-sex marriage. For example, in the Universal Declaration of Human Rights, almost all the rights listed are worded as purely individual rights, rights that everyone shall have or no one shall be denied. However, when it comes to marriage, the declaration says that "men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family." The use of the term "men and women" here, rather than "everyone," suggests that only traditional opposite-sex marriage is contemplated. The subsequent International Covenant on Civil and Political Rights contains similar language. Attempts to pursue same-sex marriage as an international human rights issue have failed.

In 1998, the European Court of Justice held that "stable relationships between two persons of the same sex are not regarded as equivalent to marriages."

In 1996, the New Zealand Court of Appeal rejected the recognition of same-sex marriages, despite the fact that New Zealand's bill of rights explicitly listed sexual orientation as a prohibited ground for discrimination. When that New Zealand decision was challenged before the United Nations Human Rights Commission as a violation of the International Covenant on Civil and Political Rights, the United Nations Human Rights Commission ruled in 2002 that there was no case for discrimination simply on the basis of refusing to marry homosexual couples.

In fact, to this date, no international human rights body and no national supreme court have ever found that there is a human right to same-sex marriage. The only courts that have found in favour of a right to same-sex marriage are provincial or state level courts in Canada and the United States, respectively.

Therefore, if same-sex marriage is not a basic human right in the sense of internationally recognized human rights laws, is it a violation of the Canadian Charter of Rights and Freedoms? While several provincial courts of appeal have said that it is, we still have not heard from the highest court in the land. In the same-sex reference case, the Supreme Court declined to rule on the constitutionality of the traditional definition of marriage, despite a clear request from the government to answer this question.

Bill C-38 has also made this debate one about religious freedoms. In a National Post article written by Lorne Gunter, he summarized the recent cases on this matter very well, saying the following:

Hugh Owen, Chris Kempling, Scott Brockie, Dagmar and Arnost Cepica, and Monsignor John Pereyma Catholic High School — all of these people and institutions are proof that when religious freedom in Canada runs up against fashionable minority rights, religious freedom always loses.

Despite repeated assurances from politicians and learned experts that neither the Charter nor any other Canadian law threatens the right of Canadians to practise their faiths freely, the truth is far different.

...the Roman Catholic bishop of Calgary, who is being hauled before the Alberta Human Rights Commission for having the audacity to tell Calgary Catholics, in an open letter last January, that homosexual marriage is contrary to Catholic teaching, and that the government should act aggressively on that teaching.

...the Knights of Columbus fraternal Catholic order in Port Coquitlam, B.C., which suffered its own human-rights deprivation of late for having the gall to stand up to the gay-rights juggernaut.

In 1997, Saskatoon Christian Hugh Owens placed an ad in the Sakatoon Star-Phoenix. It cited only the chapter and verse of four Biblical passages that declare active homosexuality a sin.... Next to these were an equal sign and a drawing of two stickmen holding hands, on which was superimposed a circle with a line through it.

Both the Saskatchewan Human Rights Commission and a federal judge agreed that gays might find such a depiction hateful — particularly the Bible citations. Both decreed Mr. Owens had committed a breach of the provincial rights code, even though that code carries a well-defined protection for religious conscience. The court circumvented the code with a bit of logical sleight-of-hand: All major religions preach peace and love. Mr. Owens' ad was hateful. Therefore it couldn't be religious and didn't qualify for the code's protection.


Scott Brockie, a Toronto printer, refused to print material for a gay and lesbian advocacy group. In 2000, a board of inquiry established by the Ontario Human Rights Commission ruled that Mr. Brockie should have done the work. It ordered him to apologize to the gay group and to pay it $5,000.

It ruled, Brockie remains free to hold his religious beliefs and to practise them in his home, and in his Christian community, "but that he must not apply those beliefs to the practice of his business." In the real world, religious rights take a back seat.

Dagmar and Arnost Cepica owned the Beach View Bed and Breakfast in Stratford, PEI, until they shut it down in 2001 rather than adhere to a human rights ruling that they accept gay guests, contrary to their religious beliefs. Chris Kempling, a school counsellor in B.C., was suspended from his job last year, not because he attacked gay rights in the classroom, but because he wrote letters to the editor of his local paper outlining his views on the nature of homosexuality. Last week, he was suspended again for writing the same paper to oppose same-sex marriage.

In 2002, Pereyma Catholic High School tried to prevent Marc Hall, a 17-year-old senior, from bringing his boyfriend (who was not a student) to the graduation prom. An Ontario judge told them Mr. Hall's right not to be singled out for his orientation trumped Catholic schools' right to enforce church doctrine against the practice of homosexuality.

Honourable senators, I believe that Bill C-38 will produce these real effects: the erosion of the family unit as we know it. It also presents a threat of erosion of the freedom to worship and teach religious beliefs, something being challenged in the courts now, as with Bishop Henry.

Honourable senators, I attempt to live my life as a devout Catholic. That perhaps makes me a bit different. As I told you Senator Austin once, if I was Jewish I would be an Orthodox Jew. If I was evangelical I would most likely follow Billy Graham. I happen to be a Roman Catholic. Devout may not be the correct word but I sure try at it because I believe in it. I, too, was educated by the Grey Nuns and the Jesuits. They taught me well. We did not have any human rights as Métis. We still have these people living in a Third World condition, and the G8 boys are out there playing drums, worrying about someone else.

I was taught by the Jesuits to follow the teachings of the Pope in Rome, and I believe it is important to read into the record the position of my archbishop, the shepherd that leads my flock. In so doing, I am saying that this is what I believe about the subject matter, fully respectful that I know we live in a free country with divergent views.

I will quote from the letter that the archbishop sent to his flock in the diocese where I live.

Canada's members of Parliament have been engaged in one of the most significant debates of our age — a debate about taking the definition of marriage and reconstructing it as something entirely different.

Marriage has always been respected as an institution existing for the common good of the family and society.

Marriage has always been recognized as the necessary context for raising and educating children, the foundation of future generations. The reality of marriage is that it supersedes politics and man-made laws.

From the perspective of reason, and from a faith perspective as Catholics, we must hold to the definition of marriage as an institution whose natural purpose is the good of the couple and the procreation and education of children.

