The Hon. the Speaker: Honourable senators, I received a notice earlier
today from the Leader of the Opposition who requests, pursuant to rule 22(10),
that the time provided for the consideration of Senators' Statements be extended
today for the purpose of paying tribute to the Honourable Senator Aurélien Gill,
who will retire from the Senate on August 26, 2008. I remind honourable senators
that, pursuant to our rules, each senator will be allowed only three minutes and
may speak only once. However, it is agreed that we continue our tribute to
Senator Gill under Senators' Statements and that Senator Gill hold his comments
until the end of Senators' Statements.
Is that agreed, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker: We will, therefore, have 30 minutes, which does
not include the time allotted for Senator Gill's response. So ordered.
Hon. Céline Hervieux-Payette (Leader of the Opposition): Honourable
senators, it is with great emotion and some sadness that I rise today to pay
tribute to a loyal friend and very devoted colleague, the Honourable Aurélien
Gill, who will retire from the Senate in August to guide the work of the Truth
and Reconciliation Commission. He will still be working for his great cause.
An experienced businessman, passionate Aboriginal leader and seasoned
parliamentarian, Aurélien Gill will have left his mark in all of his careers,
and will have profoundly touched all those who have had the privilege to know
him, be around him and work with him.
Aurélien Gill was born in Mashteuiatsh, also known as Pointe Bleue, a
Montagnais community on Lac Saint-Jean, and studied education at Laval
University, before enrolling in the National Defence College in Kingston, a
college that trains senior officers and civil servants.
He started his career in teaching, then moved on to success in the federal
government. His intelligence, hard work and dedication to public service helped
him rise through the ranks to become Director General in the Department of
Indian and Northern Affairs.
A very gifted teacher and public servant, Aurélien Gill will also leave his
mark as a leader in the campaign for the recognition and self-governance of
Aboriginal nations. Over the years, he has founded a number of organizations,
such as the Confederation of Indians of Quebec, the Attikamek-Montagnais Council
— well-known among Quebecers — and the Native Benefits Plan. From 1974 to 1985,
he was Chief of the Montagnais of Lac Saint-Jean (Pointe Bleue), a testament to
his excellent leadership skills.
Appointed to the Senate in 1998 by Prime Minister Jean Chrétien, Aurélien
Gill put his talents and skills to work in the upper chamber. He continued to
talk about and advocate for First Nations independence with extraordinary
passion, eloquence and conviction. As a senator, he gave many passionate and
fiery speeches on the state of our First Nations, but I believe that the history
books will show that his greatest contribution as a parliamentarian was his
visionary bill to create an assembly of Aboriginal peoples.
Bill S-234, a timely bill, was introduced on May 7, 2008, and I support it
wholeheartedly because it would create a gathering place for Aboriginal people
to debate and make decisions about their future.
Dear Aurélien, although you will no longer be here by the time this bill goes
to committee for review, I am delighted that our friend and colleague Senator
Watt, has volunteered to guide it through the twists and turns of the
legislative process. I hope that a great many honourable senators will support
this historic measure. I would like to take this opportunity to thank our
Speaker for being so open to accepting this bill.
Dear Aurélien, during the 10 years you have spent here, you have shared your
extraordinary talents, energy and eloquence. You have earned the respect and
admiration of all who have known and worked with you. On behalf of our
colleagues, I would like to wish you an active, enjoyable and very productive
May you have plenty of time to indulge in your favourite pastimes and to
enjoy your wonderful hunt camp in Shefferville. Perhaps we will have the
opportunity to visit you there one day.
I will end by bidding you farewell, my dear friend, in the language of your
Niaut nwuit she ouan nan.
Hon. Jean-Claude Rivest: Honourable senators, I too would like to pay
tribute to our friend Aurélien Gill and wish him good luck with his many
activities. I hope that he will continue to bear witness, in his own way, to his
deep, long-standing connection to his Montagnais roots and to the larger
Aboriginal community of Quebec and Canada.
Of course, we will all have the opportunity to meet Aurélien again outside
this chamber and tell him how much he was appreciated here in the Senate for his
irreproachable integrity and dedication, and his remarkable generosity. He has
dedicated his entire life to Aboriginal people and has earned the respect not
only of his fellow Montagnais and other First Nations peoples in the
Saguenay—Lac Saint-Jean region, but also that of the entire community.
Aurélien will recall the time he and I had the opportunity to walk across
Paris together. We had the chance to talk and we agreed that Quebec has also
failed to treat its Aboriginal population in an exemplary manner.
Following the formal apology that was given in the House of Commons and the
Senate last week, I believe we are at the dawn of an important new beginning for
Canada, which will finally acknowledge the full merit of Aboriginal rights.
Aurélien Gill's contribution to this cause will remain a beacon and a
benchmark for building a better future, not only for Aboriginal peoples, but for
all Quebecers and all Canadians. After all, that has been the objective and the
political ambition of our friend Aurélien.
I wish you all the best in the years to come, Aurélien!
Hon. Lucie Pépin: Honourable senators, I am pleased to join my
colleagues here today in paying tribute to Aurélien Gill — someone who is more
than just a colleague, but also a friend — upon his departure.
This new chapter for Senator Gill represents another step in a career that
has been dedicated entirely to improving the lives of this country's first
His people are his passion. Throughout his professional life, Aurélien has
worked tirelessly to make this world a better place for First Nations, Metis and
Inuit peoples, a world where respect, equality and dignity prevail and where
they can assume responsibility for their own affairs.
Not surprisingly, in his decade as a senator, he has never stopped lending
his voice to the concerns of Aboriginal peoples and has remained a passionate
defender of strengthening their autonomy. I would like to thank you, Aurélien,
for always keeping us alert to the injustices suffered by Aboriginal people.
I agree with Aurélien that in order to encourage our Aboriginal fellow
citizens to take their place in Canadian society, there is a need to enhance
their autonomy both nationally and locally.
Everyone knows how sincere, frank and determined Senator Gill is. A lesser
known side of Aurélien is that of a man with a great gift for livening up social
functions. He is a great party guy, and I have personal knowledge of that.
Whenever we had party functions or gatherings, no sooner had the music
started than he would say, "Let's go, girl!", and we would dash toward the
dance floor where everyone was impatiently waiting for us to get the whole crowd
Aurélien is a spontaneous man who shows great generosity in his everyday
life, a rare quality in our increasingly impersonal society. We wish for him
that in the years to come his enthusiasm and cheerfulness never wane.
Senator, you will be missed, but know that there will always be a spot for
you in each of our offices.
I join all honourable senators in wishing him and Aline health, much
happiness together and a well-deserved rest in Masstéyach among their
grandchildren. Farewell and the best of luck to you! Tchi nich koumitin, niaout.
Hon. Lise Bacon: Honourable senators, I am pleased today to honour a
colleague and friend, the Honourable Senator Gill. In September 1998, we had the
honour to welcome him into this chamber. I was in the front row at that
important event because I had the honour to be his sponsor. I was very happy
when he arrived, and today I am sorry that he is leaving.
I have known Senator Gill for many years. He is an extraordinary man.
Throughout his career, he has combined business acumen with a desire to serve
his community and a determination to improve the lot of the First Nations. He
deserves our admiration as a model of social involvement. He effectively
represents the members of his community.
Senator Gill has distinguished himself as a leader of Aboriginal associations
in Quebec and in Canada-wide groups such as the Assembly of First Nations and
the Provincial and National Aboriginal Advisory Council. His community and
social involvement has always focused on advancing the cause of the First
I am convinced, dear colleague, that your involvement is not ending as you
leave our chamber. Instead, a new chapter in your life is beginning. I encourage
you to keep up your fine work with your community and to continue to be a model
for Aboriginal people.
In our work in the Senate, Senator Gill has played an active role in
advancing Aboriginal issues. The work of people like Senator Gill deserves to be
recognized. It is important that the Senate be able to count on the members of
our First Nations and that Canada's diverse population be represented in this
chamber. The Senate must reflect the population of Canada and include members of
the different communities that make up our country. Appointing senators makes
this and other things possible.
Senator Gill, I commend you on your many accomplishments. You are my
favourite activist, and I wish you good luck.
Hon. Roméo Antonius Dallaire: Honourable senators, I want to add my
voice to these tributes and talk about Senator Gill's many fine qualities. I
will be sorry to see him leave the Senate this summer. I have to admit that I
was quite intrigued by his given name, Aurélien, which is different from common
names such as Joseph, Arthur or François. I noticed it immediately when I
arrived in the Senate three years ago and looked at the list of senators.
I noted that he had been awarded the Order of Quebec in 1991. As a fellow
member, I am pleased to say to him that he truly deserved this generous gesture
and recognition by the province.
We are very familiar with your activism in the areas of education and
culture. Your work with the Amerindian Police Council surprised us with your
concern for security, both in one's community and in general.
Senator Gill was a student at the National Defence College from 1977 to 1978,
when I was a young captain. He was taught by the great strategists of our
country and visited the entire world because people in that course travelled
everywhere. During these trips, he observed the conditions of Amerindians and
Aboriginal peoples in other countries and the action being taken in their
regard. He returned with the perspective that we could do much better in Canada,
a country that respects human rights and where the Charter of Rights and
Freedoms must be respected by all.
That he is a great strategist is not a surprise or a revelation, because the
Amerindian community he represents in the Senate participated in the great
strategic moments of our country. It allowed us in Canada to remain independent
from the Americans. I would like to talk about a historical event in which
Quebec's First Nations participated. The event took place in 1775, at Fort
Saint-Jean, during the invasion of Canada by Richard Montgomery's army,
attempting to finally bring Canada under the Americans' yoke.
A small group of a dozen British soldiers, a hundred French Canadian
militiamen and more than 600 Amerindians fought at Fort Saint-Jean for 43 days
and delayed the advance, making it possible for Canada to remain Canada.
Hon. Willie Adams: Honourable senators, it is sad to see my friend
leaving the Senate. I will be following him a year from now. Senator Gill is
leaving because he has reached the age of retirement.
I worked with Senator Gill on the Standing Senate Committee on Aboriginal
Peoples. It is interesting that Senator Gill's bill, Bill S-234, is at committee
stage. Last week, Aboriginal representatives appeared before the Committee of
the Whole Senate. Hearing from Aboriginal people such as Mary Simon and people
from the Assembly of First Nations in the Senate was interesting.
Representatives of the Aboriginal people should come to the Senate every year to
report on the negotiations with the Government of Canada on outstanding land
Senator Gill, you have worked with Aboriginal bands, and you worked with many
people before you were appointed to the Senate. Now you have done good work in
the Senate. I hope your future life and your time with your wife will be a time
of happiness. Perhaps we will visit you to see how you are doing. Thank you for
your time in the Senate.
Hon. Joan Fraser: Honourable senators, I had the good luck of joining
the Senate on the same day as Aurélien Gill. I say "luck" because there could
have been no better way to be introduced to the Senate.
Unlike many of my colleagues, I did not know Aurélien Gill. I did not know
who he was. It made no difference; it only took 30 seconds for me to be struck
by his integrity, kindness, generosity and pride — all without one ounce of
I told myself that, if all senators were like him I would have wonderful
years ahead of me. We are not all as good or as admirable or as remarkable as
Aurélien Gill, but he is a role model for us. It was not until later that I
became aware of his extraordinary passion for the causes he believes in,
particularly the cause of his people, the First Nations.
Here in this chamber we have all heard his amazing speeches, and not just the
one he delivered when introducing his bill, which is truly monumental, but also
his other speeches the years, which have educated us about the First Nations'
I can say to the senators across the way that if they think Senator Gill is
eloquent in the chamber, they should hear him in caucus, especially the Quebec
I know that Senator Gill was slightly frustrated by the slow pace of things
here. That is normal. However, I would like to assure him of the profound impact
he has had on us, on our understanding of things and on our hearts and, for
that, we should all thank him most sincerely.
Aurélien, we wish you and your family many years of happiness. Sometimes
psychological impact is just as important as legislative impact.
Our hearts will never be the same.
Hon. Nick G. Sibbeston: Honourable senators, I also wish to offer my
tribute to the Honourable Senator Aurélien Gill, who will be retiring from the
Senate later this summer.
Senator Gill has been a teacher, a public servant and a successful
businessman, but more than anything he has been a tireless defender of
Aboriginal people and especially of the people of his own region of Mashteuiatsh
Montagnais, where he served as chief for 10 years.
I had the opportunity to visit Senator Gill's region a few years ago to see
first-hand the challenges faced by First Nations in the area, but I also saw the
great economic and social successes they have achieved — much of it under
Senator Gill's leadership and guidance.
Aurélien Gill's work for Aboriginal people extended far beyond the borders of
his community, of course. He helped found several important provincial and
national Aboriginal organizations, and served for many years on the Indian
Claims Commission dealing with problems with specific claims. I know it must
give him satisfaction to see Bill C-30 pass, which is the Specific Claims
Tribunal Act — a monumentally important bill for our country. I am glad that
bill was passed while he was here.
A number of years ago we were dealing with another specific claims act. We do
not often have differences, but he was passionate and eager to have a great deal
done. I was encouraging little steps, that we must be patient. However, Senator
Gill wanted the whole package. It is nice to see that the government has come
through with Bill C-30 while he was here.
I wish to say that I am very conscious of the bill he has brought to the
Senate just before he retires. Bill S-234, a bill to establish an assembly of
Aboriginal people, will be a monumental bill. It will create discussion and it
will make our country realize the importance of having Aboriginal people
involved in a body that would represent Aboriginal peoples in our country. I
will be speaking on that bill and supporting it.
Senator Gill's ideas and his dedication will continue to inspire all of us
who work to improve the lives of Aboriginal people. I note that there are a
handful of Aboriginal people in our Senate, and he is one of the important ones.
We will miss him, but his family will gain. They will have him all to
themselves. However, we must realize where he is going and wish him a happy
Hon. Terry Stratton: As honourable senators know, I do not do this
very often. In fact, it is quite rare. However, I have been thinking about this
for a while because some time ago Senator Gill, Senator Fitzpatrick and I formed
a small committee at the request of the former prime minister to take a look at
the softwood lumber issue out West. Therefore, I had the delight of travelling
with Senator Gill to the West.
Honourable senators, you get to know someone when you are in a small group
like that. It really is what is wonderful about this place, because you have a
persona in the chamber, and you have the other persona that you really get to
know by travelling with someone.
I found Senator Gill to be a sincere, warm-hearted friend. He and I have had
quite a good relationship ever since that trip. Aurélien, I wish you well. Bonne
As I said, I do not talk very often on this kind of issue because I do not
entirely agree with it, especially with regard to the number of honourable
senators who stand up every time.
In this particular case, Aurélien, have a wonderful retirement. I will keep
practising my French. Hopefully, it will get better and better.
With respect to Senator St. Germain, he is in British Columbia for medical
reasons. Otherwise, he would be here today speaking to you in glowing terms, as
I hope the rest of us do.
I wish you well, friend.
Hon. Charlie Watt: Honourable senators, bear with me. I wish to direct
the following words to Senator Gill.
[Editor's Note: Senator Watt spoke in Inuktitut.]
Honourable senators, what do I say? I have known Senator Gill for many years.
I first met him in the late 1960s. He was working out of Quebec City at the
time. When I first met him, I did not know who he was, but we soon named him,
not Senator Gill, but something else which I will say because the Inuit in the
North know him. Senator Gill is known in the Inuit world as "blue-eyed
Indian." He did a significant amount of work for the Inuit while in Quebec City
working with the Department of Indian Affairs and Northern Development.
Over the years, Senator Gill and I have worked closely together. As a matter
of fact, Senator Gill, Chief André Delisle and Max Gros-Louis are the three who
are known to the Inuit world because they said that we must do something. We
must move forward and let the rest of the world know who we are so we are not
entirely forgotten in this country. For that reason, I believe Senator Gill has
done a great deal on behalf of his people and also on behalf of the Inuit.
I speak from the bottom of my heart. I am happy to have been close to you and
to have been your friend. I will continue to keep in touch with you, Senator
Gill. I will always remain a friend.
