Debates of the Senate (Hansard)
1st Session, 39th Parliament,
Volume 143, Issue 95
Wednesday, May 9, 2007
The Honourable Noël A. Kinsella, Speaker
Wednesday, May 9, 2007
The Senate met at 1:30 p.m., the Speaker in the chair.
Hon. Lucie Pépin: Honourable senators, I rise today to recognize
Quebec's regional autism associations, which recently held marches to raise
awareness. On April 28, these organizations simultaneously took to the streets
in 12 regions of the province. I had the privilege of taking part in the first
march held in Montreal by the association Autisme et troubles envahissants du
Accompanied by the drumming of the group Kumpa'nia, and also by rain and
wind, more than 100 of us paraded through the streets of Plateau Mont-Royal to
raise public awareness of autism and pervasive developmental disorders. The
march ended after a video presentation showing people with autism achieving
success in school, at work and in leisure activities. While people with autism
may be disabled in some ways, they have many talents that need support to
In Montreal, we were united by a common bond of commitment to furthering the
cause of autism. The same commitment drove the marchers in Quebec City,
Rimouski, Longueuil, Sherbrooke, Baie-Comeau, Lévis, Laval, Saint-Jérôme and
Joliette. In Gatineau, the place where the idea was launched and which was
holding its fifth annual march, more than $33,000 was raised to allow autistic
children to attend specialized summer camps.
The recent report on autism by the Standing Senate Committee on Social
Affairs, Science and Technology states that there is a general lack of
understanding among Canadians about autism and its spectrum of disabilities.
The committee feels that a greater understanding of autism spectrum disorders
could help to reduce the stress experienced by autistic individuals and their
families. These marches contribute to the national public awareness campaign.
It is time to acknowledge the commitment of thousands of parents, children,
friends and stakeholders across Canada who spare no effort to ensure that
autistic individuals get the support they need.
Honourable senators, as we mark National Mental Health Week, I invite you to
join with me in extending our deepest appreciation to these people for the
invaluable services they provide.
Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable
senators, we all know that Justin Trudeau was kind enough to make the trip from
Westmount to impart his wisdom to Acadians about French-language and
In his speech, he proposed that Acadians go back to the era when schools were
Honourable senators, why would we want to take such a backward step? You will
recall that Acadians used to attend English-language schools and, as a result,
gradually lost their knowledge of French.
Mr. Trudeau, who stated that sometimes sacred cows need to be looked at,
justified his proposal by saying that it is expensive to maintain two school
systems. I clearly remember that the authorities trotted out the same excuse
when we were fighting to keep our schools.
Trudeau's proposal is not appreciated by the people who have dedicated their
lives and are still fighting to advance the cause of Acadians in Atlantic
Canada. These people have set themselves the mission to safeguard their precious
language and all its richness.
Some have explained Mr. Trudeau's statement by saying that he is young, but I
am not impressed by that argument. A man of 35 who goes into politics, a man who
knows how to attract media attention with what he says and does, should
certainly be mature enough to find out the lay of the land before he issues
His inappropriate remarks serve as a reminder to all parliamentarians that it
is always a good idea to think before you speak.
Hon. Joan Cook: Honourable senators, this week is National Nursing
Week. I would like to pay tribute to a group of men and women whose work is
integral to our nation's health care system.
We use this week to recognize the tremendous contributions that both the
nursing profession and individual nurses have made in our communities. Nurses
are a fundamental component in our hospitals, communities, homes and schools and
have a plethora of roles.
Nurses work with governments at all levels to reduce environmental hazards.
They collaborate with police officers, firefighters and others involved in
emergency planning to ensure that at the time of an epidemic or a natural
disaster the expertise and infrastructure are there to deal with people with
physical and mental health problems.
They also have a long history of involvement with social issues like
homelessness and healthy child development. They lead research and international
development initiatives and have a strong presence in Canada's military.
Honourable senators, just a few moments ago, I stood in the front of the
Nursing Sisters' Memorial in the Hall of Honour and saw four courageous nurses
being honoured for their service in Kandahar. They are Major Vanessa Daniel,
Lieutenant Jeff Lee, Captain Odette Rioux, and Captain Christine Matthews from
the community of Grand Bank in my home province of Newfoundland and Labrador.
Unfortunately, we continually hear about shortages in this profession, yet in
our nursing schools, it is reported that there are three and four applications
for one space. The interest is there. Stakeholders report that nursing across
Canada must begin to work as a cohesive and connected unit instead of operating
in fragmented silos. This one step could yield invaluable results in the field.
We often hear how nurses are at the heart of health care. I would like to
take this opportunity to publicly acknowledge their remarkable courage and give
them the recognition they truly deserve.
Hon. Wilbert J. Keon: Honourable senators, the first week of May is
Mental Health Week. To celebrate the week this year, the Canadian Mental Health
Association is focusing on the need to maintain a work-life balance — something
that far too many of us shrug off as an impossibility. It is becoming
increasingly difficult to reach this balance in today's busy world. Some 58 per
cent of us are overloaded trying to meet expectations of the many roles we play
at work, at home, and with our families and friends.
This overload can cost us all dearly. According to Statistics Canada, people
whose lives are either quite a bit or extremely stressful are three times more
likely to suffer a major depressive episode compared to those who reported low
levels of stress. Of those who had to take a break from work, almost three
quarters did not return. To make matters more difficult, there is little support
at work for people who have mental health issues. Relevant services are
available to only about one third of workers in their place of employment.
The stigma that still clings to the "mental illness" label prevents people
from getting needed care. According to an Ipsos Reid public opinion poll
released in February, almost 80 per cent of employees believed that someone
diagnosed with depression would keep it secret.
Peer support might be lacking also. Co-workers often do not know how to deal
with colleagues who are suffering from depression, because of a lack of
understanding of the problem. Here is the bottom line: Business pays a heavy
price for employee burnout. According to the Global Business and Economic
Roundtable on Addiction and Mental Health, mental illness costs Canadian
businesses $14 billion a year.
Honourable senators, these are costs that Canadians and Canadian firms cannot
afford. Ignoring the problem of mental illness and hoping it will go away is not
the answer. We need to deal with it, in part, by promoting a healthy work-life
I also want to take this opportunity to comment on the need to promote First
Nations mental health. Sadly, one in three Aboriginal youths has thought about
suicide by age 17. This is a serious issue that needs to be addressed.
I would urge honourable senators to visit the Canadian Mental Health
Association website — www.cmha.ca — for more information. Taking care of
our mental health can make a big difference in our lives and those of our
friends and associates.
Hon. Roméo Antonius Dallaire: Honourable senators, today I would like
to speak about the point brought up earlier by Senator Comeau, Canadian
Yesterday one of the members of the Parliamentary Group for the Prevention of
Genocide said that she spoke in French when she was in Canada and in English
when she was outside of Canada. Around 60 students were there and heard this
comment, which I think is childish and ridiculous. Canadian linguistic duality,
our ability to express ourselves in both official languages, enables us to speak
in our language, not because it is a basic part of our ability to express
ourselves, but because it is a right. That member of the group was speaking very
The same kind of disrespect for the fundamental duality of the country goes
back to the CBC report of the dedication of the restored Canadian National Vimy
Memorial; Jack Granatstein was a CBC guest on that report. In that moment of
bringing Canada together under a significant historic event, it was said that
only one battalion of the 49 was French-Canadian. In so saying, the
French-Canadian participation was exceptionally limited in this event and had
limited impact in the province of Quebec.
Honourable senators, between 12,000 and 14,000 French-Canadians fought in
World War I — about 5 per cent of the total commitment. Allow me to read to
honourable senators a policy of the time in which we did not want
French-Canadians to serve together for national unity.
At the start of the war, 13 infantry battalions out of 258 were
French-Canadian. They had difficulties recruiting and often had to fight
alongside anglophone soldiers because the generals did not want French-Canadian
reinforcements to be deployed in strictly francophone units.
According to Jack Granatstein, the officers unanimously agreed that these
soldiers should be dispersed for the good of national unity. There was a fear
that, if they were grouped together in the same battalion, they would develop a
francophone nationalist sentiment. This is why Quebecers were forced to be
dispersed among anglophone units, and this is why now, at this historic time, it
could be said that there was not a single French-Canadian regiment.
Hon. Pat Carney presented Bill S-225, to amend the International
Boundary Waters Treaty Act (bulk water removal)
Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the second time?
On motion of Senator Carney, bill placed on Orders of the Day for second
reading two days hence.
The Hon. the Speaker informed the Senate that a message had been
received from the House of Commons with Bill C-299, to amend the Criminal Code
(identification information obtained by fraud or false pretence).
Bill read first time.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the second time?
On motion of Senator Comeau, bill placed on the Orders of the Day for second
reading two days hence.
Hon. Céline Hervieux-Payette (Leader of the Opposition): Honourable
senators, my question is for the Leader of the Government in the Senate.
Domtar, Abitibi Consolidated, Algoma Steel, North American Oil Sands
Corporation, Inco and Dofasco have come under foreign ownership. Now Alcan and
very soon BCE, two blue chip companies that are part of the backbone of the
Canadian economy, will be taken over by foreign investors.
All of this has been happening under the leadership of the Harper government.
According to Bloomberg data, these acquisitions amount to $156 billion over the
last 16 months, compared to $43 billion in 2005. Can I just deduce that Tory
times are hard times for Canada?
I would ask the Leader of the Government in the Senate to inform the chamber
as to when the fire sale of the jewels of our country will stop. We are losing
headquarters to other countries, losing research and development and losing
professional services. What concrete action does our government intend to take
to save these jobs and protect our sovereignty, especially in the natural
resources and communications sectors?
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): I thank the honourable senator for her question.
Obviously, it would be inappropriate for me, as a member of the government,
to comment on business decisions.
The negotiations taking place between Alcoa and Alcan have been taking place
for over two years. In response to claims from the official opposition that the
proposed budget measures are somehow responsible for these foreign takeovers, I
should like to quote Jack Mintz, who stated in a National Post article on
Tuesday, May 8, 2007: "That's just imagination."
Everybody has different opinions on this issue; I read two conflicting
opinions in this morning's newspapers. Suffice it to say, this is an issue that
has been ongoing for several years.
Senator Hervieux-Payette: Honourable senators, the predators on our
finest Canadian companies had access to Prime Minister Harper and Minister
Bernier, who lent them a more favourable ear, leaving the door wide open to the
foreign takeover of the pillars of our economy. Can the Leader of the Government
at least assure us that the government will study this situation seriously and
take swift action, as the United States, Australia and England have done, and
stop this haemorrhaging that puts Canada's economic sovereignty at risk?