In the covenant of marriage, a man and a woman not only share a deep love for one another, but also are invited to become partners with God in creating a new human life.

These two aspects — the sharing of love between husband and wife, and the creation and nurturing of life — are inseparable. They make marriage what it is. Some within society, supported by judges and legislators, are trying to turn the debate into a human rights issue, but that is not what marriage is about. As a social institution, marriage is concerned with the common good, not individual rights.

At a recent gathering of the bishops of Western Canada, we shared with each other some of the ways our dioceses might help all of us understand the issues surrounding marriage more thoroughly. One way to increase understanding is to address the claims that are being made in support of redefining marriage, and to show that they are not valid from any point of view based on reason.

I would like to address some of these specific arguments for redefining marriage:

1) Tolerance. Changing marriage's definition feels like the fair thing to do, but it is a false tolerance. The procreative potential of marriage is a basic element of what marriage is, and it is not unjust to insist that marriage is a complementary union of a man and a woman. This is not a human rights issue; it is about recognizing the biological basis for the social structure that protects the procreation and nurturing of children in our society.

2) The human dignity argument is similar: It says the current law treats people with homosexual attractions as second-class citizens. Now human dignity certainly requires that all people must be treated with respect. It does not mean we must regard a homosexual relationship the same as a marriage, any more than any two other adults living together — two friends, for example, or a mother and her daughter — are treated as though they are married. The state certainly has the power to authorize social benefits for any of its citizens, without redefining marriage.

3) The idea that is also used is that times change and we simply need to keep pace with changing social views.

The archbishop goes on to say:

Indeed, the Supreme Court asserted that it has the right to authorize the government to change the definition of marriage because our Constitution is a living tree.

The honourable senator made reference to that.

Perhaps our Constitution is developing, but the fact of development is not the issue. The question is whether the development is legitimate. There must be some standard for determining whether growth builds organically on what is good, in a way consistent with the object's nature. Does an acorn grow into a rose? No, it becomes an oak. In the same way, any development in the legal definition of marriage must be consistent with the stable reality of marriage and the family, in which children are brought into the world and nurtured.

4) The statement of "live and let live" is also argued. We are told the courts are not imposing their religious beliefs on us, and we should not impose ours on others. This misstates the case, however. The assertion that a marriage is a relationship between a man and a woman is not primarily a religious position. It is evident to people of all faiths and of no faith. It is based upon reason before it is based upon any faith.

5) We are assured that there is no threat to religious leaders since they are not forced to perform these proposed marriages. A reading of the Supreme Court's decision, however, is not as comforting. Even the court's wording suggests there might in future be particular circumstances that could lead to religious officials being compelled to perform these ceremonies. The court does not suggest what those circumstances might be, but the fact that the court itself raised them is troubling.

What is more, some provincial governments are already compelling civil officials to perform these marriages against their conscience or resign. We must also wonder whether assurances made to religious leaders will protect parents who do not want the normalcy of homosexual relationships taught in their schools, as is likely once it is defined as a human right.

6) Finally, we hear the argument that Jesus accepted everyone as he or she was. Like Jesus, we must welcome everyone with unconditional love. We must treat people with homosexual attractions with full dignity and respect. However, Jesus did not teach that any behaviour is acceptable as long as someone wants it. The authentic Jesus called for moral conversion, and repentance. Just as the woman caught in adultery was told to go her way, and not to sin again, true love means to help our brothers and sisters to escape a path that leads nowhere.


Honourable senators, I have read this into the record because it was presented to us from the faith aspect of which I am speaking now. I will not read the entire letter, but this past Sunday the archbishop again presented to his parishes a letter that he asked to be read. I have never, ever seen this before in the Catholic Church, and I have been attending church conscientiously for about 65 years. I have never seen them so concerned about an issue and the erosion of their particular position in society. I will read the first part of the letter:

The House of Commons passed Bill C-38 changing the definition of "marriage" in Canadian law.

However, a law cannot change what is inherent to what something is.

An attempt to make such a law renders it ultimately groundless and gives legislators and the judiciary the impossible task of implementing that which lacks what is essential for law's authority.

The government is not capable of changing marriage.

The government did not create marriage, and marriage remains what it is and has always been: the union of one man and one woman for life, for the good of the spouses, for the procreating and raising of children, and for the good of society.

Canadians will continue to marry and to found families, as we always have.

If Bill C-38 becomes law, however, the law will no longer recognize the unique status and benefits that belong to married couples.

We call on our senators to act with the civic responsibility that is theirs: Do not make the same mistake the government has made. Please do not allow this bill to become law!

Honourable senators, I ask you to ponder these points so that you may inform your conscience. As I said earlier, I have never seen, in all the times that I have been involved in issues, anything as polarizing and as divisive. I have spoken about my faith today in this speech, but the points raised are also supported by the evangelical movement and various other groups.

This past weekend I attended Canada Day ceremonies in White Rock and Langley. Numerous people approached me, urging me to take a very strong position on this issue. I indicated to them that I would do my utmost to convince people that this is not a necessary piece of legislation and that we deal with it in a civil way, respecting the position and view of everyone. Therefore, I would ask honourable senators, as this bill will be referred to committee following second reading debate, to let us truly look at this for what it is. Let us not just shunt it aside, because I believe the erosion of the freedom of religion truly exists.

Hon. Jack Austin (Leader of the Government): Honourable senators, my first words are to express my appreciation and profound respect to Senator St. Germain for his deeply held views. He says there is an enormous division in our society over this issue, and that division is an obvious one.

I also want to say how much I respect the address of Senator Joyal to this chamber on this debate this afternoon. It was a tour de force of the issues, the background and the way in which the whole human rights issue has evolved and developed in Canada.

I note for members of this chamber that Senator Joyal, in 1980-81, being a member of the House of Commons, was co-chair of the joint Senate and House of Commons committee on the Constitution, along with Senator Harry Hays, the father of the present Speaker, who represented this chamber. That was, in my view, the most important committee study of issues within anyone's living memory. The issues I refer to are issues of rights, issues of patriation, but profoundly the evolution of Canada's view of its relationship state to citizen and citizen to citizen. As Senator Joyal has noted, Senator Corbin served on that committee for the other place, and I served on that committee representing the Liberal group in the Senate.