I hope to live up to your expectations and deliver what you have left me
with, which is not an easy task. I will count on my colleagues in the Senate to
help me with Senator Gill's bill, which deals with the need to establish an
Inuit assembly within the assembly, within the parliamentary concept. This is an
area that has been spoken of for quite a number of years within Aboriginal
society. Senator Gill decided before he retired to make a move on that file in
the hope that it will materialize on his behalf and on behalf of his people.
Senator Gill, I do not know exactly what to say because you have been very
close to me. I am losing a partner, a person who can tap my shoulder and say,
"Charlie, maybe this is a better way to handle the issue." I will miss you.
The only thing I can say is that I know you will be surrounded by your family,
your wife and your daughters. Enjoy yourself and take a break. You might have to
buy a strong pair of binoculars to keep an eye on me to ensure that I am
delivering what you expect me to deliver here in the Senate.
Thank you very much, Senator Gill; it has been great knowing you over the
Hon. Wilfred P. Moore: Honourable senators, I wish to be associated
with remarks made today in tribute to Senator Aurélien Gill.
Following his appointment to the Senate in 1998, I got to know Senator Gill
and to become his friend. Over the years, I have enjoyed his company at social
outings, and it was during those gatherings that he schooled me in reserve life
and the plight of our Aboriginal brethren.
Since his appointment to the Senate, he has been an ardent advocate for the
Aboriginal people, pointing out the shortcomings they are experiencing and
urging us to recognize and ameliorate their situation.
One cannot speak of Senator Gill without mentioning his Bill S-234, an act
to establish an assembly and an executive council of the Aboriginal Peoples of
Canada. Not only is it a solid piece of work, it is the most promising and
substantial bill that I have seen initiated during my time in this place. It
takes a leader of intelligence, commitment, confidence, passion and bravery to
envisage such a bill and to bring it forward.
This far, the Aboriginal people have not done well by the governments of
Canada, primarily white folk. It is my hope that this bill of Senator Gill will
serve as a blueprint to move forward and to enable our Aboriginal colleagues to
have their proper place in Canada and its institutions, as urged by Chief Phil
Fontaine last Thursday on the floor of the Senate.
I shall miss the Honourable Senator Chief Aurélien Gill, his friendship and
his advice. I wish the best of everything for him and for his family in the
Hon. Tommy Banks: Senator Gill, as you have heard and will continue to
hear, we will all miss you very much. You were among those senators who, whether
or not you remember it, made me feel most welcome when I first arrived here. You
have been a friend at every occasion and every circumstance, and you are leaving
behind in the bill you introduced a few weeks ago a hefty reminder that will
survive you. We all thank you for that. Best wishes, Senator Gill.
Hon. Jean Lapointe: Honourable senators, the very first time I met the
Honourable Senator Gill, we began a friendship that has been growing ever since.
Indeed, our friendship has kept growing over the years. At the time, I did not
realize that those beautiful, blue, bright eyes were those of a great First
Nation leader. It is thanks to his numerous comments and speeches that I
developed an interest in the Aboriginal cause. Whenever he took the floor, I
would always pay close attention. It was on those occasions that I discovered
the goodness of the person who would become my friend.
We laughed a lot together, but when he told me about his illness, I stopped
laughing. Even during his absence, I often thought of Senator Gill, but since I
have absolute confidence in Providence, I prayed every morning and every night
since that day, for my precious friend.
When he came back to the Senate after undergoing a series of treatments, I
immediately realized that his courage and determination would allow him to
regain his full health. I promised my friend that I would get fully involved in
his dream, which is the creation of a chamber for the First Nations, the Inuit
and the Metis.
I will conclude by saying that my fondest wish is that our friendship will
continue for a long time after his well-deserved retirement.
Finally, I will repeat the last words spoken by my late, elder brother
Gabriel. They were, "Hail, Chief!"
Hon. Aurélien Gill: Honourable senators, I have to start by thanking
you for your kind words. I am not sure I deserve them, but I thank you and I am
Honourable senators, I would like to thank you, and your colleagues before
you, for your understanding, your openness and your generous cooperation
throughout the years. Thank you very much.
Honourable senators, the time always comes for one last speech. I am leaving
this chamber with pride, and also with gratitude. I am grateful to you,
honourable senators, to the staff, the security officers, all the staff of the
Senate of Canada, the interpreters and pages for their respect and their skills,
for all this work, this generosity and these years.
I am also grateful to and thankful for all those who have worked with me.
Special thanks and my heartfelt gratitude go to my family, my wife, my children,
my grandchildren and all my friends for their continuing support.
Quite often we leave a position with a feeling of incompletion, but I am
quite satisfied. You have listened to me, you have helped me and I know that
something will remain. Life goes on and so do plans.
It goes without saying that I was quite often emotional — I am again today,
obviously — but rest assured, reason prevailed. Every time I tried to describe
to you a situation in one of the many First Nations communities, many images of
horrible situations and desolation came to my mind; I had no control over that.
I have great hopes for our Aboriginal people: First Nations, Metis and Inuit.
They have been my primary concern since my appointment to the Senate of Canada
and all my life.
As I already mentioned, I have felt privileged in my life to be able to
express myself in different institutions — in government, in public, and in the
Senate in particular. As I leave this chamber, I want to express the wish that
my Aboriginal fellow citizens have the opportunity to use their talents and to
participate in ever-growing numbers, within the existing institutions and those
I hope will come, in the development of Aboriginal peoples and all other
I have great faith in the future. It has always been my most profound desire
to live in a just, beautiful and noble society.
I am very proud of the bill I am leaving with the Senate. I really hope that
something will come of that bill, for we must continue to communicate, to dream
and to build.
Canada will have attained great maturity the day that the Aboriginal people —
First Nations, Metis and Inuit — have regained their political representation
and their political responsibility.
We must encourage First Nations people to return to the land. As I have often
said in this chamber, we must change our view of history in order to change our
view of the future. Certain topics are very difficult, but the issues facing
First Nations people must be resolved. A path and a solution must be found. That
day is not far off, for the world is changing, and it will change for the
better. One day there will be a representative assembly of First Nations. One
day, economic and social action will bear fruit.
One day, with the maturity that this new Canada will enjoy, there will be
someone to say, "We, the First Nations people, have not only survived, but we
have made a contribution; we have worked towards making the world a better place
for all Canadians, without exception, without excluding anyone."
The Hon. the Speaker informed the Senate that a message had been
received from the House of Commons with Bill C-60, An Act to amend the National
Defence Act (court martial) and to make a consequential amendment to another
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 later this day.
Hon. Tommy Banks: Honourable senators, with leave of the Senate, and
notwithstanding rule 58(1)(a), I move:
That the Standing Senate Committee on Energy, the Environment and Natural
Resources have the power to sit at 5:30 p.m., today, Tuesday, June, 17,
2008, even though the Senate may then be sitting, and that rule 95(4) be
suspended in relation thereto.
By way of explanation, senators, the Minister of Agriculture is appearing
before the committee at that time.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. A. Raynell Andreychuk: Honourable senators, I give notice that at
the next sitting of the Senate, I shall move:
That the Standing Senate Committee on Human Rights be permitted,
notwithstanding usual practices, to deposit with the Clerk of the Senate
before June 30, 2008, an interim report under the order of reference adopted
by the Senate on November 21, 2007, authorising the committee to examine and
monitor issues relating to human rights and, inter alia, to review
the machinery of government dealing with Canada's international and national
human rights obligations, if the Senate is then adjourned for a period
exceeding one week; and that the report be deemed to have been tabled in the
Hon. Céline Hervieux-Payette (Leader of the Opposition): Honourable
senators, my question is for the Leader of the Government. Since 1985, when the
Investment Canada Act was passed, more than 12,500 Canadian companies have been
acquired by non-Canadian interests. These companies include Dofasco, Inco,
Alcan, Falconbridge, Deer Creek Energy, Western Oil Sands, PrimeWest Energy and
Norcan Energy Resources.
Recently, the U.S. Department of the Treasury stated that even acquisitions
of less than 10 per cent of an American company could be subject to review by
the Committee on Foreign Investment.
In late 2007, New Zealand refused to give the Canada Pension Plan Investment
Board access to 39 per cent of the Auckland airport lands. In April of this
year, the Japanese government used its veto to block the sale of shares in an
energy sector corporation for the first time. More recently, a few weeks ago,
the German coalition government was revising its legislation on foreign
investment review to better protect German strategic interests. France, the
United Kingdom and China are just a few of the many countries that have the
power to block mergers for national security reasons.
According to Scotia Capital strategist Vincent Delisle, most developed
nations have begun a general review of foreign investment rules. Given this
context, what is the Conservative government waiting for to ensure that Canada's
interests are protected and to amend the Investment Canada Act?
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): I thank the honourable senator for the question. As she well
knows, in today's economy, there are many global industries and many
Canadian-owned industries have taken over or purchased many foreign companies.
There is considerable foreign interest in this country.
The only example of the government stepping in was when the Minister of
Industry, the Honourable Jim Prentice, spoke out in respect of Alliant
Techsystems Inc.'s application to acquire control of the Information Systems
Business of Macdonald, Dettwiler and Associates. I believe that was the only
time in a significant number of years that the government stepped in to protect
a Canadian interest.
With regard to any changes to the Investment Canada Act, I will take the
honourable senator's question as notice. In this global economy, foreign
companies are interested in Canadian industry. On the issue of state-owned
enterprises, which we addressed before, the minister is looking at it. Likewise,
Canada has invested heavily in many countries around the world. We are in a
global economy and Industry Canada, I am sure, is cognizant of that.
Senator Hervieux-Payette: Honourable senators, I would nevertheless
like to remind the Leader of the Government in the Senate that most OECD
countries have measures to protect strategic sectors from foreign investment.
The protection of direct, well-paid jobs in Canada is generally ensured through
corporate head offices. When foreign companies take over Canadian firms in the
areas of banking, accounting and engineering, most of the high-end jobs, for
which Canadians are well trained, may be transferred to other countries.
We should remember that, last year, for the first time under a Conservative
government, Canada's net investment position recorded a deficit.
We should also remember that most of Canada's foreign investments are in
countries such as Barbados and that the purpose of these investments is not to
create jobs but to take advantage of tax shelters.
At the beginning of the year, you appointed Mr. Red Wilson to review this
matter. However, the Leader of the Liberal Party of Canada, the Honourable
Stéphane Dion, asked for a three-month moratorium on all corporate takeovers. He
also asked that the government to make specific proposals.
The session will end this week and the government has not tabled the report
and certainly not a bill. Rather than lecturing us on Canada's participation in
the global economy, I am asking the Leader of the Government to explain why
Britain, France, the United States, Japan, Australia and many other countries
have laws to protect their countries' interests whereas Canada is not moving
forward with a review of its legislation in light of the deficit recorded since
the Conservative government has been in power.
Senator LeBreton: I think it is inaccurate for the honourable senator
to claim that we are in a serious deficit. I have not seen figures to bear that
out. In some areas of the world, there is more competition and more pressing
need for Canada to act.
On the issue of competition, the minister struck a committee and that body is
looking at this issue. I expect the minister will be in a position to report
soon. When he established this committee late last year or early this year, he
gave the committee until the summer — I think it is June 30 — to do their work.
I will ask the minister when he may be prepared to table that report.
Hon. Roméo Antonius Dallaire: Honourable senators, on April 15, I
asked the Leader of the Government in the Senate whether the Prime Minister
personally received information from his officials about the conditions in which
Omar Khadr was being held.
The minister told me that she would ask the Department of Foreign Affairs and
International Trade for the information and give me an answer. Given everything
that is happening and how urgently we need an answer about the case of Omar
Khadr — because the case is going to trial — can the minister confirm that the
Prime Minister is receiving specific information about this case and making
decisions about it?
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): I will have to check my response to the honourable senator
because I have always been quite consistent, as has the government, in answering
questions in regard to Mr. Omar Khadr.
Nothing has changed since I answered the honourable senator's last questions
about Mr. Khadr. While I did see the report last night on the CBC, I have
nothing to add at this time.
It is true that the government is monitoring this case, as I have said in
this place before. It was evident from last night's report that there are some
serious charges involved. Obviously, some people have a different view of the
As the honourable senator knows, the Supreme Court made a decision, although
from my understanding, Mr. Khadr's lawyers were not totally satisfied with many
of the other recommendations. The government will decide on any further action
after it has had a chance to look at the decision and review what the court has
Senator Dallaire: I must come back to the Leader of the Government,
who initially said that nothing has changed since my query. However, the judge
who threatened to bring forward some of the information that was required for
the trial was summarily fired and has just recently been replaced. The Supreme
Court of Canada, to which I will refer more fully than my colleague did when he
made his presentation, said that the process in place at Guantanamo Bay, where
Mr. Khadr has been detained, violates U.S. domestic law and international human
rights obligations to which Canada subscribes.
Then we have the Supreme Court of the United States for the third time taking
on Guantanamo Bay as an institution, saying it is illegal and inappropriate and
there should be due process.
With all of that, and given that it involves a child soldier, that we signed
the convention, that there is international law, that there is some guy in front
of the International Criminal Court who has been using child soldiers and that
everyone else has agreed that we not put him through a judicial process but that
we rehabilitate and reintegrate him, what is holding us back from implementing
everything that we have agreed to historically, when in fact it involves a
Senator LeBreton: I thank the honourable senator for the question. He
is citing actions of a court of law of another country. He would not expect me
to comment on the decisions of the Supreme Court of the United States.
The government is aware of the actions of the court. I was referring, of
course, to the decisions of the Supreme Court of Canada.
I must point out to the honourable senator that even prior to the decision of
the Supreme Court of Canada, the government had provided approximately 3,000
documents to Mr. Khadr's counsel, so there has been cooperation from the
government to Mr. Khadr's counsel.
How the United States eventually resolves the issue of Guantanamo Bay is for
the United States to decide. That is not an issue for the Canadian government to
Senator Dallaire: I take from the leader's words that the Canadian
government agrees completely with the process that is in existence in Guantanamo
Bay against all references and conventions. The Government of Canada agrees that
it is due process and that it is just that the U.S. has kept this boy in jail
for six years. The Canadian government agrees that they extracted information
from him in an illegal fashion and is proceeding with a process that has been
deemed illegal in their own country. Even if we want to respect them, and in
fact, their actions are going dead against conventions and rules of
international law to which we subscribe, the leader still says we do not fiddle
in someone else's backyard.
He killed an American soldier, apparently, and that is in question.
Is it not the fact that it involves an ally, the United States, that we do
not want to bring him home? Is it because we do not want to interfere with the
war on terrorism, or are we putting that aside and letting ourselves be
manipulated by a process that is illegal and ultimately will bring us down that
same road of not following human rights, due process and civil liberties?
Senator LeBreton: The honourable senator asks me if I agree; I totally
disagree. It is very clear that Mr. Khadr is facing serious charges. He has been
in Guantanamo Bay for quite some time. Under a previous government, according to
reports, he was interviewed. They met him and interviewed him. It was a previous
government that turned over the results of those interrogations to the
Government of the United States; it was not this government.
"So what," Senator Dallaire says. Where was the honourable senator when —
Senator Dallaire: Don't you dare ask me where I was!
The Hon. the Speaker: Order.
Senator Dallaire: I could ask you where you were too.
Senator LeBreton: I was here, actually. I do not remember ever hearing
the honourable senator asking a question about Omar Khadr when he was a member
of the governing party.
However, as I have said before, this is a very serious case. There are very
serious charges. The government is being very careful in the handling of this
case. The government is monitoring the situation. As people have met with Mr.
Khadr, we have every reason to believe that he has been properly treated and the
process is under way in the United States.
I am well aware of the judge being removed from the case. I am not familiar
with the ins and outs of the U.S. justice system, but this matter is before the
U.S. courts and I would say that we should let these legal processes and appeals
that are under way proceed and hopefully come to some resolution on this matter.
Hon. Mobina S. B. Jaffer: Honourable senators, I will tell the leader
where I was. I was in this house and I did not ask questions because I felt that
the U.S. government was dealing with Mr. Khadr fairly. In the last few years
that has not been the case. We know that all Western governments have brought
their citizens back to their countries. Why can we not bring Mr. Khadr back to
this country and have him suffer the consequences for his actions here in our
country and rehabilitate him? He is our child soldier.
Senator LeBreton: I thank the honourable senator for her question.
