Download as PDF

Debates of the Senate (Hansard)

1st Session, 39th Parliament,
Volume 143, Issue 19

Thursday, June 1, 2006
The Honourable Noël A. Kinsella, Speaker


Thursday, June 1, 2006

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


Business of the Senate

The Hon. the Speaker: Honourable senators, today we are expecting to welcome a guest to our gallery. He is a distinguished visitor from the great city of Vancouver, and I would like your consent that he would appear below our bar as a means of reasonable accommodation. Is that agreed, honourable senators?

Hon. Senators: Agreed.



Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable senators, yesterday toward the end of the afternoon, I made some comments that should be a reminder to all of us, including myself, that we should exercise temperance and not lose our cool, which is what I did yesterday.

I sincerely apologize to Senator Ringuette and to all others who may have been offended by my remarks.


Hon. Pierrette Ringuette: Honourable senators, I had given notice that I would raise a question of privilege on the defamatory, false and damaging statements made by the Deputy Leader of the Government in the Senate on May 31, 2006. However, the deputy leader has made a formal apology, which I accept, and I now withdraw my notice.

Importance of Competition and Economic Growth

Hon. Wilbert J. Keon: Honourable senators, we in this place have an opportunity to think in longer terms, more so than our colleagues in the other place. An important question that is not being adequately addressed in Canada's Parliament is: Where will Canada be economically in the middle of this century?

The report last month to the Minister of Industry by an outstanding expert panel of leaders from business, industry and academe, led by Joseph Rotman, provides valuable insight and guidance. The report is entitled People and Excellence: The Heart of Successful Commercialization.

Any country's economy depends on competition with other countries. Mr. Rotman and his colleagues, along with other experts, tell us that Canada is not competing well with other advanced economies. Canada has fewer R&D intensive high technology industries; Canadians are less entrepreneurial, patent less, produce less and compete less well in unique products and services. Canada has fewer university graduates, particularly with advanced degrees. Canada has a lower gross domestic expenditure in research and development as a fraction of its GDP. However, Canada's tax credits for R&D are among the highest in the world and Canada has programs to promote commercialization. The problem is that these do not seem to be working.

Honourable senators, by the middle of this century, we will have largely drained many of Canada's natural resources and our population will have more pensioners and fewer wage earners. Also by that time, countries such as China and India, which already account for one third of the world's population, will be competing much more vigorously in world markets.

To compete effectively, we in Canada must radically rethink our attitudes toward economic growth. We must move aggressively to a knowledge-based economy that depends on brains, that exports goods and services rather than raw materials and that competes internationally in ability to manufacture consumer goods. Above all, we must develop a culture of innovation and discovery through research.

I am certain that unless we as a country make major commitments now to developing the knowledge-based economy, our children and their children will not have the opportunities and standard of living we enjoy now.

Peacekeeping Day

Hon. Elizabeth Hubley: Honourable senators, on August 9, 2006, Canadians will have the opportunity to acknowledge and pay tribute to those who have served our country throughout the world as peacekeepers. While missions and roles might change from time to time, the flag of the United Nations and what it represents does not change. Created by the Canadian Association of Veterans in United Nations Peacekeeping, Peacekeeping Day should be a proud day for all of us because it recalls and celebrates the sacrifice and courageous efforts of Canadians to prevent conflict, protect fundamental human rights and promote social progress and improve standards of living.

One of Canada's greatest achievements in peacekeeping and international diplomacy was the 1997 Ottawa Mine Ban Treaty prohibiting the use, stockpiling, production and transfer of anti-personnel land mines. The anti-personnel land mine is a hideous legacy of war and civil conflict, crippling and taking the lives of innocent civilians, many of them children, long after the fighting is over. Land mines retard the economic development and recovery of post-conflict countries. Removing them is slow, delicate and dangerous work that requires highly trained technicians and, of course, financial resources.

Through the efforts of the Canadian Landmine Foundation and other humanitarian organizations, more than 60 million land mines have been destroyed and thousands of victims have been assisted.

Honourable senators, the inauguration of Peacekeeping Day took place two weeks ago in Summerside, Prince Edward Island, at a special fundraising event that combined dance and poetry with the sober message of land mines and their threat to entire communities.


Individual peacekeepers will be honoured over the coming months, including Major-General (retired) Alain Forand and Quebec Municipal Police Officer, Constable Louis Gignac.

Canadians are still proud peacekeepers and humanitarians, honourable senators, fulfilling our responsibilities honourably and unselfishly without self-interest. I know that on August 9 you will join with me in celebrating the first ever Peacekeeping Day in Canada.

Northern View of the Long-gun Registry

Hon. Nick G. Sibbeston: Honourable senators, I wish to state the northern view on the recent government announcement of an amnesty on long-gun registration. Most people of the North never supported the gun registry and the licensing system to buy guns and shells.

To illustrate my point, a few years ago when the gun registry issue was in the news, I visited a small community. There I visited an elderly man, a hunter and trapper in his 90s. He asked me whether he, in fact, had to register his gun. I said: "Yes. Mr. Chrétien wants you to register your guns. If you had a chance to speak face-to-face with Mr. Chrétien, what would you tell him?" He said: "I am an old man. I have hunted and trapped all my life, ever since I was 10 years old. I shot hundreds of moose and other game, and I have never aimed that gun at anybody else. I have never hurt anybody. I make a living. The gun is my tool."

Another elderly hunter and trapper in the same community had to buy shells one day. He was told, at this trading place where he had traded his furs for all of his life, that he could not buy shells because he did not have an FAC.

These examples illustrate the impracticality, inconvenience and infringement of the lives and liberty of the people in the North who live in a very tough country and depend on their guns to eke out a living.

Honourable senators, I am one senator from a remote part of our country who applauds this government's stance on the gun registry. The sooner we get rid of it, the better. Long live northern people's liberty to hunt, trap and fish without restrictions.

Response to Climate Change in the Arctic

Hon. Bill Rompkey: Honourable senators, I want to draw your attention to an op-ed piece in The Globe and Mail several days ago, written by Sheila Watt-Cloutier:

By trying to scuttle the Kyoto Protocol and prevent the adoption globally of "stringent targets" to reduce greenhouse-gas emissions, the federal government is abandoning the peoples of the circumpolar Arctic — particularly Inuit whose hunting and food-sharing culture is being pushed to destruction by climate change. Further, this misguided position will weaken Canada's claim to Arctic sovereignty and severely erode its international credibility.

In November of 2004, the eight Arctic states, including Canada and the United States, endorsed the Arctic Climate Impact Assessment (ACIA). Prepared over four years by more than 300 scientists from 15 countries and Arctic indigenous peoples, the assessment said human-induced climate change in the Arctic is happening now and is accelerating with serious social, cultural, health, environmental and economic consequences. Contingency plans are already in place to relocate some Inuit communities in Alaska and elsewhere in the face of climate change.

...Inuit have always engaged in the politics of influence, not the politics of protest, and we always try to bring people together, not pull them apart. But recent decisions by the federal government call for new responses. We are deeply concerned that Ottawa has taken this position — divisive at home as well as internationally — at a time when Environment Minister Rona Ambrose is chairing global climate-change negotiations.

Ottawa's foreign policy on climate change must support — not erode — Canada's sovereignty in the North and reflect — not ignore — the Arctic, the region of Canada most directly and negatively affected by this global challenge.

That is Sheila Watt-Cloutier, the elected chair of the Inuit Circumpolar Conference, UN Champion of the Earth, who received the International Environmental and Development Sophie Prize. She is to receive the Canadian Environmental Award Citation of Lifetime Achievement on June 5 and the Earth Day International Environmental Award on June 8. She is the sister of Senator Charlie Watt.


Legal and Constitutional Affairs

Bill S-202—List of Unproclaimed Bills Tabled with Committee

Hon. Tommy Banks: Honourable senators, in debate on April 26 on Bill S-202, which was yesterday referred by this place to the Standing Senate Committee on Legal and Constitutional Affairs, I responded to a question asked by Senator Nolin having to do with whether I had received a more exhaustive list from the Department of Justice of statutes that had been given Royal Assent more than 10 years before that date. I replied that I had not.

However, I have been reminded, through a letter from the department, that a list of legislation was indeed provided to members of the Standing Senate Committee on Legal and Constitutional Affairs prior to that committee's evidentiary proceedings of February 10, 2005. The department has provided me with a copy of that list, which is headed: "Bill S-202" — that being the present designation of this legislation — "Acts or Provisions of Acts enacted after 1985 and prior to 1999 that have not yet been brought into force as of April 5, 2006."

There is such a list in addition to the one to which I referred. The Department of Justice has provided that list to members of the Standing Senate Committee on Legal and Constitutional Affairs.

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of the Elders from the Membertou First Nation from Cape Breton, Nova Scotia. They are guests of the Honourable Senator Lovelace Nicholas.

On behalf of all honourable senators, welcome to the Senate of Canada.

Hon. Senators: Hear, hear!



Assemblée parlementaire de la Francophonie

Vietnam-Laos-Cambodia Regional Seminar on Budgetary Control, December 19-21, 2005—Report Tabled

Hon. Joseph A. Day: Honourable senators, pursuant to rule 23(6), I have the honour to table, in both official languages, the report by the Canadian Branch of the Assemblée parlementaire de la Francophonie, respecting its participation at the Vietnam-Laos-Cambodia Regional Seminar on Budgetary Control of the APF held in Vientiane, Laos, from December 19 to 21, 2005.





Equalization Formula—Comments by Prime Minister

Hon. Daniel Hays (Leader of the Opposition): Honourable senators, my question is directed to the Leader of the Government in the Senate. It concerns issues revolving around the controversy about equalization and what changes may take place.

I wish to start my question by reading a quotation from the platform of the Conservative Party during the last election campaign which stated:

...non-renewable natural resource revenue is removed from the equalization formula to encourage economic growth.

That was a specific quotation from the Conservative campaign platform concerning the new equalization formula they alluded to in their campaign material.

Earlier this week Minister Flaherty told reporters that oil and gas revenue would fall outside the formula. "That was our platform commitment," he said.

Yesterday, the Prime Minister referred to this election promise as just "a preference" and that he wanted to see the results of a federally commissioned report on this issue, expected next week, before a decision will be made.

Has the Prime Minister reversed himself in terms of the Conservative Party commitment made during the last election campaign?

Hon. Marjory LeBreton (Leader of the Government): Honourable senators, I thank Senator Hays for his question.

The Prime Minister has not reversed himself. He was simply stating in the press conference, in an open and honest way, as he always does, the various opinions he is being confronted with on the issue of equalization and fiscal balance. He also said that government is looking forward to reviewing the report of the expert panel on equalization and is already assessing the proposals put forward in the report of the Council of the Federation's advisory panel.

Senator Hays: Honourable senators, Canadians watch these matters carefully. This matter is controversial and I will touch on it in a supplementary question, if I am allowed.

On the issue of the Prime Minister's position being in flux, can the Leader of the Government in the Senate indicate whether or not this will be applicable to many things that were committed to in the election and stated as commitments by the Conservative Party? We heard these commitments through the mouth of the Prime Minister and through the platform documents. Will all these promises simply become preferences?

Senator LeBreton: Honourable senators, it is interesting that the honourable senator would question the Prime Minister's "preference". The Prime Minister stated clearly in the election campaign that the Conservative party would change the way we deal with the child care issue, Kyoto and other issues. In those instances, the honourable senator does not want to accept him at his word.

In this case, I read the article. I know what the Prime Minister said. I also know what Minister Flaherty said. The Prime Minister was simply stating the obvious, that many people have varying views on this issue and he is acknowledging this.

He was simply stating the obvious that there are many different views on the issue. He has not indicated that he has changed his or the party's position. He is simply saying that he is waiting for the report of the O'Brien commission on the whole question of equalization.

Senator Hays: Honourable senators, I am not sure what the government's position is on child care or Kyoto. It seems to me the government is trying to have it both ways. The government seems to say it is committed to Kyoto but it is not committed to Kyoto. On the subject of child care, the government seems to be saying that it is committed to child care but that it will come forward with another program.


On this issue, Premier Lorne Calvert said yesterday:

It's not a preference commitment, it is a commitment.

There can be no other interpretation. It would represent a betrayal to a promise made and a betrayal, I would say, of the support that was earned by this prime minister in the province of Saskatchewan.

To add to the controversy, Premier Klein had said earlier on that he would fight tooth and nail against any proposal to include resource revenue, saying about the government, when commenting on the government's campaign promise:

I would hope they live up to that, otherwise they are going to have a battle on their hands.

Premier McGuinty is also opposed to the inclusion of oil and gas royalties in the calculation, because in his view it would inflate the standard and under the Constitution:

Those oil and gas royalties are not available to be used to make the actual payments.

I put again to the minister: How can she reconcile the views of the premiers, in particular Premier Calvert, on the firmness of the commitment to this rather unsatisfactory position of the Prime Minister that this — and I presume many other matters — in particular is not a commitment to which Canadians can look and be satisfied that the government will act as they understood they would act, based on the election campaign?