Honourable senators, let me ask what I believe is the key question: What is at the core of opposition to the proposed legislation before us, Bill C-38, called informally the civil marriage bill? There are those, such as Senator St. Germain, whose religious beliefs, deeply held I know, cause them to proclaim that same-sex marriage is contrary to God's law and even — not Senator St. Germain but others — that it is an abomination. I have heard that from religious sources. They argue that religious law forbids same-sex marriage, and civil law should have the same position.

While I totally accept the right of any person to hold such belief and conviction for their own behaviour, what is their basis of demanding the same behaviour of all others? Canada is a constitutional democracy with a Parliament whose lower house, the House of Commons, is popularly elected by the free choice of all eligible citizens. The government of the day is responsible to the House of Commons and must maintain its confidence. The popularly elected House of Commons has passed this bill and has presented it to us for review and approval. We must look to the bill on our own judgment as to whether it is good public policy and is supported by the Constitution and by the Charter of Rights.

As I see it, apart from the religious connection, at the core of opposition to equal rights to marriage, whether opposite sex or same sex, is the belief that same-sex marriage is wrong because it will cause harmful results to society. Senator St. Germain also made that argument. However, what is lacking is any evidence to make that case. For example, the U.S. state of Massachusetts has permitted same-sex marriage for a few years now. The search by opponents of same-sex marriage has produced no statistics that there has been any effect on the lives of opposite-sex marriage persons or their children. Opposite-sex marriages have continued and they raise families at the same statistical rate as before. Nor has the divorce rate shown any change. As one commentator noted, the only negative to be found by the study as a result of same-sex marriage being legalized was the added cost of buying a few more wedding gifts.

Admittedly, society is bringing on itself some discomfort to provide all our adult citizens with equality rights under the Charter of Rights. Is it not the case, as the courts in eight provinces and one territory have said, of equal protection and justice for every citizen no matter the sexual orientation and gender identity?


The last constitutional amendment in Canada took effect on April 17, 1985, when section 15 of the Charter of Rights and Freedoms came into force. Enshrined in section 15(1) is the stipulation, as presented by Senator Joyal today, that:

Every individual in Canada is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In decisions interpreting section 15, the Supreme Court of Canada has added to the prohibited grounds of discrimination and now specifically includes marital status, sexual orientation and Aboriginal place of residence. Our Charter and the Supreme Court of Canada are admired in democratic countries the world over.

Senator Joyal has outlined to us this evening the changes pursued by the court under the "Living Tree Doctrine" of Lord Sankey with respect to the meaning of words, the meaning of marriage and with respect to the issues of marital status and sexual orientation.

Bill C-38 is designed simply to provide uniformity of rights across Canada. These rights are established under the Charter by the courts of the land. It is a cardinal principle of good public policy that rights be equal among all members of our society and nation. This goal was sought by the late Prime Minister Diefenbaker when his government sponsored the Bill of Rights as federal legislation. This goal was sought by the late Prime Minister Trudeau and the premiers when they agreed to the constitutionalization of the Charter of Rights and Freedoms.

Some have argued that gay and lesbian people should be content with a civil union that would give them the rights and responsibilities of marriage but would not be marriage under law. Prime Minister Martin has made it clear that the notion of separate but equal arrangements is not equal. There can be but one status to be equal, and that is marriage.

We are aware today as we debate this proposed legislation that under the laws of Belgium, the Netherlands and the most Catholic country of Spain, homosexual couples are on an equal footing with heterosexual couples with respect to the status of marriage.

Some would argue that the proposed legislation is an attack on freedom of religion, which is also protected by the Charter. Nowhere in this bill or in any other legislation is there a requirement or obligation for any religious authority licensed under law to perform marriages when to do so in their judgment would contradict or be hostile to their religious beliefs.

When a marriage is requested to be performed by a person licensed by a province or territory to perform non-religious ceremonies, then of course that person is obliged by their office to perform a marriage ceremony for either heterosexual or homosexual couples, like any other person who has accepted a position of public duty. The duty must be performed, or the person must be relieved of their office for default of public duty. As Senator Joyal said, one province, Ontario, has already moved to amend that public duty in terms of religious conscience.

Many verbal and political gymnastics have been performed by the Leader of the Opposition in the House of Commons and by some of his supporters to evade the simple justice of same-sex marriage and the decision of many of Canada's courts. Stephen Harper refuses to say whether he would use the notwithstanding clause of the Constitution to set aside the rights pronounced by our courts and confirmed to all Canadians by Bill C-38. He refuses to say whether he will seek a referendum on minority rights or even a constitutional amendment to remove these rights. At the same time, he denies that he has a hidden agenda.

Honourable senators, Senator Stratton says this is not a high-level debate. Senator Stratton, these are the facts and these facts are known by Canadians.

Senator Stratton: I will quote the facts back to you.

Senator Austin: I would like that.

When he does speak, Mr. Harper makes the most egregious comments. What could be more destructive to Canadian democratic values or our sense of national unity than Mr. Harper's suggestion that this proposed law, Bill C-38, is illegitimate because Bloc Québécois members of Parliament are not federalists? Our society includes the democratic right to advocate provincial separation if it is pursued democratically and according to law, including the Clarity Act. Members of the Bloc Québécois are equally members of Parliament with members of the Conservative Party. It is totally apparent that Mr. Harper and many of his supporters have trouble with the concept of equality. In his world, some are clearly more equal than others. As noted, Mr. Harper did find the Bloc equal when he sought to defeat the government on non-confidence votes in the House of Commons.

Honourable senators, allow me to conclude with the final paragraph in an editorial that appeared in The Globe and Mail on June 30, 2005:

As the Senate prepares to consider the bill, it is time to celebrate a piece of legislation that reaches out to gay and lesbian couples and tells them, welcome to the club, not just a judicial welcome but a parliamentary welcome. It is a bright day.

Mr. Harper wants Parliament, not the courts, to have the final say. When we pass this bill into law Parliament will have spoken, and that should be the end of it.