Senator LeBreton: I would remind all honourable senators that, as with
all large acquisitions, anti-trust and foreign investment clearances must be
obtained. In accordance with the Investment Canada Act, only those investments
that demonstrate direct benefit to Canada will be approved.
Hon. Catherine S. Callbeck: My question is to the Leader of the
Government in the Senate. Yesterday, I asked her whether she felt it was fair
that a single parent living below the poverty line cannot benefit from the
government's child tax credit.
The government leader's answer did not address my question. Therefore, I
still do not understand why this government ignores the very children that need
help the most. How does the government leader justify that low-income parents
cannot take advantage of her government's child tax credit?
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): I thank the honourable senator for her question.
I should like to review some of the budget policies for working families and
Budget 2007 helps working families and individual Canadians through, as I
mentioned yesterday, a new working income tax benefit, WITB, of up to $1,000 per
family, $500 per individual, which will help 1.2 million Canadians over the
welfare wall; a new $2,000 tax credit for every child under 18, to reduce taxes
for 3 million Canadian families; a $1,000 tax credit to cut taxes for working
Canadians; a tax fairness plan that cuts taxes for seniors by over $1 billion
every year; improved RESP flexibility to allow more families to save for their
children's education; a new long-term savings plan for parents of children with
severe disabilities; and fairness for single-income families by ending the
Senator Callbeck: Honourable senators, the Leader of the Government in
the Senate has still not answered my question. I asked a specific question about
the child tax credit. According to a new report by Statistics Canada, one out of
ten Canadian children lives in poverty. The government's child tax credit
initiatives do absolutely nothing for Canadian children from low-income
families. An amount of $310 per child would go a long way for a single mother
living below the poverty line.
I ask the Leader of the Government again: Why is this government punishing
low-income parents and their children? Why is this government forgetting about
or leaving out the Canadians who need help the most?
Senator LeBreton: I take issue with the premise of Senator Callbeck's
question. There are many programs provided by the federal government, as well as
by provincial governments, for example, through transfers to help people living
at the lower end of the income scale or who are not working at all, through
welfare, and there are other programs.
One of the measures brought in by this government is the direct payment to
families of $100 per child for every child under the age of six. This helps all
families, including those which are less fortunate and living in poverty.
To say that the government is ignoring this issue is wrong. I again point out
that we have brought in programs to help people get over the welfare wall and to
assist them in providing for their families by offering them a chance to
participate in the labour force. There are many government programs, and the
government has taken a number of people off the income tax rolls. The honourable
senator's question does not properly reflect the efforts this government is
making for Canadians who are less fortunate than others.
Hon. Claudette Tardif (Deputy Leader of the Opposition): Honourable
senators, my question is for the Leader of the Government in the Senate. Last
fall, the government announced cuts to a number of government programs,
including the Court Challenges Program.
An article published in Le Droit on May 2 spoke of a motion brought
forward by a member of the government, suggesting that there may soon be a new
program that would ensure recognition of the linguistic rights of official
language minority communities.
However, the Leader of the Government stated in the Senate on April 17:
I have absolutely no intention of campaigning among my colleagues, in my
party or in the cabinet to bring back that particular program.
My question is this: Can the Leader of the Government in the Senate confirm
whether the government will support its member's motion to implement a program
to ensure recognition of linguistic rights and give a voice to official language
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): As I have said in response to previous questions on the Court
Challenges Program, our government will continue to respect its legal and
constitutional obligations and responsibilities. I believe our government is
firmly committed and is shown to be so in its support of the development of
official languages minority communities and the promotion of English and French
in Canadian society. We are delivering on a four-year, $120 million agreement
for communities. In addition, last September, our government announced a
five-year strategic plan to foster immigration to francophone minority
Hon. Claudette Tardif (Deputy Leader of the Opposition): If the
language rights of the official language minority communities are as important
as the Leader of the Government has indicated, can she then explain why her
colleagues from the other place cancelled — at the very last minute — the
meeting of the Official Languages Committee, although representatives of the
Court Challenges Program had travelled from Winnipeg to attend that meeting?
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): Honourable senators, the government is not responsible for all
of the committee's work in the other place. Government members are on the
committee, and I think the decision of the committee in the other place is best
left to them.
We all saw what happened in the committee last week. The chairman of that
House committee, Guy Lauzon, stated publicly that, as this matter is before the
courts and also under the study of the Commissioner of Official Languages, it
was best to cancel the meeting and delay the study for a few weeks in the
interests of all. We saw what happened last week when the committee became part
of other hearings. That was not helpful to anyone, whether they be French or
Mr. Lauzon, who I hasten to point out is Franco-Ontarian, is a very credible
spokesman for our party on these issues. He would only act on this matter in a
responsible way. I believe that the explanation he expressed yesterday is valid.
Cooler heads should prevail. As I said before, this matter is before the
Commissioner of Official Languages, and Mr. Lauzon has decided it would be
appropriate to wait a few weeks before bringing this matter back to the
attention of the committee in the other place.
Senator Tardif: I take it, then, that the chairman of the committee
made that decision unilaterally, without consulting the steering committee and,
perhaps, making arrangements for the people who had planned their trip to know
about the decision in advance, before arriving in Ottawa five minutes before the
Senator LeBreton: Obviously, the honourable senator would not expect
me to be involved, nor should I be, in the operation of the committee in the
other place. Therefore, I cannot answer that question. Only the committee chair
and the steering committee of that particular committee could provide that
particular answer to the honourable senator.
Hon. Marilyn Trenholme Counsell: Honourable senators, my question is
for the Leader of the Government in the Senate. On April 24, 2007, I asked the
Leader of the Government in the Senate why the national child care spaces
investment fund recommended by Dr. Gordon Chong and his committee will not be
created, and I did not get an answer. I expressed my profound concern that money
transferred to the territories and provinces through the Canada Social Transfer
is a poor choice; the fund would be a good choice.
Honourable senators, I am sure the answer will be short, so I will take a
couple of minutes to explain this fund and to go through some of the extremely
valuable words in this report.
The report used words such as: "Establish a national child care spaces
investment fund, administered by a third party, to finance the creation of new,
high-quality child care spaces and the stabilization of existing child care
spaces." It also spoke about being accountable, transparent and inclusive;
respecting the need for multiple approaches; giving priority to partnerships and
creative approaches; encouraging dialogue, community support, trust and
openness, with clear roles and responsibilities and independent reporting; and
with a small bureaucracy so that most of the money would go to child care
The fund would also be a trustee of public and private money, managed
efficiently and effectively, with transparency and accountability. To build
equity within the fund, there would be a national competition with priority
being given to community partnerships, and provincial and territorial
cooperation and contribution would be established. This fund would have certain
priorities with respect to the defined gap between local supply and demand; it
has a proven track record of high quality child care; and is innovative,
creative and flexible. Children with special needs should receive special
consideration from the fund.
To the honourable Leader of the Government, again, why is the Harper
government not following this wise and visionary recommendation?
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): I thank the honourable senator for her question. As I have said
on many occasions, the issue of child care and the approach that our government
has taken is obviously not the same approach that was advocated by the previous
government. We were elected on a platform. We made it clear how we wanted to
approach the child care issue. The honourable senator mentioned the report of
Gordon Chong. The government appreciated his work and will respond in due
course. However, on the issue of child care, honourable senators, there have
been many ideas through the years. Some of us have taken positions on child care
that I think are valid.
I wish to read into the record some comments from the Leader of the
Opposition on this very issue, which appeared in a book entitled If I Were
Prime Minister. On page 119 of this book, which is a compilation of various
people's views, I want to quote what Senator Hervieux-Payette said.
Even today, when we talk about providing child care programs, the solutions
are short term and costly. It is not necessarily a universal day-care system
we need. It is a system that will make the family the cornerstone of our
future as a society, one that will stop penalizing parents who dare to have
children. It will even encourage the restoration of a link with grandparents.
We isolate individuals who have problems. Day-care is necessary when a parent
is working outside the home, but why should it be institutionalized? A
grandparent or a neighbour could do the same thing. Are we ready to use our
imagination to consider other options, sometimes more flexible, that we can
By the way, I totally endorse the words of Senator Hervieux-Payette on that
An Hon. Senator: Times have changed.
Senator Trenholme Counsell: I thank the honourable senator for her
response. I do not want to raise my voice or get mad but I have found this
process very frustrating. I have twice now asked the honourable leader a direct
question based on an excellent report. I thought she would say to me, "Yes, my
government commissioned this report, so we will take credit for it," but I was
giving a lot of credit to the report.
In this report there are four pages devoted to this fund. The honourable
senator will not answer my question as to why the Harper government made the
decision not to follow that lengthy and sound piece of advice to establish a
fund rather than pouring this money into the Canada Social Transfer.
There is probably no point asking for a deferred answer, but the leader has
not answered the question. This is the kind of thing that makes Canadians
uneasy, and I am very sad. I do not want to say I am very mad; I am very sad. I
will give her another chance. Why was the decision taken to put the money into
the Canada Social Transfer rather than into the fund, as suggested in this very
well thought out and well-documented report?
Senator LeBreton: When the honourable senator asked the question a
week or so ago, I responded to the question. I thought my answer was very clear.
Obviously, the honourable senator did not think the answer was clear or did not
like the answer.
The honourable senator says she is sad or mad. The fact is that the
government has undertaken a tax fairness program and other programs, as well as
efforts to address child care needs, and not only, as I have said before, in the
larger centres, because child care is a very complex issue. There are very
different needs in different parts of the country, for instance, in smaller
communities and rural areas. Senator Hervieux-Payette was quite right in her
book, If I Were Prime Minister, that there are parts of our society that
want to make arrangements; even working parents want to make different
arrangements within their family or their neighbourhood.
There is not a single cookie-cutter model that we can use. The government is
studying the recommendations and report of Dr. Chong, and when they have a
fulsome response I will be happy to provide it to Senator Trenholme Counsell.
Hon. Hugh Segal: My question is to the Honourable Leader of the
Government in the Senate. The question relates to a motion which was passed
unanimously by the Senate yesterday, calling on the government to withdraw our
diplomatic relations with Zimbabwe. A message to that effect pursuant to the
motion was sent to the House of Commons and duly noted in their journal on this
Would the Leader of the Government in the Senate be prepared to undertake to
revisit the issue with her colleagues? There was a delayed response to a
question that I asked on the matter, indicating that, as a matter of general
policy, the Department of Foreign Affairs believes that having an active embassy
is a way to bear witness and work with other governments in the region. It
strikes me, though, that diplomatic relations confer a level of legitimacy on
the Mugabe regime, which its activities against its own people, its brutal
beating and imprisonment of the leader of the opposition, and its confiscation
of legally held land, would violate every core value Canadians share. Therefore,
I ask the minister: Would she be prepared to have the matter considered by her
colleagues at the next appropriate opportunity?