When she states that she was here and she understood that Mr. Khadr was being
treated fairly by the U.S. government, nothing much has changed in terms of the
charges against him. Certainly, as I mentioned a few moments ago, the
government, even before the Supreme Court decision in this country, had turned
over 3,000 pages of documents to Mr. Khadr's counsel.
I do not know what transpired between the time that Mr. Khadr was sent to
Guantanamo Bay and now, to all of a sudden have people say that for four years,
from 2002 to 2006, he was being well treated or not being mistreated by the
American authorities, and then after 2006 something changed and that he is being
I do not follow the honourable senator's logic. There has been much work done
on this case by Mr. Khadr's counsel, but the Canadian government — and it is the
case with this government as with the government before — is satisfied that Mr.
Khadr is being humanely and properly treated. There is an appeals process under
way under the U.S. justice system. There is a serious charge involved. I do not
think anyone denies that. Therefore, nothing much has changed except that it
appears Mr. Khadr's case has been getting more attention and seems to be working
its way through the system.
Senator Jaffer: I wish to tell the leader what has changed.
We have found out that Mr. Khadr has been tortured; we have found out that
the judge on his trial has been removed; and we have found out that Mr. Khadr is
suffering ill health. Most importantly, all other Western countries have brought
their citizens back to their countries. Why are we letting this young man down?
Senator LeBreton: There have been many reports on both sides. Some
make the accusations of mistreatment; others counteract that. We as a government
have a process in place for monitoring and checking on the well-being of Mr.
Khadr, as had the honourable senator's government before us. The show on CBC
last night presented arguments on both sides. Some people thought he did not
murder the American soldier and others thought he did. That is not for us to
decide; that is for a court of law to decide. In this case, we should let the
Hon. Tommy Banks: Honourable senators, the Leader of the Government in
the Senate has raised the issue of logic. It seems to have been established in
the trial that the action that took place during which Mr. Khadr is alleged to
have committed homicide was a firefight. Do we agree that when there is a
firefight between two opposing military forces that the forces who succeed in
killing someone on the other side are to be charged with murder?
Senator LeBreton: I will not answer that question. In a conflict such
as the case here, and in a condition of war, I will not comment. The fact is
that this matter is before the courts of the United States. There is not much I
or anyone can say. We should not be prejudging or commenting on a case that is
presently before the courts. There are stories on all sides of this issue.
Everyone can draw their own conclusions. The only people who can really sort out
what is fact and what actually happened are judges in a court of law.
Hon. Maria Chaput: Honourable senators, my question is for the Leader
of the Government in the Senate. The CRTC recently submitted its report on the
future of the Canadian Television Fund to Canadian Heritage. This report is
unacceptable, because it makes no mention of French-language television
production in minority situations.
If the CRTC's recommendations were implemented now, minority French-language
producers would have no guarantee of available funding. Under the Official
Languages Act, the government is required to support and protect the French-language production industry in minority situations.
Could the Leader of the Government advise the Minister of Canadian Heritage,
Ms. Verner, that she must ask the CRTC to amend its report to include all the
players on Canada's television scene, including francophones in minority
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): As the honourable senator knows, the CRTC is an independent
agency, and their decisions are their decisions. It is rare to have people
challenge their decisions, although it has happened. I am not familiar with this
latest decision of the CRTC, so I will take the honourable senator's question as
Hon. Hugh Segal: Honourable senators, my question is for the Leader of
the Government in the Senate. In a report from the Standing Senate Committee on
Agriculture and Forestry, tabled last night by Senator Fairbairn, one of the
recommendations was that cabinet consider making a policy direction to the CRTC
with respect to the process of approving any broadband or other business
activities in a way that would mandate the CRTC to ask for an engagement
relative to extending broadband and rapid download capacity to rural Canada so
that young kids in rural parts of the country would have the same rights to
high-speed Internet as kids in urban areas.
While the report is yet to be debated by this chamber, I wonder if Senator
LeBreton might undertake to see whether cabinet at some point might be prepared
to consider that path relative to protecting the rights of young people in rural
Canada to have the same high-speed Internet as kids in the cities have on an
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): As the honourable senator knows, the government necessarily
responds to reports of standing committees. Therefore, when that report is
considered, I am sure my cabinet colleagues will look seriously at the
recommendations of the committee and act accordingly.
Hon. Mira Spivak: Honourable senators, my question is to the Leader of
the Government in the Senate.
On Saturday, June 21, Victoria Island in the Ottawa River will be the site of
an annual sacred pipe ceremony to honour the summer solstice, to commemorate
this site as the spiritual meeting grounds of the Anicinabe peoples, to
celebrate National Aboriginal Day and to light the sacred fire for the gathering
For four decades, this site at Chaudière Falls, where Champlain arrived in
1613, has been designated as a site for a National Aboriginal Centre. For almost
a decade, Algonquin elder Dr. William Commanda has worked to develop the
proposal. It was approved by the NCC in August 2006.
In the wake of the historic apology to Aboriginal peoples, will that apology
be followed with support for this indigenous centre?
My further question to the Leader of the Government in the Senate is: What
news can she give us about the status of this project? What word can be brought
from the government to the sacred pipe ceremony on Saturday?
I further add that this elder, Dr. William Commanda, is 94 years of age.
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): Honourable senators, that particular site is stunningly
beautiful. It has been used many times by our Aboriginal peoples. On the
historic day of the apology, they had a sunrise ceremony, and a group of
Aboriginal people used that site as the starting point to make their way up to
With regard to the proposal for the Aboriginal centre, I will take the
question as notice.
I know that the Minister of Indian Affairs and Northern Development, Chuck
Strahl, is keen and engaged in moving many files forward. He sees the day of
apology as hope and optimism for the future in moving forward and making
concrete differences in the Aboriginal community all over the country.
With regard to the specific site, I am well aware of the NCC's
recommendation, and I will take the question as notice.
Hon. Sharon Carstairs: Honourable senators, I was pleased to hear the
Honourable Leader of the Government in the Senate indicate that the apology was
a step forward.
Therefore, I ask the honourable senator if she can explain why the Government
of Canada's per capita cost for the education of Aboriginal children on reserve
is significantly lower than the per capita cost the average province spends.
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): Honourable senators, a tremendous amount of work is being done
by Minister Chuck Strahl in terms of moving forward on Aboriginal education. He
has been meeting with Aboriginal leaders as well as provincial and territorial
Of course, the situation of Aboriginal schools is not where it should be. I
believe that Minister Strahl will find a solution for this problem, working in
the spirit of going forward, and with a lot of support from the Aboriginal
community and the provinces and territories. I feel confident that great strides
will be made in the near future with regard to Aboriginal education.
Senator Carstairs: Honourable senators, abuse of alcohol in pregnant
mothers can lead to fetal alcohol syndrome. On some reserves, up to 30 per cent
of children in school suffer from fetal alcohol syndrome, yet the special needs
budgets provided by the Government of Canada to fund the education of Aboriginal
children on reserves are significantly lower than the special needs budgets
given to most schools in this country.
Can the Leader of the Government explain why?
Senator LeBreton: The honourable senator obviously does not accept my
comments of going forward with optimism and goodwill. I believe we have made
great strides, previously with Minister Prentice and now with Minister Strahl,
so much so that Chief Phil Fontaine, Chief Patrick Brazeau, Mary Simon and
others commented on it in the ceremony after the apology last Wednesday.
Even though the honourable senator is not optimistic about the future and
what the government might do, I am optimistic because I know that Minister
Strahl is working hard on this topic.
Resuming debate on the motion of the Honourable Senator Stratton,
seconded by the Honourable Senator Nolin, for the third reading of Bill
C-50, An Act to implement certain provisions of the budget tabled in
Parliament on February 26, 2008 and to enact provisions to preserve the
fiscal plan set out in that budget.
Hon. Joseph A. Day: Honourable senators, the third reading debate
began on Bill C-50 last evening. My deputy chair of the Standing Senate
Committee on National Finance, Senator Stratton, spoke, and I commend him for
his overview of the bill. I also commend to you the words and the comments by
Senator Murray spoke about the value of having pre-studied this particular
bill. We spent three weeks, prior to receiving the bill, studying the subject
matter of the bill so we could understand what was in the bill when we received
it. I agree with Senator Murray, and I think Senator Stratton does as well.
I thank all members of the committee for coming out during that pre-study,
over a three-week period with extended sittings. All of us had an opportunity to
go much more in-depth into some of the issues.
Unfortunately, when we have that opportunity, we see more and more items that
we would like to investigate further, and we have more points to comment on than
we might otherwise have had if we had received the bill in the normal course.
There is also public pressure on us to pass the bill quickly and bring it back
here before the House of Commons recesses. I was pleased that we were able to do
The point made by Senator Murray yesterday is that this is not a matter of
confidence. Nothing in this chamber is a matter of confidence. It probably
ignores, to some degree, the fact that what we do here has political
repercussions, whether we are or are not a house of confidence.
Therefore, Senator Murray might have pushed the envelope a bit with respect
to that issue. However, he makes a point that there are some matters in this
bill that we should consider dealing with differently from other matters in this
Honourable senators, let me deal with some of the issues that we learned of,
and that were of concern to members of the committee. Honourable senators will
recall that, when we returned this budget implementation bill without amendment,
we attached certain observations. Those observations will form the focus of my
remarks today. I will try to point out to honourable senators some of the
concerns that the majority, at least, of the members of the committee had in
relation to the points that we will discuss.
First, I wish to mention the fact that this bill, although we shorten its
title and call it a "budget implementation bill," has a long name. It is "An
Act to implement certain provisions of the budget tabled in Parliament on
February 26, 2008. . . ." It then continues: ". . . and to enact provisions to
preserve the fiscal plan set out in that budget."
I will state again: "and to enact provisions." That wording gives the
government a basis for a much broader bill, an omnibus bill, than a pure budget
implementation. The subject of the omnibus bill, honourable senators, is where I
will start my remarks.
One of the more troubling practices of governments in recent years is the
tendency of including legislation measures that have no direct relationship to
budget implementation bills. Bill C-50, the bill before us, runs for 139 pages.
It comprises 10 different parts. It contains 164 clauses that amend 26 other
pieces of legislation. In fact, it creates one piece of legislation. A new act
is created when we vote on, and if we pass, Bill C-50. We are creating another
separate, stand-alone bill.
Honourable senators, listen to some of the different areas that are touched
upon in this bill. There are a variety of tax changes; a new financial aid
program for students; sweeping changes to our immigration system; mortgage
insurance changes; a significant change to the powers of the Governor of the
Bank of Canada; a new premium-setting system for Employment Insurance programs;
payments to the provinces and territories under various agreements; payments to
several entities, such as the University of Calgary; and other less-known areas
of activity, such as changes to the Donkin Coal Block Development Opportunity
Honourable senators, the practice of throwing everything but the kitchen sink
into a budget bill makes it difficult for any single committee in this place or,
indeed, in the other place to perform a thorough job on all the various aspects
of the legislation. There is a tendency to be distracted by one or two larger
issues that receive a high degree of media attention. In addition, we in the
Standing Senate Committee on National Finance are not experienced with respect
to Part 6 of the bill. Part 6 of the bill is the immigration portion of this
It is not possible to explore fully the big picture with respect to that
particular immigration aspect or other components of the bill.
We are forced to deal with the various components in a superficial manner
because of the time constraints, even though we spent three weeks on this study.
All honourable senators worked hard to try to understand the components.
Honourable senators can understand, when not studying the big picture and trying
to focus on the amendment, how one could miss some of the unintended
consequential changes that might occur.
This year, we attempted to improve our changes by conducting the pre-study,
as I indicated. That pre-study was helpful. However, again, I think we only
managed to scratch the surface on many of these aspects.
Of course, budget bills often contain provisions that transfer large sums of
money. We understand that aspect. They do that both to other levels of
government and to other entities. Bill C-50 follows that pattern.
I submit to you, honourable senators, that these promises of money are sewn
into the budget bill to secure rapid passage. Such announcements can be
implemented easily through the supply bills, such as Bill C-58 and Bill C-59
that we dealt with yesterday, supported by the estimates, which we study
throughout the year, as well as the supplementary estimates. Indeed, in many
cases, such an approach would ensure more rapid passage of the major financial
However, as I indicated to honourable senators, the financial aspects are
woven into all these other aspects to fend off scrutiny and to disarm the
opposition. A committee that attempts to conduct a thorough examination risks
being accused of delaying a transfer of those sums of money. We suddenly receive
letters from all over the country — from municipalities and provincial
governments — saying, "Do not hold up this bill."
In the present bill, the government has included a large number of amendments
to acts of Parliament that have no bearing on fiscal or economic policy. In
particular, the amendments to the Immigration and Refugee Protection Act belong
entirely in a stand-alone bill. They have nothing to do with the fiscal
management of the government, and they have sweeping implications as to how
Canada conducts, or will conduct, its immigration program.
The Standing Senate Committee on National Finance has no particular expertise
in immigration matters and, given that these amendments were only one of 10
parts of this bill, we could devote only so much time to examining them.
In the future, I think this chamber — if it is not done before such a bill
arrives — should seriously consider splitting such bills. I do not recommend
this course of action to delay the progress of the government's legislative
agenda but, rather, to ensure that major policy initiatives receive the full and
expert attention of the relevant committee that has the institutional memory and
the focus to evaluate that particular portion properly.
Senator Carstairs: Hear, hear!
Some Hon. Senators: Hear, hear!
Senator Day: Honourable senators, now that I have presented the
overriding concern about throwing everything in this bill, I will move on to
some specific aspects.
Next, there are scholarships. Honourable senators, I will be selective in
dealing with various matters. I wanted to deal with scholarships first because
time will not permit me to deal with all the issues and the questions that arose
throughout our study of Bill C-50.
I first point out to honourable senators that we did not hear from certain
people that we wanted to hear from. Time did not permit it and their schedules
did not meet with the schedules that we had over the three-week period. We did
not hear from the Governor of the Bank of Canada, although several requests were
made to him. We did not hear from the Minister of Finance or from the Minister
of Citizenship and Immigration. Several other interest groups asked to appear
before us that we could not hear from.
The Canadian Millennium Scholarship Foundation board was one of those boards
from which we did not hear. We heard from student groups. However, it would have
been good to hear from a board that has been in place for 10 years; one that we
heard started out in a somewhat rocky fashion in that new foundation but pulled
things together and was doing some good work. We were unable to bring them in to
talk about what their concerns and achievements were.
One of the major concerns articulated by just about every commentator is the
fact that the government is effectively stretching the same pot of money to
reach a larger number of students. The government is cancelling the Millennium
Scholarship Foundation and creating another program of assistance for students,
which will only go to those students who have made an application for a loan.
In our committee's deliberations, we also learned of concerns shared by two
different national student organizations that the important research capacity of
the Millennium Scholarship Foundation would be lost because the program
announced to replace it did not include any research component.
There was also the issue in the Millennium Scholarship Fund of students
receiving scholarships on merit, or students who needed some assistance but did
not want to borrow money from the Canada Student Loans Program and were working
part time or working in the summer. The Millennium Scholarship Fund provided for
that assistance, and those aspects are now no longer available under this new
Let me turn to the subject of Employment Insurance. This is one of the areas
where there is new legislation. Our committee heard from several witnesses,
including representatives from the Canadian Institute of Actuaries, who
expressed concern that the provision for $2 billion for the Employment Insurance
Fund reserve is simply inadequate. It is not enough of a reserve for this new
stand-alone organization to handle the ups and downs of the economy. They are
mandated to borrow and pay back anything more than $2 billion, and to set
premiums annually that keep them from exceeding that.
What will happen there, honourable senators? It is obvious what will happen:
This burden will be borne on the backs of people and employers who pay into
Employment Insurance; whereas, previously, Employment Insurance was part of
government and had a much larger amount of money available to take out the
swings. The stated goals of a financing board are to avoid dramatic fluctuations
in premium rates. With only $2 billion, how will they do that? The Canadian
Institute of Actuaries says that $2 billion is not nearly enough to do that.
They need between $10 billion and $15 billion. Virtually everyone that appeared
before us stated the same.