Senator Kinsella: Honourable senators, I too wish to rise to participate in the debate at second reading of Bill C-38. I wish to consider the public policy objectives, which the government should have clearly before it, that include three groups of Canadians who should have been attended to in the bill. First, there are men and women who have embraced traditional marriage. Second, there is the need to achieve equal benefit of the law for all, irrespective of sexual orientation. Third, there is the need to recognize other forms of permanent, domestic, economic relations.

This bill provides an opportunity for the Government of Canada and Parliament to examine all three domestic relationships, and all are very different. The dichotomy that has been forced upon us in this debate is quite unfortunate. We had an opportunity, but rather than recognize the needs and design a bill based on a policy that would achieve each of these objectives, the government developed a bill based on an inadequate paradigm. The bill has resulted in dividing the country as well as dividing the members in the other place. Unfortunately, this failure will likely place many same-sex couples in a greater danger of victimization. However, I quickly add that all of us have a responsibility to act to ensure that such acts of discrimination not be acted out.

Honourable senators, the officials of the Department of Justice Canada who helped to develop the model underlying Bill C-38 have ill-served the government. A different model using a more thoughtful paradigm could have been developed to achieve the desired objectives of securing the "equal benefit of the law" guarantees for same-sex couples without abandoning the traditional institution of marriage valued by so many Canadians and without ignoring other kinds of domestic relationships.


The fourth choice paradigm that this bill presents, now advanced by the government and the Minister of Justice, is not and has never been the only model available. It was not necessary to divide the country and divide Parliament when a more creative bill could have been drafted that was congruent with the Charter's equal rights' requirements, which I certainly support.

In my analysis of this bill from a human rights perspective, some very important and fundamental questions need to be canvassed. I find the bill inadequate and an insufficient reaction to an issue that requires far more careful, concise and thoughtful consideration.

The need for a legislative regime protecting same-sex couples exemplifies the challenge that many democratic nations face when interests and opinions within a society conflict. Given Canada's significant contributions to the global human rights discourse, we need to insist that our legislation both acknowledges and protects all interests equally. This piece of legislation is a myopic attempt to address the rights of one group without fully canvassing the effect of the bill on groups with juxtaposed freedoms.

There is a fundamental concept in rights discourse known as the unity of human rights. This conflict reflects the unequivocal universal axiom that all rights and freedoms are equal. In Canada, I hope we have not lost part of our constitutional vernacular. We have forgotten that the Charter is one of both rights and freedoms; and Bill C-38 is a clear example of the degradation of freedoms in favour of a rights-oriented agenda that is being promulgated.

The Charter itself does not distinguish between rights and freedoms; they are incontrovertibly of equal importance and status. This approach is mirrored in the United Nations' instruments — the universal declaration, the covenants to which our honourable friend Senator Joyal drew our attention at the launch of this debate.

Unfortunately, the way Bill C-38 is crafted, it picks favourites by acknowledging the right to only one type of marriage by refusing to define or recognize Canadians' freedom of religion in choosing a traditional definition of marriage. Section 2 of Bill C-38 is clear in that it defines marriage "for civil purposes." It does that only. Honourable senators, such wording begs the obvious question: What is then the definition of marriage for general purposes? We have it for civil purposes; what is it for general purposes? What is the status quo?

The function of the clause, "for civil purposes," is to carve out an exception to the existing definition. It is a qualification. Unfortunately, the drafters have not included any existing definition. You look in vain for one in the bill.

This bill does not include a traditional or base definition. The essential subtext or foundation upon which the protection of same-sex marriage is granted is wholly and conspicuously missing from this bill. This bill creates a legislative lacuna in which a qualification of a definition exists but the base definition does not.

The government has told us what they consider to be "marriage for civil purposes," but they have not explained what marriage in its most basic form is. In this government's eyes, there is only one narrow, legal type of marriage — civil marriage. In an effort perhaps to score political points, in the opinions of some, this bill was hastily drafted to recognize and protect same-sex marriages, yet it has failed to address and therefore to acknowledge and protect the institution in which most Canadians partake — traditional marriage.

This bill should have attempted to finally provide a fair and equitable federal statutory definition of marriage for all Canadians. Instead, we have a bill where it ignores the foundational concept and opts to provide only a definition of marriage for civil purposes.

Honourable senators, I have no objection in principle to the intent of the bill to deal with that second objective. However, at best, Bill C-38 is insufficient and it certainly is vague. At worst, it is woefully inadequate and dangerous as it creates a hierarchy of rights in which a newly recognized definition of marriage is articulated while the core concept for the traditional definition has been completely overlooked.

Honourable senators, the government has thrown the baby out with the bathwater. It was not necessary to abandon the traditional definition of marriage, or to recognize the need, to use the words of the Minister of Justice, to provide at least a declaratory clause that would state an obvious historical fact — that Parliament has recognized and continues to recognize a traditional marriage as the union of a man and a woman. Then to carry on, that notwithstanding what the tradition has been, marriage for civil purposes, and the words — not changing a comma — that are in this bill would at least cover those two objectives, which should have been the objectives from a public policy point of view.

Honourable senators, the government, as I say, has thrown the baby out with the bathwater. We have heard many comments from members of this government indicating that the traditional common law definition of marriage is no longer acceptable, and that it infringes the right to equality under the Charter. Despite this assertion, they have chosen to define only one narrow aspect of marriage, namely marriage for civil purposes. The message to Canadians is clear that acknowledgement of a traditional definition of marriage is not even of passing concern to this government.

The need to update and broaden the definition of marriage to reflect evolving realities created an opportunity to draft a comprehensive bill that could clarify the rights and freedoms of all Canadians. The diverse values of all Canadian should be represented by this bill. Instead, Bill C-38 ignores the standard common-law definition that has existed for hundreds of years. It does not reject or accept it; it is entirely neglected.