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): Honourable senators, Senator Segal is quite right that when he
asked this question previously I did take the matter up with the Minister of
Foreign Affairs. As Senator Segal stated, he and the department felt that it was
still a better situation to be in the country and have the government
represented because not to have someone there did not, at the time, seem to make
sense in order to keep monitoring the situation and trying to come up with some
solutions as to how the government could proceed to deal with this terrible
situation. In view of the honourable senator's question today, I would be happy
to return and ask my colleague to reconsider his earlier suggestion.
Hon. Jane Cordy: Honourable senators, as the Leader of the Government
said, child care is extremely important and complex. I know that during the
election campaign this was part of the Conservative campaign platform. I would
like to know how many new child care spaces have been put in place since her
government has come to power.
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): Honourable senators, I will take that question as notice. As the
honourable senator knows, considerable funds have been transferred to the
various provinces. If the department is able to answer that question, and I am
sure it is, I will be very happy to provide the response.
Senator Cordy: Could the leader also look at what has happened with
the creation of business workplace child care spaces?
Senator LeBreton: Honourable senators, we are still hopeful that
businesses will create child care spaces. Some businesses have created child
care spaces, but I will take that part of Senator Cordy's question as notice as
Senator Cordy: Does "hopeful" mean that no child care spaces have been
created as a result of that program?
Senator LeBreton: It does not mean that at all. As indicated, I will
be happy to forward the honourable senator's question.
There were significant budgetary funds transferred to the provinces, and I
will ask the department to ascertain, if it can, exactly how many child care
spaces have been provided.
Hon. Maria Chaput: Honourable senators, I have a supplementary
question for the Leader of the Government in the Senate concerning early
I represent official language minority communities in Manitoba among others.
We have still not received an answer from you as to why the government cannot
support integrated early childhood services.
Does your government realize that, by refusing to support these services, it
is causing further harm to official language minority communities?
Children are the most fragile of beings. They deserve respect and to have
access to the services they need. This is about early childhood services and
also about the Court Challenges Program.
Several of the questions that you have refused to answer relate to services
for francophone minority communities.
Can the Leader of the Government in the Senate tell us whether or not her
government will finally address the issue of these services? We have still not
received an answer as to why it is not possible to restore them or to set them
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): I thank the honourable senator for her question. She asked me a
similar question some time ago and I did provide an answer by way of Delayed
In the recent budget, we transferred billions of dollars to the provinces
through a fiscal balance issue. For anyone to say that this government is
ignoring our children and ignoring minority language rights is just false. As
Senator Tkachuk said yesterday, "Start a rumour; ask a question." This is the
sort of situation we are getting into.
I point out that our government ran on a specific platform. We explained how
we would deal with these issues. The Canadian public supported us on that
platform, and we are implementing our agenda, not that of the previous
government, not promises made, as Tom Axworthy said, like a "deathbed
repentance." That is what Mr. Axworthy said about their child care plan.
We were not elected to implement the policies of the previous government, and
thank goodness for that when you look at some of the other areas that caused
them difficulty. As a member of this government and of this chamber, and as
someone who has worked in these areas for a long time, I take great offence that
the honourable senator would think that our government has not responded to
these matters, because we have.
Hon. Jerahmiel S. Grafstein: Honourable senators, I have a question
for the Leader of the Government in the Senate about the issue of deductibility
for foreign loans of Canadian companies.
The public is somewhat confused. The Minister of Finance delivered a budget
saying that loans linked to foreign operations "would no longer be deductible."
In the last day or so, the Minister of Finance is reported to have said that
some of the interest incurred on foreign financing would be eligible for
The Leader of the Government knows, as does every member of the government
side, that a budget is there to provide clarity so that Canadians can arrange
their affairs in an appropriate fashion. That is why clarity of the budget goes
to the heart of confidence in the government. It is a question of ensuring that
people and businesses understand what they are to do as a result of government
The Minister of Finance, on a question that goes to the heart of confidence,
said in the budget that these items are no longer deductible and yet is now
saying that some are deductible. Which is it?
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): Honourable senators, I noticed that Senator Grafstein was not
reading from the budget but, rather, from a newspaper. I cannot respond to
everything that is written in newspapers, especially things that may not be
To reiterate what I said yesterday, the minister has said very clearly that
he is opposed to tax havens and tax loopholes. He has said repeatedly that we
believe that companies must be competitive and also pay their fair share of
taxes. I believe most Canadians think that is reasonable.
As I have said previously, officials are discussing this proposed restriction
with industry representatives. As a result of these consultations, the Minister
of Finance will develop legislation. As the minister said, he will announce his
Again, as the Governor of the Bank of Canada said when he appeared before the
Senate committee, one should be very careful about jumping to conclusions before
seeing the draft legislation.
Senator Grafstein: Honourable senators, if this newspaper report is
incorrect, I assume the minister will not follow what is said in it. The report
says that the minister plans to announce his changes with respect to
deductibility in Toronto on Monday.
The minister made his announcement in the budget, which goes to the heart of
confidence in the other place, and is now about to correct that in some fashion
outside of Parliament. That, to my mind, goes to the heart of Parliament. I hope
the minister, if he chooses to do that, would correct himself.
The Hon. the Speaker: Order. I regret to advise the house that the
time for Question Period has expired.
Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable
senators, I have the honour to table a delayed answer to an oral question raised
by Senator Milne on April 25, 2007, concerning the coming into force of the
Conflict of Interest Act and the Federal Accountability Act.
(Response to question raised by Hon. Lorna Milne on April 25, 2007)
On April 11, 2006, the Government of Canada introduced the Federal
Accountability Act and Action Plan to make government more accountable.
The Government of Canada delivered on this commitment by passing the
Federal Accountability Act, which was granted Royal Assent on December 12,
The Federal Accountability Act amends over 45 statutes and creates
two new ones, making it one of the largest and most complex pieces of
legislation in Canadian history. As is common for complex legislation,
different sections of the Act will come into force at different times. In
passing the Federal Accountability Act, Parliament approved the various
coming into force provisions that apply to the different parts of the Act.
Some came into force at Royal Assent, some will come into force on specific
dates and others will come into force at dates to be set out by Order in
The Conflict of Interest Act, one of the two new Acts introduced by
the Federal Accountability Act, and its related provisions will be
brought into force on a date set by Order in Council. This date has not yet
been set; in order to bring the Conflict of Interest Act into force, it
is necessary to appoint a Conflict of Interest and Ethics Commissioner who is
ready to administer the Act. The Government intends to announce a nominee for
the new Conflict of Interest and Ethics Commissioner position in the near
future, for consideration by the House of Commons.
Once these steps are completed the Government will be in a position to
bring the Conflict of Interest Act into force.
In the interim, the current Conflict of Interest and Post-Employment Code
for Public Office Holders — which is the most stringent Code ever put in place
— remains in effect. This Code includes provisions that have been included in
the Conflict of Interest Act, such as the five year ban on lobbying for
senior public office holders, the banning of "venetian blind" trusts (also
known as blind management agreements), giving the Ethics Commissioner the
power to impose any necessary measures, and giving the Ethics Commissioner the
ability to entertain complaints from the public that are brought to his
attention by a member of Parliament.
Complete implementation of the Federal Accountability Act and Action
Plan will be a long and complex process. Several key implementation activities
are currently underway, including the development of several sets of
regulations, some of which require significant public consultations; several
Governor in Council appointments, some of which require vetting or approval by
Parliament; and various other administrative matters, such as ensuring
organizational readiness and training.
Each of these implementation activities will require time and resources,
and officials are working to complete these tasks quickly and effectively.
The Government of Canada is working diligently to bring the remaining
provisions of the Act into force. For example, the President of Treasury Board
recently announced the coming into force dates for the Public Servants
Disclosure Protection Act (April 15, 2007), expansion of the Access to
Information Act to five Agents of Parliament, five foundations and the
Canadian Wheat Board (April 1, 2007); expansion of the same Act to additional
parent Crown corporations and wholly-owned subsidiaries (September 1, 2007);
new fraud offences in the Financial Administration Act with tougher
sanctions for those that commit fraud with taxpayers' dollars (March 1, 2007);
and amendments to the Canadian Dairy Commission Act, the Enterprise Cape
Breton Corporation Act and the National Capital Commission Act to
separate the positions of Chair and Chief Executive Officer of these Crown
corporations (April 1, 2007 for ECBC and the NCC and April 27, 2007 for the
CDC) to coincide with the expiration of the terms of office of the current
Vice Chairperson and Commissioner.
The Hon. the Speaker: Honourable senators, before moving to Orders of
the Day, I wish to present my ruling on an appeal to the rules that was made on
Wednesday, April 25. As I make this ruling, honourable senators, I will ask the
pages to circulate a copy of the ruling to each of you.
Honourable senators, on Wednesday, April 25, 2007, Senator Banks rose on a
point of order respecting membership of the Standing Senate Committee on
National Security and Defence. He raised several issues. As Senator Banks
recognized, the less serious of his concerns was that the membership change form
that removed three senators from the committee on February 27, 2007 without
indicating replacements, gave the incorrect name for the said committee and
referred to rule 86(4) rather than rule 85(4). His principal concern, however,
was that rule 86(1)(r) provides that the committee is to be composed of nine
members. Senator Banks questioned the propriety of removing members without
replacements since it effectively reduced the committee's membership from nine
members plus the ex-officio members to six plus the ex-officio members.
Senator Kenny spoke in support of this point of order, and Senator Cools then
addressed concerns about the membership of committees. The senator suggested
that such changes should only be done with the agreement of the senators
involved and that changes made by the leaders should not permanently override
the decision of the Senate, made when it adopts a report of the Committee of
Selection. Senator Hervieux-Payette also participated in debate, underscoring
the disruptive effects that unexpected changes or vacancies can have on the work
of committees and inviting guidance about how this situation might be improved.
Finally, Senator Tkachuk suggested that there was no valid point of order.
The senator referred to the Rules of the Senate, Beauchesne, Erskine May,
and general Senate practice to argue that the membership of committees can be
changed and that the changes made to the National Security and Defence Committee
respected normal practice and were in order.
Given the importance of this question, I took the issue under advisement. I
thank all senators who participated in discussion. A consideration of Senator
Banks' principal point, that the membership change of February 27, 2007 should
have replaced one senator by another senator, has led to a consideration of
several closely related issues. The specific situation cited by senator Banks
did respect general practice and was not in contradiction with the rules. At the
same time, there are several points needing clarification, and it might be
appropriate for the Rules Committee to consider them.