Senator LeBreton: I read the comments of Premier Calvert as well. The issue here, as the Prime Minister was answering a question on media availability yesterday — which is rather interesting because some people seem to think he does not answer questions from the media availability — is that he was simply stating the obvious about people having different views on this matter. He did not say that he was breaking any commitment.

Provincial premiers, as they would be obviously wont to do, are just drawing their line in the sand in the event that something that they think may happen actually happens. However, the Prime Minister has said no such thing, and we should wait until the report comes out on equalization which, as has been stated by the Prime Minister and the Minister of Finance, is a federal program.

Human Resources and Social Development

Proposed National Child Care Program—Comments by Leader of the Government

Hon. Art Eggleton: Honourable senators, it is time for a reality check.

Some Hon. Senators: Oh, oh!

Senator Eggleton: To the Honourable Leader of the Government in the Senate, yesterday during Question Period she was responding to a question from Senator Chaput. In that response she said:

During the election campaign, we made our position on child care very clear and it included our intentions with the patchwork agreements that had been signed with some provinces. It is a fact that there was not one single daycare space provided.

First, Madam Minister, you were wrong when you said "some provinces" because all 10 provinces had signed agreements. Second, your facts were wrong when you said that there was not one single space provided because Ontario, for example, created some 14,000 spaces on the strength of the agreement and the new money that was being provided.

Therefore I ask the Leader of the Government to set the record straight on her comments. After all, there were those agreements. Spaces were created. Parents were being given options. Children were getting an opportunity, and your government has decided to walk away from all of that.

Hon. Marjory LeBreton (Leader of the Government): I will not back down from my statement that no child care spaces were provided, because no child care spaces were provided. It was more like what if, what could have been, what might have been with these agreements, these deathbed agreements that the minister ran around signing with the provinces — which, by the way, if my memory serves me correctly, was only committing to one year of funding, in any event. Meanwhile, there were no child care spaces created by that deathbed repentance program.


The fact is that after 13 years of Liberal governments promising a child care plan and not delivering, our government has taken action by introducing a universal child care plan. We are providing $3.7 billion over two years for the universal child care benefit, which will provide all families with $100 a month for each child under age 6. We are also setting aside $250 million for the creation of new care spaces. The goal is to create 25,000 additional spaces each year.

Senator Eggleton: With all due respect, that is not an early-learning and child care program. It is an allowance to be given to people that is totally inadequate to meet the public's needs or provide quality in the way of child care spaces.

The leader talks about a deathbed agreement. Let us remember that many of those governments that signed that agreement in good faith are of the Conservative persuasion, and they believe that this was an opportunity lost. They have been very critical of the government in that regard.

The honourable senator may talk about the 13 years prior to that, but it was, until approximately a year ago, impossible for all of the provinces to agree. They finally agree, and what happens? Her government throws it in the trash can. I beg to differ with the leader on the subject of Ontario, and I will be returning to that subject.

Saskatchewan, for example, planned to create a province-wide nursery program for all four-year-olds. In British Columbia, 6,000 families saw their subsidy for child care increase, and that is all now at risk. As for Ontario, after the 14,000 spaces, they were planning to set up another 11,000, but they had to put a stop to that because the program was cancelled. Manitoba stopped creating spaces, and over 3,000 were lost. Newfoundland and Labrador planned to increase the number of regulated spaces, targeting under-serviced areas. Again, that was lost.

The government simply does not have a viable plan to create child care spaces. The provinces have stated that the plan the government is putting forward with respect to tax incentives to businesses and communities — without ongoing funds to cover the operating costs, I might add — simply will not work. In fact, it was attempted in Ontario, and it did not work. It did not create one single space.

Why does the government not take a step back and pause for a moment before it is too late, work with the provinces, many of which are of the same political stripe, and continue these agreements in order to give parents a choice and children a real opportunity?

Senator LeBreton: As a matter of fact, the government is working with the provinces on the new Conservative government's child care plan.

In the preamble to the honourable senator's question, I made note once again of, "planning to, would have, could have, might have." All that did was underscore the point I made that not one child care space was provided by the could-have, would-have, might-have plan of the previous government.

National Defence

Arctic Sovereignty—Possible Acquisition of Icebreakers

Hon. Bill Rompkey: My question is for the Leader of the Government in the Senate. Some weeks ago, I raised with her the question of Arctic icebreakers, and I would remind her that the Prime Minister made a commitment during the campaign to three full-fledged all-ice Arctic icebreakers and a deepwater port for the Arctic. That was a clear campaign commitment on the part of the Prime Minister.

I want to draw her attention to an article in the National Post on May 30, which says:

The Conservative government is considering buying a new fleet of "ice-capable" corvettes ...

We had corvettes during World War II. They were armed merchant trawlers. They were not ice-strengthened and they cannot operate in the Arctic to patrol Canada's vast Arctic waters:

... and abandoning ... a campaign pledge to build new armed icebreakers for the Canadian Forces.

The article goes on to say:

... it is not expected to be part of Mr. O'Connor's top spending priorities, which he was expected to present to Cabinet today.

This article is dated May 30. The question simply is: At a time of global warming when the Northwest Passage is opening up and many ships are coming through the passage, why is the Prime Minister not keeping the commitment he made, or why are we allowing the bureaucrats to stall a very good commitment that the Prime Minister made during the campaign?


Hon. Marjory LeBreton (Leader of the Government): Again, the honourable senator is basing his question on speculation in a newspaper article. The honourable senator says that the corvettes were used in the Second World War. I do not want to get into the debate about how far back the Sea Kings and helicopters like them were used.

Let us wait until the Minister of National Defence brings forward the plan of the Department of National Defence for the requirements of the department. Let us not start running around responding to questions raised hypothetically in newspaper columns.

Senator Rompkey: Honourable senators, on the question of waiting, let me read from an article in the Ottawa Citizen this morning.

Canada is in a race to beat the melting Arctic sea ice and establish sovereignty over the Northwest Passage before it's too late, says the author of a new book on Arctic history.

Gerard Kenney, whose book Dangerous Passage is being launched today... said that if international ships start using the passage as a common transit route, it will weaken Canada's case for jurisdiction over the waters.

Prime Minister Steven Harper, he writes,

...has promised three new icebreakers and a port for the Arctic — initiatives that Mr. Kenney applauds.

He said Canada also needs a system to make sure that ships report in before they enter the Northwest Passage...

Sheila Watt-Cloutier made these comments on behalf of the Inuit Circumpolar Conference. Ms. Watt-Cloutier told the conference that the Inuit know that their environment is eroding. She said they also know that this erosion is opening up the Northwest Passage to trade by foreign ships.

The question is, what are we going to do now, and when will the Prime Minister keep his commitment to build the icebreakers and the deepwater port?

Senator LeBreton: I thank the honourable senator for his question. I do not think there is anyone who would question this government's commitment to increasing the Canadian Forces capacity to protect Canada's sovereignty in the Arctic, unlike in the past, when ships went through there and did not even bother informing the government.

The Department of National Defence and the Canadian Forces are currently evaluating options to enhance Canadian Forces naval presence in the North. As I said in my earlier answer, let us wait until the Minister of Defence, the officials in the Department of National Defence and the Chief of the Defence Staff have presented to cabinet, Parliament, and the Canadian public what equipment they will require for the short-term and long-term needs of the Canadian Forces.

International Trade

Softwood Lumber Agreement—Consultation with Industry

Hon. Pierrette Ringuette: My question is for the Leader of the Government in the Senate.

Yesterday, in Question Period, I asked why the Alberta Forest Products Association was not, and has still not been, consulted on the softwood agreement. The Leader of the Government answered, "I understand that some smaller stakeholders in the industry have expressed concerns."

Does this imply that the Alberta Forest Products Association is only a small stakeholder? Does this mean that small stakeholders are irrelevant to this government and will not be consulted? Does this mean that small- and medium-sized businesses will be left on their own to survive? Does this mean that the policies of this government will only consider big business?

Hon. Marjory LeBreton (Leader of the Government): The answer is no, this does not mean that.

Senator Ringuette: That is the answer we are accustomed to hearing.

Softwood Lumber Agreement—Request for Tabling

Hon. Pierrette Ringuette: Honourable senators, yesterday, the Leader of the Government refused to allow me to table in this chamber a draft of the softwood agreement. She has refused to do so for four weeks. The government has refused to be open, transparent and accountable on this issue and in this chamber. Not agreeing to table the draft continues the secrecy.


Does this mean that the Senate will have to call either Brian Mulroney or George W. Bush to persuade you to table and study the draft softwood lumber agreement?

Hon. Marjory LeBreton (Leader of the Government): The draft softwood lumber agreement is already before the Senate in that it has been tabled with the Standing Senate Committee on Agriculture and Forestry.

Canada-United States Relations

Border Security—Passport Requirements

Hon. James S. Cowan: Honourable senators, on Tuesday, Canada's Western premiers and territorial leaders urged the government to push for a delay in the new U.S. passport requirements. The requirements imposed by the American government would not only hurt Canada's tourism and export industries, but also limit the individual freedoms of both Americans and Canadians.

Honourable senators, the Western premiers acknowledged the need for better border security. However, as Premier Doer said on Tuesday, if we want to implement these new requirements effectively, we need to delay and to get it right. He was reported in The Globe and Mail this morning as saying that it would be economic suicide for both Canada and the U.S. if the implementation is not delayed.

My question is for the Leader of the Government in the Senate. Will the federal government accept the premier's points and ensure that these harmful requirements are not implemented without being properly studied and assessed?

Hon. Marjory LeBreton (Leader of the Government): I wish to thank the Honourable Senator Cowan for that question. We would all agree that this is a very important issue on both sides of the border, not only for Canadians, but also for Americans living along the border. The honourable senator perhaps heard the comments of the Canadian Ambassador to Washington, the Honourable Michael Wilson, made in Gimli yesterday, as well as the comments of the woman who is the head of a Canada-U.S. business group, applauding the efforts of Ambassador Wilson on this front.

Honourable senators, there is no question that this is an important issue. As I said in answer to an earlier question, this law was passed through the U.S. Congress. There are hopeful signs coming out of the United States. All levels of government, especially in the border states, are working hard to come up with a system or, if the Senate amendment passes, to get a delay so that this does not impede the trade of goods and services or the movement of people across the border.

Senator Cowan: The Prime Minister said that he thought the delay would likely be as a result of discord within the American government and not from any pressure exerted from this side of the border. Whether or not that is a valid assumption, will the Leader of the Government speak to the Prime Minister to ensure that he raises this issue and stands up for Canada when he meets with the President of the United States in Washington on July 6?

Senator LeBreton: I will certainly mention this to the Prime Minister, but I think the fact that the Prime Minister has raised this issue with President Bush is one of the reasons why we are finally getting some results and some attention paid to it. As my colleague Senator Angus has reminded me, this very issue will be raised next week at the Standing Senate Committee on Banking, Trade and Commerce.

This is not a subject that landed on our doorstep on January 23. As a matter of interest, I reviewed the record. I remember previous Leaders of the Government in the Senate were asked questions relating to this matter, first by Senator Oliver, in March 2003; by Senator Andreychuk in April 2004; and then Senator Segal last fall. Yet, little or nothing was done in answer to those questions. When one considers that we won the election on January 23, 2006 and were sworn in on February 6, 2006, more has been done to move this issue along and to find a resolution to it in the little more than 100 days that we have been here than was done for the years since the United States Congress brought in this legislation.

If we look at the results of our efforts in 100 days or so, we have much more reason to be hopeful than we ever have in the past.


Senator Cowan: I take it that the answer to my supplementary question is "yes."

Senator LeBreton: Yes.

The Environment

Kyoto Protocol—Greenhouse Gas Emissions Trading

Hon. Tommy Banks: Honourable senators, my question is to the Leader of the Government in the Senate and it has to do with what seems to be an inconsistency in the government's approach to environmental matters. Yesterday in Question Period the honourable leader stated, in response to a question, that the minister, Rona Ambrose, had met with leaders of other governments who all agreed that Kyoto was not working. The best way to ensure that something does not work is to stop trying. The attitude of the present government seems to be: If at first you do not succeed, quit.

The minister has also met with leaders of nations who have told her that Kyoto is working and that they are achieving those ends. After having met the minister of the environment from the United Kingdom, the minister reported to newspapers that the government was now considering European emissions trading exchanges, which exist.

During the Conservative Party's anti-Kyoto campaign leading up to the last election, the phrase used was, roughly, we are not going into anything that buys Russian hot air. Does the government regard Russia as being part of Europe?

Hon. Marjory LeBreton (Leader of the Government): Honourable senators, that is a rather strange question, I must say. I do not know whether anyone in our government ever suggested that Russia was or was not part of Europe.