One of the overwhelming objections to the bill in the court of public opinion, as I see it, is the fear that religious freedoms will be necessarily curtailed. I ask honourable senators, in light of the fact that this bill completely dismisses the primarily religious institutions that many Canadians value — to which Senator St. Germain has spoken a little while ago and which is a value of immense importance to many Canadians — is this concern not a well-founded one? The risk we run when we endorse inadequate legislative drafting is seen in the future, where a statute contains a qualification of a definition that is not itself contained in the statute will inevitably become a point of contention. It is often only after time has passed and memories have faded that judges are asked to interpret the meaning of a vague or ambiguous phrase. It seems both naive and foolhardy to presume that neglecting the full and complete definition of marriage will not pose immeasurable difficulties in the future. It will be incumbent on any judge faced with this admission to presume that it was Parliament's intent to exclude consideration of the traditional definition of marriage. Such a presumption has far-reaching interpretory implications for the many Canadians who have expressed concern over the potential infringement on freedom of religion. Overcoming this presumption will be extremely onerous. The vocal assurances of the government of the day will be trumped by the principles of statutory interpretation.


Honourable senators, what is missing from this legislation is as important and meaningful as what is included. It is the principle, as honourable senators know, of statutory interpretation; that is, expressio unius est exclusio alterius, or that the express mention of one thing is to the exclusion of another. In other words, if one concept is listed explicitly, the exclusion of another is not by error or by oversight, but the omission has meaning in and of itself.

Canadians' freedom of religion, as it relates to their choice of type of marriage, will necessarily be subordinated to the single insular concept of marriage for civil purposes, as a result of clear statutory interpretation principles that cannot be circumvented. This guiding principle will undoubtedly characterize future discussions on the issue of marriage. This debate is far from over and will be far from over even if the majority that dominates this institution rams it through.

A legislative attempt to recognize same-sex marriage could easily have created a parallel marriage institution while maintaining the traditional definition of marriage. This could have adequately been accomplished by entrenching the traditional definition of marriage in the statute, thus protecting the freedom of religion and conscience for many Canadians. The traditional definition of marriage could have subsequently been followed by a clause indicating, "notwithstanding the traditional definition of marriage, marriage for civil purposes is the union of any two persons." Such a legislative structure does not omit any base definitions, is clear, unambiguous and adequately balances the rights and freedoms of all Canadians. Such a structure would also reflect the current dichotomy of opinion on the subject in Canadian society today, and such a structure would have been 100 per cent congruent with the advisory opinion of the Supreme Court of earlier in the year.

Honourable senators, it is the obligation of the government to ensure that it discharges its fiduciary duty to all Canadians to protect all rights and freedoms equally. This debate is essentially concerned with the balancing of rights and freedoms that sometimes experience some friction. I will not go so far as to suggest that some rights and freedoms are mutually exclusive or that they even compete or conflict. The inherent difference in the nature of the right to equality versus the freedom of religion creates a position of governments to favour a rights-based agenda. Societies can easily slide into a human rights vacuum where freedoms traditionally considered negative in their nature, because they are generally freedom from or of something, are in danger of being eroded in favour of an ever-increasing list of positive rights to something.

Practically speaking, as we see in Bill C-38, governments can easily articulate a right and, therefore, positive rights such as access to the legal institution of marriage can be legislatively protected and supported in a concrete and programmatic manner. It is not as easy to articulate a negative right, freedom of or freedom from, in a legislative fashion. That does not mean that the obligation is still not there.

Honourable senators, in the present case this articulation is made all the more difficult due to the division of powers under the Constitution of Canada that prevents the federal legislation from encroaching on provincial jurisdiction to perform and solemnize marriages. It is considerably more appealing and practical for governments to simply assert, if they are not actively interfering in the exercise of freedom of religion, that they are sufficiently protecting it.

Bill C-38 represents a telling example of just how facile it is for freedoms to slip by the wayside. Despite the difficulties of the present case and the challenges of protecting a negative freedom, the government must undertake to do more to protect Canadians' freedom of religion. Again, I make reference to the advisory opinion of the Supreme Court, where they spoke to the richness in Canada of freedom of religion. Hopefully, the richness of the court's view will be built upon.

Honourable senators, at the very least, we have an obligation to legislate a definition of marriage that recognizes the prevailing traditions and values of a significant portion of Canadians. To simply assert that a freedom is protected by non-interference is a dangerous governing strategy that has the potential to alienate many citizens who do not feel protected in a concrete or programmatic way. If the nation indeed wishes to avoid creating a hierarchy of human rights and freedoms, then governments must pursue legislative agendas conducive to the recognition and enjoyment of both rights and freedoms. Simply asserting that a government is not interfering in the freedom of religion is an empty assurance to most Canadians and will undoubtedly relegate freedoms to the status of the poor cousin of the rights in the context of our Charter.

The Director of Human Rights at the Kennedy School of Government, Michael Ignatieff, argues persuasively that rights and freedoms are only meaningful if they provide entitlements and immunities to citizens. He states that rights and freedoms are worth having only if they can be enforced against institutions such as the state. Likewise, if citizens are uncomfortable practising their own religion for fear of persecution or stigmatization, the state has not fulfilled its Charter or international obligations to respect the unity of rights by implementing, promoting and protecting all rights and freedoms.

Similarly, human rights theorist Rolf Kunnemann argues that the obligation related to a right or freedom is the obligation of the state to create legal or other mechanisms to respect and protect it. Bill C-38 expressly neglects the perfect opportunity to create a legal definition that would include all aspects of marriage, thus offering the full recognition and protection of the law to all Canadians. Section 15 of the Charter assures that not only will all Canadians be considered equal, but that they must have equal benefit under the law. Bill C-38 has the effect of denying that equal benefit.

Honourable senators, I wanted to draw to your attention what I see as a glaring omission in the bill. I wish to draw your attention to what no doubt is an unintended consequence that can arise when such an omission is acquiesced to. The emergence of new positive rights can supplant negative freedoms because society can, over time, exhibit a tendency to accept what was once an emerging norm as eventually the societal preference of a progressive and tolerant society. While this can enrich and diversify society, it cannot come at the cost of stigmatizing the values and beliefs of others. We must guard against the scenario envisioned in my previous example outlined by Michael Ignatieff.


I would go so far as to suggest that Canada has an especially acute obligation to protect freedom of religion in the context of section 27 of the Charter, the section that guarantees Canadians that their Charter of Rights and Freedoms will be interpreted in a consistent manner so as to preserve and enhance our multicultural heritage. Any multicultural society, a fortiori, is a multi-faith and multi-confessional society. If Bill C-38 is allowed to promote a rights-based agenda that renders Canadians unable to express their religious values, freedoms of conscience and multicultural heritage will have the effect of perverting the very purpose of the Charter as envisaged by the framers.