An understanding of subsections (3), (4), and (5) of rule 85 is essential to
this issue. Subsection (3) states that, once appointed, a senator is a member of
a committee for the duration of the session. The appointment is, however,
subject to subsection (4), which authorizes changes of membership by notices
filed with the Clerk of the Senate. Subsection (5) specifies that the change of
membership shall be made by the Leader of the Government for a government
senator, by the Leader of the Opposition for an opposition senator, or by the
leader of a recognized third party for a senator who is a member of such a
party. In all these cases, the leaders may name another senator, typically the
whip, to exercise this authority on their behalf.
Allowing changes in membership during the course of a session provides a
convenient way to co-ordinate caucus work. If, for example, a senator is obliged
to be away from a meeting for other responsibilities or if a senator who is not
a regular member of a committee has particular expertise in a matter under
consideration, rule 85(4) provides a way to accommodate these circumstances.
The Committee of Selection has recommended the appointment of independent
senators to committees. These independent senators can indicate, in writing,
that they agree to accept the authority of either the government or the
opposition whip for the purposes of membership changes. This arrangement is
entirely voluntary. If an independent senator does not write such a letter, or
withdraws it, the rule respecting changes does not apply. Similarly, if a
senator withdraws from a caucus, rule 85(4) would cease to apply. In the latter
case, that senator would retain any then current committee memberships unless
removed, either through a report of the Committee of Selection or a substantive
motion, adopted by the Senate.
I will now turn to Senator Banks' concerns. On his first point, the rule
number and the name of the National Security and Defence Committee, the changes
sent by the whips have at times made reference to rule 86(4) rather than rule
85(4), most likely due to the use of forms antedating the renumbering of the
Rules of the Senate. This can be easily corrected. Furthermore, the forms
sometimes use abbreviated or incomplete names for committees. This particular
form referred to "National Defense (sic) and Security," so the intent was
clear. The inaccuracies were by no means so egregious as to render the form
invalid. As Senator Banks noted, they should be viewed as typographical errors.
The more substantive complaint relates to changing membership by removing a
member without designating an immediate replacement. Rule 85 is clear that the
leaders do have authority to make changes with respect to their members. Once a
change is made, the senator added is a member for the rest of the session until
and unless another change is received.
As Speaker, I am bound to interpret the rules and practices as they exist.
Whether a requirement for consultation and limits on the duration of a change in
membership is desirable is not an issue that can be appropriately addressed in
this ruling. Any guidance or changes should come from the Standing Committee on
Rules, Procedures and the Rights of Parliament.
Returning to the main issue raised by Senator Banks, the removal of a
committee member without making an immediate replacement, this has been a long
practice in the Senate, developed since 1983, when the leaders were empowered to
make changes to committee membership. During the current session, there have
already been at least two dozen such changes, done by both sides. In some cases
the vacancies were subsequently filled, while in others they remain to be
filled. Such changes often occurred during previous sessions.
It will be noted that rule 85(4) simply refers to "a change in the membership
of a committee." Removing a member from a committee with the replacement to
follow clearly constitutes a "change" in committee membership that fits within
the general wording of the rule and this practice has been sanctioned by long
use. Again, if there is an interest in the Senate taking a new direction on this
matter, the Rules Committee could make the appropriate recommendations.
Since the removal of committee members without making immediate replacements
falls within the terms of rule 85(4) and has long been part of Senate practice,
it follows that there have been many cases of committees not having the full
membership set out in rule 86(1). The general acceptability of this situation is
to some degree supported by a ruling of the Speaker of the Senate of May 30,
1991. That ruling stated that, while current rule 85, which was rule 86 at the
time, "sets the maximum number of members which a committee may have, the
Committee of Selection is not obliged to nominate a full complement of senators
for each committee." Since then, some reports of the Committee of Selection have
not recommended the maximum number of members.
A committee can function, from the time members are appointed, with fewer
members than the number in the rules, provided it has quorum. This situation is
endorsed by the Senate when it adopts the report of the Committee of Selection.
Practice has been that a committee can also function if its membership falls
below this number during the course of a session, as long as it continues to
have quorum. What distinguishes the case Senator Banks raised is not only its
duration, but also the fact that the entire membership of one caucus is
involved. There is, however, no cut-off point as to how long this situation can
last, nor can the Speaker impose one. Furthermore, while recognizing that the
permanent withdrawal of all members from one side could alter the operations of
a committee, this aspect of the issue is also beyond the authority of the
Speaker, as long as there still can be quorum at meetings.
These issues, while important, are not strictly matters of procedure. In
conclusion, the removal of certain members from the National Security and
Defence Committee on February 27, 2007 respected the practices as they have
evolved in the Senate, and was not inconsistent with the rules. The senators
removed on that date, or other senators from the government caucus, can be added
to the committee by the Leader of the Government in the Senate or her designate.
As noted, Senator Banks' point of order has brought to light a number of
significant points on which clarification would be helpful, but the Rules
Committee is the appropriate venue for such discussion. In closing, therefore, I
urge that committee to take up these issues.
Hon. Pierre Claude Nolin: Honourable senators, I rise on a point of
order. The Question Period that just ended was precisely 34 minutes long.
I humbly request that His Honour the Speaker give his interpretation of rule
The Hon. the Speaker: The Rules state that Question Period is to last
30 minutes. By my watch, Question Period lasted 30 minutes, but if my watch is
not working properly, I will find another one.
I would like to take this opportunity to point out that we prefer a good
exchange during Question Period. One question may lead to many supplementary
questions and this creates a dilemma for the Speaker, as to whether he should
interrupt the flow of the debate. I also try to recognize all senators who rise
in this chamber so that they may take part in Question Period.
In any event, Senator Nolin was right to point out that Question Period is to
be 30 minutes long. As for me, I will get a new watch.
Senator Cools: I propose that honourable senators pass the hat for
donations so that the Speaker can buy a brand new watch — a Rolex.
Hon. David Tkachuk moved third reading of Bill C-9, to amend the
Criminal Code (conditional sentence of imprisonment).
He said: Honourable senators, I rise today to speak at third reading of Bill
C-9. I thank the members of the Standing Senate Committee on Legal and
Constitutional Affairs for their hard work in scrutinizing this bill. I would
like to thank Senator Jaffer for her participation in ably representing her
I was not able to participate at the hearings because of the conflicts with
the Banking Committee on which I sit. Their schedules often conflict. I do know,
however, the committee heard from a variety of witnesses who had differing
opinions on the bill.
This bill is a good first step in getting us to a place where, in every
instance, the criminal pays a higher price for crime than does the victim. It
does not get us all the way there, but it is a good first step.
I believe the committee acknowledges that, at least implicitly, in that in
the observations attached to the bill it calls for more study. I can only hope
that the results of that study lead to the improvement of Canada's criminal
sentencing regime in the future. I am speaking specifically of the commitment in
those observations to study the issue of sentencing in Canada more broadly at a
future date. Perhaps we will find that a tougher sentencing regime deters more
people from committing violent crimes.
I also welcome the committee's willingness, as part of that study, to look at
organized crime and how we can make all such activity ineligible for conditional
I hope that in their study they will, as well, look at the implications that
arise from the serious personal injury aspect of this bill. We need to monitor
the progress of this aspect of the legislation carefully to be sure that this
section of the bill does not further victimize the victims of crime. I trust
that the date for that future study will be sooner rather than later.
In conclusion, the Conservative government is seized with the need to combat
crime and to protect victims of crime. The list of bills that we have proposed
in this regard speaks for itself. Besides this bill, there is Bill C-10, which
imposes graduated mandatory minimum sentences for crimes involving the use of
firearms; Bill C-23, which amends the Criminal Code regarding procedure
sentencing and a number of other issues; Bill C-22, which deals with age of
protector; Bill C-25, which deals with money laundering; Bill C-19, which is
directed at street racing; Bill C-27, which is aimed at dangerous and long-term
offenders; Bill C-32, which widens the offence of impaired driving; and Bill
C-35, which is aimed at firearms, this time toughening the bail conditions for
The Conservative government is serious about combating crime, and Bill C-9 is
but one among a number of measures we are taking in that direction. I will be
happy to see this bill pass, as well as the other bills that have not yet
Hon. Serge Joyal: Honourable senators, I want to associate myself with
the remarks of the honourable senator in commending the work of our colleagues
on the Standing Senate Committee on Legal and Constitutional Affairs. I
benefited tremendously from the input, wisdom and expertise of members on all
When a bill to amend the Criminal Code is referred to the Committee on Legal
and Constitutional Affairs, it has a very serious mandate, and all members of
the committee paid attention to the impact of this bill.
As the honourable senator said, this is part of the government's agenda — and
I will paraphrase the spin on it — to be tough on crime. It is an agenda to try
to create the impression, and probably the reality, that the streets of Canada
would be safer and that citizens will have the feeling that they live in a
The bill is very short; essentially one page. It is entitled "An Act to Amend
the Criminal Code (conditional sentence of imprisonment)."
I would like to share three observations with honourable senators. First,
through our study, I personally have concluded there is a lack of information on
the real impact of this bill on increased security for our society. Second,
there is uncertainty about what will happen under the new sentencing regime.
Third, there are ambiguities in the text of the bill.
To reiterate, there is a lack of information on the impact of the bill,
uncertainty about the sentencing regime following the adoption of this bill and
ambiguity about its interpretation.
I will first address the lack of information on the impact of this bill on
the security of Canadians. In other words, will this bill improve the security
Honourable senators, we had the benefit of hearing representatives from the
Centre for Justice Statistics, a branch of Statistics Canada, on April 26. They
provided members of the committee with 17 charts. The last one represented
reinvolvement after a sentence has been served.
The document states:
As we can see for these jurisdictions, the proportion of probationers who
returned to corrections within the 24 months was a little lower (18 per cent)
than for those serving conditional sentence (23 per cent) but the proportions
are quite similar.
The proportion who returned to corrections after finishing a sentenced
custody was much higher (around 40 per cent).
Those statistics tell us that if a criminal is sentenced to prison, there is
a 40 per cent chance that that person will one day be sent back to prison. If
the person is sentenced to conditional sentencing, there is a 23 per cent chance
that he or she will go back to prison.
This bill removes three specified offences from conditional sentencing. The
first offence is that of serious personal injury offence, that is, attacking the
physical integrity of a person; the second offence is terrorism; and the third
is organized crime.