The honourable senator referred to my answer to a question yesterday. I will reiterate that Canada did win widespread support among the developed countries represented at the recent Bonn meeting for the leadership role that our country played. That leadership, as I pointed out yesterday, was displayed very admirably by Minister Ambrose and her officials. The minister led a consensus among the countries involved for a two-year assessment, post-2012, which involves the second phase of Kyoto.

Richard Kinley, the acting head of the United Nations climate change secretariat, said of Minister Ambrose in a Montreal Gazette article of May 27, 2006:

The president fulfilled her responsibilities with the complete confidence of the members of the executive and with impartiality.

Minister Ambrose also stated that the United Nations is interested in Canada's effort to engage the United States in taking a more active role in the second phase. At home, the Western premiers have recently announced their support for a made-in-Canada plan and it is clear that, internationally, we have gained support as well.

I think it is unfortunate that the official opposition cannot find a way to support a Canadian plan on climate change. If honourable senators do not believe me, they will have to believe one of their own Liberal leadership candidates, Michael Ignatieff. An article in The Record quotes him as calling Kyoto "a huge political liability" for his party. This was a week and a half ago, on May 23, 2006.

I will quote him directly:

We think Kyoto has been an asset for us. It has actually been a huge political liability.

The article quotes from a speech at a luncheon meeting:

I think our party has got into a mess on the environment. As a practical matter of politics, no one knows what Kyoto is and what it commits us to.

I say to honourable senators opposite: If you do not believe us, at least believe one of your own leadership candidates.

Senator Banks: I will undertake to instruct Mr. Ignatieff as to the nature of Kyoto. I would simplify my question. Notwithstanding the government's undertaking that it would not buy Russian hot air, is the government contemplating the possibility of Canadian companies trading in emissions trading on a European trading exchange?


Senator LeBreton: Again, the honourable senator must get better researchers than the newspapers.

Minister Ambrose met with representatives from the European Community and Great Britain, and they discussed a host of issues. Like most ministers in our government, Minister Ambrose has no problem openly and honestly discussing what was on the table.

Unfortunately, when she has these open and honest discussions — as do other members of our government, including the Prime Minister — they are taken as if they are making firm commitments. Nevertheless, I will encourage ministers to always let the public know what they discuss in an open and honest way.

Senator Banks: Let me be clear: I am entirely in favour of emissions trading. I said the government is contemplating the possibility of emissions trading. I think that is a good thing. I hope that the government is doing that. As there were quotation marks around the words "the possibility", I hope that the minister was not misquoted in that respect.

Before I sit down, I remind the Leader of the Government in the Senate that some time ago — since she has raised the question of a made-in-Canada plan to reduce the emissions — I asked her in Question Period what part of the then present undertakings to reduce emissions were not made in Canada. She undertook that she would find out and get back to me and I am looking forward to that answer.

Senator LeBreton: I thank the honourable senator for his question. I will determine the status of that delayed answer. In addition, I will inquire of Minister Ambrose to find out exactly what she said and whether she was quoted properly.


Delayed Answer to Oral Question

Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable senators, I have the honour of presenting a delayed answer to the oral question raised by Senator Plamondon on April 27, 2006, regarding climate change.

The Environment

Climate Change—Effect on the Economy—Negotiations with United States

(Response to question raised by Hon. Madeleine Plamondon on April 27, 2006)

"Weather Modification" refers to the active attempt to modify, within a few hours at most, existing weather by directly intervening with the current weather in order to, for example, reduce fog or increase precipitation. The UN World Meteorological Organization (WMO) has had a program on Weather Modification Research since 1975 promoting the establishment of sound scientific foundations for weather modification and facilitating the exchange of information for both research and operational activities. It maintains this strong interest because of the possibility of beneficially modifying weather and thus contributing to the mitigation of the adverse effects of drought, hail, fog and severe weather.

Within the scientific community, discussion continues regarding the degree of success of weather modification. For example, the confidence level is very high when dealing with certain types of fog and low to moderate for increasing snowfall and precipitation from clouds. The confidence level is low for suppressing hail.

Nonetheless, there are many nations currently conducting weather modification projects, particularly in arid and semi-arid regions all over the world, where the lack of sufficient water resources limits their ability to meet food, fibre, and energy demands. Obviously, there would be significant benefits for these regions resulting from the successful development of this type of technology.

There are also projects underway in Canada and the USA. In Canada, the insurance industry invests funds annually in weather modification activities targeted at reducing hail damage in the Prairies. Weather modification is conducted in several states in the USA, we believe, associated with severe weather suppression and water management issues. Although the federal government was extensively involved in this type of research in the 1970s, there is currently no federal funding in weather modification. We are informed that the situation is the same in the U.S. federal system.

In addition, neither Canada nor the USA has a federal policy on weather modification. In Canada, there exists a federal Weather Modification Information Act (administered by the Minister of Environment) that requires any operator to "notify" the federal government of any action intended to modify the weather by chemicals. There is no federal license involved and no federal authority to stop the activity.

In the USA, there are currently bills before the legislature which would "develop and implement a comprehensive and coordinated national weather modification research policy." These bills are working their way through their system.

Within this context, you will understand that it is currently difficult, if not impossible, to credibly ascribe any specific economic or other values to weather modification activities. It is also clear that moral, ethical and legal considerations can be, and have been, raised by various interests. This is already clearly acknowledged by practitioners including the WMO, mentioned earlier, the American Meteorological Society and the Canadian Meteorological and Oceanographic Society, to name but a few. These organizations all promote the careful, scientifically sound pursuit of this research in order to ensure that all benefits and impacts are properly assessed.

Although the Canadian and American scientific communities have been exchanging scientific information for many years, there have been no recent formal Canada-USA discussions regarding this technology. As mentioned by Senator Plamondon, there was significant international policy activity through the late 1970s which resulted in the UN "Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques," which entered into force on October 5, 1978 and which Canada ratified on June 11, 1981.


Pages Exchange Program with House of Commons

The Hon. the Speaker: Honourable senators, today we have a House of Commons page with us named Chloé Ward, from Pembroke, Ontario. She is currently enrolled at Carleton University in the Bachelor of Science, honours neuroscience program. On behalf of all honourable senators, I bid you welcome.

Visitor in the Gallery

The Hon. the Speaker: Honourable senators, I draw your attention to the presence at the bar of His Worship the Mayor of Vancouver, Mr. Sam Sullivan. I know that all honourable senators would wish to welcome His Worship to the Senate of Canada.

Hon. Senators: Hear, hear!



Constitution Act, 1867

Bill to Amend—Second Reading—Debate Adjourned

Hon. Marjory LeBreton (Leader of the Government) moved second reading of Bill S-4, to amend the Constitution Act, 1867 (Senate tenure).

She said: Honourable senators, I am pleased to have the opportunity to begin the debate on Bill S-4, which would limit the tenure of senators to eight years. As senators are well aware, currently there is no fixed tenure for senators apart from the broad parameters set out in the Constitution. A senator can potentially serve for as long as 45 years if he or she is appointed at 30 years of age and serves until the mandatory retirement age of 75 years.

In the Speech from the Throne, the government committed to explore means to ensure that the Senate better reflects both the democratic values of Canadians and the needs of Canada's regions. Bill S-4 is an important first step to achieving that objective.

I wish to begin by reviewing the text of the bill, which proposes an amendment to the Constitution Act, 1867, and then provide the context for this important reform. Specifically, the bill would replace the current section 29 of the act with a clause limiting the tenure of senators to eight years. The bill also includes a transitional provision that would allow current senators to continue to hold their appointments until the age of 75 years. Implicit in this amendment is that there would no longer be a mandatory retirement age for new senators. In making this amendment, Parliament would use its powers under section 44 of the Constitution Act, 1982, which states:

...Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

Section 44 is subject to section 42 of the Constitution, which sets out the matters for amendment that would require the support of seven provinces having 50 per cent of the population. Section 42 states in part:

(b) the powers of the Senate and the method of selecting Senators;

(c) the number of members by which a province is entitled to be represented in the Senate...

However, the tenure of senators is not among the items listed under section 42. Bill S-4 does not change in any way the power of the Senate, the method of selection or the distribution of senators by region. There is also a strong precedent for Parliament acting alone to limit the tenure of senators.

With the passage of the Constitution Amendment, 1965, Parliament amended section 29 of the Constitution to reduce the appointment of senators from life to the current mandatory retirement age of 75 years. In this regard, it is interesting to note that a 1980 Supreme Court reference used the 1965 amendment as an example of how Parliament can act unilaterally to amend the Constitution in relation to the Senate.

While honourable senators would agree that the Senate continues to play a valuable role in the review of legislation and the study of key policy issues, the fact is that the Senate has remained essentially unchanged since its first sitting on November 16, 1867. In the meantime, Canada has evolved as have the views of Canadians in regard to their political institutions — witness the tremendous amount of activity and interest across the country in the area of democratic reform and renewal.

We must ask whether the Senate of the 19th century meets the expectations of Canadians in the 21st century. Certainly, Canadians have made it clear that they desire Senate reform. For example, an Environics poll conducted last March showed that a clear majority of respondents indicated their support for Senate reform as opposed to abolition or the status quo. There have been concerted efforts in the past to achieve Senate reform, most notably in the Meech Lake Accord and the Charlottetown Accord.

The Meech Lake Accord instituted an interim measure to allow provincial input into Senate appointments with a longer term objective of fundamental Senate reform. Many of us remember that some senators pointed to this place in the spirit of Meech Lake, namely former Senators Beaudoin and Bolduc.

The Charlottetown Accord would have resulted in fundamental reform of all major aspects of the Senate, including the distribution of senators, the method of appointment and the powers of the Senate. Both initiatives focused on major comprehensive constitutional reform in many areas.

While Senate reform is a key aspect of each proposal, its fate was intertwined with the success or failure of the larger package. When the overall agreements failed, the hopes of Senate reform, however legitimate, also disappeared, notwithstanding the fact that the Senate reform components of these packages had tremendous merit and, indeed, the support of Canadians. That is why this government has taken a fundamentally different approach to reform, a staged approach that would begin the process of reform and thereby provide a foundation for more fundamental reform in the future.

It is interesting to note that the 1984 Molgat-Cosgrove report of the Special Joint Committee on Senate Reform recommended a similar approach to Senate reform. While that report recommended fundamental constitutional reform of the Senate as the ultimate objective, it concluded that certain beneficial reforms could be accomplished immediately. One of the recommendations in the report was that Senate tenure should be limited to a period of nine years and that it be implemented unilaterally by Parliament using section 44 of the Constitution.

Numerous other studies have recommended changes to the Senate. Like the Molgat-Cosgrove report, many of those reports recommended limits to the tenure of senators and listed a wide range of proposals for the length of tenure. For example, the task force report entitled, Regional Representation: the Canadian Partnership, published in 1981 by the Canada West Foundation, and the 1985 report of the Alberta Select Committee on Upper House Reform both recommended that terms be renewable and be limited to the life of two legislatures. The 1992 report of the Special Joint Committee on a Renewed Canada recommended that terms should be for no more than six years. Most of these proposals put forward tenure limits in the context of a Senate election proposal. Past attempts at reform and the sheer number of recommendations for reform that have come forward over the years demonstrate clearly that there is a strong need and demand for Senate reform.

Unfortunately, none of these proposals has come to fruition. As the Prime Minister has observed, while it seems evident that Canadians would like to see improvements to the Senate, the "all or nothing" approach to reform that has characterized previous attempts has resulted in nothing being accomplished.

While the proposed Senate tenure legislation does not address all of the concerns raised about the Senate, it does represent one important first step in a longer process of reform. By making step-by-step improvements and building consensus, we will set the stage for further progress.

Moving away from the text of the amendment, I would like to draw the attention of honourable senators to the bill's preamble, which is important for several reasons. First, the preamble explains why we are taking this important step:

WHEREAS it is important that Canada's representative institutions, including the Senate, continue to evolve in accordance with the principles of modern democracy and the expectations of Canadians;

The third recital states:

WHEREAS the tenure of senators should be consistent with the principles of modern democracy;

In that context, the second recital in the preamble notes that this initiative represents part of the government's commitment to Senate reform as expressed in the Speech from the Throne.

The fourth and fifth recitals indicate, respectively, that Parliament has acted previously to change the tenure of senators, as it did in 1965, and that similarly the change contemplated in Bill S-4 is being taken within the Constitutional authority of Parliament to act alone under section 44.


Finally, the last recital affirms that, in making the change to Senate tenure:

Parliament wishes to maintain the essential characteristics of the Senate within Canada's parliamentary democracy as a chamber of independent, sober second thought;

Taken together, these clauses provide the basis for a reasoned policy rationale for the bill. In that regard, I would like to now expand somewhat on the key messages contained in the preamble.

First of all, one might ask what is meant by the principles of modern democracy and the expectations of Canadians in that regard. We could probably all agree that a number of important principles underlie our democratic institutions, including accountability, legitimacy and effective representation, to name but a few.

I can see Senator St. Germain likes the effective representation part.