Considering that the government announced this initiative as a way of
addressing the Employment Insurance surplus, which they claim exceeded $50
billion, if there is a surplus in government funds anywhere near $50 billion,
why are they saying that we are cutting everything off right now — we will keep
$48 billion and we will give $2 billion to this new organization?
In the absence of some substantial reserve, the Canadian Institute of
Actuaries and others testified the premiums will fluctuate dramatically, even in
good economic times. What is more, the tiny reserve will force the board to
raise premiums dramatically during an economic downturn, further depressing —
and that is the problem here — job creation at the worst possible time.
Addressing the EI surplus was a laudable objective. However, I regret to say
that the specifics of the government's plan leave much to be desired.
I could speak more, honourable senators, on the board that is being created
and the qualifications — for instance, who will be on this board? There is a
great concern from the labour sector that they will not be represented on the
board that sets the premiums that they and their membership must pay. There is
much concern about that.
Honourable senators, let me go on to an area of great concern to many of us,
namely, Part 6 of this bill dealing with the Immigration and Refugee Protection
Act. I have already mentioned Part 6 in passing, but it is an area that deserves
attention. Part 6 deals with amendments to the Immigration and Refugee
Protection Act and gives to the minister unprecedented discretionary power.
I want to reiterate that these changes have sweeping implications. We felt at
a loss in the committee to evaluate them fully — that is, to see them as part of
the larger picture — in the little time we had before the end of the
parliamentary calendar, which is nearly upon us.
The consensus among most witnesses was that these changes represent an
unnecessary and excessive expansion of the discretion of the Minister of
Citizenship and Immigration. They are unnecessary because the powers that they
publicly allege to be seeking are obtainable through the normal regulatory
process in the existing legislation and they are excessive because they are much
more than is needed.
I was struck by a witness who told us that the minister already has that
legislative authority. This witness is very knowledgeable in this particular
area. The witness wondered aloud whether these legislative changes actually
implemented the stated plans of the minister and the government, or whether they
served an objective that the government has not publicly revealed.
We were also concerned in committee with the government's desire to establish
the power to issue instructions under the act without notice and consultation,
subject only to the requirement to publish instructions after the fact. The
government stated very plainly that it intends to consult broadly, but we are
legislators, honourable senators; we deal with the law as we interpret it and as
we pass it, not with promises of processes in the future.
This legislation provides the power to establish instructions. The minister
can give instructions to all of her department as to how to deal with
applications, without any consultation. Not only can these instructions be
issued without notice, they can have a retroactive effect. Someone could apply
for immigration or refugee status and then the minister, after the fact — seeing
this group of would-be immigrants, seeing this group of applications — could
decide to issue instructions to say, "Reject all of those applications."
The applications can be rejected without it being a decision. That is it
another provision, honourable senators. Not being a decision means that it is
not open for judicial review. These are the provisions that are contained in
We have an established process for regulations and, together with the House,
we have the Standing Joint Committee for the Scrutiny of Regulations. These are
not statutory instruments; these are not instruments subject to the scrutiny of
regulations. We are not able to review these.
Even more troubling, honourable senators, is the fact that the regulations
are not statutory instruments. They will not be subject to any prepublished
draft regulations, like the regulations are in the existing act. That normal
mechanism guarantees that there would be consultation. That is not there any
longer. We are left with nothing more than the promise of a minister that she
will consult — a promise that is only good until the next cabinet shuffle.
The instructions are not to be subject to review by the standing committee,
as I have indicated. The very troubling provision is that any decision under
these instructions is not deemed to be a decision from the point of view of any
type of review.
Honourable senators, there seems to be a pattern developing here. I mentioned
this before, but the more one reviews it, the more one can see the pattern. We
see a similar attempt to grant regulation-making power to the Minister of
Heritage in Bill C-10 — again, without notice; without the requirement to
publish in advance; without parliamentary scrutiny. Other bills contain similar
provisions, honourable senators. Parliamentarians of both Houses will have to
look at this issue in a much broader context than in this piece of proposed
legislation only to determine how to address this pattern of seeking authority
to make regulations or instructions completely free from parliamentary
Honourable senators, with respect to the immigration provisions, I point out
that Bill C-50 does not address the existing backlog of applications, although
that is one of the stated purposes of this proposed legislation. At committee,
we learned that the backlog of applications of would-be new Canadians is nearing
1 million. Nearly 1 million people have applied to come to Canada and their
applications are waiting to be processed. However, the bill addresses only those
applications that were filed after February 27, 2008. Moreover, the funding
announcement of $22 million per year for five years represents little in terms
of engaging staff to process the backlog. Rather, that amount would be used to
establish the new instructions and how they are to be handled. Bill C-50 does
not make a serious attempt to deal with the backlog and, therefore, the
provisions on immigration are troubling.
I mentioned to honourable senators earlier that certain observations were
attached to the bill when it was returned without amendment. Honourable senators
will have had an opportunity to review the observations. A number of senators
were hoping that because the committee did not prepare a report on the pre-study
of the bill, this would provide some record, in précis form, of the committee's
issues and points of concern in respect of the bill.
One point that I had hoped would be included in the observations dealt with
the proposed powers to the Governor of the Bank of Canada. I mentioned earlier
that we tried to have the Governor of the Bank of Canada appear before the
committee, although we heard from officials from Treasury Board and the
Department of Justice Canada, who said that the Governor of the Bank of Canada
would like to have these powers to be able to act quickly.
Honourable senators, there is nothing in the observations with respect to
this, so I would like to go on record as pointing out that this continues to be
a matter of serious concern. We should not overlook mentioning this on the
record at third reading stage of Bill C-50.
I refer honourable senators now to Part 10 of the bill. The interesting thing
about Part 10 parenthetically is that it is the summary of the bill. The summary
at the front of the bill, printed inside the cover of the first reading version,
provides an explanation of each part of the bill. However, Part 10, on
amendments to the Bank of Canada Act and other acts, states: "Part 10 amends
various Acts." That is quite an explanation, honourable senators.
Clause 146(1) is found at page 125 of the bill. Paragraphs 18(g) and
18(g)(i) of the Bank of Canada Act are to be replaced by the following
paragraphs. The introductory words to the replacement paragraph 18(g)
state, "for the purposes of conducting monetary policy. . . ." That is the
work of the Governor of the Bank of Canada. He does it well, and we understand
that. However, the other power at 18(g) is ". . . promoting the
stability of the Canadian financial system." I would love to have had the
Governor of the Bank of Canada appear before the committee to explain the
parameters of that specific power as provided in the bill.
As proposed paragraph to replace 18(g)(i) of the Bank of Canada Act
states, the governor may:
(i) buy and sell from or to any person securities or any other financial
instruments — other than instruments that evidence an ownership interest or
right in or to an entity—. . .
He can buy and sell to anyone. Clause 147 of the bill suggests that section
19 of the Bank of Canada Act be replaced with proposed section 18.1(2). It
states, "The Bank of Canada shall publish the policy and any amendment to it in
the Canada Gazette. . . . " He cannot act for a period of time until
after they have been published so we can determine the provisions under which
the governor is acting.
Honourable senators, on the power to promote the stability of the Canadian
financial system, Bill C-50 proposes this change to paragraph 18(g) of
the Bank of Canada Act:
(ii) if the Governor is of the opinion that there is a severe and unusual
stress on a financial market or the financial system, buy and sell from or
to any person any securities and other financial instruments, to the extent
determined necessary by the Governor.
That is not according to any published guidelines. We do not know what he
will be thinking about. The restriction I referred to earlier is "other than
instruments that evidence an ownership interest or right in or to an entity."
He could buy into any business of his choice and could buy and sell to anyone.
His only obligation under section 19 would be not to consult with the government
who might have made a policy decision; not to prop up the particular company;
not to hold any meetings; and not to follow any published guidelines; that in
exercising that authority, he should publish, when he thinks it appropriate to
do so, his statement of reasons in the Canada Gazette.
Honourable senators can understand why some concern was expressed that we
should be dealing with two or three short provisions of an extremely important
function in our society tucked into a budget implementation bill. Why could
those provisions not have appeared in a separate piece of proposed legislation
and been studied by a committee of this chamber that could delve into the broad
implications of it? I do not know whether these powers are exercised in the
United States or in the U.K., although some senators indicated that they were.
Those are just some of the points on Bill C-50 that I wanted to bring to the
attention of honourable senators. I am not certain how this chamber will deal
with Bill C-50. I know the political pressures are on all of us to pass the
bill, which contains some good provisions. However, in my respectful submission,
other provisions require some considerable thought, and others require some
It would have been helpful to split some of these issues, such as amendments
to the Bank of Canada Act and to the Immigration Act, so they could be dealt
with separately. Certainly, some honourable senators will want to address some
of those issues individually. Therefore, I focused on a broad brushstroke peek
into this omnibus budget implementation bill, Bill C-50.
Hon. Lorna Milne: Would the Honourable Senator Day accept a question?
Senator Day: Certainly.
Senator Milne: Senator Day, does the empowerment provision in the bill
mean that the Governor of the Bank of Canada could sell the Canadian Centres of
Excellence or raise money by selling the Canadian Wheat Board?
Senator Day: If the governor is of the opinion that there is a severe
and unusual stress on the financial market or the financial system, he may buy
and sell, from or to any person, any securities and any other instruments to the
extent determined necessary by the governor.
Senator Milne: That means, in effect, that he could sell the Canadian
Wheat Board to these companies that are waiting to pounce on it south of the
Senator Day: In fairness to the way the governor would be advised to
read it, he would have to form the opinion that there is a severe and unusual
stress on the financial market.
We do not know what the guidelines will be in that regard, which is the
problem. If there were some guidelines to help us understand what factors would
determine that there is a severe and unusual stress on the financial market,
then we would be more comfortable knowing how this may possibly be exercised.
Hon. Mobina S. B. Jaffer: I have a question for Senator Day. I was
surprised to hear that the Minister of Immigration did not appear before the
committee to explain the need for this legislation in the Budget Implementation
Act and also how she would exercise her power.
The honourable senator spoke about a promise that the minister gave. I am not
clear on that. Can the honourable senator tell us how he received this promise
from the minister?
Senator Day: I thank the honourable senator for her question. The
promise was in a published statement from the minister. It did not come to us
directly. The minister had given the committee times over a three-week period
when she was available to see us, but that did not work with our schedule.
Therefore, we asked to work out another time when she could come to talk with
us. We were not able to find another time during the three weeks when we could
meet with the minister.
However, we did hear from the minister's officials. They were able to explain
to us much of what I have told the honourable senator.
Hon. Jerahmiel S. Grafstein: I want to thank the honourable senator
for that enlightened exposition of the problems he faced before the committee.
There are two areas of concern to many honourable senators, that relate to the
provisions dealing with the Immigration and Refugee Protection Act.
The honourable senator made the point that the Immigration and Refugee
Protection Act has no place in this bill, but it is in the bill. It seems to me
as though this is flush time. We are flushing everything through the sewers of
this particular legislation with the assumption that no one will be able to
correct, siphon or filter it.
I have two questions related to this information. First, in regard to
immigration, I want to be clear about what the honourable senator is saying with
regard to the Immigration and Refugee Protection Act. Instead of a careful
balance of the rule of law in immigration decisions, in effect, this measure
will have the rule of law being swept away with respect to individual decisions
and we now have the unaccountable, arbitrary discretion of the minister to
determine particular cases.
Second, in regard to the Governor of the Bank of Canada, I recall when I
first became involved in politics in the early 1960s. There was much dispute
over the relationship between the federal government — effectively, the cabinet
— and the Bank of Canada. That was the Coyne affair.
If I recall correctly — and I have not looked up the history — essentially,
the governor of the bank felt there was unreasonable intrusion into his powers.
Therefore, a bargain was struck that was accepted by Parliament. The bargain was
that, yes, the governor could act independently of the government, but he was
bound by statutory restrictions and he would have to come back and account.
What the honourable senator is saying, if I listened to him carefully, is
that these amendments have been plastered into the backside of this bill and
have no place in this particular bill. They give the governor of the bank the
largest sweeping powers I can remember in living history, all in one flush.
If I look at the transcripts from the other place, from the Standing Senate
Committee on Banking, Trade and Commerce and the Standing Senate Committee on
National Finance — I am not criticizing, this is simply factual — less than 10
minutes of thought has been given to this sweeping power. The deal that was made
back in the 1960s between Parliament and the role of the Governor of the Bank of
Canada has been washed away.
Would the honourable senator say that is a fair analysis of his comments?
Senator Day: I do not have the same history of the Coyne affair that
the honourable senator does. Therefore, I am not in a position to compare the
current powers with the powers that were brokered between Parliament and the
Governor of the Bank of Canada at that time.
I raised the issue of the obvious sweeping powers without any restrictions
and I could not find out from any of the witnesses who appeared before us why
there is a restriction with respect to proposed clause 146(1) that will amend
paragraphs 18(g)(i) of the Bank of Canada Act, which says:
. . . other than instruments that evidence an ownership interest or right
in or to an entity. . . .
No one could explain why that restriction does not appear in the proposed
amendment to paragraph 18(g)(ii). The only answer I could get was that
the governor would like to have these powers to be able to react in times of
I am hopeful that either the Standing Senate Committee on Banking, Trade and
Commerce or the Standing Senate Committee on National Finance will follow up and
have a better understanding of these powers in the future. We obviously are not
able to do so now, but it would be helpful for us to remember these issues and
follow up on them.
With respect to immigration, there are two aspects to the powers that are of
concern. First, under our Immigration and Refugee Protection Act, we had a
previous provision that if someone filled out the form, the application would be
received along with the application fee and he or she would have knowledge that
it would be reviewed.
The problem has arisen that the number of applications has slowly built up
until we have a backlog of almost a million people now. That is not fair.
However, there has been no purging of that list to determine how many people
have changed their minds, how many people have died, or how many people came in
other ways. None of that has occurred. That work must be done and they need to
use modern electronic computers to handle this better.
The proposed section 116 amends section 11 of the Immigration and Refugee
Protection Act and changes the word "shall" to "may." From February 27, 2008
onward, it does not matter if a would-be Canadian has filled out the application
the way he or she has been told; a landed immigrant status document may be
issued following an examination or it may not be issued. It is permissive now.
That seems to be one of the ways that the minister will handle the growing
backlog. This caused those people working in immigration to say that is a
discretionary thing. It takes away from the objectivity of our highly respected
system internationally. It has changed with one word.
In addition to that, clause 118 would add a new section 87.3(3) of the
Immigration and Refugee Protection Act that the minister may give instructions.
This is not to say that the minister may generate regulations. It states:
. . . the Minister may give instructions with respect to the processing
of applications and requests, including instructions . . .
Further, at new section 87.3(3)(c), it continues:
. . . setting the number of applications or requests, by category or
otherwise, to be processed in any year. . . .
This is not subject to scrutiny. This is instruction. There is another clause
that says everyone who works for the minister shall comply with those
instructions. This is a very strange way of handling a process that, in the
past, has been quite objective including regulations, pre-publication and
consultation. People who work in the area had an opportunity to say, "If you
pass this, did you consider the effect it will have on that?" That is the pre-consultation process. None of that is left.
The instructions will be published in the Canada Gazette, but there is
no pre-consultation. It does not say these instructions will be published before
they are in effect. That is my concern. If they were to be published before they
come into effect, there would be an opportunity for people to point out that
there is a problem. There would be an opportunity for someone who was applying
to come to Canada to say, "I will not go through this process because they will
publish these instructions and I cannot fit the educational standards; I do not
have the qualifications they are looking for, or the language standards."
That does not have to be published beforehand. There is the potential for
abuse, and that is the problem. The instructions could apply retroactively to
move out or to deny certain applications for reasons that would not be in the
best interest of Canada.
Hon. Consiglio Di Nino: I have several points of clarification by way
of a question to the Chair of the Standing Senate Committee on National Finance.
Could the honourable senator confirm for us that the special powers granted
to the Governor of the Bank of Canada, to be used only in emergency situations,
are powers that a number of central bank governors, particularly in the Western
world, now already have? We heard testimony to that effect.
Senator Day: I do not know that to be the case. I heard that mentioned
by other senators, but I do not know that to be the case. Whoever does the study
on this should study exactly that. I appreciate that the honourable senator was
present at all of the hearings that I was at, and I thank him for the good work
that he did on that file.