If we decide that persons convicted of one of the three offences would not be
eligible for conditional sentencing, what would we be creating? We will be
sending more people to prison. Are we creating more risk that that person,
having served his or her sentence in prison, will represent a higher risk of
Therefore, society will be more secure while the person is in prison, but as
soon as he or she is out of prison, what risk will that person represent to
society? According to those statistics, such persons will represent a higher
risk. That is what we heard in testimony from the statistician who testified
before us on April 26.
Ms. Johnson said:
We can see from this is that they also have higher rates of re-involvement
in correctional services than those who only spend their time in community
Those are the statistics in general. We have tried to deconstruct those
statistics to understand them. The subject is very complex, honourable senators.
With the statistics that are presently available we cannot draw a final
conclusion on the assertion that I have made that this bill will represent a
higher risk for security.
Ms. Barr-Telford concluded:
To be able to answer that directly, we would need to be able to conduct
that kind of particular analysis. To date, we are unable to do that.
In other words, we legislate this bill with good intentions — there is no
doubt about that, as the honourable senator said — to make Canadian society not
only feel safer but, in reality, become safer. However, because of the lack of
data, we cannot absolutely conclude that it will happen.
My second point is about the uncertainty that that will bring in the
sentencing regime for the three offences I stated earlier.
What will happen in court where a person is accused and found guilty of one
of the three offences I have stated? What will the judge do? I will tell you
what the judge will be faced with. We put that question clearly to the witnesses
in the committee:
. . . a judge will not have to choose between incarceration and probation.
According to this bill, if a person is found guilty of a serious personal
injury offence, since the conditional sentence is removed as an option,
probation can come after incarceration, but it is not prison or probation, as
I understand the way it will work. Am I correct?
The answer we got is the following:
It is not clear from the bill. This was one of the questions that came up
when we look at the data. At present, some get a conditional sentence, prison
or probation; there are various sentencing options.
In other words, the statistician, or those who have analyzed data on the 17
charts we were presented with, could not conclude specifically on how the court
would react to that. There was even an additional question put by Senator
Bryden, if I can quote him. Senator Bryden asked:
Do those sections of the Criminal Code allow a judge not to use conditional
sentencing but, although the charge would entitle him to imprison the accused
for 12 years, not do that but impose a two-year sentence, suspend it and put
the person on probation?
Answer from Mr. MacKay:
That is correct. For a serious offence like attempted murder, for example,
which has a high maximum sentence, the judge could give a suspended sentence
and probation, or could send the accused to jail for two years less a day plus
a three-year probationary term. That still remains an option if Bill C-9 is
Senator Bryden responds:
It seems a little strange to me that you would miss. You say that it is not
open to conditional sentencing, which in fact restricts the freedom of the
person more than probation does. Yet, for the same crime, the judge is in a
position to use probation instead of a 12-14-year sentence.
In other words, there is uncertainty about how the court will react to the
use of the sentencing regime. That has been the conclusion of witnesses that
have answered and commented on this.
I will read another answer the committee received. I am reading from the
April 26 transcript of the committee. Ms. Barr-Telford said the following in
response to me:
To predict and discuss the way in which the bill will be implemented,
should it be adopted in the future, is difficult — if not impossible — to do
at this point in time. We simply cannot answer how that will unfold.
In other words, honourable senators, there is uncertainty about how the
regime of sentencing will develop or unfold when those proposed provisions are
Finally, my last point is about the ambiguity of the text itself. There are
two points I wish to draw to the attention of honourable senators. The first one
was raised by the Canadian Bar Association in its April 26 letter to the
committee, appearing on page 2 — and I quote: "CBA, Canadian Bar Association
section members, have raised potential ambiguities in interpreting this complex
clause, especially the term 'indictable offence."'
I would refer honourable senators to the brief from the Canadian Bar
There is another aspect of the bill. The other place amended the original
bill to include the offence of organized crime. Organized crime, honourable
senators, is a part of the Criminal Code that many senators in this chamber will
remember. We had a very extended discussion in this place when we added the
organized crime section to the Code.
The organized crime section of the Criminal Code of Canada contains three
offences— participation, commission, and instructing the commission of an
offence. The amendment that the House of Commons has brought to the bill covers
the commission and the instruction of an offence, because it is admissible to 10
years' penalty, but not the participation, which is admissible to five years'
It is not clear in the bill, when we define criminal organization offence, if
the original intention was to cover the three aspects, participation, commission
and instruction, or only two aspects, commission and instruction.
I am not the one, honourable senators, who raised this concern. It was raised
by the Canadian Association of Chiefs of Police, in its brief, tabled with the
committee on May 2 through the two witnesses we heard from the association. Mr.
Brabant, who is an experienced lawyer, states on page 3 of that brief:
We were also interested to note that the Committee did agree that it was
appropriate for Parliament to provide guidance to the judiciary under certain
circumstances and to send messages.
At page 5 of that brief, it states:
We would therefore like to suggest an amendment that specifically ensures
that all "criminal organization offences" as defined in section 2 of the
Criminal Code be ineligible for conditional sentences.
That is the advice we received from the witnesses.
In summary, honourable senators, with respect to Bill C-9, I agree with the
purpose and intention that we should try, when we amend the Criminal Code, to
know as much as we can of the impact to the system. The Criminal Code is a
serious statute, especially the conditional sentencing provision, which was
adopted 10 years ago, in 1996. Today, we have data to evaluate the impact of the
conditional sentencing provision on Canadian society. I totally agree. If there
are sections or offences that need to be removed from conditional sentencing,
then that is something we could consider, with all the information possible, to
ensure that the result will not be counter to what we are looking for.
Honourable senators, even with the statistics and information from the
various witnesses, we cannot conclude for sure. That is the most objective
judgment we can bring from the witnesses we have heard.
That is why, in the report of the committee tabled last Thursday, we have
Your Committee also expresses its concern about the lack of detailed data
on conditional sentences and hopes that the Canadian Centre for Justice
Statistics, Statistics Canada, will expand its research to enable us to better
understand and evaluate the implications of Bill C-9, and how conditional
sentences are implemented in the future.
If there is one lesson, honourable senators, I want to draw from this
exercise, it is that this bill is an example of the need for a chamber of sober
second thought. The work members on both sides of the committee did in trying to
understand the impact of this bill is a testimony to the seriousness and
objectivity the Legal and Constitutional Affairs Committee assumed in reviewing
this proposed legislation and hence reporting our perception of this bill —
which, as the honourable senator has said, will certainly need to be monitored
closely in the future if we really want to know what we are doing when amending
a statute as important as the Criminal Code of Canada.
Hon. Pierre Claude Nolin: Honourable senators, I have participated in
the committee's work and it is important to explain to the honourable senators
who did not participate precisely what we did. Senator Joyal has tried to do it.
Through my questions, I will try to clarify some points that he raised.
I verified with my colleagues from the other place who participated in the
drafting of the amendment that led to Bill C-9. Senator Joyal referred to three
offences set out in the Criminal Code with respect to criminal organizations.
The MPs wanted to include the three offences; they did not address the fact that
the participation offence had a penalty of only five years. I informed them that
we had added a comment in our report, but we did not intend to return the bill
for this reason, since a future reference to the Criminal Code would do.
In order to ensure that our colleagues are not too confused, I will ask
leading questions. Let us look at the text of the clause from Bill C-9. A judge
finds an individual guilty of an offence. He is about to hand down a minimum
two-year sentence and is convinced that this accused person, this individual
found guilty, will not put the community's safety at risk. I am summarizing so
that everyone understands. This is the situation the judge will be in if the
bill passes. Am I correct?
Senator Joyal: Honourable senators, I would like to draw to your
attention the response that was given to the committee by Mr. MacKay, in reply
to a question that was quite similar to the one Senator Nolin has just asked. I
will give an example.
For a serious offence like attempted murder, for example, which has a high
maximum, the accused could receive a suspended sentence and probation, or he or
she could receive a jail sentence of two years less a day, plus a three-year
probation term. That remains an option if Bill C-9 is adopted.
In other words, when a person is convicted of a serious personal injury
offence as defined in section 752 of the Criminal Code, punishable by a maximum
sentence of 10 years, the judge can sentence that person to two years less a
day, plus probation. This is still possible under Bill C-9, in recognition of
the reality that could still exist when Bill C-9 is adopted.
Senator Nolin: You are getting a bit ahead of me. The judge is getting
ready to sentence a convicted offender to less than two years, if the judge is
of the opinion that the offender would not endanger the community. Can the judge
apply Bill C-9? The answer is yes. Bill C-9, which you all have on your desks,
tells us that if, on the other hand, a person is convicted of an offence other
than a serious personal injury offence as defined in section 752, a terrorism
offence or a criminal organization offence, these offences are not covered by
Bill C-9. Am I right? The judge has that ability.
Senator Joyal: Of course, because Bill C-9 eliminates the possibility
of conditional sentencing. A judge who is faced with an offender convicted of
one of these three offences no longer has the option of issuing a conditional
sentence. Right now, a conditional sentence is an option, but if Bill C-9 is
adopted as is, it will no longer be an option. The bill eliminates one of the
avenues the judge can consider in determining the appropriate sentence. As you
know, the committee was told several times that a conditional sentence is often
more severe and more restrictive than probation. I believe that the committee
heard some very convincing testimony about this.
Senator Nolin: In the end, a conditional sentence represents
controlled freedom. Instead of being in prison, the offender is at home, but his
or her freedom is controlled.
Can you read section 752 of the Criminal Code and tell us which offences
constitute serious personal injury offences?
Senator Joyal: Of course, honourable senators. I have the English
version. Section 752, entitled "Definition," reads as follows:
"serious personal injury offence" means
(a) an indictable offence, other than high treason, treason, first
degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of
another person or inflicting or likely to inflict severe psychological
damage upon another person,
and for which the offender may be sentenced to imprisonment for ten
years or more, or
(b) an offence or attempt to commit an offence mentioned in
section 271 (sexual assault), 272 (sexual assault with a weapon, threats to
a third party or causing bodily harm) or 273 (aggravated sexual assault).
Senator Nolin: Honourable senators will understand that this bill is
trying to curtail the options of the judge. Honourable senators have heard a
list of crimes for which a judge will not be able to give conditional sentence.
Does the judge still have the option of sentencing the offender to probation?
He finds the individual guilty but, because that person does not pose a threat
to public safety, does the judge have other options beside incarceration? I
believe that the answer is yes. Am I right?
Senator Joyal: The answer is a qualified yes. You will remember,
honourable senators, that, when we asked the same question of the witnesses, we
were unable to obtain a definitive answer. And so, honourable senators, I refer
you to the presentation by the Bar, on page 2, where it states:
The term indictable offence includes hybrid offences, such as assault
causing bodily harm or assault with a weapon, and so forth.