Senator St. Germain: Hear, hear!

Senator LeBreton: The key question is: Have our democratic institutions, which are intended to embody those principles, evolved in step with the expectations of Canadians in the 21st century? It is a very key question, which I am sure many of us will, and should if they have not, ask ourselves. Many, myself included, would argue that they have not.

Back in 1867, appointing senators for life may have fitted perfectly into the prevailing views of the time in attempts to model the Senate after the House of Lords. Today, long terms are regarded as one of the main reasons that the Senate lacks legitimacy. Canadians have a hard time believing that the Senate can be a dynamic, democratic institution when there is a potential for a senator to serve for a term of over 40 years.

The property qualifications contained in the Constitution are another good example of how the prevailing attitudes about the Senate have changed. While owning $4,000 in property is not stringent by today's standards for many Canadians, inflation having taken care of that problem, in 1867 it would have been a small fortune, and it meant that, at its inception the Senate was the domain of wealthy individuals. We would not accept that kind of situation today with regard to property, so why would we accept it with regard to Senate tenure? Times have changed, and our institutions must evolve accordingly.

Today, Canadians insist that Parliament should be a vibrant institution that takes into account their needs and expectations. Many feel that appointing senators for lifetime terms is not consistent with that ideal. This in turn has been one of the key contributing factors for the criticism that the Senate has become a stagnant institution and lacks legitimacy. With eight-year terms, the Senate will experience a regular renewal of ideas and perspectives.

Finally, as I mentioned previously, the last recital of the preamble contains a very important statement, and that is that this bill does not change the essential characteristics of the Senate. Specifically, the method of appointment of senators remains the same and the powers of the Senate are not altered in any fashion.

Apart from these factors, I believe that a key characteristic of the Senate is its independence and its role in providing sober second thought in the federal legislative process. Changing the tenure of senators to eight-years will not impair these characteristics at all. Clearly, an eight-year term is significantly different from the average length of an electoral term in the other place. A term of eight years should provide ample time for a senator to gain experience and to put his or her experience to good use for a reasonably long period of time.

In this context, it should be noted that quite a number of senators would have enjoyed a longer time of office under the terms of this bill than they actually received. Honourable senators will recall Senator Doris Anderson and Senator Peggy Butts, who each served only two years. Senator Finestone had two and a half years, Senator Thelma Chalifoux from Alberta was here for seven years, Senator Finnerty for six, Senator Léger for four, Senator Mercier for five years and the list goes on. Former Prime Minister Chrétien alone appointed 22 senators who served fewer than eight years each, a number which reflects only those who left this chamber due to having reached the age of mandatory retirement. There is no danger, therefore, honourable senators, that the Senate would be bereft of experience under this proposal, for who would say that the work the senators I just named was not valuable and did not contribute greatly to the characteristics of the Senate. At the same time, this bill would ensure that the Senate receives a more regular infusion of new ideas.

As I mentioned earlier, the fact that we are not changing the essential characteristics of the Senate is, of course, an important factor in establishing that Parliament can act alone to make this amendment, just as it did in 1965 under Prime Minister Lester B. Pearson. Should Parliament wish to alter a fundamental characteristic of the Senate, this would, of course, require the support of the provinces pursuant to section 42 of the Constitution Act, 1867. That is not the case for this amendment.

Passage of this bill will not in and of itself address all the concerns that have been expressed by Canadians about the Senate, nor will it completely satisfy criticism about its legitimacy as a modern, democratic institution. Further changes would be required to accomplish that objective and, as the Prime Minister has clearly stated, fundamental reform of the Senate is the long-term goal.

As I stated earlier, this bill is an important first step, and it is a step that stands on its own as a laudable and extremely useful measure. If no further reform of the Senate were ever contemplated or accomplished, it would still represent a significant improvement to the status quo.

This bill addresses one of the key concerns that have been expressed about the Senate; lengthy terms are inconsistent with the expectations Canadians have of their democratic institutions. It does so without changing the essential character of the Senate and, indeed, it maintains the independent nature of the Senate and its role as a chamber of sober second thought. It will even enhance those roles by ensuring that the Senate becomes a more vibrant chamber, fuelled by new ideas and experiences.

This bill is not the end of reforms required, but it is an important beginning. It will provide a solid platform for further improvements. Let us respond to the expectations of Canadians and begin the process of modernizing this most important institution. Accordingly, honourable senators, I call on you to support this very worthwhile and worthy amendment to our Constitution.

Hon. Daniel Hays (Leader of the Opposition): Would the minister take a few questions?

Senator LeBreton: Certainly.

Senator Hays: Let me begin by thanking the honourable senator for her comments. They have elaborated on matters relating to the bill and that, of course, is helpful. We will have the bill here for further debate and, at the end of questions, if I am still able to, I will move adjournment of the debate.

I have a couple of questions, some of them very simple, with respect to the term of eight years. Does this change the current Constitution in that the period between 30 and 75, which are now the years of eligibility for a senator, will disappear and a senator of any age will be eligible to serve? Is it clear that the eight-year term could be renewed?

Senator LeBreton: Thank you for the question. As the bill states, the age of retirement is automatic after eight years. It is silent about the minimum age, but by the same token, I would imagine that the same would apply. When we have the bill before committee for purposes of clarification, we could perhaps address this issue.

With regard to the issue of the eight-year term, you will recall, those of you who have studied the Molgat-Cosgrove recommendations, that they recommended a nine-year term, non-renewable. In this case, if we are into a situation of appointing senators that have been elected in a specific jurisdiction, it will only hold that if a person stood for re-election and won.

It is an interesting question, and I am anxious to hear the comments of constitutional experts and other witnesses that will be called to the committee. As it is interpreted at the moment, yes, it would allow for reappointment.


Senator Hays: I have another technical question. Before going to it, it is interesting you anticipate success in bringing forward changes to the Constitution that will see senators elected in the future.

As we all know, the Senate has only a six-month suspensive veto with respect to matters involving the Constitution. This is a government bill introduced in the Senate. I wonder if you could clarify how this sits in terms of the time we would have to consider it, given that we have a six-month suspensive veto on matters involving the Constitution.

I do not envisage this at all, but if this was not dealt with within the six months, would it automatically become a resolution of the House of Commons, should they adopt it, without any further step?

Senator LeBreton: We introduced this government bill in the Senate because we felt it would be the appropriate place to introduce it. It affects this chamber more directly.

On the question of suspense, in discussions with constitutional people, including Senator Beaudoin, I do not recall contemplating that this bill would not come into the Senate. We do not have a gun pointed at anyone's head.

We are trying to start with a modest first step in Senate reform. I will have to leave that question to someone more familiar with constitutional requirements than I am.

Senator Hays: It may be, honourable senators, that we do have an absolute veto in matters of constitutional change proposed under section 44, though I am unsure. I should have done my homework on this, but I thought I could take advantage of your expertise.

The important and interesting aspect is the characterization of this as a first step. I think the questions in all of our minds are: What is the next step? When will the next step be taken? What will the next step be? Can you elaborate on that?

Senator LeBreton: No, I cannot elaborate on that. The Prime Minister has clearly stated, as he did in an interview a few days ago, that this is a modest first step. We will get through this step.

As you know, a wholesale change to the Senate requires an amendment to the Constitution with seven provinces with 50 per cent of the population. Many suggestions have been advanced to the Prime Minister. British Columbia and Alberta have provincial Senate election provisions already in place.

Premier Lord from New Brunswick and Premier Binns from Prince Edward Island have publicly stated that they will look at a proposal for Senate elections in those jurisdictions. These are still ideas on the table, and there is no definitive plan for the next step.

When travelling across the country, the first complaint we get regarding the Senate deals with the very long terms, the fact that a person can be appointed for such a long period of time.

As a matter of fact, there was a precedent. When former Prime Minister Mulroney appointed Senator Stan Waters to the Senate, people made this argument at the time. Although Senator Waters was around 70 years of age when he was appointed, he unfortunately passed away. Had Senator Waters been a younger man and the Prime Minister appointed him because he had been elected by an Alberta election, the same problem would have existed: He would have been appointed until the age of 75.

In the context of democratic reform, the first step would be to use a section of the Constitution that had previously been used by Prime Minister Pearson. It did not require approval from the provinces to make one small step. However, I do not want to hazard a guess nor could I put a timetable on what comes next.

Senator Hays: The question of whether this is the best way to proceed or not is a very good one. It is one we must explore fully in terms of a step-by-step analysis or a more fulsome approach without taking away from the difficulty. I do not know how we can argue that we have Senate reform unless we explore the option more thoroughly.

I notice in your speech you mention the last paragraph of the preamble at least four or five times. You characterized it as supporting the view that this does not require provincial approval. It is not an amendment that rises to that requirement.

Could we ask that you provide us with the opinions or materials you have relied on from the Department of Justice or Intergovernmental Affairs or the Privy Council, the people who have advised and prepared this document so we can get a good start on that issue? Undoubtedly, it will be put into question. The sooner we receive the information will help us answer this question. I am sure we will be in second reading debate for a while, but soon we will go to committee.

Senator LeBreton: I would be happy to share any information in my possession that may be helpful.

I am certain some of the people we consulted will be called as witnesses, such as Professor Monahan, Senator Beaudoin and others, when the bill is sent to committee for a more in-depth study.

Hon. Anne C. Cools: I wonder if the honourable senator will take a question.

I have been listening with care, and two questions arise. Maybe I will ask the easier one first.

There is in constitutional parlance and in the law of Parliament a phrase: the balance and equilibrium of a Constitution. Constitutions are, designed as a whole, intended to function together.

My first question is with respect to tenure. With the creation of the BNA Act, it was thought that the tenure of senators should fall into the same category as the tenure of la superior court judges. If you look at our history, you will see that tenure used to be life for both. The change to move them, judges and senators, from life tenure to age 75 happened roughly at the same point in history.


I am wondering whether, in terms of maintaining the balance of the Constitution, the government is planning to bring forward legislation to lower the tenure of service of superior court judges. An issue that is of significant importance to the design of an upper chamber is the balance and the relationships between all the coordinate parts of the Constitution. If the government has not wrapped its mind around that, I understand. However, I am wondering whether Senator LeBreton has anything to say about the relationship between the tenure of superior court judges and the tenure of senators.

Senator LeBreton: No, I do not. We were dealing with this issue strictly as it relates to the Senate of Canada. I was not part of any discussions in which a link was made to judges of the superior court.

Senator Cools: There is a whole set of important links and balances to many of the sections of the Constitution. One must also look to the law of Parliament and the law of the prerogative, which have not been mentioned.

My second question deals with section 44 of the Constitution Act, 1982, which the honourable senator refers to as Parliament acting unilaterally, but I think the correct term is not "unilaterally" but rather "exclusively." We do not like to say that Parliament acts unilaterally.

My question relates to that of Senator Hays, but it is a little more developed. I am looking for the constitutional authority that asserts that section 44 is adequate to amend the tenure of service of senators. If the constitutional authority is correct that the tenure of senators can be amended by virtue of section 44, I would like to know what the limitations are. In other words, could section 44 be used to amend the tenure of senators to one year? The government has chosen eight years, but under section 44 could the tenure be made one year, one week, one day, or even zero? Could section 44 be used, by amending tenure downward, to paralyze and abolish the Senate?

Senator LeBreton: That is an excellent question. I can hardly wait to hear what the constitutional experts say when the bill is in committee. The advice I received is that this section of the Constitution was used to change the tenure of senators in 1965 and that it is the section that could be used to make this change.

Senator Cools: I am inviting the senator to consider that, first, many so-called constitutional experts may be wrong. Second, constitutional experts are often in the habit, because they are paid to do it, of telling governments what they want to hear. Third, they appear to know a lot about a subject matter of which quite often they really know very little. That is not uncommon among these so-called experts. Frankly, the knowledge of many of them on Parliament's law is scant and scarce.

However, if this section can be used to change tenure of service of a senator to eight years, it can be used to change it to one year or to zero. This is a very important question.

I do not believe that section 44 was intended to be used thus. Senator LeBreton keeps saying "the Parliament of Canada." Section 44 does not say the Parliament of Canada. It says the Senate and the House of Commons. In other words, section 44 can be used for matters that concern the Senate only or the House of Commons only, but not the Parliament of Canada. That is quite a different thing.

In addition, to leave tenure of service to age of senators is certainly a mistaken constitutional phenomenon. I am very interested in the constitutional authority for this. I am interested to know what law they are relying on to make these statements, and I look forward to the debate.

The composition and service of the Senate is something in which many of us have more than a passing interest. I do not take the view that many do that because this bill does not touch me personally I should not be concerned. That is not how I approach life.

Where there is a requirement for change and improvement — and I have no doubt that these requirements exist — the best way to proceed is usually the most constitutionally appropriate way and the most legal way, rather than to act in haste. It worries me quite a bit. The phenomenon of changing the age of retirement is not the same or equal, constitutionally, as changing tenure. Tenure goes far beyond personal matters. When the age for service was changed, that was consistent with the Constitution, and it maintained the balance. At the time that the BNA Act was enacted, the average life span was 47 years, and the notion of life service was different.

