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.
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.
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
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.
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.
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
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
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
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
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
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.
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
On behalf of all honourable senators, welcome to the Senate of Canada.
Hon. Senators: Hear, hear!
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.
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
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
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
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
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
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
Those oil and gas royalties are not available to be used to make the actual
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.
Hon. Art Eggleton: Honourable senators, it is time for a reality
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
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
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
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
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
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.
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
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
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.
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
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.
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
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
Senator LeBreton: Yes.
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,
I will quote him directly:
We think Kyoto has been an asset for us. It has actually been a huge
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
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
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.
(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
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
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
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.
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!
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
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
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
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
Parliament wishes to maintain the essential characteristics of the Senate
within Canada's parliamentary democracy as a chamber of independent, sober
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Senator LeBreton: I thank the honourable senator. He makes a very
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
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
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
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
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
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.
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
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
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
Christian theology, including Protestant, Catholic, Orthodox and Eastern
Rites denominations, makes it equally clear, prohibiting intentional murder of
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
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'
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
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
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
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
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
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
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
I urge you all to support this bill.
On motion of Senator Comeau, debate adjourned.
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
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
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
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
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
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
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.
Hon. Lorna Milne: Honourable senators, I move, seconded by Senator
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
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
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
Senator Tkachuk: I would be pleased to respond to the honourable
Senator Carstairs: Would the honourable senator agree that it is
surely within the mandate of the Banking Committee to study an international
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
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
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
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.
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.
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
That the committee present its report to the Senate no later than June 30,
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
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
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
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
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.