Senator Di Nino: I thank the honourable senator for that. If the
honourable senator checks the record, he will find that testimony to that effect
My main question deals with the observation that the honourable senator said
was not appended to the report. Would he verify that comments similar to those
the honourable senator made on this issue were actually contained in an
observation that was rejected by the majority of the committee, and those who
rejected that particular observation contained members of both sides of the
chamber, plus an independent?
Senator Day: Honourable senators, I can confirm that a certain motion
was made by one of the senators to include observations or to attach
observations to the bill.
The Hon. the Speaker pro tempore: Honourable senators,
Senator Day's speaking time has expired. Does the honourable senator wish to
request more time?
Senator Day: With your permission, I would like to finish my answer.
Some Hon. Senators: Five minutes.
The Hon. the Speaker pro tempore: Leave is granted.
Senator Day: Thank you, honourable senators.
I appreciate that I just had a chance to go over much of this quite briefly,
and there is so much detail in here. Senator Di Nino is quite right that there
was a proposal as part of the motion to include an observation with respect to
the Bank of Canada that did not pass. I have already given the indication. I do
not think I have to read it again.
Hon. Lillian Eva Dyck: I thank the honourable senator very much for
his explanations of Part 6 of Bill C-50 with regard to immigration policies. He
was discussing the unprecedented and unaccountable discretionary powers that
will be granted to the minister. He also indicated that the witnesses did not
feel that these changes were necessary.
There was a poll conducted at the beginning of May by Nanos Research,
reported in the June issue of Policy Options, which indicated that nearly
three quarters of Canadians think that immigration is either important or
somewhat important. It is a topic that is very much on the minds of Canadians.
If Part 6 remains in Bill C-50, rather than being removed and dealt with
separately, what do we say to Canadians? What do we say to groups like the
Chinese Canadian National Council, that has probably written to every senator in
the chamber, indicating that it wishes that section to be removed? The council
represents 1.6 million Canadians, the second-largest racialized group in Canada,
second only, I think, to South Asians. It is obviously an important issue, so
why are we keeping this measure in Bill C-50? Why is that the recommendation?
What do we say to them?
Senator Day: Honourable senators, that is a question that would be
much better answered by the sponsor of the bill. Like the honourable senator, I
have a great deal of difficulty answering the many hundreds of letters I have
received in relation to this particular aspect of the bill. I can tell the
honourable senator that I received a submission from the Chinese community along
the lines of why we have this legislation. It is a very difficult question to
answer when I have so many concerns myself.
Hon. Serge Joyal: May I ask the honourable senator if, during the
course of the study, the committee paid attention to the impact of those
sections in relation to the Charter of Rights and Freedoms? The Supreme Court of
Canada, in a famous decision, has stated clearly that no one has a right to
immigrate to Canada; no one can claim that he or she has a right to immigrate.
However, in the treatment of someone requesting immigration to Canada, the
principles of the Charter of Rights apply.
Let me give honourable senators an example. Suppose the government decides
that they do not want any more people of colour in Canada, for X, Y or Z reason.
That decision would probably not be announced on those terms. They would
identify X, Y or Z country where a majority of immigrants are people of colour.
The government could decide, on instruction, not to proceed with any request
from that group of applicants. I believe that would be totally contrary to
section 15 of the Charter of Rights and Freedoms. Once you are charged with a
discretion, you have to apply the principles of the Charter. Section 15 is quite
clear. It says "every individual." It does not say "a citizen." There are
sections of the Charter that apply to citizens; there are sections that apply to
persons, whatever the status of the person is, an applicant for immigration or
Did the honourable senator question the impact of those sections of Part 6 of
the bill in relation to the Charter of Rights and Freedoms?
Senator Day: That is an extremely important question. I want to go on
record with an answer.
During one of our meetings the issue arose, however briefly. It was expressed
as a concern, but we did not have time to delve into the issue. Part of my
submission here today is that there are many aspects of this legislation and
other pieces of this bill that need to be looked into. Obviously, the honourable
senator raises a very important point.
The Hon. the Speaker pro tempore: Senator Day, your time
Hon. Vivienne Poy: Honourable senators, I rise today to voice my
objection to the inclusion of legislative measures in Bill C-50 that have no
direct relationship to budget implementation.
Today, I will only speak to Part 6 of the bill, which deals with the
amendments to the Immigration and Refugee Protection Act, which should be
introduced as stand-alone legislation. In inserting this section, the government
shows contempt for our parliamentary process by not allowing for sufficient
public input and parliamentary debate. I may be repeating a few points that have
been covered, and I beg honourable senators for your patience.
As a member of the Chinese-Canadian community, a group that has been singled
out in the past for exclusionary immigration measures, I am concerned that this
legislation gives the minister excessive discretionary power, with a lack of
openness, consultation and transparency that removes objectivity from our
immigration system. What has happened in history could happen again. Certain
groups and those from certain countries can be excluded easily when immigration
is dependent upon the discretion of the minister, as was mentioned by the
honourable senator earlier.
When the point system was introduced in 1967, racial bias was finally removed
when foreign nationals applied for immigration to Canada. Based upon this
system, Canada has become the diverse country it is today. The amendments
inserted in Part 6 of Bill C-50 will politicize immigration, leaving it open to
lobbying by special interest groups and subject to third-party agendas.
I acknowledge that there are problems with Canada's present immigration
system, such as the backlog, as well as the need for foreign credentials
recognition. The point system should also be re-evaluated. However, changes to
the system should not be introduced arbitrarily, buried within a budget
Because of the importance of immigration to Canada's future, with Canada
potentially being totally dependent on immigrants for all net labour-force
growth by 2011, which is only three years away, we must have a comprehensive
strategy and separate legislation for such significant amendments to the
Immigration and Refugee Protection Act. Legislation should be drafted only after
adequate and appropriate public consultations. Instead, the government
introduces measures without proper consultation or debate in Parliament.
Because these changes are so controversial, the government has found it
necessary to spend millions of dollars of taxpayers' money in buying
advertisements in ethnic media in an attempt to convince ethnic communities that
their justifiable fears about the outcomes of these changes are misplaced. The
government has created a climate of mistrust and apprehension by not being
transparent or accountable and by refusing to consult adequately with
It is no surprise that, at the many events I attend across Canada,
organizations and individuals tell me that they are worried about what these
changes could mean. One of their fears is the potential for the reduction of the
importance of family reunification since the minister can adjust certain
immigration categories and abstain from processing applications received even
after February 27, 2008, as well as prioritize others. This change is widely
expected to mean more emphasis on economic immigrants and temporary foreign
workers, and less on other categories such as the family class. In particular,
the current trend seems to be towards temporary foreign workers, which serves
the needs of the business lobby rather than that of immigrant communities, of
labour, and of Canadian society as a whole.
One reason multiculturalism works in Canada is that immigrants have an
attachment to this country. This country is where families become established
and help to build our future. Those who come in are not just passing through as
temporary workers, as they are in many parts of Europe. Emphasis on temporary
foreign workers, instead of immigrants of all categories, may change Canadian
society, which could easily lead to future social unrest.
The government claims that they will reduce the backlog through these
measures, but the backlog, as Senator Day mentioned earlier, can be reduced only
by providing more resources and deploying more staff in processing applications
in locations where the waits are the longest. These amendments will not reduce
the backlog, since they apply only to applications made on or after February 27,
2008. In fact, those in the current system could find themselves waiting even
longer, depending on the decisions of the minister.
The minister has said that the process will be transparent because the
instructions will be published in the government's paper, the Canada Gazette,
on the department's website and in its annual report to Parliament, but this
publication will be done only after the fact. Therefore, it is of no use to
The minister has indicated that one of the groups she will prioritize as
immigrants is doctors. However, we all know there are many doctors, as well as
other skilled workers, who are already in Canada but not working in their fields
because of the restrictions around foreign credentials recognition in the
provinces. These issues can be resolved only by working with the provinces and
the various professional organizations and not by giving discretionary powers to
the minister. In the case of doctors, even those who have passed the test in
Canada cannot find residency positions in our hospitals because these positions
are so limited, so they are unable to work in their fields. For the present, we
do not need more doctors coming to Canada. We first need to help those who are
already here to have a chance to use their skills to look after the health of
The existing open and transparent criteria have been the secret of Canada's
success on immigration. The present amendments in Part 6 of Bill C-50 put too
much discretionary power in the hands of the minister who can pick and choose
who comes to Canada. This discretionary power will open the door to abuse of
that power. It is a recipe for political problems and has the potential to
undermine public support for immigration.
In addition, when there is a global competition for the best and the
brightest in the world, it will make talented individuals think twice about
emigrating to Canada, where the rules are ambiguous. It will also undermine
Canada's international reputation as an immigrant-welcoming country, which is so
crucial to our future.
Senator Jaffer: Honourable senators, I rise today to speak on Part 6
of Bill C-50. I also rise in support of the comments made yesterday during the
speech on third reading of Bill C-50 by our colleague Senator Murray.
I, too, wish the Senate's pre-study of Bill C-50 had occurred earlier. I know
the House of Commons would have benefited greatly from the Senate's assistance
with this omnibus bill, as we know that it benefited when we conducted a
pre-study on the anti-terrorism bill. The last-minute receiving of legislation
with little time to do the necessary work has been a problem that has plagued
the Senate this parliamentary session. I cite Bill C-3 and Bill S-3 as examples
of inadequate study and with no amendments. On Bill S-3, on the matter of
security certificates, we are now performing that work as a study in the
aftermath of the passage of this legislation, with no guarantee from the
minister that he will implement any of the suggestions. I agree with Senator
Murray that this situation has happened too often in this session.
Honourable senators, I also believe the Senate should indeed commence its
review of important and complex legislation the minute it is given first reading
in the House of Commons. The House of Commons should be able to benefit from our
assistance on these complex bills. If this approach were the norm, perhaps the
House of Commons would be aware of the measures involving film tax credits that
arose as an issue when the Senate studied Bill C-10.
At 560 pages of complex legal and financial jargon, how can we expect the
members of Parliament to catch everything? Perhaps they may have caught it if
they had studied it for more than one day before sending it on to the Senate.
Senator Murray made a valid point about accommodation and compromise that
occur often in minority governments. I am pleased this accommodation has
occurred on Bill C-21, which provides access for First Nations people to the
Canadian human rights.
I believe that the budget implementation bill is not the place to make
amendments dealing with immigration policy. Immigrants are the backbone of our
country, and our immigration policy should not be in the budget implementation
When debate is stifled and there are no amendments possible, I believe the
government has let Canadians down. I will echo Senator Murray's statement that
"we have also failed as a revising chamber."
Canada's immigration policy should be about more than short-term fixes to
the Canadian economy. That approach is Bill C-50 in a nutshell; it is narrowly
focused. With an average of 240,000 to 265,000 new immigrants making Canada
their new home every year, the bill will have broad impacts. The legislation
pays no attention to how immigration policy transforms a nation. Canada is a
country that has been founded, built and sustained by immigrants.
This legislation gives the Minister of Citizenship and Immigration the power
to give priority to categories of immigrants whose job skills are demanded in
Canada. At the same time, it also provides the minister with the power to refuse
applications in other categories. I am greatly concerned about how these
measures will affect family reunification.
Critics have questioned why Canada would abandon immigration laws that are
clear and transparent in favour of the measures introduced by Bill C-50. I do
not agree with giving the minister this type of discretion over immigration
files. There is no question that Canada's immigration system should be
reevaluated and overhauled. I think we would be hard-pressed to find anyone who
believes that it serves our country well. This being said, I do not believe
these issues have been adequately addressed this spring by Parliament. Sadly,
the minister did not even come to the committee to explain this legislation.
The immigration provisions should have been severed from this bill and placed
in a separate, stand-alone bill. In the aftermath of this bill's passage, I
hope, honourable senators, that we will create another opportunity to address
the issue of immigration because Canadians deserve better.
Honourable senators, I am saddened as I think about the reconciliation we had
last week and how we brought our country together. This week, there are many
people in our country who feel dejected. Last week, we all worked hard to right
a wrong. We worked hard toward reconciliation. This week, we are working hard to
make a wrong decision and we are dividing our communities.
As one South Asian mother said to me yesterday on the phone: "I have been
waiting for five years for my parents to join me so that my children can enjoy
their grandparents. Now with Bill C-50, my children may never see their
grandparents in Canada."
This is a game of government committing wrongs against our citizens. We are,
again, dividing our communities.
Honourable senators, last week, we worked to create harmony in our country.
Let me tell you what I understand as harmony. When I was young, my mother wanted
me to learn to play the piano, and she was not very successful. In anger she
would often say to me, "You have to play on both the black and white keys to
create harmony." To annoy her, sometimes I would play only on the white keys
and sometimes only on the black. I encourage you to try that. There is no
harmony when we divide communities. To have harmony, honourable senators, as on
the piano, the whole community must work together.
Today, with the passage of this bill, we will create disharmony in our
country. This, indeed, is a sad day for Canadians.
Hon. Elaine McCoy: Honourable senators, I briefly rise today. I was
moved by the eloquence of both Senator Stratton and Senator Day in speaking to
Bill C-50. I find myself with so few occasions on which to congratulate the
government that I wanted to take this opportunity to do so. As has been said,
the bill contains a collection of different provisions, and some of them are
The ones in particular that I endorse, for example, are the continuation of
the capital cost allowance for manufacturing industries, an excellent provision.
I am delighted to see carbon capture and storage provisions provided for. The
University of Calgary receives $5 million; Nova Scotia, $5 million;
Saskatchewan, $240 million; all dedicated to moving technology forward on that
Genome Canada receives $140 million; The Mental Health Commission, which owes
so much to so many from this chamber, receives another $110 million.
Those provisions are the ones I picked out and thought most worthy of
By the same token, I find myself against some provisions, and I want to be on
record in this instance. Most particularly, I wish to record my objection to the
broad discretion given in Part 6 to the Minister of Citizenship and Immigration
responsible for that entire program. There has been much eloquence by senators
today, Senator Jaffer and Senator Day, as to the ultimate consequences of moving
to a system of government that has no transparency and no accountability. As
mentioned, there is a growing pattern in that direction, which is something to
be looked at.
In particular, I want to endorse calls for a further and more extended
examination of that phenomenon. In our thousands of years of evolution of
government systems, we have moved gradually and ever steadfastly toward a system
by which our executives are held accountable. In the past 50 years, the
inexorable trend has been toward an executive of the Prime Minister's Office
that has become less and less directly accountable.
Another part dear to all our hearts is: What role does the Senate of Canada
play in our system of governance? There is no question we are part of the
legislative function. There is no question that we have evolved a system of
responsible government that prevails in the House of Commons but not in the
Senate. Where do we cut the line in our evolution of governance systems? There
are many who call for the Senate to stand up and express, on behalf of all
Canadians, that which is best in all of us. Do we continue to duck those
opportunities when they are presented to us?
It is, I understand, a delicate balance, and Senator Murray yesterday
referred to the game of chicken being played in the House of Commons. Today,
Senator Day says there are political pressures. What is the role of the Senate?
Are we fully cognizant of what that should be in the 21st century? Have we
examined that at any great length? I add my voice to those who are urging
thoughtful examination of the substance of governance in our country.
I am fond of saying to people that the Senate of Canada is the only
government institution in Canada that is paid to think long term and in-depth.
Today, I hear that on some of the most important aspects of our policy, such as
immigration, the committee and the Senate have been frustrated from doing that
very thing. I ask you all: Why? I ask you all: When will we stop acquiescing in
this erosion of our role?
It seems to me that the very DNA of our country is being slowly but surely
altered, right underneath our noses. One by one, bills come to this place. One
by one, honourable senators get up and speak wisely because you are wise. One by
one, you speak passionately because you care about this country. One by one, we
all acquiesce as the DNA morphs into something that none of us ever wanted.
I share in the sentiments that have been expressed that we will, in the very
short future, begin to examine our role and the acquiescence of which we are all
Hon. Terry M. Mercer: Honourable senators, budgets are not my forte,
but this is not just any budget. As we have heard earlier, there are
extraordinary powers being given to the Governor of the Bank of Canada. I can
see the headlines now: Banff National Park For Sale; Kejimkujik National Park on
the Auction Block; Cape Breton Highlands National Park For Sale; Fundy National
Park For Sale; the paintings on the walls here in the Senate up for sale.