In the case of hybrid offences, there is a choice. The Crown attorney may
make that choice. Since we have eliminated the conditional sentence, the Crown
attorney will now have to make a decision. Depending on the plea entered by the
accused, he will make a choice regarding the final step, which is the sentence.
Hon. A. Raynell Andreychuk: I wish to ask Senator Joyal another
question, if he would accept it.
Senator Joyal: I think I am probably beyond the 15 minutes. With the
concurrence of the house, I would be pleased to accept your question.
Some Hon. Senators: Agreed.
Hon. Peter A. Stollery: You have 45 minutes.
Senator Andreychuk: I agreed with Senator Joyal on the issue that we
should look at sentencing. This is not the first time in the Standing Senate
Committee on Legal and Constitutional Affairs — and he and I have been there for
a long time — that we have had bills get in the way of studying the issue of
sentence reform. As he rightly pointed out, conditional sentencing was put into
place some 10 years ago, and it was a new concept at that time. Conditional
sentencing was supposed to be a halfway point between incarceration or letting
someone out on the street with minor restrictions. This is what we used to call
"house arrest." That is, a person is out, but is narrowly confined in what he or
she can do.
We heard from witnesses who said that this approach was both innovative and
helpful to our justice system. It relieved the pressures on the incarceration
units, and it also allowed for better rehabilitation, et cetera, without
interfering with the other sentencing principles that we are bound by in this
country. We also heard from defence lawyers that some people wanted conditional
sentencing, but when they got the conditional sentencing, they found it even
more oppressive than being jailed, obviously because there are some choices. One
must abide by that. A person could leave the house, perhaps temporarily one
would hope, before the authorities could find them. By and large, I think
conditional sentencing is deemed to be for those people for whom the risk does
not attach with the same frequency and severity as it would for those who are
incarcerated — separate and apart from some very major offences, and we will not
go into murder cases.
When Senator Joyal pointed out the statistics, was it not fair that when the
witnesses came before the committee, they talked about statistics on conditional
sentencing per se, but Bill C-9 was a very narrow band? The bottom line was that
the success rate, statistically, looked better on paper for conditional
sentencing than for incarceration rates. In other words, people were repeat
offenders on a percentage basis more often when they were placed in
incarceration. They represent a larger group, whereas conditional sentencing
represents a smaller group. That is probably where our risk is taken, but they
have responded with lesser offences.
We really do not know everything about people's behaviour, recidivism, level
of danger and all those other terms. While we had a good debate, we really could
not say that if we gave more people conditional sentences that society would be
safer. We simply know that, as a group, which appears to be the case, with the
built-in proviso that these are the people with whom we should perhaps take a
risk as opposed to the others who are not.
Judges, prosecutors and defence counsel have been weighing in on this issue
in what appears to be an appropriate manner. Bill C-9 is a narrow band where the
minister said there would be very few cases, but important cases where the judge
would not have that option. I would like the honourable senator to comment on
that, coupled with the fact that there was some evidence to put on the record
that it is difficult to determine how all of these factors are weighed because
of the number of plea bargain cases that come before the courts. All of that
leads us to the very fine conclusion that we need to know more, and members of
Parliament need to know more as we pass bills.
Senator Joyal: Absolutely, honourable senators. I concur with the
honourable senator on the recommendation of the committee. We made that
recommendation — that is, the honourable senator made that recommendation, as
have Senators Nolin and Bryden. When Senator Grafstein was a member of the
Standing Senate Committee on Legal and Constitutional Affairs, he also made that
recommendation. Over the last 10 years, we have been preoccupied with all those
changes in the Criminal Code that have an impact on the sentencing regime, but
we have lost the overall picture. As the German psychologists have put it, we
have lost the gestalt; that is, the overall system and its impact in real terms.
The honourable senator has asked how we can understand those statistics. I
cannot put it better than the conclusion of the Canadian Centre for Justice
Statistics, which concludes in this way:
What does this mean? Does it tell us about the effectiveness of conditional
sentencing and probation programs? . . . Does it tell us about risk assessment
in the awarding of sentences? . . . It is very difficult to disentangle that
That is what I concluded, humbly, with honourable senators today. There is a
need to go deeper into the system because the cost of someone serving his
sentence in the community is about $5 a day for the public purse, whereas the
cost for a daily inmate in prison is $142. Those are the statistics that were
provided to the committee at the beginning of the week from the clerk of the
There are many impacts of this bill that we need to revise in order to better
understand what we are called to do not only with this legislation, but also
future pieces of legislation that are waiting on the Order Paper or in the other
place for the improvement of the justice system. I concur with the honourable
senators on that.
Hon. Francis William Mahovlich: Honourable senators, I would like to
ask a question about pedophiles. Over the past years, I have read much about the
penalties that pedophiles receive. For example, if a priest was involved, he
would be transferred from Saskatchewan to Alberta and that was his only penalty.
I think there should definitely be a stricter penalty for pedophiles.
If you pick up Maclean's magazine this week, you will see that the
penalties are very minor. Does this bill address issues related to pedophiles?
Senator Joyal: The honourable senator raises an important point that
we commented on at the committee. The Honourable Senator Andreychuk initially
raised this point with Minister Nicholson. I will not put words in her mouth,
honourable senators, but she was the first one on the committee to raise the
perception that conditional sentences are perceived incorrectly by a large
majority of Canadians and the media as being less harsh than sending the person
to prison. There is a perception that when something horrible happens, such as
the crime of pedophilia, punishment is the main preoccupation. The perception is
that incarceration is harsher than punishment. Conditional sentencing seems to
be a much smoother sentence.
What the honourable senator refers to is a reality, and we have raised it. We
have addressed it to a point in our discussion, because it is part of the
revision of the conditional sentence regime. As honourable senators will
remember, especially those who were on the committee, Professor Julian Roberts
and Allan Manson have produced a very important study called, "The Future of
Conditional Sentencing: Perspective of Appellate Judges, April 2004." They have
reviewed those aspects of how conditional sentencing should be brought to the
mind of the judge or the appellate jurisdiction judge in the case of a crime
where the aspect of punishment is important to rehabilitation. What is more
unacceptable is a person in authority — a teacher or someone occupying a
position of responsibility in an institution — who abuses his or her position
with respect to children. That is something that revolts everyone.
There is no doubt that conditional sentencing, as was done by Professor
Roberts, needs to be looked at. I hope, as Senator Andreychuk, Senator Nolin,
Senator Fraser and others on the committee have indicated, we will review the
sentencing regime; it should be a priority.
Hon. Joan Fraser: I wish to thank Senator Joyal and other honourable
senators for the very learned discussion we have been having. I agree with a
great deal of what has been said.
To come back to the question of the statistics, the committee study of the
statistics concerning conditional sentencing brought to mind that old saw about
lies, damned lies and statistics. It is not that anyone was lying to us, but it
is possible to interpret statistics in many different ways, not all of which
will be accurate.
As the Canadian Centre for Justice Statistics told us, it is absolutely true
that about 23 per cent of people who receive conditional sentences end up back
in the system, probably incarcerated, whereas about 40 per cent of those who are
incarcerated in the first place end up back in the system. To go back to the
point that Senator Andreychuk was making, they told us explicitly that nobody
knows which is cause and which is effect on those two statistics. Is it that
conditional sentences are given to people who have satisfied the judge correctly
that they are not likely to reoffend, so it is safe to give them a conditional
sentence, or is it that people who are given conditional sentences and therefore
are not incarcerated — not shut up with hundreds of hardened criminals — are
less likely to become repeat offenders?
No one knows the answer to that question. It was very interesting to see the
raw data, but the data only takes us so far. We cannot know at this point what
the effect of this bill will be.
The second thing that strikes me about this proposed legislation is that, in
the end, as in a sense Senator Joyal has suggested, there is much less to it
than meets the eye. There will still be conditional sentences. There are just
now a few categories in which conditional sentences will not be allowed. As the
defence lawyers told us, two of those categories were probably not getting
conditional sentences anyway — criminal organizations and terrorist offences.
Offences in these categories are such that a judge is not likely in the first
place to have given conditional sentences. Personal injury is another category.
The defence lawyers had some concerns about that.
Then, as has been pointed out, the judge still retains the option of
How much will actually change with this bill? Is this bill, in fact, even
necessary? The only logical argument I can find for it on the basis of the
knowledge we now have is that the law should be logical. If we do not believe
that people who commit terrorist offences or criminal organization offences
should be eligible for conditional sentences, the law should say so. That is an
argument that I can accept. I am much less persuaded by the notion that it will
help Canadians feel safer. Many things might help Canadians feel safer. Bringing
back capital punishment might help some Canadians feel safer — however, I do not
think it would be worth bringing back capital punishment on that ground.
It is, in other words, at best an unnecessary piece of proposed legislation.
I am not persuaded that the bill is actively bad, but I did want to make the
point about the statistics.
Hon. George Baker: I should like to comment on the bill.
I want to congratulate Senator Joyal for his summary, as well as the senators
opposite in questioning him concerning what he said. I also wish to put on the
record that at the committee we heard the minister speak about the need for the
bill, the intent of the proposed legislation. The minister gave examples of
terrible crimes that resulted in conditional sentences. During our hearings, we
heard of other cases. In one case, a terrible crime was committed where a single
mother was used by drug dealers to bring drugs into Canada. It was a first
offence. The lady was given a very strict conditional sentence, with many
conditions so that she could care for her children at home. The committee heard
an example from the minister, where he said: "Here is why the bill should be
passed. Here is this terrible crime, and look, this judge gave a conditional
sentence so that this person could go to their home." Then we heard just the
opposite from other witnesses.
The whole matter boils down to this, honourable senators, that is, it is not
the judge alone who makes the decision. There are protections built into the
system. When someone is found guilty, a sentencing hearing takes place. In some
cases, a judge can demand an independent report be made to the court. The Crown
and defence each present their case, and a decision is made by the judge, as
Senator Andreychuk knows, and the judge is then required to go through a rather
complex checklist. That is a part of the system. The judge listens to arguments
and makes a decision based on very firm reasons. The judge is required to do
that. If the Crown or the defence is unhappy with the judge's decision on
conditional sentencing, either one can go to the appellate court. If a
provincial court judge made the decision, one can appeal to the Supreme Court.
If the decision came from the Supreme Court, one can appeal to the Court of
Appeal. If the decision came from the Court of Appeal, one can appeal to the
highest court, the Supreme Court of Canada.
Every judge who makes a decision on conditional sentencing must give reasons.