The unity of human rights must be preserved. Bill C-38 ought to be rejected for its failure to balance the rights of all Canadians because it refuses to recognize and enrich the values ensconced by the traditional concept of marriage embraced by so many Canadians.

Honourable senators, the bill can be made whole. It seems to me the bill could be made whole and supportable not by excluding any provisions or any words that are in the bill that is now before us but, rather, by adding a new first clause that would be, to use the words of the Minister of Justice, declaratory at the minimum and certainly factual. Such a new first clause would speak to the recognition by Parliament that the traditional marriage of a man and a woman continues to be recognized in Canada. The current clauses would be simply renumbered, with the current clause 1 being renumbered clause 2, et cetera.

Honourable senators, that would be a way to make this bill whole. It be would be a way to bridge an unfortunate rift that has occurred as a result of what I consider to be the poor model prepared by people in the Department of Justice. It is not necessary. What is necessary is to ensure that all Canadians have the equal benefit and protection of the law.

I could also join in the recollection of how section 15 of the Charter was crafted, the relationship of the Charter to the international instruments, and the open-ended list of prohibited grounds of discrimination. I could also recall how the principle of ejusdem generis is followed by the courts as the years go on and new special status and considerations become important, in particular where people are victimized by discrimination.

Honourable senators, we have an opportunity to make this bill right, if we have the will to do so.

Hon. Lowell Murray: Honourable senators, I wish to ask the Leader of the Opposition why, on several occasions in his speech, he persisted in blaming the drafters for the flaws that he identified in the bill. Surely the drafters were acting on political instructions of the appropriate ministers.

Senator Kinsella: As the honourable senator knows, in the legislative development process, yes, a well-articulated public policy is the way things should start. Indeed, they should start with the development of a policy paper around which there may be some discussion. Part of that occurred through a Commons committee that was chaired by Mr. Scott. That committee travelled the country. However, we did not see the government's position articulated after that committee had done its work.

Yes, drafting instructions are then prepared. There is no doubt that options were made available. Sometimes, the best argument for a given proposal receives strong argumentation, while the alternative positions do not have quite as strong a representation. I agree with the honourable senator. At the end of the day, the decisions are those of the ministers. However, I speak to you of the reality of how this city operates.

Senator Murray: Surely the Leader of the Opposition will agree that the original decision not to appeal the lower court decisions directly to the Supreme Court of Canada and, instead, to send a reference to the Supreme Court of Canada would have been a purely political or policy decision taken by the cabinet. This is a question I wanted to ask either Senator Joyal or Senator Austin, but the moment passed. Thus, my friend will have to bear the burden.

Does the honourable senator not think we would be further ahead if the government, in response to this litigation ad nauseam that Senator Joyal mentioned in his speech, had appealed one of those lower court decisions to the Supreme Court and got a real decision on a real set of facts, rather than a reference seeking an advisory opinion? It was an incomplete opinion since the court declined to answer one of the questions.

Does the honourable senator not also agree that the country would have been spared this unseemly and completely hypothetical argument about whether the notwithstanding clause would need to be used to support the coexistence of equality rights with the "traditional" definition of marriage because the court would have had to answer the question, if there had been an appeal of the lower court decisions?

Senator Kinsella: Honourable senators, I agree with Senator Murray's implication in his question that the government really mismanaged this whole file quite badly. I am afraid that is the case. Obviously, I was not privy to the discussion around the cabinet table, unless Senator Austin wants to share that with us. I would regret very much if some political and partisan considerations were factored in as well.

The opportunity to appeal the matter to the Supreme Court was there, as the honourable senator suggests. It was not taken. What was also not taken was an opportunity to articulate the three categories of families to which I have spoken.

When we look at clause 13 of the bill, we see that it deals with prohibited degrees of marriage. It states:

No person shall marry another person if they are related lineally, or as brother or sister or half-brother or half-sister, including by adoption.

That leads to a couple of interesting questions. One is: What about the equality rights' benefits of two brothers? Should they not have equal benefit of the law? To the extent that people see benefits of the law in terms of things like pensions, insurance, et cetera, why should there be that exclusion?

If there is an argument to maintain a type of prohibited-degrees-of-marriage provision, why do we have that clause? What does it mean? What are the principles upon which it is based? If the principles are based on the old issues in traditional marriage of prohibiting degrees of marriage because of issues of the closeness of genetics, and that it was not in the public interest to have the genetic pool thinned out — if that is the proper terminology — one understood that was the reason behind the provisions of the Criminal Code on issues of consanguinity. If two men or two women participate in civil marriage, I do not understand the rationale of degrees of consanguinity in that kind of a situation. It does not make any sense. Perhaps that issue could be canvassed in committee.


Honourable senators, that totally ignores the issue that I consider to be terribly important, and that is not the issue of the traditional marriage group or the same-sex marriage group. There is a large group of Canadians who are involved in domestic economic relationships, whether it is an elderly mother with her daughter or son, or two sisters or two brothers who are totally dependent economically on each other. We should have an opportunity to address that. I believe that in other countries around the world that are responding to the equality rights issues for persons of same sex, these issues have been totally ignored as well.

On motion of Senator Stratton, debate adjourned.

Allocation of Time for Debate—Notice of Motion

Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, I rise pursuant to rule 39 to inform the chamber that I have had a discussion with my counterpart, the Deputy Leader of the Opposition, about the disposition of Bill C-38, respecting certain aspects of legal capacity for marriage for civil purposes. It has not been possible to reach an agreement to allocate a specified number of hours and days for the consideration at second reading stage of this bill.

Therefore, I give notice:

That, pursuant to Rule 39, not more than a further six hours of debate be allocated for the consideration of the second reading stage of Bill C-38, respecting certain aspects of legal capacity for marriage for civil purposes.

That when debate comes to an end or when the time provided for the debate has expired, the Speaker shall interrupt, if required, any proceedings then before the Senate and put forthwith and successively every question necessary to dispose of the second reading stage of the said bill; and

That any recorded vote or votes on the said question shall be taken in accordance with the provisions of Rule 39(4).