There is an old joke that Sir Wilfrid Laurier appointed a 73-year-old and then suggested, "Don't worry, it won't be long before the seat is open again." It turns out that the "old boy" lived to be 103 or something like that.

We must ensure that the balance and equilibrium of the Constitution is well-maintained. Most people, including myself, would like to see change, but change should be made properly. Senator LeBreton listed the number of senators who served for two years or three years — and one actually served for only six months — in the past 10 years. It has always broken my heart that the Senate unfortunately became what prime ministers made it. There are huge problems with the Senate, but we must place these problems at the doorsteps of successive prime ministers, because they created the Senate that they wanted.

Senator LeBreton: We are not acting in haste. Some of the constitutional experts whom we consulted were not paid for by the government. Senator Beaudoin, who toils as a professor at the University of Ottawa, is not on the government payroll.

Hon. Joan Fraser (Deputy Leader of the Opposition): I have two questions which I should like to precede with a request piggybacked on Senator Cools' point. She made an important point with her question about how far Parliament could go in diminishing tenure. Indeed, if there is no limit, it could be a backdoor way to abolition which, as we know, is something that ought to take provincial consent.


When the Leader of the Government is providing us with documentation, could she give us information about the advice the government was given concerning the dividing line at which it would become necessary, in the government's view, to seek provincial consent for a change in the term of Senate positions?

If we are doing away with the upper age limit and we continue to have a system of appointment to the Senate, what would prevent a prime minister over time — and not that much time actually — from appointing a bunch of octogenarians, nonagenarians and centenarians? I have infinite respect for people of advanced age; I hope to be one myself. However, their energies tend to be less. In other words, one could predict this might limit the effectiveness of the Senate. What would protect us against that?

Senator LeBreton: I had not thought of that scenario. I hope the debate can be such that we see this for what it is in terms of taking this first modest step to making changes in this place that will bring it more in line with public expectations. I cannot envisage a scenario where a prime minister would do such a thing.

The short answer is that I do not have an answer to that question.

Senator Oliver: They would have to be elected first.

Senator LeBreton: That is right, they would have to be elected.

Senator Fraser: That was, perhaps, a slightly exaggerated way to say that it seems to me there might be a limit in re-examining the notion of ditching upper age limits.

My second question relates to the preamble. I was pleased to see in the preamble the reference to this place as "a chamber of independent, sober second thought..." I think it was Senator Grafstein who first pointed out to me that once a bill like this becomes law, the preamble disappears, never to be seen again — but recognition is welcome wherever it comes.

However, it is pretty well-known that one of the greatest levers any person with the power of hiring or appointment has over those who are hired or appointed is the power to fire or not to reappoint, in the case of contract or term employees. This is a well-established way to keep people in line. If the government is talking about a system in which senators could be reappointed, what does that do to our capacity to provide that independent thought?

Senator LeBreton: I thank Senator Fraser for her question. The debate about reappointment has always been predicated on the scenario, if it were to come to pass, of an elected senator winning re-election and then being reappointed. Senators are appointed now and we cannot be fired unless we do something that is against the rules and is clearly illegal or treasonous.

There has been much speculation about the potential of reappointment. I have raised the subject before. However, such a potential is always predicated on someone winning an election in a province, if that is the route we follow, then being appointed, then winning re-election and then being reappointed. That would be the argument for reappointment.

It is one of those questions about which, quite frankly, I am looking forward to hearing the debate on when this bill goes to committee as to how we actually deal with that particular issue.

All of these questions are valid. What this bill will do is provoke debate. There will be some interesting scenarios and some historical information brought forward about which some of us may not be aware.

That is one of the reasons I am hopeful this bill will receive a solid hearing in the Senate and in committee. Many of these questions will be answered by people who are much more knowledgeable than I on the subject of constitutional law and historical facts.

Hon. Sharon Carstairs: Honourable senators, as I read section 44 of the Constitution, it provides an absolute veto on the part of the Senate. What is important to consider as part of this debate is the fact that there are sections that require a suspensive or 180-day veto for the Senate, but this is not one of them.

My question has to do with the eight-year term. There is a bit of déjà vu here because my father was in the Senate in 1965. He was, in fact, a lifer. I remember this discussion at the family table and here we are having the same discussion yet again.

In the past there was a reference to the Supreme Court. That reference clearly indicated that there could not be fundamental change to the Senate of Canada without consultation with the provinces.

An argument can be made, and certainly Senator Murray made it yesterday in the media, that perhaps eight years is a fundamental change and therefore needs to be referred to the provinces. My specific question is: Why did the government make a determination of eight years rather than, for example, 12 years, which is the average life term, or has been, for senators in this place?

Senator LeBreton: I thank Senator Carstairs for her question.

Originally, a term of six years was suggested. We then went back and looked at the Molgat-Cosgrove recommendation for a 12-year term. The Australian example of six years was advanced, after which the committee came back with its nine-year recommendation.

The eight-year term in this bill is part of the government's democratic reform package, as I pointed out earlier. As honourable senators know, a bill to provide for fixed election dates was presented in the other place. The eight-year term was chosen for the Senate as it would equate to two cycles in the other place. It was chosen because it is a reasonable number of years. It would provide people appointed to the Senate with ample opportunity to serve. At the same time, it would allow the Senate to have more turnover. As I have said publicly, it is a way to refresh and bring new ideas into the Senate. That is really why the eight years was chosen. Again, all of these questions will make for great debate in this chamber and before the committee when we call in the constitutional and parliamentary experts.


Senator Carstairs: My second question has to do with the issue of what I consider to be, and have always considered to be, age discrimination. One cannot sit in this chamber until reaching age 30; one cannot sit in this chamber later than age 75. Because I believe that is an offence against the Charter, I want to know why that was not eliminated at the same time?

The second issue is, at the same time, why did we not get rid of that anachronism called the $4,000 property qualification?

Senator LeBreton: Thank you, Senator Carstairs. Actually, Senator Hays raised the question about the minimum age. Obviously the maximum age of 75 is waived, so it will be perhaps an amendment in committee. As I said to Senator Hays, it would only stand to reason: if we are to remove the requirement at one end, why would we not do so at the other?

Hon. Percy Downe: On numerous occasions in her remarks today, the Leader of the Government in the Senate referred to the changes made by Prime Minister Pearson in 1965. However, since 1965 the rules have changed. We have the Constitution Act of 1982 and the Charter of Rights. I noticed that previous governments have enquired on numerous occasions about making similar changes. We were always advised that, since 1982, the Department of Justice took the opinion that any changes to the term for senators would be under section 42, not section 44.

My question is: Did the government seek a legal opinion from the Department of Justice, and if so, would the minister table that before we start our debate?

Senator LeBreton: Thank you, Senator Downe. We had obviously had opinions from the Department of Justice and the Privy Council, and I will ask if it is possible to provide those documents. When we get into the committee hearings, I am sure all of those documents can be tabled at the committee, but I will ascertain exactly what the situation is.

Senator Downe: Thank you. As the minister is well aware, not all of the documents of confidence to the cabinet are prime minister's documents, but I know from my previous experience that the opinion of the Privy Council Office at the time was that this could not be done. I would like to see what has changed since 1998 to today.

Senator LeBreton: The honourable senator has the advantage of having had a position in the Prime Minister's Office similar to the one that I had, so I cannot tell who gave you your advice or why it has changed, Senator Downe, but I will certainly attempt to find out if there are different advisors.

We have been working on this issue for some time, and we have been looking at it for an even longer time. However, I will certainly ask the question of the people with whom I work over in the Privy Council Office. I am really impressed that you have managed to keep those documents. I do not remember keeping many of the documents from when I was in the PMO, but in any event I thank you, Senator Downe.

Senator Downe: You will need those documents for your book, minister.

Senator LeBreton: I am not writing a book.

Hon. Serge Joyal: I would like to commend the Leader of the Government on having introduced this important bill in the Senate. It is proper that the Senate be first to consider it. I appreciate the initiative.

The honourable senator has referred on many occasions in her speech to the last "whereas" that deals with the maintenance, and states, "to maintain the essential characteristics of the Senate within Canada's parliamentary democracy..."

I understand, of course, that the honourable senator refers to the Constitution of Canada. In my opinion, the tenure of a senator is an essential characteristic of the Senate of Canada. In fact, there is a specific provision in the Constitution for it. It is section 29. As I read section 29 of the Constitution, the heading is "Tenure of Place in Senate." Then, of course, the two paragraphs of section 29. The tenure of place in the Senate is one of the essential characteristics as provided in the Constitution of Canada.

Therefore I want to ask of the honourable senator how she can contend that to change the tenure of place in the Senate that Canada as provided for in the present Constitution, as it is proposed in Bill S-4, does not change an essential characteristic of the Senate, because the Constitution originally had a very specific objective in providing for the tenure; a long-term tenure. How does the honourable senator contend that the change provided in Bill S-4 in fact does not substantially change an essential characteristic as provided in section 29?

Senator LeBreton: Thank you, Senator Joyal. The advice that we received is that certainly the overall characteristics of the Senate and its legislative role does not change simply because senators are appointed for eight years instead of 20 or 30 or retiring at age 75. That will be a great debate when we call the witnesses. I pointed out that there were many senators who did not serve eight years — many indeed — and they served this place very admirably. The fact that they had shorter terms than eight years did not in any way alter the role or the characteristics of the Senate.

I was persuaded by the argument advanced by people who talked about this section in the Constitution that a simple step like changing the tenure of senators to eight years in fact will not change the work of the Senate or what we do in the Senate. As a matter of fact, one could make the argument that it would enhance it because there would be people coming in with new ideas and new approaches. It would, in my view, strengthen the characteristics of the Senate.

However, again, Senator Joyal, certainly the government and I, and the Prime Minister, recognized that when we introduced this bill in the Senate, it would provoke vigorous and knowledge-based debate. That was certainly the view of Senator Beaudoin, and he repeated it again yesterday. I saw him on one of the television panels. However, Senator Beaudoin was adamant in his view. It is as the old saying says: Ask 10 people for an opinion and there will be 10 different opinions. I suppose that will be one of the debates we will have as this bill makes its way through the chamber and into committee, and then back into the chamber.

Senator Joyal: Again, in the same "whereas" that was quoted by the honourable senator, the honourable senator referred to the Senate as a chamber of independent, sober second thought. Nowhere in the Constitution of 1867 do we find those qualifications: "Independent, sober second thought." Those qualifications stem from the essential characteristic of the Senate, as provided in the Constitution.


If the honourable senator contends that changing the senators' terms does not impinge on the independence or capacity of the institution to provide sober second thought, in fact, there is a direct relation to the nature of the Senate's independence. The Senate has a longer term than the other place; we are not dependent on the electoral cycle. The turnover in the Senate is not linked to an election. As you know, it is linked to retirement age or to a senator wilfully withdrawing from the Senate, as has happened in the past. Senators might resign for reasons such as health reasons or to pursue other careers.

The same applies to sober second thought. How can we portend to provide sober second thought? Because we come here at an age when most, if not all, of us, are of the average age of 50 or over. We come here having had the benefit of gaining professional experience prior to being called to this place by Her Majesty's representative. There is a link between the age factor to qualify at the beginning and the term. That is what provides the independence and the sober second thought.

In my opinion, the government cannot simply say we will make it six years, or eight years, or why not nine years, as has been quoted from various reports. To determine an age factor for this place, if we are to maintain it in its essential characteristic, as the honourable senator contends this bill does, we have to take into account the kind of work we expect from this chamber.

The honourable senator has not explained how the bill maintains that link. In other words, the age factor is very important for determining the type of people who are chosen, the kind of experience we expect of them, and, of course, the kind of outcome we expect this house to provide, which is different than the other place. No one thinks that the other place is independent and provides sober second thought.

There are reasons why this place provides independence and sober second thought in its deliberative function. That is essentially what we are. We are a deliberative chamber, and we bring to our deliberations certain qualifications that the other place does not provide. Why? Because the tenure of place to me is a determining factor. The moment you change that, it has an impact on the end result. In fact, I refer honourable senators to the Wakeham report by the Royal Commission in the Westminster Parliament, where we derive our principle. The Royal Commission on the reform of the House of Lords provides a very illuminating chapter on tenure and makes specific proposals as to the length of time, provided we respect the objectives and purpose of a second chamber.

I wish to hear from the honourable senator how the government is so convinced that what she proposes now does not in fact change the essential characteristics that command the kind of work that this house is expected to perform in their deliberative function.

Senator LeBreton: I thank the honourable senator. He makes a very persuasive argument.

I happen to be of the view — and again, we do not all share this view — that the fundamental characteristics of the Senate would not be compromised. What may have been seen as a characteristic in 1867 has likely evolved as our Senate has evolved.