Why is a judge required to give reasons? Honourable senators, a judge is
required to give reasons so that they will be there for appellate review. There
is only one case, as senators know, where reasons are not given, and that is in
a jury decision. One cannot appeal a jury's decision, because a jury does not
have to give reasons. The only thing that can be appealed in a jury case is the
judge's instructions to the jury.
In these cases of conditional sentences, those are the built-in protections
that we have. The judge is under strict standards of review in every case, and
the standards of review sometimes differ, as senators know, in different
sections of the Criminal Code. They sometimes err in law only, sometimes in law
and in fact. These are the defences that are built in.
I want it on the record that we just cannot blame a judge if a judge makes a
decision, as the minister outlined. We have to take the entire process into
account to know that our system is working well. The question should be asked at
times like this, why do we need a change if it is working very well?
On motion of Senator Tardif, debate adjourned.
On the Order:
Resuming debate on the motion of the Honourable Senator Nolin, seconded by
the Honourable Senator Stratton, for the second reading of Bill C-18, An Act
to amend certain Acts in relation to DNA identification.
Hon. Marilyn Trenholme Counsell: Honourable senators, throughout human
history, science and art have often been connected. During my career, I have
often spoken of the science and the art of medicine. Today, I will be talking
about science and art in the legal system.
Scientific data are now prominent in legal proceedings and can easily
influence the course of investigations, interpretations and debates and alter
the decision-making process, even in our courts.
Medicine has acknowledged this reality for centuries. The justice system
acknowledged it just two decades ago.
A little history: The RCMP Laboratory in Ottawa opened its doors to DNA
analysis in 1989. Lawyers and police took crash courses in molecular biology,
forensic technology and population genetics. U.S. lawyers wrote about a DNA war.
A regional Crown prosecutor in New Brunswick wrote, "It seemed that all my
waking hours were consumed by all of this." The media took great interest:
Forensic DNA analysis involves taking hair, semen, blood, saliva or bone
marrow found at a crime scene, extracting the DNA and reducing it to what
looks like a bar code found on grocery items. This genetic bar code is
typically called a DNA fingerprint, or profile. Geneticists regard the science
as so precise that the odds of a DNA match in a criminal investigation being
wrong are . . . millions, even billions, to one. It can establish innocence as
easily as guilt.
The science of DNA was to the 20th century what fingerprinting was to the
19th century. The first fingerprints were used as evidence to solve the dual
murder of two children in Argentina in 1891. The first use of DNA evidence was
in the United Kingdom in 1983 when Dr. Alec Jeffreys, a prominent DNA scientist,
used DNA to exonerate an individual who had confessed to a crime but was not
In Canada, DNA evidence was first used by the RCMP in Canadian courts at a
sexual assault trial in Ottawa, April 1989. DNA confirmed the suspect as the
New Brunswick became the centre of attention, nationally and internationally,
when serial killer Allan Legere was convicted on November 3, 1991, by DNA
evidence, on four counts of first-degree murder. This was the first time in
which the new science of DNA typing was used to obtain a criminal conviction in
Canada and was therefore a landmark in Canadian legal history.
Not only in the Miramichi, but across Atlantic Canada, people had been
terrorized by Allan Legere, as André Veniot wrote in Allan Legere: A Look
Back, 2006. People had guns and rifles under their beds while this man was
on the run for seven, very bloody months. In that time, he killed four people
and sexually assaulted a fifth, leaving her for dead. Citizens young and old
were shocked by the sheer brutality, cruelty and savagery of these murders.
Allan Legere became known as "The Monster of the Miramichi." There were no
fingerprints at the crime scene and no eyewitnesses. DNA analysis of semen
samples found on Mr. Legere's rape victims became the foundation of the case.
These were matched with a spot of blood from a Kleenex he used to blow his nose
and with hair left over from a previous investigation.
Screaming obscenities in the court on more than one occasion, Mr. Legere
professed to know more about DNA than his accusers. In the end, DNA won the day
and the conviction was upheld in a subsequent appeal. The prosecution referred
to one chance in 310 million that someone else would match the genetic codes
taken from the semen samples.
Sixteen years later, in the Senate of Canada, we find ourselves contributing
to the DNA debate and the advancement of justice through Bill C-18, a bill that
has had many predecessors, and which represents a culmination of several other
projects of law.
DNA did not make its way onto the floor of Parliament until July 1995 when
Bill C-104 was unanimously passed in the House of Commons after only one day of
debate. Yet it died on the Order Paper in June 1997. Bill C-104 was reintroduced
in September 1997 as Bill C-3 and received Royal Assent December 1998.
Subsequently, Bill S-10 was introduced the Senate November 1999.
Bill S-10 included recommendations regarding fingerprints, the inclusion of
designated offenders in the military justice system and, most importantly,
called for " . . . a full legislative review after five years to be conducted by
the Senate and the House of Commons."
Bill S-10 received Royal Assent June 30, 2000. Bill C-3 and Bill S-10 were
proclaimed June 30, 2000. Four years later, October 15, 2004, Bill C-13 was
introduced and received Royal Assent May 19, 2005. Bill C-13 added 172 offences
in its amendments to the Criminal Code, the DNA Identification Act and the
National Defence Act. It also created a new category of offences where judges
would have no discretion, and included all offences prosecuted by indictment,
and punishable by five years as secondary offences. Other amendments addressed
retroactivity, profile sharing procedures and rules to confirm the validity of
the National DNA Data Bank orders. However, only certain parts of Bill C-13 were
proclaimed. The fact is that most of Bill C-13 did not come into force due to
so-called technical glitches.
Recognizing the need to change Bill C-13, Bill C-72 was introduced November
2005 — election and another death on the Order Paper.
Honourable senators, Bill C-18 was introduced June 8, 2006, to make the
changes embodied in Bill C-72, along with other technical improvements. Almost
one year later, the Senate is finally turning its attention to this exceedingly
important legislation for Canada's system of justice and for the security of our
fellow citizens. I sincerely trust that Bill C-18 will not become the victim of
unnecessary delays, nor of another election call. The history lesson is over.
What is Bill C-18? It amends the Criminal Code, the DNA Identification Act
and the National Defence Act and chapter 25 of the Statutes of Canada, 2005.
Essentially, Bill C-18 deals with 10 categories of change to the above legal
documents. The first is retroactivity, including persons sentenced or discharged
or found not criminally responsible because of mental disorder, for designated
offences committed at any time, including before June 30, 2000. These
retroactive designated offences include having been declared a dangerous
offender or a dangerous sexual offender even before January 1, 1988; convicted
for murder, attempted murder, conspiracy to commit murder, to cause another
person to be murdered; conviction for a sexual offence; conviction for
manslaughter; and in all cases of the above, currently serving a sentence of
imprisonment for that offence.
Second, Bill C-18 will permit the taking of bodily substances for forensic
DNA analysis from persons found not criminally responsible on account of mental
disorder, for primary designated offences, under the Criminal Code, the Young
Offenders Act and the Youth Criminal Justice Act. However, a court may decide to
allow exemptions under the Young Offenders Act and the Youth Criminal Justice
Act. Similarly, the court may exempt a person found not criminally responsible
because of a mental disorder if the impact of such an order would be detrimental
to the person's privacy and security.
Bill C-18 also applies to secondary designated offences under the Criminal
Code and the Controlled Drug and Substances Act carrying a maximum punishment of
imprisonment of five years or more; and attempts or conspiracies to commit an
offence prosecuted by indictment.
Third, Bill C-18 allows an order to be made for forensic DNA analysis up to
90 days after sentencing, if that order was overlooked at the time of
conviction. Fourth, Bill C-18 adds attempted murder and conspiracy to commit
murder or to cause another person to be murdered, as I mentioned at the
Fifth, Bill C-18 eliminates the necessity that the person from whom the
sample is to be taken must be serving a sentence of imprisonment for two years
or more in favour of "still serving a sentence of imprisonment for one of the
Sixth, Bill C-18 allows closed-circuit TV or similar means of communication
to be used to facilitate management of cases involving forensic DNA analysis.
Seventh, Bill C-18 allows samples to be taken at the place, day and time set by
an order or a summons or as soon as feasible afterwards. Eighth, Bill C-18
states that every person who, without reasonable excuse, fails to comply with a
DNA order or summons is guilty of an indictable offence and liable to
imprisonment for a term of not more than two years, or an offence punishable on
summary conviction. A justice of the peace may issue a warrant for arrest.
Bill C-18 lists as a reasonable excuse for not complying, a person who, under
the National Defence Act, is subject to the Code of Service Discipline. Ninth,
Bill C-18 mandates the destruction of bodily substances and details the
mandatory conditions for DNA information to be permanently removed from the DNA
data bank by the Commissioner of the RCMP. It must be removed if the Attorney
General or the Director of Military Prosecutions decides the offence is not a
designated offence, and in cases such as acquittal, absolute discharge and
Bill C-18 enables the Commissioner of the RCMP to communicate internationally
information, which may be communicated within Canada to law enforcement agencies
or laboratories under subsection 6.(1) of the DNA Identification Act, and
outlines in further detail the law concerning communication with foreign law
Honourable senators, these are the 10 main categories of change encapsulated
in Bill C-18.
As mentioned earlier, certain of these changes apply also to the National
Defence Act, for example, retroactivity, not criminally responsible due to
mental disorder, results of failure to comply with orders and certain other
Senators, those of us who are not lawyers, will be interested in the offences
affected by this DNA legislation. However, the following list is not complete.
As primary designated offences, I would mention the following: murder;
manslaughter; attempt to commit murder; bodily harm with intent by firearm, air
gun or pistol; administering noxious substances with the attempt to endanger
life or cause bodily harm; overcoming resistance to the commission of offence;
assault with a weapon or causing bodily harm; aggravated assault; unlawfully
causing bodily harm; sexual assault with a weapon; aggravated sexual assault;
kidnapping; robbery, extortion; indecent assault on a female, indecent assault
on a male, and acts of gross indecency; use of explosives or other lethal
device; participation in criminal organizations; sexual exploitation of a person
with a disability; making, distributing, possession of child pornography; luring
a child or procurement in relation to child pornography, including via the
Internet; prostitution under 18 years of age or living on the avails of such
acts; sexual assault; hostage taking; intimidation of a justice system
participant or journalist; attack on the premises, transport or accommodation of
an internationally protected person or United Nations or associated personnel.
Some secondary designated offences affected by this DNA legislation include
the following: trafficking in substance, and possession, importing, exporting
for the purpose of trafficking; bestiality in the presence of or with a child;
parent or guardian procuring sexual activity; indecent acts; failure to stop at
the scene of an accident; criminal harassment, uttering threats; assault
including a peace officer; breaking and entering; intimidation; and, arson and
setting fire to other substances.