Personal Watercraft Bill

Third Reading—Order Stands

On the Order:

Resuming debate on the motion of the Honourable Senator Cochrane, seconded by the Honourable Senator Andreychuk, for the third reading of Bill S-12, concerning personal watercraft in navigable waters.—(Honourable Senator Lavigne)

Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, there have been indications from several senators on this side that they wish to speak to this bill. I understand that Senator Spivak wishes to move this item, but on my part I believe I have to give senators the chance to speak to the bill.

I will ask that this item stand for today, until such time as those senators have had a chance to speak.

Hon. Terry Stratton (Deputy Leader of the Opposition): Honourable senators, I wish to bring to the attention of the chamber that we had a fundamental understanding that there was one senator on the Liberal side, as of this afternoon, who wished to speak to this matter. We agree to stand this item providing that the senator will speak this week and we can deal with the bill.

Senator Rompkey: That is agreed.

The Hon. the Speaker: The matter is to stand and I have noted the exchange between house leaders.

Order stands.


Royal Canadian Mounted Police Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Nolin, seconded by the Honourable Senator Andreychuk, for the second reading of Bill S-23, to amend the Royal Canadian Mounted Police Act (modernization of employment and labour relations).—(Honourable Senator Andreychuk)

Hon. Jean Lapointe: Honourable senators, I would ask that the matter stand in my name.


The Hon. the Speaker: This item currently stands in the name of Senator Andreychuk. I believe that Senator Lapointe wishes to have this matter returned to day zero.

Is it agreed, honourable senators, that the request be agreed to?

Hon. A. Raynell Andreychuk: Honourable senators, this item is on day 14. I was planning to ask that this item be returned to day zero tomorrow. Based on the fact that the chamber is otherwise occupied, I would not get your full and undivided attention until we return. That is why I was planning to ask that the matter be returned to day zero.

If my colleague wishes to speak, I have no objection.

The Hon. the Speaker: Honourable senators, I believe the request is that we have this matter begin the time cycle again starting at day zero; is it agreed?

Hon. Senators: Agreed.

Hon. Bill Rompkey (Deputy Leader of the Government): Your Honour, my understanding was that the item would stand in the name of Senator Lapointe; is that correct?

Senator Lapointe: Honourable senators, I had an agreement with Senator Nolin, based on this item being returned to day zero. I had mentioned to him that I would take the adjournment and he totally agreed.


If you ask me when I am going to speak, I can tell you that if this continues, it will be in the third or fourth week of August.

On motion of Senator Lapointe, debate adjourned.


Study of Issues Dealing with Rate of Productivity

Report of Banking, Trade and Commerce Committee Adopted

On the Order:

Resuming debate on the motion of the Honourable Senator Grafstein, seconded by the Honourable Senator Mahovlich, for the adoption of the fifteenth report of the Standing Senate Committee on Banking, Trade and Commerce, entitled: Falling Behind: Answering the wake-up call. What can be done to improve Canada's productivity performance?, tabled in the Senate on June 22, 2005.—(Honourable Senator Stratton)

Hon. Terry Stratton (Deputy Leader of the Opposition): Honourable senators, briefly, the reason I adjourned the debate in my name is to ask our caucus whether or not anyone wished to speak to this issue. None of our honourable senators wishes to speak to this matter. As far as our side is concerned, this issue is dealt with.

The Hon. the Speaker: Are honourable senators ready for the question?

Hon. Senators: Question!

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

Hon. Senators: Agreed.

Motion agreed to and report adopted.


Progress Report on Quality End-of-Life Care

Inquiry—Debate Continued

On the Order:

Resuming debate on the inquiry of the Honourable Senator Carstairs, P.C., calling the attention of the Senate to Still Not There. Quality End-of-Life Care: A Progress Report.—(Honourable Senator Oliver)

Hon. Donald H. Oliver: Honourable senators, I would like to join the debate and inquiry set down by Senator Carstairs in which she wants to call the attention of the Senate to Still Not There. Quality End-of-Life care: A Progress Report.

Palliative care is a special kind of health care for individuals and families living with a life-threatening illness, usually at advanced stage. The goal of palliative care is to provide the best quality of life for the critically or terminally ill by ensuring their comfort and dignity.

The Canadian Palliative Care Association defines palliative treatment as the "combination of active and compassionate therapies intended to comfort and support individuals and their friends and families who are living with, or dying from, a progressive life-threatening illness, or are bereaved."

I would like to begin by describing how the right to die with dignity and comfort became a public policy issue in the Senate, an issue on which Senator Carstairs has been on the forefront for many years. I will then discuss in detail a major fundraising project in my home province of Nova Scotia, spearheaded by one of Canada's most famous living painters and fellow Nova Scotian, Alex Colville, who, when my mother died in July 1991, gave a very moving tribute to her at the funeral.

Honourable senators, the Senate is often charged with tasks that are deemed to be too litigious or controversial for governments to tackle directly. Historically, the Senate has not been timid in tackling the toughest of public policy issues that affect Canadians.

For instance, in the wake of the Supreme Court decision upholding the prohibition against assisted suicide, the Senate was asked to "examine and report upon the legal, social and ethical issues related to euthanasia and assisted suicide in Canada." For that express purpose, the Senate Special Committee on Euthanasia and Assisted Suicide was created on February 23, 1994.

The committee began its hearings with the expectation that the large majority of the time would be spent on the ethical, social, legal and medical issues that have come to be associated with assisted suicide and euthanasia. However, at the outset of the hearings, it became apparent that a major and unanticipated issue was the question of medical alternatives to assisted suicide and euthanasia.

Some witnesses told that committee that Canadians need better support when approaching death to cope with the circumstances surrounding death and that palliative care could address many of those needs. The result of those hearings was the Senate report entitled Of Life and Death, which provided the template to influence Canada's policy toward palliative care in years to come.

Then, in 1999, as part of the Standing Senate Committee on Social Affairs, Science and Technology, Senator Carstairs chaired a special Senate subcommittee authorized by the Senate to update the Of Life and Death report. That final report, released in June 2000 and entitled Quality End-of-life Care: The Right of Every Canadian, reaffirmed:

...that Canada is founded upon the dignity of the human person as set out in the 1960 Canadian Bill of Rights, and that dignity and worth compels the provision of excellent end-of-life care at a time when each person is at his or her most vulnerable.