Who are the people that dreamed this stuff up? One could not write this stuff
for a comedy. This is so bizarre. The main thrust of my speech this afternoon is
not about the Governor of the Bank of Canada, although I think it is
unbelievable that our committee met and the Governor did not appear. I think
that is outlandish. I think that should never happen again.
I speak to the government, and I speak to the government-in-waiting. We are
in a situation today, as we have been in many other sessions, where we have a
bill that must proceed before we can all go home to our families for the summer.
The bill must pass, and the guns are being held to everyone's heads.
We missed the opportunity to have the discussion with the Governor of the
Bank of Canada. He should have been here, and we should have been able to quiz
him at committee because some of the things in this budget are unbelievable.
However, I want to talk about political courage or the lack thereof. If the
goal is to change the immigration process in this country, a major amount of
power must be shifted to the minister to be able to say "yea" or "nay" on
who comes to Canada. If there are the guts or the political backbone, a bill
should be introduced to do just that.
However, when the guts or the backbone do not exist, the changes are wrapped
in a budget bill and declared a "confidence motion." That is the leadership of
Prime Minister Harper and company. That is the kind of leadership this man
I keep asking who this bill is aimed at. Who is it that they want to keep out
of Canada? Is it people like Senator Oliver? People like Senator Poy? People
like Senator Jaffer or Senator Merchant? Is it gay people? Is it people from
Africa? Is it francophones? Is it people from South Asia? Is it people like me,
a White Catholic? Maybe I am on the list. Maybe it is only people of the Muslim
Senator Di Nino: Are we an endangered species?
Senator Mercer: Do they want this place to see the world as they see
it? I would not say these people are wearing rose-coloured glasses; I think
these glasses have a different tint to them.
It amazes me, honourable senators, that a government in this day and age, a
government that was elected on the basis of openness and transparency, who
wanted to be fair, who wanted to change things, who saw what they saw was wrong
and would correct it, comes in, and this is the first thing that they correct.
"We will give the Minister of Citizenship and Immigration the power to say 'no'
to this group and to say 'yes' to this group. We like these people, so let us
get them in here because they are our kind of people. Do not bring those people
in here because we do not think they would fit our image of what the Canada of
tomorrow will look like."
That is not the Canada that I know. That is not the Canada that I think the
majority of Canadians know.
Senator Tkachuk: I am offended. Why not just say it?
Senator Mercer: Whether those Canadians are from Western, Northern,
Eastern or Central Canada, I believe that Canadians understand that this country
is made up of people from all over this world, of all colours, races, religions
and of all sexual orientation. I think Canadians understand that.
I moved to Toronto in 1987. I spent most of my life in Halifax. Halifax is a
city with only two major racial groups: Whites and African Nova Scotians. Seldom
when I was young did we see other people. There were a few Asian people, but
that was it.
I moved to Toronto as an adult, and I used to take the subway to work when I
worked at the YMCA of Greater Toronto. I would look around in the subway car,
and guess what? The White Catholic boy from the north end of Halifax was
suddenly a minority. In front of me was the new face of Canada.
Senator Tkachuk: Oh, my!
Senator Mercer: All different colours, from all different countries,
speaking a multitude of languages that I did not understand.
Senator Cools: That is I.
Senator Mercer: I had a hard enough time with English. I lived in a
neighbourhood in the west end of Toronto where the second language was not
French; it was Polish. The third language was Ukrainian, the fourth language was
Lithuanian and the next language was German. We might have finally gotten to the
French language after Portugese.
If one walks down Robson Street in Vancouver, who does one see? If one looks
on a bus in Vancouver, the people on that bus are from all over the world, and
they speak many different languages. Many people are Asian and South Asian in
If one gets on the train in Calgary, it is the same thing. If one looks at
the population, it is totally different than it used to be. This is the new face
That new face of Canada is there because, as Senator Poy said, when we
introduced the points system, we removed the racial prejudice that was inherent
in the system. However, I do not necessarily agree that we removed it. I think
we may have shifted it. I think prejudice still exists in the system, but it has
shifted to people who, perhaps not intentionally, bring their own prejudices to
the table as they process things, which is unfortunate.
It concerns me that this government would have the gall to treat Parliament,
this Chamber, the Senate and the House of Commons with so little respect that
they would wrap this measure in a budget bill.
More important than the fact that the government does not respect the 105
potential people in this Chamber and the 381 in the other one, but that they do
not respect 32 million Canadians because the majority of the Canadians in this
country understand that this country will only grow if we are open.
Again, Senator Poy mentioned the fact that by 2011, our only growth as a
population will come from immigration.
That will not be the case under this bill. The government will be able to
close the door and say, "No thanks. No more. We have enough of that kind; now
we want some of these." There are no limitations.
Honourable senators, power corrupts, and absolute power corrupts absolutely.
This measure will give absolute power to the Minister of Immigration. As
Canadians and senators we should be extremely concerned about what this will do
to our laws and how this may affect the future of our country.
I am very disappointed that on June 17 we are under pressure to pass this
bill because it is a budget bill, because we have a minority government and
because of all the recent political shenanigans by both sides. Nevertheless,
here we are.
Honourable senators, I cannot let the opportunity pass to express on the
record my disgust with giving this power to a minister, with no restrictions.
How do we know what will happen? I know some of the people in this government. I
like and trust some of them. However, there will be new governments in the
future, and if this power gets into the wrong hands, what will happen? I think
power may be in the wrong hands now. What will happen if this law is abused?
Honourable senators, I am disappointed, some of my colleagues are
disappointed and, more important, I think that Canadians are disappointed.
Hon. Pierrette Ringuette: Honourable senators, I am speaking as a
member of the Standing Senate Committee on National Finance, where we have had
very interesting proceedings. To follow up on comments made by my colleagues, I
would like to thank Senator Stratton for his efforts in putting forward his
ideas in French. As a francophone from the East, I appreciate it.
Yesterday Senator Murray mentioned preliminary study of bills. I believe that
the Senate must seriously consider this matter. The committee wants to make the
effort to listen to testimony and to study bills. We do not have enough time. I
fully support preliminary study of bills. I would even say that we need to plan
preliminary study of a bill as important as a budget bill at almost exactly the
same time as the other House begins to study it. With regard to specific bills,
Senate committees very often hear from witnesses and make observations that are
useful not only to the Senate, but could also be useful to the House of Commons.
I would like to comment on Bill C-50.
Most honourable senators know my big concern. I want to express my concern
with regard to the new EI management committee that will be composed mainly of
financiers. The Employment Insurance program is more than finances. The program
belongs to employees and employers, and they should have had serious input into
the long-term financing of Employment Insurance.
There is currently only $2 billion in reserve. In a weaker Canadian economy,
there will be a need for at least $12 billion more. Under this bill premiums
cannot be increased by more than 15 per cent. When the economy is unfavourable
in Canada — which is a possibility — there cannot be more than a 15 per cent
increase. If requests to the program exceed $2 billion, the government will put
in the required money. However, under Bill C-50, the program must reimburse the
Crown whatever amount it lends to the program.
With a limit on increases in premiums, in a recession or a faltering economy,
the only way for the program to break even will be to reduce the benefits to
employees at the time when they will need them the most.
That is a major concern. We must keep an eye on this issue, especially for
seasonal employees and employers. They constitute 25 per cent of our economy,
but they are resource- and tourism-based. If our resources are not selling well
abroad, this provision will cause problems for seasonal employers and employees.
They will be told that they will receive reduced benefits. That is alarming to
me. I do not like the provisions with regard to that issue.
I wish to highlight the creation of three trust funds exceeding $2 billion.
That does not include the community trust fund of $1 billion that was announced
in early March.
Two years ago, the Government of Canada had five-page federal/provincial
documents signed with each province with regard to child care spaces. However,
in this house it was said, "Never mind; these were just deals signed on
napkins." That statement stuck in my mind. I could not believe it.
Honourable senators, the trust funds provided for in Bill C-50 and the bill
we passed prior to this which provides for the $1 billion community fund have no
federal-provincial agreements and are based on a single-page press release — a
single-page press release.
Senator Comeau: Say it one more time.
Senator Ringuette: I will say it one more time: A single-page press
A single page! And not from all the provinces, but only a few, saying that $3
billion of Canadian taxpayers' money will be spent without an agreement having
That is a concern. It seems to be a trend. We have the duty, if not in the
other place, then in this place, to highlight that it is not acceptable to spend
billions of dollars of taxpayers' money on a press release. I am sorry, but we
should not be operating that way.
Last but not least, we have heard witnesses talking on both sides of the
issue in regard to immigration. Some were for and some were against, and I
respect all their opinions. Personally, discussion has highlighted an issue that
this chamber has a responsibility to look into further. It is one thing to give
power to the minister, but when have we looked into what is happening to
immigrants and how they are welcomed into Canada? What is the rate of poverty
for them once they are here because they cannot get their credentials
recognized? What is the state of black-market labour? Most of us say that we
have heard such stories. When will we investigate these stories? When will we
seriously look at that immigration issue?
One of the items that we must look into is the entire aspect of training.
Witnesses have come before us, especially from industry, who say they are in
dire need of trades. Representatives from unions came and had to agree that in
some parts of this country unions operate a closed shop. In some parts of this
country, employers look narrowly to the tradespeople who are available. If not,
they just say, "We need immigrants with these skills."
We have federal-provincial agreements for skills, to train people, to train
people in our native communities for jobs that they can access easily.
Immigration, from my perspective, is a much bigger issue than we see in Bill
C-50. As part of our responsibility to represent minorities and people who do
not have a big voice in the other place or elsewhere, we must look into the
issues that affect their daily lives. I certainly hope that when we return in
the fall a committee of the Senate will be looking at every aspect of
immigration, not only at the issue of ministerial rubber-stamping. The issue is
bigger than that, and so is the Senate.
I have reservations.
I have reservations about this bill, but it is our responsibility to examine
it thoroughly in the months to come.
Senator McCoy said that we need to look at issues in the long term. On the
immigration issue, the Senate would benefit Canadians, immigrants and whichever
government might be in power by looking seriously and in depth at the
Hon. Wilfred P. Moore: Honourable senators, I join in the debate with
respect to Bill C-50, the budget implementation bill, particularly with regard
to Bank of Canada Act amendments.
I listened closely to what Senator Grafstein and Senator Day had to say
earlier this afternoon.
Here is a little history. In May 2007, our Standing Senate Committee on
Banking, Trade and Commerce was conducting a study on the financial system in
Canada on hedge funds, under the chairmanship of Senator Grafstein. At that
time, managers of all the banks and leading pension funds came before us. They
were very convincing and told us that there were 7,000 hedge funds in the world,
but that they only dealt with 100 and that they knew all the managers of those
hedge funds. They personally dealt with those managers. Those funds all did due
diligence and so on, and the witnesses were very comfortable with the
investments that they were making, contrary to what was happening in the United
States. There was a meltdown happening there at that time.
Within 10 days, those same banks and pension funds in Canada were running for
the high hills because they had invested in subprime mortgages. I do not know
what sort of due diligence they did or the managers of the funds they were
dealing with did, but it is clear that they were not doing enough, so much so
that when the credit crunch happened, they turned to the Bank of Canada to bail
I am concerned with regard to the amendments to the Bank of Canada Act that
we may be unwittingly rewarding risky behaviour by our chartered banks and other
financial institutions. We must guard against creating a moral hazard that
encourages financial institutions to take excessive risk based on expectations
that they will reap all the profit, while the federal government, the embodiment
of the people of Canada, through the Bank of Canada, stands ready to cover any
losses if they fail.
On April 30 of this year, Mr. Mark Carney, the new Governor of the Bank of
Canada, appeared before the House of Commons Finance Committee. Up to this
point, our central bank's monetary policy was such that it could not accept
riskier assets such as corporate debt and asset-backed commercial paper as
collateral for short-term loans to private lenders. In his comments, Mr. Carney
said that the restrictions impeded the bank's ability to target corners of the
financial system that have seized up because lenders could not find buyers for
securities they were holding on their books. He said conditions are tight at
present in large part because market players are uncertain about how exposed
lenders are to securities linked to U.S. subprime mortgages and other complex
assets. That is the whole point.
Last fall, when our chartered banks gradually revealed their exposure and
went running to the Bank of Canada for billions of dollars to support them, the
Bank of Canada obliged and provided the funding. The governor says he needs this
authority now. If so, then under what authority was he operating last fall? Was
the bank overstepping its mandate? Were they operating legally?
Why, all of a sudden, do we need this mandate now? He says he needs it now,
but what authority did he have before that permitted his actions?
I am concerned about that. Nothing has been said about it. Our Standing
Senate Committee on Banking, Trade and Commerce has not looked at it. We have
urged it. Nothing has happened. Honourable senators heard the Chair of our
Standing Senate Committee on National Finance. Three times, I think, he asked
the governor of the bank to appear. He could not come. No one in all of the Bank
of Canada could come to our committee to answer questions. That response is
That is the whole point. We are now asked to approve legislation that, on
first blush, may expose the Bank of Canada to political pressure to use these
new powers to fix anything that ails the financial marketplace. It is hard to
feel much sympathy for the bankers who rake in the fortunes during the boom and
require taxpayers to help them out in the bust. I am concerned that we do not
create a climate whereby risky practices by our financial industry threaten the
overall financial stability of Canada.
In closing, an efficient financial sector is vital for a modern economy.
However, trading securities, arguably, has achieved too much importance in
today's world. Winston Churchill once said he would rather see finance less
proud and industry more content. That is not a bad motto for those leading our
The Hon. the Speaker: Are honourable senators ready for the question?
Hon. Senators: Question!
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
Motion agreed to and bill read third time and passed, on division.
Hon. Pierre Claude Nolin moved second reading of Bill C-60, An Act to
amend the National Defence Act (court martial) and to make a consequential
amendment to another Act.
He said: Honourable senators, I would like to provide some clarifications
concerning the content of Bill C-60 and how it is meant to work. As the late
Justice Lamer noted in his 2003 report on the review of the military justice
. . . Canada has developed a very sound and fair military justice
framework in which Canadians can have trust and confidence.
This bill is designed to strengthen the military justice framework.
Honourable senators, the uniqueness of the military justice system has been
recognized by the Supreme Court of Canada, and the existence of a system of
military tribunals with jurisdiction over cases governed by military law has
been constitutionally recognized in the Canadian Charter of Rights and Freedoms.
The National Defence Act established the Code of Service Discipline, which
provides for a two-tiered tribunal structure: summary trials and courts martial.
Summary trials are presided over by officers in the chain of command, whose
cognizance of certain types of offences and authority to sentence are limited.
Summary trials, as their name indicates, are short and expeditious.
While the majority of military offences only go to summary trial, it is clear
that some infractions must go through by the more formal court martial system.
Serious military infractions can be referred directly to a court martial, which
is similar to a civilian criminal trial. There are currently four types of
courts martial. However, Bill C-60 would simplify the court martial structure
and would reduce the number from four to two. Military judges would preside at
courts martial. A court martial could consist of a lone military judge or of a
military judge and a panel, similar to a civilian trial with a judge and jury.
Such trials would involve the presence of an independent prosecutor and the
accused, represented by a military or civilian defence lawyer.
Courts martial fulfil another vital function in the military justice system.
Choosing to proceed with a court martial means that an essential mechanism is in
place to ensure fairness for the accused and also to protect the broader
interests of the Canadian Forces and Canadian society.
Court martial decisions can be appealed to the Court Martial Appeal Court,
which is composed of civilian Federal Court and superior court judges with
jurisdiction in criminal matters. Decisions of the Court Martial Appeal Court
can be appealed to the Supreme Court of Canada.
One essential element of the military justice system is fairness. Once again,
I will quote the late Chief Justice Lamer, who said:
We "must strive to offer a better system than merely that which cannot be
In order to ensure that members of the Canadian Forces can continue to be
judged fairly, it is necessary to make adjustments to the military justice
system from time to time, in response to rulings made by the appeal courts.