The honourable senator makes good points, but obviously, there is one view expressed here. There will be other views on both sides of the chamber, and it will not necessarily follow any particular political line but simply the strongly-held views of individual senators. The points made by the honourable senator are valuable to the debate on this bill, as well as when we call experts as witnesses before the committee.

I have listened to Senator Joyal many times. He has a great understanding and appreciation of the historical and traditional roles of the Senate and Parliament. I cannot give him an answer that he will agree with, as I believe that this step that we are taking is a very small step. It will help revitalize and modernize the Senate, and I do not personally believe that these steps will, in fact, alter the fundamental characteristics of the Senate as we now know it.

Hon. Jerahmiel S. Grafstein: I will try to be brief. Senator Joyal has raised the concern that I share, which is the nature of the deliberative process here and how we preserve this as a chamber of sober second thought. Each of us in this chamber would agree that is essential.

Let me draw a more acute comparison. There is another process in Canada that shares some of the same characteristics of the Senate, and that is, going back to William Blackstone and his chapter entitled "The Separation of Powers". There is a separation of powers from the executive on the other side. We, in turn, share that separation of powers. We are to be a cross-check on both the executive and the other place. The other place is a cross-check on the Senate and the executive. Those are the checks on power built into the system.

The final check is the judicial process. Would the characteristics of the deliberative process under the judicial system be changed if the government chose to appoint judges for eight years?

Senator LeBreton: I thank the honourable senator. That is similar to the question asked by Senator Cools.

I do not think we should be reading anything more into this than the intent of the legislation, which is to modernize and bring the Senate more into line with modern democracies. Its intent is to introduce a system whereby people appointed to this chamber serve a term of eight years. People should not be assuming any motive as to what comes next in terms of the judiciary, because there is no such motive. This is simply an effort to modernize, revitalize and address some serious concerns we have heard across the country. Canadians have told us that the Senate is no longer seen as a viable, democratic institution.

Senator Grafstein: The Supreme Court of Canada has made it the heart of its argument that no changes can be made to Parliament without Constitutional amendment in the form with which we are all familiar.

The pith and substance of its argument was that one chamber or one part of this three-footed organizational structure within Parliament — the executive, the House or the Senate — could not change without the proper amending formula.


Therefore, the question that I ask is not about a little change, a satisfactory change, a step in the right direction or a little modernization, a little bit of this and that, and hoping it all works out. The Supreme Court said that if we change the essential characteristic of any House or any aspect of our governance, a constitutional amendment is required.

I ask the Leader of the Government in the Senate again, is it not fair to compare Senate appointments with judicial appointments, which by their nature hold certain characteristics of independence in the same way that we share in this place, and if there is a difference in the nature of that process, does it not change the essential nature and characteristics that would require, according to the Supreme Court, a constitutional amendment?

Senator LeBreton: Honourable senators, the question hinges on the argument about whether we believe the bill would make changes to the essential characteristics of the Senate. The premise of this bill is that it does not. The constitutional advice we received, including from former Senator Beaudoin, was that this would not require a reference to the courts because the bill does not change the essential characteristics of the Senate.

That is the hill on which this debate will be fought, but the advice that we were given — and I certainly have a great deal of faith in the advice of people such as former Senator Beaudoin — is that in no way would this particular piece of legislation that we have tabled here in terms of the eight-year tenure in any way be challenged in the courts.

Therefore, the honourable senator's question and those of Senator Joyal get to the nub of the issue as to what we believe are the essential characteristics of the Senate. I personally believe — other people obviously do not, and maybe some on your side agree — that this is a modest first step and that this bill does not in any way alter the essential characteristics of the Senate.

Hon. Tommy Banks: The government has obviously carefully considered the matter addressed in this bill, including the question of essential characteristics.

I believe that all senators would agree that the most essential characteristic, the pivotally important characteristic of the Senate — the raison d'être of the Senate — is its independence, as referred to in the last paragraph of the preamble to this bill. If the Senate is not independent, there is no rational reason for its existence.

As I read the bill, it permits reappointment to a second term; at least, it does not preclude reappointment to a second term. I ask the Leader of the Government in the Senate to imagine a situation in which a young person of, say, 40, 45 or 50 years of age has been appointed to the Senate, has served eight years, and either is deserving of or seeks reappointment, which would be at the pleasure, in the present circumstances, with which we must deal, of the Prime Minister.

Is it possible to imagine the independence of the Senate or of that particular senator or of other senators in that situation being genuinely maintained when, in order to be reappointed, they must not, unless he or she is a most remarkable person, incur the enmity or displeasure of whoever happens to be the Prime Minister of the moment?

I will speak immodestly personally, that I was appointed by a Prime Minister — and served under a succeeding Prime Minister and now under another one — whose displeasure I invoked from time to time, but I did so without fear or favour because, to be blunt, he could not get rid of me. I am wondering about the dichotomy that exists between reappointment being a possibility after the first eight years, on the one hand, and independence, on the other. They seem to me to be mutually exclusive.

Senator LeBreton: Honourable senators, that is part of the same debate. The hypothetical situation of reappointment is always predicated on the person seeking re-election. Another Prime Minister may treat this piece of legislation a little differently, but the fact is, that is one of those interesting hypothetical scenarios that will make great debate in this place when the bill is referred to the committee.

Hon. Elaine McCoy: I have a question for the Leader of the Government. Bill S-4 refers twice in its preamble to "principles of modern democracy." Would the leader please recite those principles for the edification of the chamber?

Senator LeBreton: How many hours does the honourable senator have? Was she present for my entire speech?

I will take that question as notice. We could get into a philosophical debate about the principles of modern democracy that would keep us going for another four or five hours.

I am anxious to hear the honourable senator's speech on this issue. If I have questions, I will ask them. If she will share with us in her speech her views as to what she sees as principles of modern democracy, I would welcome hearing them.

Senator McCoy: Did I take the Leader of the Government to have said that she would take my question as notice and present those principles as she understands them to us?

Senator LeBreton: I simply said that if we got into a debate on the principles of modern democracy, as the honourable senator is asking this question in the context of my speech, I will return to my office and construct a few paragraphs of what I believe are the principles of modern democracy and be happy to provide them to the honourable senator.

On motion of Senator Hays, debate adjourned.


Criminal Code

Bill to Amend—Second Reading—Debate Adjourned

Hon. Jerahmiel S. Grafstein moved second reading of Bill S-206, to amend the Criminal Code (suicide bombings).—(Honourable Senator Grafstein).

He said: Honourable senators will recall that the subject matter of Bill S-206 was placed on the Order Paper as Bill S-43, with second reading on October 18, 2005, in the last Parliament. The bill died on the Order Paper when the Thirty-eighth Parliament was dissolved on November 29, 2005.

Bill S-43 was, as Bill S-206 is, a simple amendment to clarify an explicit gap in the language of the Criminal Code. Section 83.01 of the Criminal Code is amended by adding the following, after subsection (1.1):

(1.2) For greater certainty, a "suicide bombing" comes within paragraph (a) and (b) of the definition — "Terrorist activity" in subsection (1).

This amendment would clearly establish "suicide bombing" per se as a criminal offence. For over four years, the Organization for Security and Cooperation in Europe, the world's largest international governmental and parliamentary organization dedicated to human rights, where I am privileged to serve as a senior officer, has consistently passed unanimous resolutions, including Canada, condemning suicide bombing as a crime, and specifically as a crime against humanity.

From Vladistock to Vancouver, 55 civilized states, including Canada, are active members of the OSCE. The OSCE emerged in 1990 from the Helsinki process that started in 1974. The parliamentary assembly's most recent resolution on "suicide bombing," reciting a more than four-year history of the OSCE resolution, was adopted, once again unanimously at the last annual parliamentary assembly of the OSCE in Washington in July 2005, to place this amendment to our code in the proper and appropriate international context.

As an active member of the international organization and an active member state of the OSCE, Canada has consistently supported resolutions declaring "suicide bombing" as a crime, and specifically a "crime against humanity." The obvious purpose of this amendment is to conform Canada's international principles and practices to our domestic criminal law. Honourable senators, we have learned that "principles and practices march best when they march together."

This amendment fully accords with Jewish, Christian and Muslim teachings against the intentional homicide of innocent persons and innocent lives by persons committing suicide by their tragic action.

Honourable senators will recall last July 18, in response to suicide bombings in London on July 7, more than 500 British Muslim religious leaders and scholars offered condolences to the families of victims and issued a fatwa that condemns "the use of violence and the destruction of innocent lives." The fatwa goes on to say that "suicide bombings are vehemently prohibited." This fatwa was proclaimed by the British Muslim Forum, BMF, outside the British Houses of Parliament. There, the BMF Secretary-General, Gul Mohammad, quoted from the Koran, saying, "Whoever kills a human being ... then it is as though he has killed all mankind; and whoever saves a human life it is as though he had saved all mankind." He then quoted the Koran, Surah al-Maidah paragraph 5, verse 32.

That honourable gentleman went on to say:

Islam's position is clear and unequivocal: murder of one soul is the murder of the whole of humanity; he who shows no respect for human life is an enemy of humanity.

About 50 Muslim leaders and scholars from around the U.K. stood together outside the Houses of Parliament in London in support of Mr. Mohammad as he publicly read out this fatwa.

In a separate public statement, the British Muslim Forum, with nearly 300 mosques in the U.K. affiliated to it, noted that this fatwa would be read out in all the mosques across Britain on July 22, and it was. This public statement also stated, "We pray for the defeat of extremism and terrorism in the world."

Then, 40 Islamic leaders and scholars at a meeting of London's Islamic Culture Centre, organized by the Muslim Council of Britain, MCB, issued yet another declaration denouncing "suicide bombings."

Honourable senators will recall, even before the time of Moses, the intentional taking of innocent human life was prohibited. Witness the story of Cain and Abel. This edict was encapsulated in the sixth of the Ten Commandments. At Sinai, in the two tablets of the Covenant that Moses unveiled, the idea of freedom was limited or circumscribed by the Ten Commandments. One tablet dealt with honour and respect and the other with human well being. That Decalogue is found in the Old Testament, in Exodus 20:13; and in Deuteronomy 5:17. The original Aramaic text of the Old Testament uses different words for intentional versus unintentional killing.

The King James Version in modern translations now uses this translation: "You shall not murder." This translation is more linguistically nuanced and more closely represents the original meaning of the ancient Hebrew text. The original root Hebrew word of "tirtzach" in the sixth Commandment is "ratzach", which ordinarily refers to intentional killing without cause.

The Talmud then went on to explain, in references to suicide, which "For the world was created for only one individual to indicate that he who destroys one human life is considered as though he destroyed the whole world." In effect the Talmud echoed the Koran.

Hebrew law considered accidental killing as not punishable. The Old Testament distinguished carefully between intentional murder without cause and accidental killing. Thus, in the Old Testament, "cities of refuge" were designated so that an unintentional killer could flee to escape revenge or retribution. Under the Old Testament, breaking other sacred laws such as honouring the Sabbath is permissible if breaking that law will help save just one human life. To protect one's own life against intentional murder by another, the law of self defence is equally permissible.

Christian theology, including Protestant, Catholic, Orthodox and Eastern Rites denominations, makes it equally clear, prohibiting intentional murder of innocent people.

In Matthew 19:18, Jesus said "Thou shalt do no murder." Killing in self-defence is also not deemed murder within the confines of the New Testament. As for suicides, Corinthians 6:19-20 prohibit taking of one's own life. Those more familiar with this Christian coda might be more expansive on Christian theology than I on the question of intentional taking of innocent lives with mens rea.

The entire rationale for our Criminal Code is to be precise. To ensure that crimes are proved beyond a reasonable doubt. Strict onus of proof remains with the state. Clarity is essential when the Criminal Code and the power of the state are arraigned against any person.

The Criminal Code, honourable senators, is a codification of our laws of conduct pertaining to our civilized society and our civilization. Is there any reason, honourable senators, not to clarify the Criminal Code and make "suicide bombings" an express, explicit criminal offence? On the careful reading of our Criminal Code and the Anti-terrorism Act, there was no specific criminal offence of "suicide bombing" per se.

A specific prohibition against "suicide bombing" would directly assist and enhance the prosecutions of those unsuccessful "suicide bombers" and of those who individually and collectively conspire to assist in "suicide bombings." Peace, order and good government lies at the base of Canada's system of the rule of law. "Suicide bombing" is contrary to the heart of the national principles of constitutional governance.

Our criminal law as it stands does not expressly prohibit those who intentionally choose to lose their own lives as a means of taking as many other civilian lives as possible. If "suicide bombing" is tantamount to "homicide," the Criminal Code should eliminate any doubt about it as a clear-cut, express criminal offence.

This surgical amendment will help to bring attempted suicide bombers and those collaborating with them to justice. This surgical amendment would discourage, as the Criminal Code should, the encouragement of such conduct that we conclude is abhorrent to our entire civilized society. While a modest amendment, it represents an important clarification of the principles deeply embedded in our Criminal Code.