Honourable senators, the need for effective and timely palliative care for Canada's most vulnerable citizens remains a pressing public policy issue. It remains a pressing public policy issue because Canada's population is aging and is doing so at an alarming rate.

By 2026, more than 8 million Canadians will be over the age of 65, or approximately 20 per cent of the population. Senior citizens currently account for 75 per cent of all deaths each year. Researchers estimate that there will be a 40 per cent increase in those deaths by the year 2020.

Not only is the Canadian population aging at an alarming rate, but only 15 per cent of Canadians who need access to quality palliative care in this country are receiving it, according to the Canadian Hospice Palliative Care Association. For children, that number drops to 3.3 per cent.

Particularly in my home province of Nova Scotia, there are a number of fundraising initiatives to promote awareness on palliative care across Canada and to raise the funds necessary to try to meet the physical, emotional and spiritual needs of people with life-threatening or terminal illnesses.

In Nova Scotia, this issue is of special concern. While 11.5 per cent of Canadians are over the age of 65, in Nova Scotia the number is 13.5 per cent and increasing rapidly. A 2001 census report indicated that seniors could comprise nearly 25 per cent of Nova Scotia's population by 2015.

Honourable senators, physicians agree that the cornerstone of effective palliative care treatment is a palliative care hospice, a facility designed to provide a caring environment in a home-like atmosphere to supply the physical and emotional needs of the terminally ill.

A hospice should be staffed by professionals, para-professionals and volunteers skilled in palliative care treatment and committed to working as a team to ensure the comfort and dignity of those they serve. Essentially, a hospice attempts to replicate a feeling of home for anyone involved.


Currently there are 13 hospices in Canada that provide palliative treatment. Thousands exist throughout the world, especially in the United States, Europe, the United Kingdom, India, Australia, Romania and South Africa. At present, there are no palliative care hospices in Atlantic Canada.

It was for this reason, honourable senators, that the Von Kings Hospice Foundation was formed. The Von Kings Hospice Foundation is chaired by Dr. James Perkins, a long-time resident of Wolfville, Nova Scotia, where I was born, and the former President and Vice-Chancellor of Acadia University in Wolfville.

The foundation's goal is to erect a 10-bed, free-standing, fully equipped hospice on the Valley Regional Hospital site in Kings County, Nova Scotia. The hospice building would be approximately 10,000 square feet and be largely, although not exclusively, on one floor and would be adequate to house all the planned services and activities. The estimated capital cost of the hospice for construction, equipment and furnishing is between $1.6 million and $2 million. The estimated annual operating cost, assuming full occupancy, is $1.2 million.

The foundation's financial blueprint calls for all monies related to the construction of the hospice to come from the private sector, from private donations, without direct financial assistance from the federal or provincial governments.

In October 2004, the Province of Nova Scotia declared its conditional willingness to meet approximately 50 per cent of the operating costs of the hospice as a pilot project. The foundation believes that if the capital costs can be met strictly through private donations, about 95 per cent of the operating costs could come from public funds.

To date, honourable senators, the hospice has raised nearly $300,000 through the generosity of Nova Scotians who have made significant private donations and through fundraising events. One of the generous Nova Scotians to which I refer is artist Alex Colville. Over his long career, Alex Colville has received many honours. In 1965, Mr. Colville was commissioned to design the coins commemorating Canada's centennial year. He was made an Officer of the Order of Canada in 1967 and made a Companion of the Order of Canada in 1982. Major retrospectives of his work have been held in the Art Gallery of Ontario in 1983 and the Montreal Museum of Fine Arts in 1994. In 2002, Mr. Colville was honoured with the Governor General's Visual and Media Arts Award.

As a resident of Nova Scotia since 1929, throughout the years Alex Colville has used his notoriety to help support a number of worthy initiatives to enrich the quality of living in my home province. The latest example is a fundraising gala for the Kings County palliative care hospice, where Alex Colville was the guest of honour. It was called "Alex Colville Celebration Event." The gala was held on June 10 of this year in Wolfville and coordinated by the Von Kings Hospice Foundation. It was held in honour of Colville's work to raise awareness of palliative care and the need for a hospice in Nova Scotia. Colville's celebrity status caused the $200 per head gala dinner at the Old Orchard Inn to be oversubscribed. According to the foundation chair, Jim Perkins, as many as 100 people were turned away at the door.

At the gala, two major financial contributions were announced. First, the Wolfville Rotary Club contributed $50,000 toward the construction of the hospice.

The gala featured speeches from many notable Nova Scotians, including Dr. Deborah Day, Professor of Education and Vice-Chair of the Von Kings Hospice Board of Directors. Donald Sobey, Chair of the National Gallery of Canada and Chair of Atlantic Alliance Communications, also provided a taped video greeting for the gala. The master of ceremonies was George Jordan, a former radio host of CBC Halifax. Dr. Gail Dinter-Gottlieb, President of Acadia University, and Bob Stead, the Mayor of Wolfville, also brought greetings. Mary Pratt, a former student of Alex Colville while he was a professor at Acadia University, also spoke, as did Alex Colville's son, Graham Colville.

Honourable senators, to the organizers of the Alex Colville Celebration Event, and to the hundreds of attendees who paid tribute to the Nova Scotia painter's humanitarian legacy, the message was clear: With Alex Colville's continuing support behind the initiative, the foundation's 15-year quest for a palliative care hospice in my home province will be realized much sooner than expected.

In conclusion, honourable senators, based on the remarks of the speakers who honoured Alex Colville's legacy of community involvement in Nova Scotia and around the world, there is no question that the gala's official title and theme "The Measure of a Man" was a fitting tribute to Canada's greatest living painter and a great Canadian.

On motion of Senator Rompkey, for Senator Corbin, debate adjourned.

Business of the Senate

Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, if Her Honour were to seek the consensus of the chamber, I believe she would find a disposition to stand all other items on the Order and Notice Paper in their place until the next sitting.

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

Hon. Senators: Agreed.

The Senate adjourned until tomorrow at 2 p.m.

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