Honourable senators, on April 24, 2008, in R. v. Trépanier, the Court
Martial Appeal Court found that the exclusive power of the Director of Military
prosecutions to determine the type of court martial violates the constitutional
rights of the accused under the Charter. The court also found that the provision
allowing the court martial administrator to convene courts martial was
inoperative. Convening a court martial is an essential step in bringing a case
to trial. More important, the court found these provisions under the National
Defence Act to be invalid and inoperative.
The court was not prepared to stay the effect of its ruling. That is why this
bill is being given priority. It was intended to respond to the urgency of the
situation that was created by the cancellation of the effects of these
provisions of the National Defence Act.
Although efforts have been made to continue with court martial cases that had
already been convened, no new court has been convened in the past seven weeks.
The lack of response to the inability to conduct trials by court martial will
unduly hinder the administration of the military justice system and the
maintenance of discipline, good organization and morale that the operational
effectiveness of the Canadian Forces depends on.
What is more, major societal interests are at stake since the accused will
not enjoy the right to be tried within a reasonable time, a constitutional right
he or she is entitled to like any other Canadian. Accordingly, serious offences
may go unpunished and in those cases, the victims and society will not see that
justice has been served.
Leave to appeal the Trépanier ruling was requested of the Supreme
Court of Canada on May 30, as was a stay of execution. The courts are the
institutions through which significant constitutional questions can be answered.
However, it should be noted that it is unlikely that an appeal would provide a
timely response to a number of the questions raised by the Trépanier ruling. The
legislative response will give the certainty required in a more timely fashion.
In short, Bill C-60 will add clarity, certainty and stability to the process
of convening courts martial which, right now, is essentially frozen.
I want to give a brief outline of the impact of this bill. It simplifies the
court martial structure, establishes a detailed framework for selecting the type
of court martial that will judge an accused, and improves the effectiveness and
safety of the decision-making process. When I use the term "safety," I should
add the word "legitimacy", which would, in my opinion, be a better translation
of a text that was obviously written in English.
More specifically, the bill will, as I indicated, reduce the number of types
of courts martial from four to two. It will expand the jurisdiction of the
standing court martial to include all those who are liable to be charged and
tried under the Code of Service Discipline. It will increase the power to impose
jail terms ranging from less than two years to imprisonment for life. It will
restrict the punishment a court martial can impose when judging a civilian to
imprisonment or a fine, or both.
As regards the type of court martial that can judge an accused, the bill sets
out serious charges that must be judged by the general court martial and
relatively minor charges that must be judged by the standing court martial and,
in all other cases, it will allow the accused to choose between a trial before a
judge alone, or before a panel of the court martial, as is the case with
civilian criminal courts.
As for the court martial's decision-making process, the bill will give
military judges the power to rule on preliminary proceedings at an earlier
stage, and it will improve the legitimacy of the verdicts by requiring the panel
of a general court martial to issue unanimous verdicts of guilt or acquittal, as
is the case with civilian criminal courts.
Honourable senators, the proposed changes seek to provide a clear and
decisive response to the concerns expressed by the Court Martial Appeal Court.
The court martial process within the military justice system is an
indispensable tool for achieving the system's fundamental goals. I believe it is
necessary and urgent to amend the National Defence Act so as to provide clarity,
certainty and stability to this process.
Honourable senators, the bill will make the military justice system fairer
for both the accused and the Canadian public. By providing legislation that
would make it possible to convene a court martial, we will ensure that justice
continues to be served for the accused and for victims.
Before we get to questions, to put this as simply as possible, the Court
Martial Appeal Court handed down a decision on April 24, 2008, declaring that
some provisions of the National Defence Act were invalid. These provisions
limited the powers of the accused, or prevented them, as is the case with
civilian criminal courts, from choosing how they will be judged. Depending on
the type of offence, the accused can choose to be judged by a judge and jury or
by a judge alone. That can have a serious impact on a person's defence strategy.
The Court Martial Appeal Court found that not permitting such a choice was a
violation of the accused's rights, and it found the provisions of the National
Defence Act to be invalid.
What I understand — and we can ask the minister for all the details — is that
the department started by looking at the possibility of amending a bill that was
already before the House of Commons, Bill C-45, which has to do with military
justice. Department officials advised against doing so because the amendments
that were needed to satisfy the Trépanier decision would have changed the
essence of Bill C-45. So that idea was abandoned.
The Department of National Defence prepared a document for cabinet,
authorizing the drafting of a bill, the one now before us, which was introduced
in the House of Commons on June 5. In the meantime, the Director of Military
Prosecutions filed an application for leave to appeal and an application for the
stay of the decision with the Supreme Court of Canada.
All honourable senators have received a copy of the original bill, the bill
as amended by the committee, and the bill as passed by the House of Commons. As
senators read through the documents, they will see how the bill has evolved. I
would first like to draw everyone's attention to the amendments passed in
committee in the other place. There is a series of transitional clauses in
clause 28. The House of Commons decided — we might want to ask the minister why
— to eliminate these transitional clauses that affect trials already underway.
It added a mandatory clause for a review by a House, Senate or joint committee
within two years of the passage of Bill C-60, to assess its effectiveness and
ensure that the goals of this bill are being met.
There are currently 50 pending cases, which means that 50 members of the
military and civilians have been charged, but their trials are not yet underway.
These cases include a homicide, two sexual assault cases and a series of lesser
offences. None of the accused is being detained. I do not need to convince
senators that a military justice system must exist and be effective if we want
the process to be credible, and there are experts who can provide full
This matter is an urgent, and I would ask everyone to support Bill C-60. If
anyone has any questions, I will gladly answer them.
Hon. Pierrette Ringuette: Honourable senators, I have two questions.
Have I understood correctly that what used to be a two-year maximum sentence
could now become a life sentence? If that is the case, does the bill have a
If those accused and tried by court martial can now choose between trial by
judge alone or trial by judge and jury, is the jury selection process covered in
the bill? Will the juries be composed of members of the military or civilians?
Senator Nolin: The process may seem complex. You raise a very good
question. The bill does not provide for any increases in the sentences. It
provides for the reorganization of jurisdictions or changes to the types of
tribunals within the military process.
At present, there are four types of judicial processes and these will be
reduced to two. Consequently, the jurisdiction of the two remaining processes or
courts will have to be expanded. The courts with jurisdiction for offences
punishable by imprisonment of less than two years will also deal with offences
punishable by anything up to imprisonment for life.
As for juries, there will be a panel of court martial composed of five,
rather than twelve, military officers. The procedure remains the same. However,
one important nuance is that, currently, until Bill C-60 is adopted, the
decisions need not be unanimous, as is the case with a traditional jury, but are
based on a majority ruling. This aspect will be eliminated. That is why I spoke
earlier of the legitimacy rather than the safety of the process. In criminal
law, and particularly in civilian courts, when a jury unanimously finds an
individual to be guilty, the accused is deprived of his freedom. This practice
seems to be the norm and that is what the Court of Military Appeal decided.
Thus, this practice will be applied in the military.
We must make the necessary amendments in order to adapt existing practices to
courts martial and the military sector.
Hon. Joan Fraser: Honourable senators, my question is for Senator
My question concerns the coordinating amendments set out in clause 31 of the
bill. It refers generally to Bill C-45, which is still before the House of
Commons. Five separate provisions state that, if section 14 of this act which is
before us comes into force before the other act which is still before the House
of Commons is passed, a given section of that other act will be repealed.
It seems to me that such an approach has already been criticized in this
place. It would be so much simpler and natural to state in the other bill, which
is still before the other place, that if the bill currently before us comes into
force before the other one, which is coming after this one in the process, the
other bill will be amended accordingly. Why use Bill C-60 to amend another bill
that is still before the House of Commons and could be properly amended, if
Senator Nolin: I recall us having such a discussion. Subclause 31(8)
states that, if section 14 of this act comes into force before section 52 of
Bill C-45 — assuming it becomes law — that section 52 will be repealed. That
provision seems pretty clear and respectful of the rights of Parliament. The
first bill to pass can set the standard, as stated in subclause 31(8), and the
next one to pass will be subject to a previous decision of Parliament.
Senator Fraser: With all due respect, I disagree. In my opinion, it
would be simpler, more natural and clearer to amend the other bill when it comes
before us. However, I understand your answer. We simply disagree.
Senator Nolin: Nothing prevents the sponsor of the other bill and this
one from proposing an amendment in due course. As for the legal wording of the
bill, we have to assume that a bill will be passed and that provisions will be
affected. We may disagree on how to reach the goal, but I believe we agree on
the ultimate goal.
Hon. Roméo Antonius Dallaire: What bothers me is how quickly we are
moving. I am all for efficiency, but this feeling of urgency borders on panic.
Was the hounourable senator told that the Supreme Court would not grant the
requested stay? Was he told whether it would take a year to obtain it? Is it not
possible that the cases that are currently pending could suffer as a result of
this delay in the process?
Senator Nolin: There is always a risk that justice will be denied if
the process drags on. Time is a factor in the judicial process. The longer the
process, the greater the risk that individuals' rights will be denied, which
goes against the values recognized by the courts.
When I was given the task of sponsoring this bill in the Senate, my first
question was whether extending the study of the bill could affect inmates'
rights. The answer was no.
That said, I believe that there is certainly some urgency. With the
hounourable senator's experience in this field, he will know that it is
important that the chain of command have a judicial process at its disposal
whereby it can enforce military discipline. However, it is far from certain that
the Supreme Court, regardless of when it makes its decision, will answer all the
questions and deal with all the uncertainties that Bill C-60 is trying to
address. Moreover, we do not know when this will happen.
Senator Joyal will no doubt raise this point, but if the bill is passed, the
appeal to the Supreme Court will become moot. In my opinion, it would be useful
to ask a representative of the government. Unless there is something about the
Trépanier decision I am not aware of, I understand that the appeal would be
redundant if Bill C-60 were passed. I sincerely believe that there is some
urgency. It seems clear to me.
Senator Dallaire: It is too bad this same government does not have the
same sense of urgency for a child soldier who has been held for six years while
his case drags on. Nevertheless, I suppose that some Canadians are not on the
same wavelength on this issue.
Let us come back to the sense of urgency. The system has been in place for a
very long time. This process was reviewed in 1998 by Justice Dickson. The
argument then was that the chain of command would make the decision on whether
or not there would be a court martial.
After all these years, all of a sudden we are trying to figure out why this
case, which makes use of this mechanism, ends up in appeal. I find it hard to
Is there a delay in the procedure because the method takes too long in making
a decision to go to court martial? We have soldiers on the battlefield and
justice has to be served more quickly in this context to set an example for
them? Is that why all of a sudden it should no longer be the chain of command
but the individual who decides?
Senator Nolin: When we studied the new military justice system in the
late 1990s, the Senate committee raised many concerns about the differences
between the military and civilian systems. The purpose of Bill C-60 was one of
our concerns. Why would the right to choose, which an accused is normally
entitled to, not be available in a court martial? We let ourselves be convinced,
for the efficiency of the process, that it was better to allow the court martial
administrator to decide which type of court to convene. We were wrong. The
military appeal court reminded us of that in the Trépanier ruling, in
April, when it said, in essence, "You are wrong. All Canadians, whether in the
military or not, have the same right. The choice of trial is theirs, not
yours." I think that is what prompted this urgency.
I told you that the government tried to amend Bill C-45. For reasons I
mentioned earlier, that could not be done, hence the appeal and Bill C-60. The
one will not cancel the other but make it moot.
Hon. Maria Chaput: When an accused appears before a court martial,
what are his or her linguistic rights?
Senator Nolin: He or she has the same rights enjoyed by all Canadians
under the Charter.
Hon. Serge Joyal: Honourable senators, I will share my first comments
with the Honourable Senator Nolin. We are both veterans of the Standing Senate
Committee on Legal and Constitutional Affairs on the study of the National
Defence Act and the incapacity of the act to respond clearly to the needs of any
active military personnel who find themselves under the constraint of a court
martial. These individuals should be duly protected according to the Canadian
Charter of Rights and Freedoms.
As Senator Dallaire has stated, I say humbly that the court martial system of
Canada is sick. I say that not because I am a doctor and I have diagnosed that
the system needs a revamping but because over the last 15 years, collectively as
a government and as a system of government, we have been unable to implement the
basic principle of the Charter of Rights in the court martial system.
Essentially, that is the problem. We cannot ensure that the court martial system
in Canada respects section 7 to section 11 of the Charter of Rights and
The government, some 15 years ago, appointed Justice Dickson to study the
court martial system and come back with recommendations. I have them here. Look
at the thickness of the recommendations. I want to quote one of those
recommendations from the second Dickson report. There have been many reports —
emergency reports to respond immediately to matters and other reports in the
context of normal times. Here is recommendation 17(b):
We recommend that an independent review of the legislation that governs
the Department of National Defence and the Canadian Forces be undertaken
every five years following the enactment of the legislation changes required
to implement the recommendations contained in this report and in our 1997
What does it mean? It means that even Justice Dickson could not conclude that
what he was recommending would be sufficient to meet the obligation of the
Canadian Charter of Rights and Freedoms in relation to the Department of
National Defence and the court martial system.
As Senator Nolin has stated, five years later there is another report, this
time by former Justice Lamer, studying the same system and coming back with
recommendations. My only qualification to the Honourable Senator Nolin is that
we were not asleep at the switch — if I may use that common expression — when we
considered the report following the recommendations of Justice Lamer. Senator
Nolin, Senator Grafstein, Senator Andreychuk and I were all there. We were of
the opinion that the bill we were considering did not meet the smell test of the
Charter regarding the rights of an accused to be tried fairly under the
principles of the Charter.
However, we were told that there were already major changes made to the
system and that they will learn from practice. At a point in time, they will
finally come to a reasonable, functioning system.
Therefore, we introduced the amendment to the bill for a compulsory review
after five years. What happened? Honourable senators, there is a review after
five years. It is Bill C-45. It is in the other place. It has not been studied
yet in this place and has not been adopted.
However, the other place is considering this bill following an obligation
that the Honourable Senator Nolin and all of us put in the bill at that time to
review it because we were sure that something was wrong with the changes that
were brought forward.
Meanwhile, Mr. Trépanier, a member of the Canadian Armed Forces, was subject
to a court martial. He contested the constitutionality of the authority that
decides the kind of trial to which he will be submitted.
In simple criminal terms, any person brought into the court under the
Criminal Code of Canada can decide what kind of trial he or she will be
submitted to: judge or jury. It is a formal, fundamental principle of natural
justice in the criminal traditional common-law system.
What did the National Defence Act provide? It provides section 165.14.
Senator Grafstein: Put it on the record.
Senator Joyal: It says that the prosecutor decides for the accused
what kind of trial the accused will be submitted to.
This provision is totally contrary to the fundamental principle of criminal
law. It is the accused who decides by whom he or she will be judged. The accused
must have what they call, in procedural terms, the right to elect the kind of
trial to which he or she will be submitted.
What happened when Mr. Trépanier, a member of the Armed Forces, contested
section 165.14 and section 165.19 and following of the act? The military appeal
court unanimously — three judges — ruled that section 165.14 was
unconstitutional, contrary to section 7 and 11(d) of the Charter of
Rights and Freedoms.
What are sections 7 and 11(d)? Section 7 gives the principles of
fundamental justice under the heading of "Legal Rights" and section 11(d)
is the right to have an independent and impartial tribunal. Thus, if someone
chooses for you, you are not before an independent tribunal because someone has
decided for you which court it will be and someone else will decide who will sit
on the court. You are brought there and you just have to plead guilty or not
guilty, contrary to the fundamental principles of justice.
The decision of the Court Martial Appeal Court was given on April 24 of this
year. The bill before us was tabled in the other place on June 6. We are now at
June 17. The other place will adjourn on June 19. If we decide today to have an
emergency debate, pass this bill at third reading and send it back to the other
place, there is no time to fill the gap because the other place is under a
compulsory order to adjourn on Friday for the summer recess.