The Criminal Code evolved to give greater emphasis to victims, including their families. This amendment would help to remediate appropriate victims' concerns.


The nature of criminal law is to mediate between morality and reason. The purpose of criminal law is to draw precise lines between acceptable and aberrant behaviour. In the process, criminal law forewarns, censures, ostracizes, isolates and seeks to undermine and hopefully reduce, if not expunge, aberrant behaviour from our civic society. The criminal law requires precision rather than vagueness as the state arraigns its mighty powers against aberrant behaviour of the individual.

Honourable senators, I believe I have made the case to remediate our Criminal Code and the criminal law to prohibit expressly "suicide bombings" under the Criminal Code.

I commend to honourable senators a book that was published after this bill was first introduced, entitled: Dying to Win: The Strategic Logic of Suicide Terrorism, by Robert Pape, a professor from the University of Chicago. In it, he painstakingly analyses and documents a demographic profile of suicide bombers and the groups who conspire to assist and aid them. He concludes that, for the most part, these individuals are neither poor, nor desperate, nor uneducated religious fanatics. More often than not, they are well-educated, middle-class, political activists.

Honourable senators, we spend most of our life in politics. We have observed desperate politics at home and desperate politics abroad. With this human weapon, suicide bombers have taken political activism to a profound level beyond the core of our civilized principles and beliefs.

The sad news is, I quote from a message I received just last Tuesday from Mr. Pape from Chicago:

Suicide terrorism continues to rise rapidly around the world.

Honourable senators, cannot Canada follow the lead of 54 other countries of the OSCE who have condemned suicide bombings as abhorrent to all civilized societies?

I remain indebted to my parliamentary colleagues at the OSCE and the work of a Canadian organization, Canadians Against Suicide Bombing, who have urged the UN and Parliament to take action to remediate and remedy this unnecessary uncertainty in our criminal laws. Their website has received over 35,000 hits, which indicates a deep interest in this issue from Canadians from every corner of our land. The legal views I have reviewed include those of Professor Jean Castel.

I urge a speedy adoption of this amendment. This amendment would send a clear message of abhorrence and condemnation to those who would praise, plan or implement suicide bombing against innocent citizens.

Let me end with this quote from my old distinguished mentor, Dean Cecil Augustus Wright, of the University of Toronto Law School, in a speech he made at the opening of the University of Toronto Faculty of Law in 1962, when he quoted Mr. Justice Frankfurter of the U.S. Supreme Court:

Fragile as reason is, and limited as the law is as the expression of the institutionalized medium of reason, that's all we have standing between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feeling.

Honourable senators, this amendment reaches into the pith and substance of our Criminal Code. I commend its support from this chamber.

On motion of Senator Comeau, debate adjourned

National Blood Donor Week Bill

Second Reading—Debate Adjourned

Hon. Terry M. Mercer moved second reading of Bill S-214, respecting a National Blood Donor Week.—(Honourable Senator Mercer)

He said: Honourable senators, I am pleased to rise in this chamber today to speak at second reading of Bill S-214, respecting a National Blood Donor Week.

I am bringing forward this piece of legislation with the help of my colleague, the Honourable Senator Cochrane from Newfoundland and Labrador as well as several members of Parliament representing all of the political parties.

Last year, Canadian Blood Services and Héma-Québec approached parliamentarians asking for our support in order to bring this legislation forward. We were committed then and we are still committed now.

Honourable senators, this bill will allow the federal government to designate a week in June, which coincides with World Blood Donor Day on June 14, National Blood Donor Week. This proposed legislation supports the ongoing efforts throughout the year to recruit blood, plasma, platelet and bone marrow donors. These donors are the foundation of our national blood system, but the bill will also provide an opportunity for Canadians to take time to celebrate and to thank the donors and volunteers who contribute their precious time and their blood products to help their fellow Canadians.

I believe honourable senators will agree that this is a cause worthy of the support of the Senate of Canada, the House of Commons and all Canadians from coast to coast to coast.

Honourable senators, blood operators act on the basis that safety is vital. Each unit is manufactured into as many as three different products used in a variety of ways. Not many people realize that it can take 50 units of blood to treat one trauma case, 100 units for one liver transplant and six units for one heart bypass surgery. These are only a few of the reasons that blood operators need our support.

Another reason that blood operators need our support is a little 7-year-old girl named Shanelle Longman of Regina, Saskatchewan. Shanelle has had so many transfusions of blood, plasma and platelets during her two years of active treatment for leukemia that her family lost count. Cancer-free today, she has only a few words to say about the blood donors before she rushes off to play with her grade 2 classmates: "I am very happy they were there." I could not have said it better myself.

The fact is that the two blood operators collect an annual 1.1 million units of blood from less than 4 per cent of the eligible donor population. This percentage must increase. With the help of this bill, Canadians will realize that they can no longer wait for their neighbour to donate blood. This is why I am so pleased to have been asked again to lead this all-party effort to support the designation of a National Blood Donor Week.

I wish to thank my many colleagues who have agreed to work with me to ensure that this bill is passed as quickly as possible. Given the approach of World Blood Donor Day, on June 14, I am encouraged to see that we can all come together for one common cause, a cause that will touch the lives of more than half of Canadians at some point in their future.

Thank you, honourable senators.


Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable senators, with leave of the Senate and notwithstanding rule 37(3), I ask that the period of time normally reserved for the first senator to speak immediately after the sponsor of the bill not go to Senator Cochrane, but be reserved instead for the honourable senator who will speak on behalf of the government.

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

Hon. Senators: Agreed.


Hon. Ethel Cochrane: Honourable senators, it is a pleasure to rise today to echo the comments made by the Honourable Senator Mercer concerning Bill S-214, an act respecting a National Blood Donor Week.

In supporting a National Blood Donor Week in Canada, honourable senators will join citizens around the world in celebrating donations of blood, plasma, platelet and bone marrow. These are true acts of heroism. The World Health Organization celebrates World Blood Donor Day on June 14 every year, at which time 190 World Health Organization member states and over 200 voluntary blood donor organizations lend their support to this particular cause. This bill will allow Canadians to join in this worldwide effort with a full week of celebration each and every year.


The blood system operators, Héma-Quebec and Canadian Blood Services, along with Health Canada and the provinces and territories, work together to support a blood system that is first class and among the safest in the world. This is a system whose blood and blood products keep people alive and improve their quality of life. It ensures the safety of every product through state-of-the-art testing that continues to evolve with advances in science.

Honourable senators, I would like to remind you all of the scope of the blood system in Canada. Donations are gathered at 45 permanent collection sites and more than 17,000 special mobile clinics held annually across Canada. In fact, one of these mobile clinics will be right here on Parliament Hill next week to collect blood donations. These sites and clinics are operated by almost 6,000 employees, with the help of more than 40,000 volunteers. These efforts result in the yearly collection of almost 1.1 million units of blood for over half a million donors. That is our blood system.

However, as Senator Mercer said in his remarks — and I think this merits repeating — less than 4 per cent of those eligible to donate actually do donate. Honourable senators, with the bill before us, we have a unique opportunity to help change that.

Honourable senators just heard Senator Mercer tell the story of Shanelle. I know there are thousands of other stories from across the country of people whose lives have been saved because of the efforts of strangers. I am sure virtually all of us here today have someone in our lives who, like Shanelle, has benefited from blood and blood product donations. I simply ask you: What would have happened if the necessary blood and blood products were not there when they needed them?

Canadians know that by giving just an hour or so of their time a couple of times a year, they can help a father become a grandfather, a young child become an adult and proud parents see their children grow up. This is why I urge you to pass this bill.

Hon. Sharon Carstairs: Honourable senators, this is not a bill that I took more than a cursory interest in when it was last introduced into this chamber. Like most of you, I recognize the importance of blood, but it had not hit home.

Last December 5, I received a phone call from my daughter to tell me that my son-in-law was in intensive care and that it did not look good. He was a 42-year-old, perfectly healthy individual who, within a 24-hour period, went from teaching school to being in intensive care.

As it turned out, he had a very rare disease called autoimmune hemolytic anemia. We almost lost him twice. Every single day he received units of blood until they could get to the root cause of the problem. After removing his spleen, with no success or improvement in his condition, and having put him on chemotherapy despite the fact that he did not have cancer, they continued to give him units of blood. The result is that he is now a healthy member of Canadian society again. However, without the numerous units of blood that he constantly received over a 15-day period, he would not be with us and our family would be much less well off than we are without Paul as an integral member of it.

I urge you all to support this bill.

On motion of Senator Comeau, debate adjourned.

Banking, Trade and Commerce

Motion to Authorize Committee to Study Softwood Lumber Agreement—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Ringuette, seconded by the Honourable Senator Milne:

That the Standing Senate Committee on Banking, Trade and Commerce study and report on the Canada-United States agreement on softwood lumber;

That the Committee analyze, among other things, the impact of Canada's resource management on sovereignty, the impact on the interpretation of NAFTA chapters 11 and 19, and provisions contained in the agreement with regard to financial support for the industry and its workers.—(Honourable Senator Comeau)

Hon. David Tkachuk: I have taken Senator Comeau's place, if I may.

Hon. Lorna Milne: Honourable senators, I rise to take part in this debate because of my great concern over the issue raised constantly in this chamber by Senator Ringuette, the softwood lumber deal. It is of vital importance to her own province of New Brunswick, but it is also important to all of Canada.

In my own region of Northern Ontario, the economy will be devastated by the implementation of this agreement. The region is already struggling as more mills close down every single month.

I want to continue to let Canadians know what this deal, this giving away, means for all of us. If I may refer to the document from which Senator Ringuette was reading yesterday, and specifically to Article IV, which ends by saying:

$US 500 million of that amount...

— the amount of the countervailing duty that has been collected that will not be returned to Canada —

— shall be distributed to the Coalition for Fair Lumber Imports and $US 500 million shall be distributed to a fund [for joint initiatives benefiting the North American market and meritorious initiatives in the United States as identified by the U.S. Government in consultation with Canada].

Honourable senators, that is disgraceful.

The third part of Article V says:

3. The Parties acknowledge that this distribution of deposits does not constitute a precedent for distribution of duties to any entity other than importers of record.

To me, that says that any new company starting up will be hit once again by these outrageous duties.

Article VI, where Senator Ringuette ended, is basically boilerplate for three pages.

Article XV has a wide range of options — again, boilerplate for another three pages. We have gone on long past the three pages that were presented to the agriculture committee.


1. If exports from the Atlantic Provinces to the United States exceed 100 percent of softwood lumber production in the Atlantic Provinces in any quarter, then exports to the U.S. from the Atlantic Provinces in the following quarter will be subject to a penalty of $CAN 200 mbf on that excess.

I assume they mean Canadian dollars equivalent to the price of 200 million board feet on that excess. This will completely devastate the industry in all of Eastern Canada.


1. The Agreement will remain in place for seven years and may be renewed by agreement of both Parties for an additional two years.


1. This Agreement may be amended at any time by agreement of the Parties.

That generally means the U.S.

Article XX is definitions; Article XXI is entry into force. That comes basically to the end, or 11 pages of the meat of the document. This is more than the three pages that were presented to the committee.

Annexes also make very interesting reading. Annex 1, softwood lumber products, goes on to tell us what products are covered by this agreement. The fifth one is coniferous wood flooring, including strips and friezes for parquet flooring not assembled, continuously shaped, tongued, grooved, rabbited, champered, V jointed, beaded, moulded, rounded or the like, along any of its edges or faces, whether or not plain, sanded or finger-jointed. In other words, for any value-added material that has its value-adding work done in Canada, that means that industry will no longer be able to be helped by the government or by subsidies of any kind whatsoever for the next seven years plus two.


Lumber originating in the U.S. shipped to Canada for minor processing and imported into the United States is excluded, of course, from the scope of this order if the following conditions are met: First, that the processing in Canada is limited to kiln-drying and planning to create smoothed sideboard and sanding; and second, if the importer establishes to the satisfaction of U.S. Customs and Border Protection that the lumber is indeed of U.S. origin. This goes on and on and on, and I am very concerned about it. All of this is such bad news for the Canadian softwood lumber industry.

Motion in Amendment

Hon. Lorna Milne: Honourable senators, I move, seconded by Senator Ringuette:

That the motion be amended by replacing the period with a semicolon after the word "workers;" and

That the committee submit its final report no later than October 2, 2006.

The Hon. the Speaker: Is the house ready for the question on the motion in amendment?

Hon. David Tkachuk: Honourable senators, I have been following with great interest the interventions of Senator Ringuette in regard to the softwood lumber agreement announced by the Prime Minister. There are a couple of things that senators should know about the debate on this issue. This is the purview of the Standing Senate Committee on Agriculture and Forestry, which has met. I do not know whether Senator Ringuette has talked to her colleague, Senator Fairbairn, chair of the committee, to know that the Honourable Gary Lunn, Minister of Natural Resources, has appeared before the committee. The minister, who tabled the framework agreement, spent much of his time before the committee speaking to the softwood lumber agreement.