I wish also to mention a number of other important considerations in Bill
C-18. First, appeals are allowed either on the part of the offender or on the
part of the prosecutor under proposed subsection 487.051(1) to (3). The
delegation of responsibility to collect samples, including fingerprints, is
covered extensively in Bill C-18, including the training or experience required,
the duty to inform, the use of force as necessary.
Certain other requirements are stipulated, such as the necessity to verify
whether or not the person's DNA profile is already in the National DNA Data
The written transmission of information to the Commissioner of the RCMP is
detailed in Bill C-18. Any failure relating to the acquisition of forensic DNA
material or failure in the transmission of information must also be fully
documented. Bill C-18 clearly states that bodily substances taken in execution
of an order can only be transmitted to the Commissioner of the RCMP; no other
use is permitted. Any person authorized to take samples of bodily substances is
protected from any criminal or civil liability.
Errors in procedures reported to or observed by the Commissioner of the RCMP
must be referred to the Attorney General for review and decision. Thereafter, a
provincial court judge may authorize the taking of additional samples of bodily
substance for forensic DNA analysis.
Information in the National DNA Data Bank will be permanently removed after
an order is finally set aside; the person is finally acquitted of every
designated offence; or, one year after the day on which the person is discharged
absolutely; or, three years after the day on which the person is discharged
conditionally, if that person is not subject to an order relating to another
designated offence, or convicted of or found not criminally responsible on
account of mental disorder for a designated offence during that period.
Honourable senators should note that other items on the legislative agenda
will affect Bill C-18. Bill S-3, which received Royal Assent on March 29, 2007,
will require minor technical changes to Bill C-18. Bill C-7, which is only in
first reading at the House of Commons, would necessitate similar changes in the
National Defence Act. Bill C-10, which was at the report stage in the House of
Commons on May 7, 2007, if given Royal Assent and proclaimed, would necessitate
certain other changes.
Honourable senators, 11 months ago on June 8, 2006, Bill C-18 was introduced
by the Minister of Justice and Attorney General of Canada. At second reading on
October 3, 2006, he stated:
This bill is highly technical. It is necessary, however, to make these
technical changes so that we can proclaim former Bill C-13, which was passed
in the last Parliament, with all party support.
The minister spoke about the need to pass this bill for many reasons,
including the importance of proceeding with a five-year parliamentary review of
DNA legislation, which should have begun June 30, 2005, had it not been for the
many delays I have outlined.
Honourable senators, I was touched to read that the opposition justice critic
singled out greater protection for children provided for by Bill C-13 and Bill
C-18, such as Internet luring and child pornography becoming primary offences.
The critic also spoke of the urgency for an overall review relative to emerging
areas and stakeholders' concerns.
After two days of debate in the House of Commons, Bill C-18 was unanimously
referred to committee. The Standing Committee on Justice and Human Rights of the
House of Commons studied Bill C-18 for two days and on March 1, 2007, agreed, on
division, with one MP reporting against, to report Bill C-18 without amendment.
Bill C-18 received third reading on March 28, 2007, in the House of Commons and
was passed unanimously.
Honourable senators, I concur with our colleague Honourable Senator Pierre
Claude Nolin, who urged us on May 2, 2007, to quickly refer this bill to
committee for study involving officials and experts.
There is no doubt that Bill C-18 moves law, justice and the safety of all
Canadians forward. This is a very important bill. I am honoured to have had the
privilege of participating in this debate. Thank you, honourable senators.
The Hon. the Speaker pro tempore: Will the honourable
senator accept a question?
Senator Trenholme Counsell: Yes.
Hon. Roméo Antonius Dallaire: Honourable senators, I sit as a member
of the national police services advisory board, which oversees all police
services in the country from the RCMP to municipal police forces. One of the
areas is the realm of DNA, the laboratories, the work done there and so forth.
In our meetings, we have discussed DNA and the tardiness of bringing about
modern legislation to maximize that extraordinary capability. We desire the
legislation for the application of justice to ensure that innocent people are
not misjudged and pay for crimes they do not commit and to bring to justice
those who commit crimes.
The suggestion I would like to raise with the honourable senator, because she
has worked on this and pondered over it, is that DNA sampling should be taken
from every newborn in the country as well as every immigrant coming into the
Does the honourable senator have an opinion as to whether that goes beyond
the bounds of reasonableness or, potentially, individual rights?
Senator Trenholme Counsell: I thank the honourable senator for his
question; however that question does not apply to this bill. It is a profound
question that deals with technicalities in the administration of certain aspects
of the Criminal Code and the other bills, the DNA Identification Act, the
Military Justice Act and so forth.
The question regarding storage of DNA from cord blood is in the media. Many
Canadians are talking about it. At this point it is at the stage of very
personal reflection only. It may be interesting for the Senate to debate this
We have many issues to debate in Parliament about stem cell research and
biogenetics. This matter is different but, in some ways, connected. The DNA
issue is a matter of ultimate security and protection and is different from the
stem cell debate.
The honourable senator's question is a good one. However, in my opinion, it
is not a question related directly to Bill C-18.
Senator Dallaire: I am aware of that. I am trying to push the envelope
because I believe that we are fiddling in the margins of a capability that has
long been available. We are holding ourselves back by some perspective of
encroaching upon liberties of individuals.
This technology can ensure far greater capacity for justice rather than being
an encroachment on individual rights. Therefore, I am most supportive of this
bill. I hope we push the envelope and that the debate will not stop at this bill
but will go much further.
The Hon. the Speaker: There being no further debate, are honourable
senators ready for the question?
Hon. Senators: Question!
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Motion agreed to and bill read second time.
The Hon. the Speaker: When shall this bill be read the third time?
On motion of Senator Comeau, bill referred to the Standing Senate Committee
on Legal and Constitutional Affairs.
Hon. A. Raynell Andreychuk moved second reading of Bill C-48, to amend
the Criminal Code in order to implement the United Nations Convention against
She said: Honourable senators, I rise to speak to Bill C-48, to amend the
Criminal Code in order to implement the United Nations Convention against
Corruption, a serious criminal activity, presents challenges to all countries
of the world. No country is exempt from corruption activities. It constitutes a
serious problem in developing countries, where it creates an enormous obstacle
to development and reconstruction efforts.
Canadian businesses face corruption in commercial operations. Institutions
engaged in development and reconstruction projects confront it also.
The United Nations Convention against Corruption is the first comprehensive
and global anti-corruption treaty. Canada has been a strong supporter of the
convention since the beginning of the process. We took an active and leading
role during the preparatory stages and the negotiation of the treaty. Since the
convention was adopted by the UN General Assembly in October 2003, Canada has
provided expertise and financial support to the UN secretariat and to other
countries in order to encourage and assist them in ratifying and fully
implementing the convention.
While the UN convention is the first comprehensive global instrument of its
kind, Canada is already a state party to several regional and more specific
treaties dealing with corruption. Canada has been a party to the Inter-American
Convention against Corruption, under the auspices of the Organization of
American States, since June 2000. We have also been a party to the United
Nations Convention against Transnational Organized Crime, which deals with the
transnational and organized crime aspects of corruption. As well, we have been a
party to the OECD Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions since 1998.
Since we ratified these international legal instruments, officials have been
actively engaged in supporting them through monitoring activities and the
delivery of assistance to other states parties that have requested it.
Canada's ratification of the United Nations Convention against Corruption
will be an important and logical extension of its international commitments in
the global fight against corruption.
When Canada signed the convention in May 2004, we indicated that we supported
the convention, we intended to ratify it, and we intended to be bound by it. The
government now wants to ratify it and send a strong signal to all countries of
the world. Our message is that Canada recognizes the seriousness of corruption
and that we stand united with our fellow member states of the United Nations in
our commitment to deal with corruption as a global problem.
Canada supports this convention not only because it will further the cause of
assisting other countries in development and good governance, but also because
the implementation of its provisions in those countries will help to ensure that
development funds contributed by Canadian taxpayers and other donor countries
will be used to the full benefit of the developing countries.
The UN Convention against Corruption criminalizes the bribery of domestic and
foreign public officials, as well as persons working in the private sector, and
of embezzlement in the public and private sectors.
State parties are also invited, but not required, to consider criminalizing
trading in influence, abuse of functions and illicit enrichment by public
Apart from the offence of illicit enrichment, which is not mandatory, the
other offences established by the convention are, for the most part, already
criminal offences in Canada. For example, the offence of bribery of domestic
public officials is covered by a series of existing Criminal Code offences,
including bribery of judges and members of the federal Parliament or a
provincial legislature, section 119; bribery of police, court officers and
anyone involved in the administration of the criminal law, section 120; bribery
of government officials, section 121; bribery of municipal officials, section
123; and breach of trust, section 122.
With respect to private sector bribery, we have the offence of secret
commissions — section 426 of the Criminal Code.
The offence of bribery of a foreign public official is found in the
Corruption of Foreign Public Officials Act.
The offence of fraud — section 380 of the Criminal Code — applies to
embezzlement in the public and private sectors, and the new offences of fraud
against public money in the Financial Administration Act, which were enacted by
the Federal Accountability Act, apply to embezzlement by public servants and by
directors or employees of Crown corporations.
As required by the convention, we already have offences in place that cover
both active and passive bribery. It is a crime to offer or give a bribe to a
public official, and it is a crime for a public official to solicit, demand or
accept a bribe.
Domestic anti-corruption standards in Canada are already in place to meet the
requirements of the convention. However, there is need to make some technical
legislative changes in order to comply fully with the requirements of the
convention. This is what Bill C-48 is really all about.
Many of the offences of corruption in the Criminal Code come from the common
law and were part of our law before the criminal law was first codified in 1892.
The scope of some of our present offences must be expanded to fully conform to
The convention requires us to criminalize both direct bribery and bribery
demanded or given through an intermediary. It also requires that we criminalize
bribery where a benefit is demanded for, or given to, a third party. Some of the
corruption offences in the Criminal Code already expressly meet these
requirements, but not all of them. Case law has interpreted some of the offences
that do not specifically provide for bribery through intermediaries and third
parties as if they did. The proposed amendments will add the necessary words to
these offences in order to ensure that our obligations will be met fully,
consistently, and in every case.
The convention also applies a definition of "public official" that is broader
than the definition of "official" as it reads in section 118 of the Criminal
The Hon. the Speaker: Honourable senators, Senator Andreychuk, who is
the sponsor of this bill, has 45 minutes to speak. There is a house order that
the Senate must adjourn at 4 p.m. I want honourable senators to know that
Senator Andreychuk has used up only seven minutes of her time.
The Senate adjourned until Thursday, May 10, 2007 at 1:30 p.m.