I do not know what piece of paper members are reading from, but there is no other agreement. The committee was told by Minister Lunn that negotiations are taking place on the framework agreement. It is estimated that by the end of the summer, the framework agreement will be completed. I would add that the Agriculture Committee has also agreed to hear from the Minister of International Trade, the Honourable David Emerson, next Tuesday at 5 p.m. to speak to the subject of the softwood lumber agreement. It is my understanding that officials from Natural Resources Canada will appear as well and I am sure that a significant amount of the discussion will centre on the subject of softwood lumber.

Honourable senators, I am unsure as to the reasons for this debate on mandating the Standing Senate Committee on Banking, Trade and Commerce, which has already submitted a number of items for study to the Senate, to study the issue. The committee's agenda is full between now and the end of June.

I know that while Senator Ringuette has been very excited about the softwood agreement, the committee was told by Minister Lunn that the Maritime provinces have been totally exempted. There is still full free trade on softwood lumber products between the United States and the Maritime provinces. That discussion will ensue with Minister Emerson at next week's meeting of the Agriculture Committee.

Honourable senators, this is not a matter for the Banking Committee, but rather it is a matter for and the preserve of the Standing Senate Committee on Agriculture and Forestry. It is unfortunate that Senator Fairbairn is not present at the moment, but I am certain that she would agree that removing this subject from the Agriculture Committee in the midst of our deliberations is not something that the Senate should wish to do.

Hon. Sharon Carstairs: Would the honourable senator take some questions?

Senator Tkachuk: I would be pleased to respond to the honourable senator.

Senator Carstairs: Would the honourable senator agree that it is surely within the mandate of the Banking Committee to study an international trade agreement?

Senator Tkachuk: Honourable senators, I did not say otherwise. I simply said that the Agriculture Committee, under its mandate to study forestry, deems it appropriate to deliberate on the matter of softwood lumber and has, therefore, taken the initiative to call witnesses from time to time to ask questions on the issue. I did not say that the Banking Committee could not study the matter, I simply said that the Agriculture Committee is already studying it.

Senator Carstairs: Am I correct that the honourable senator is saying that he would not object if two committees of the Senate of Canada studied the matter, each with a different perspective — one looking at the forest industry as a general topic, and the other specifically addressing the areas of trade and commerce — and would do the Senate and Canada a great deal of good by ensuring that the subject has a thorough review?

Senator Tkachuk: I beg to differ that the senators on the Agriculture Committee are incapable. Many of us have served on the Banking Committee as well as the Foreign Affairs Committee. The Agriculture Committee deals with trade matters with respect to agriculture frequently because agriculture, particularly in Western Canada, is only about trade. We have many discussions on the subject of international trade in wheat products and, in the past, we have had discussions on international trade in forestry products.

The committee members have the expertise to study the matter and it would seem strange that the Senate would mandate two committees to study the same issue. Therefore, I believe that one committee is sufficient and that ministers should not have to appear before two committees on the same matter.

Senator Carstairs: The honourable senator indicated that the Atlantic provinces would not be affected by this agreement because they are exempt, and yet, minutes ago, Senator Milne told the house that one of the appendices limits the amount of trade in which the Atlantic provinces can engage.

Senator Milne: That is Article XVII.

Senator Carstairs: Could the honourable senator ask the minister, when he appears before the committee, to explain how the Atlantic provinces will not be impacted when one of the appendices says that they will be impacted?

Senator Tkachuk: Senator Oliver is a capable proponent and defender of the Maritime provinces. I am sure that he will ask those questions when Minister Emerson appears before the committee next Tuesday. There is no doubt in my mind about that.

The document that was read in this chamber came from a brown envelope.


We have no idea where it came from. We do not know if it is a draft. We do not know if it is the scribbling of a bureaucrat. We do not know anything about that document.

They can table that document and send it to Senator Mercer, who can then ask questions about it in committee, if he wishes.

I think that there are many senators with an interest in agriculture and forestry to defend the interests of Western Canada, the Maritime provinces and the rest of the country.

Senator Carstairs: I must interject. I was going to finish on that last question, but the senator has indicated a willingness from the other side to have the document tabled. Would the senator agree that the document to which Senator Ringuette referred be tabled in this chamber?

Senator Tkachuk: I meant to say that the document could be tabled with Senator Mercer, and he can bring it to committee.

This is a fairly serious matter. It concerns the chairman of our Agriculture and Forestry Committee, who is not here. We do not have the deputy chair here. We do not have the chair of our Banking Committee here. We do not have the deputy chair of the Banking Committee here. In fairness to everyone, I cannot see why we would be dealing with this matter when all these people are absent and when Minister Emerson is coming to committee on Tuesday.

Hon. Joan Fraser (Deputy Leader of the Opposition): I had understood him to be rising to speak to the amendment before us, which would insert a reporting date. I have had the pleasure of working with Senator Tkachuk on at least one committee and I know that he takes very seriously the need for rigour in committee work and the need for discipline and adherence to sound principles. Would the honourable senator agree in that spirit, that it is highly desirable that, when the Senate is contemplating a committee study, a termination date or a deadline be included in the order of reference?

Senator Tkachuk: Is that a question?

Senator Fraser: I said, "would you agree?"

Senator Tkachuk: To me, it seems that it is a moot question, because the Standing Senate Committee on Agriculture and Forestry is dealing with this issue. I have not given the amendment a lot of thought, so perhaps I should just take the adjournment on this and continue on Tuesday. I move the adjournment of debate on the amendment.

The Hon. the Speaker: It is moved by the Honourable Senator —

Hon. Pierrette Ringuette: The honourable senator has already spoken on the amendment, so he cannot, I think, by the rules, take the adjournment one more time.

The Hon. the Speaker: I am advised by the table that Senator Tkachuk's 15 minutes have not elapsed, so he is still eligible to make a motion to adjourn the debate for the remaining amount of his time to speak.

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

Some Hon. Senators: Agreed.

Some Hon. Senators: No.

The Hon. the Speaker: On division? It is carried on division.

On motion of Senator Tkachuk, debate adjourned on division.

Agriculture and Forestry

Committee Authorized to Meet During Sitting of the Senate

Hon. Robert W. Peterson, for Hon. Joyce Fairbairn, pursuant to notice of May 31, 2006, moved:

That the Standing Senate Committee on Agriculture and Forestry have the power to sit at 5:00 p.m., Tuesday, June 6, 2006, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.

He said: Honourable senators, we have brought forward this motion because at that time we will be hearing the Minister of International Trade, who is on a very tight time schedule.

Hon. Terry Stratton: This is now the second week in a row that we are doing this. I agree in this circumstance because of the presence of the minister at your next meeting. Will there be a third occurrence next week? You cannot answer that question.

Senator Peterson: I cannot. I do not have any more pieces of paper.

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

Motion agreed to.

Legal and Constitutional Affairs

Committee Authorized to Continue Study on Including in Legislation Non-derogation Clauses Relating to Aboriginal Treaty Rights

Hon. Donald H. Oliver, pursuant to notice of May 31, 2006, moved:

That the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine and report on the implications of including, in legislation, non-derogation clauses relating to existing Aboriginal and treaty rights of the Aboriginal peoples of Canada under s.35 of the Constitution Act, 1982;

That the papers and evidence received and taken on the subject and the work accomplished during the Second Session of the Thirty-seventh Parliament and the First Session of the Thirty-eighth Parliament be referred to the committee; and

That the committee present its report to the Senate no later than June 30, 2007.

Hon. Joan Fraser (Deputy Leader of the Opposition): Honourable senators, I gather from reading the text of this motion that this is a revival of a previous order of reference, and I would like to have the chair of the committee confirm that that is the case. If it is the case, I would ask if there have been any changes in the order of reference between the last Parliament and the present one.

Senator Oliver: Honourable senators, the motion being moved today concerns the issue of including non-derogation clauses in federal legislation. These clauses refer to the preservation of Aboriginal and treaty rights, and over time various formulations have been used. It is fair to say that the result has been a degree of legal uncertainty.

On November 5, 2003, a representative from the Department of Justice, Clare Beckton, the Assistant Deputy Attorney General of Canada, appeared before the Standing Senate Committee on Legal and Constitutional Affairs pursuant to an order of reference which is identical to the one that I am presenting today — identical in every word. She outlined the views of the department on the issue. Ms. Beckton is the only witness that the committee has heard on this reference, although this is now the third Parliament that it has been before.

The representative stressed the importance of policy choices in the area. Once those choices are made, appropriate legal mechanisms can be developed for legislation.

The most fundamental issue is to determine the appropriate relationship between federal legislation and Aboriginal and treaty rights. Legislators have had to be alert to the potential for legislation to have unforeseen consequences on rights contained in section 35 of the Constitution, as there is no process for Parliament to assess the effect of legislation in this respect.

At the same time, in framework legislation in which the detailed operation is left to regulation, if no infringement of section 35 rights is possible, even if testified it could be difficult to balance competing public policy objectives.

Our witness noted that opinions differ as to the purpose of non-derogation clauses. While some view them as declaratory, a remainder that is legislation is subject to the application of section 35 of the Constitution. This view may not be accepted under principles of statutory interpretation, and clarifying overall policy objectives will determine whether or not non-derogation clauses are needed and the wording of any clause.


The department noted for the committee that there is a broad range of possible approaches relating to non-derogation clauses, depending on the policy choices. At one end of the spectrum, existing clauses could be repealed in the light of uncertainty surrounding them. At the other end of the spectrum, if it is determined that section 35 rights need additional protection, a broadly worded clause could be added to the Interpretation Act that would be applicable to all federal legislation.

There are also non-legislative approaches that could be addressed on some of these concerns. Waiting to address these concerns until the bill is tabled in Parliament is one method, but your committee seeks this reference in order to explore this important issue as a general matter applicable to legislation generally.

Hon. Anne C. Cools: I notice that the second paragraph of the motion asks that the Senate refer to the committee papers and evidence received and taken on the subject, and the work accomplished during the second session of the Thirty-seventh Parliament and the first session of the Thirty-eighth Parliament.

There is a practice in this place that the Senate never receives committee papers and evidence. I do not know in this instance if a report on all of these matters was ever placed before the Senate. The proper practice should be that the Senate asks the committee to do certain things, and the committee reports, even if only with an interim report. Based on that report, the evidence is thereby transported to the Senate, and in future months or years it can be referred back to.

I will not try to follow that. However, it may sink into some heads if I make the point a couple of times that it is very important, when a session of Parliament is coming to a close, even if a report is not in final form, that an interim report could be submitted. This lets the Senate know that some work was done and preserves the opportunity and capacity in parliamentary law for these items to be referred to at future times.

I am not questioning the honourable senator on this matter. I am saying to him that this has happened many times. In other words, the lesson to be learned is that as a chair of a committee, always to submit reports to the Senate because it safeguards the fact that this information is in the cognizance of the Senate. The Senate cannot refer to what it does not have cognizance of.

I point this out because it is happening a great deal. In this place, for whatever reasons, there are many bad habits and bad things happening that people believe are appropriate and correct. It is easier in life, I have always found, to do things properly.

Hon. Sharon Carstairs: I want to lend my strong support to the study being undertaken by the Standing Senate Committee on Legal and Constitutional Affairs.

For many decades now, we have been incorporating non-derogation clauses in legislation. It would be one thing if those clauses all said the same thing. Indeed, they often say different things. The problem then becomes, after a while, do they have the force and meaning they were intended to have in the first instance?

This is a long overdue study. I congratulate Senator Oliver and his committee for engaging in it.

Hon. Tommy Banks: I second what Senator Carstairs has just said. I commend to the committee's attention evidence that has been taken before other committees which talks about the difference between the present form of the non-derogation clause and the previous form of the non-derogation clause.

The fact is that I have heard evidence from the Department of Justice that has led me to believe that the present clause was changed into its present form as a result of a Supreme Court decision. That decision stated that rights are all subject sometimes to question, and that no rights are outside of being questioned in some circumstances.

There are views among some Aboriginal peoples that the present non-derogation clause operates to the detriment of their interests.

The committee should also look at previous undertakings made by previous ministers with respect to examining this question, and with respect to an undertaking, in fact at one point, to introduce a bill to remove the derogation clause from all existing legislation, as well as the other end of the stick, as Senator Oliver has said, to put an overarching provision into another act to make it apply to all federal law.

It is a very cogent question that needs to be addressed in a way and a depth in which it has not been before.

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

Motion agreed to.



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

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

That when the Senate adjourns today, it do stand adjourned until Tuesday, June 6, 2006, at 2 p.m.

The Hon. the Speaker: Honourable senators, is leave granted?

Hon. Senators: Agreed.

Motion agreed to.

The Senate adjourned until Tuesday, June 6, 2006 at 2 p.m.