Maybe we can take our time and study this bill for a week. Honourable
senators, there are problems because this bill deals with an issue that is
pending before the Supreme Court of Canada because of permission to seek leave
to appeal dated May 30 — 18 days earlier. In other words, the military authority
decided to go to the Supreme Court of Canada on May 30, seven days after the
decision was rendered, to overturn the decision that was given by the Court
Martial Appeal Court on the right of a member of the military forces to elect
We are now asked to vote for this bill on an emergency basis. The reason is
because the Governor General will not be able to give Royal Assent except this
week. After this week she will not be available before June 30.
I must tell honourable senators, respectfully, that to me the Parliament of
Canada is composed, according to the Constitution, of three elements: the Queen,
the Senate and the House of Commons. The Crown has a constitutional duty in
Parliament. This is the foremost duty of the Crown. Respectfully, we cannot ask
for a puisne judge of the Supreme Court of Canada to give Royal Assent to a bill
whose object is contested before the Supreme Court of Canada. Try to imagine
that scenario. It is an impossible situation for a judge of the Supreme Court of
Canada to sanction a bill like this one when the very subject of this bill is
under appeal or where leave to appeal to the Supreme Court of Canada is being
We are being asked to rubber-stamp odious work that this chamber should never
pronounce upon. We are asked to rubber-stamp a bill. Why? It is because the
Court Martial Appeal Court has refused to grant a stay of one year for the
changes to be brought to the National Defence Act.
As a matter of fact, I think it is paragraph 108 of the decision of the court
from April 28. The court refused to give a stay of a year for the effectiveness
of the conclusion to apply. That means, as Senator Nolin has properly stated,
that the next day Mr. Trépanier was entitled to have his trial the way he
elected to have it. Hence, the rush to say that we cannot be in front of a void.
We must legislate to reinstate the system whereby amendments to the National
Defence Act, section 165 and following, will be answered in a proper way so that
any person who wants to be tried under the court martial system is tried
properly according to his or her rights under the Canadian Charter of Rights and
Honourable senators, as a former Prime Minister would say, "We are
trapped." The court on page 50, in paragraph 116 of the decision, stated this
about Bill C-45, the answer to the review that we have commissioned ourselves:
Yet, Bill C-45 has been tabled before Parliament and it contains no
This goes to the very point that was raised:
The authorities have been given more than four and a half (4½) years to
address the problem. The Bill already pending before Parliament can be used
to quickly remedy the situation.
What did the court state in this decision? They say they have waited four and
a half years. The mistakes have not been corrected, the violation of the
Charter, so you should rush and add this to Bill C-45. The government has
decided that instead of trying to amend Bill C-45 and push Bill C-45, they will
use Bill C-60, which addresses those specific issues. That is the way I
understand the situation.
Honourable senators, in all fairness, we have a constitutional duty here to
study Bill C-60. According to the briefing notes that I read yesterday — when I
came back at six o'clock everyone was running to give documents so that we could
read this quickly — I noted that Bill C-60 does not only deal with the decision
in the Trépanier case. Bill C-60 also deals in an unanticipated matter
with the Court Martial Appeal Court in R. v. Grant. In other words, this
bill deals not only with the emergency situation but with other issues.
Honourable senators, have you ever read the National Defence Act? Have any of
you wanted to read the National Defence Act?
Some Hon. Senators: Yes.
Senator Joyal: Some senators have said yes. It is double this size,
Senator Grafstein: We read it, to our chagrin.
Senator Joyal: It is hundreds and hundreds of paragraphs and even I, a
humble lawyer, have had to read it many times to understand the correspondence
of one section to the other.
I challenge any senator to read Bill C-60 and understand to which part of the
bill those amendments pertain.
What should we do, honourable senators? The other place has done something
that seems to be fair, which is to shorten the review to two years instead of
five years if the bill is adopted as it is. However, I think there is more. I am
looking again at our colleagues Senator Nolin and Senator Andreychuk, who
happened to sit on the Special Senate Committee on Anti-terrorism when we found
ourselves some months ago in more or less the same conundrum with the security
certificates. Honourable senators will remember the scenario of the security
certificate. The Supreme Court of Canada decision struck down the provisions of
the Immigration and Refugee Protection Act in relation to security certificates,
but at that time they gave a year to Parliament to make the corrections. What
did the other place do?
Senator Nolin: They used the year.
Senator Joyal: They used the year and they sent us the bill a week
before one year had lapsed. Here we are, once again, caught in a similar
situation, more or less.
What did we do? We were concerned in our conscience as senators that we
should give due study and a thorough examination to a bill that does not only
answer an issue but also deals with other issues.
Frankly, honourable senators, I think that suspicion is the beginning of
wisdom in those issues. Read this bill and tell me, in your solemn conscience,
that you are of the conviction that it deals only with the issue raised in the
Trépanier case and that the National Defence and Justice Departments have
not used the opportunity at 11:59 to stick a provision in the bill that seems
innocuous but that changes something. I am not in a position to say yes or no
tonight on this bill.
If we are to perform our constitutional duties, in fairness, we would take
time to study this bill. If we have no time to study this bill, we have to
ensure, as a house, that we will use the opportunity to outline some terms of
The Hon. the Speaker pro tempore: Honourable senators,
the time is now 6 p.m. Pursuant to rule 13(1), I must leave the chair until 8
p.m., unless the honourable senators agree not to see the clock.
Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable
senators, there is unanimous consent to see the clock. However, notwithstanding
rule 13(1), the sitting will resume at 7 p.m., rather than 8 p.m.
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt the motion?
The Hon. the Speaker informed the Senate that a message had been
received from the House of Commons with Bill C-34, An Act to give effect to the
Tsawwassen First Nation Final Agreement and to make consequential amendments to
Bill read the 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.
Resuming debate on the motion of the Honourable Senator Nolin, seconded
by the Honourable Senator Gustafson, for the second reading of Bill C-60, An
Act to amend the National Defence Act (court martial) and to make a
consequential amendment to another Act.
Hon. Serge Joyal: Honourable senators, I was concluding my remarks
when the clock struck six o'clock.
I wish to bring honourable senators' attention to the fact that Bill C-60 is
a partial answer to the recommendation of former Justice Lamer in his review of
the courts martial system report of 2003, and especially recommendation 23 of
Senator Nolin will remember that former Justice Lamer, in his report, studied
and recommended the decision to determine the type of court martial that should
be established. He reviewed the five types of court martial, and he made
recommendations. Former Justice Lamer wrote the following in his report on page
When one scrutinizes the above-noted types of courts martial, it becomes
apparent that two individuals charged with the same offence have different
rights under the current regime based on their respective ranks and the
discretion of the DMP.
Former Justice Lamer identified this major defect in his report, and used
recommendation 23 to simplify the number of courts. Hence, Bill C-60 in its
. . . the amendments, among other things, reduce the number of types of
courts martial from four to two and permit an accused person, in certain
circumstances, to choose the type of court martial that will be convened.
In other words, honourable senators, if Mr. Trépanier had not challenged his
right to elect the trial he would be submitted to, Bill C-45, in the other place
and part of the review on the recommendation of Justice Lamer's report, would
not have dealt with that recommendation.
Honourable senators, if we are to pay proper attention and due study to this
bill, we should have proper time to study it, not because I want to impute
motive to the author or sponsor of the bill, but there is no doubt that the bill
is complex. This bill even amends the Geneva Convention, as one will note in
reading clause 30 of the bill. There are clauses of this bill that deal with a
variety of issues that would be raised during normal study at the Standing
Senate Committee on Legal and Constitutional Affairs. Many standing members of
the committee have gone through a previous study of the Dickson and Lamer
reports, of the 1998 amendments to the National Defence Act and this act. Our
committee has an institutional memory to scrutinize the bill in a more efficient
and objective manner. Honourable senators will remember that we conduct those
studies on a non-partisan basis. We try to raise the right questions and obtain
satisfactory answers on both sides of the committee.
With that in mind, honourable senators, I think it is fair to give this bill
the scrutiny it deserves in committee. It would be fair to expect that our
chamber would give terms of reference to the Standing Senate Committee on Legal
and Constitutional Affairs to review the various clauses of this bill in the
months to come and report before the end of the year. In that way, honourable
senators, if there are important elements that stem from our study of this bill,
and of course Justice Lamer's report, we would be in a position to inform the
honourable members of this chamber that there is further improvement to be
brought to the system.
We should seek concurrence from the Minister of National Defence to further
study this bill, considering the special circumstances in which we find
ourselves, a bill that is in fact a kind of answer to a challenge that is still
pending in the Supreme Court. We are waiting a decision if it will stand as is
or will be reviewed by the Supreme Court of Canada.
We are in a very particular circumstance that, in my recollection of the last
11 years I have been in this chamber, we have not been in before. With that in
mind, honourable senators, I think it is a fair submission to propose that due
to the rushed context into which our approval is sought of this bill, and the
important elements there are, that we further study this bill under terms of
reference. I submit that the government would concur that our committee should
devote priority and come back before the end of the year with proper
recommendations on how this bill meets some of the objectives. Perhaps in one
year we might find some other aspects that would need further improvement if we
are to meet the test that former Justice Lamer expressed in his recommendations
The Hon. the Speaker: Honourable senators, are there any questions or
Hon. Pierre Claude Nolin: Honourable senators, I have a question. Am I
to understand that Senator Joyal would like us to study the bill further, but
that since it is an urgent matter, we should pass it and give ourselves the rest
of the year or a short period of time to review how this bill, which we will
have passed, would blend with the military justice system? Am I reading his
Senator Joyal: That is essentially the spirit of the proposal I
raised. I am not irresponsible. I understand the context in which the system
must operate. The honourable senator mentioned that 50 potential cases are
pending. This provision deals with the rights of an accused to elect the trial
that the accused will be submitted to. I also understand that there is a pending
permission to appeal across the fence. With that in mind, I do not think we can
take too many days and weeks to study this bill and give it the proper scrutiny
that the bill deserves.
We have done this before, honourable senators. The honourable senator is a
member of the Special Senate Committee on Anti-terrorism that reviewed the
security certificate system. I am not raising an issue that is not on the agenda
today, but honourable senators who have attended the various meetings of the
Special Senate Committee on Anti-terrorism will concur with me that the
questions raised on both sides of the committee are important for the system of
the security certificate and the rights of persons who are in more or less the
same situation as we have here. As the honourable senator will recognize, one of
the persons subject to a security certificate has a case pending in the Supreme
Court, which is more or less the same situation as this. Mr. Trépanier is the
respondent in a case seeking permission to appeal to the Supreme Court. His
status has changed from the decision of the Court Martial Appeal Court.
If we are to perform our duties diligently, I recommend to honourable
senators that we study this bill in the context of the Parliament we are sitting
in now, with the fact that the other place is under an order to adjourn by the
end of the week. On the other hand, as senators, we can do the scrutiny that we
would normally perform at the Standing Senate Committee on Legal and
Constitutional Affairs on such an important bill that deals with the Charter of
Rights. That is the sense of the decision we received from the Court Martial
I think Senator Nolin will share with me the expressions of obligation that
were stated in this chamber in relation to the security certificate bill, now
act, that it be studied carefully by the Special Senate Committee on
Anti-terrorism. We will report by the end of the year, as I understand,
considering the number of witnesses and experts we have already heard. We will
be in a position to report to this chamber diligently.
Although the chair is here, I can say that I have a general knowledge of the
agenda of the Standing Senate Committee on Legal and Constitutional Affairs. We
are dealing with a private member's bill. We can continue our study of the
private member's bill and conduct a further study of this bill before the end of
the year so that senators are reassured that the blind decision we are asked to
make today will receive better scrutiny in the months ahead of us. We will be
able to report before the end of the year to this chamber and make the proper
Hon. Jerahmiel S. Grafstein: Honourable senators, the evening is late
and I will not try your patience. I listened with great care to our colleague
Senator Joyal. Honourable senators must understand that Senator Joyal and I
found ourselves in an invidious position 24 hours ago. We were told by our
leadership 24 hours ago that the government of the day was asking for a fast-track for this particular bill, and to go to Committee of the Whole, which is
contrary to our normal rules and procedures. Obviously, we immediately asked for
the background information. This morning, I received information, thanks to the
Clerk, about the Trépanier case. We spent the last 24 hours trying to
bring ourselves up to date about the nature and essence of this particular bill
and how we found ourselves here in this emergency debate.
There is a lesson to be learned here, honourable senators, and the lesson is
simple. Rushing to judgment is always wrong. Whenever we are told in this Senate
by any government that it must be done right away, we know that the government
is wrong. It might be a national catastrophe; that is different. It might be an
act of war; that is different. However, in the normal course, if we are asked to
rush to judgment and the government on both sides insists it must be done, take
caution, honourable senators.
We are a chamber of sober second thought, and I disagree with my learned
colleague Senator Day. I do not believe in pre-studies. When I first came here,
this place was pre-studied to death. As a result, we bound our hands behind our
backs when it came to amending legislation that should have been amended because
we had pre-studied it, and we slipped the information over to the other side so
they could give us a clear deck. They must do their business, and then we must
do our business, and hopefully we can conduct our business properly. I am not in
favour of pre-studies. I am in favour of legislation that comes in on time so
that we have an adequate opportunity to pursue our process of sober second
thought under the Constitution.
What is the lesson to be learned by this hurried legislation? The lesson, as
Senator Joyal pointed out, is clear, and it is a lesson of benign neglect. In
1998, the National Defence Act was reviewed. I was on that committee, as were
Senator Nolin, Senator Andreychuk, Senator Bryden, and Senator Milne, who was
the chair at the time. At the end of the day, there was a general conclusion
about the flaws of the bill. I agree with Senator Nolin. By the way, I want to
congratulate Senator Nolin. He prepared us well for this discussion tonight. He
outlined the contours of the bill fairly, and I want to add some colour to his
discussion. Essentially, we were told at that earlier time that we had to get
the predecessor of this bill through the Senate in a hurry. Senators should know
that the reason we had to move this earlier bill through in a hurry was that
there had been benign neglect for the military. It had not been done for years.
Proper attention had not been given to military justice. The Dickson report had
not been studied carefully. There was no appetite in the Senate or the House of
Commons. Our defence forces received the short end of the stick. Then, all of a
sudden, we were confronted with a massive reform to the military justice system
to conform to the Charter and modern practice.
Senator Nolin: The minister was pushing.
Senator Grafstein: We were confronted with a new reform. When we
looked at it, most of us on both sides agreed that the bill was seriously flawed
and that it had constitutional problems. Senator Nolin, Senator Andreychuk and
Senator Joyal also raised those problems. This opinion was not on one side or
the other. We all agreed that there were serious problems with the National
Defence Act. Pressured as we were on both sides to push the bill through, we
came up with a formula: Since it was a new process, let us give it five years,
put in a sunset clause and do a review. The review was Lamer's review of the
1998 bill, which was completed in 2003. His report was filed in the Trépanier
case. We are here tonight because that Court of Appeal, the appellate court
of our military justice system, is frustrated that the reforms outlined to
Parliament in the Lamer report were never implemented. We have a former Minister
of Defence, now a senator, and he will recall this matter. We were pressured by
him too. Everyone gave us pressure. The Chair of the Standing Senate Committee
on Legal and Constitutional Affairs, the Minister of Justice and the prime
ministers all pressured us to move forward. We said, "Wait a second; let us
think about this carefully."
There was an independent review. The first independent review was done of
Bill C-25 of the day, and it was completed on September 3, 2003, as Senator
Joyal pointed out. It is reported and referred to in the Trépanier case.
Justice Lamer said that it was his belief that an accused charged with a serious
offence should be granted the option to choose between trial by military judge
alone or military judge and a panel prior to the convening of martial court. As
Senator Joyal pointed out, that goes to the essence of criminal law.
Here is the complexity. The military has a problem with this principle. The
military wants its own military form of justice, but when the Charter came in,
we said, "Wait a second. You cannot have two types of justice in Canada. We can
have a constitutionally approved type of military justice, and a Criminal Code
domestic type of justice, but the two must be principled the same way. We cannot
treat people differently inside and outside the military. They must be treated
equally under the Constitution."
After 1980, the criminal justice landscape changed. Up until that time, the
military went its way, the Criminal Code went its way and now they are compelled
to merge on the same constitutional principles, and that is the essence of this
case. The essence of this case is that it is not the civil criminal courts that
say this now; it is the military court that says this. It was an appellate court
of the military tribunal that says the two systems must be compatible and
consonant. They can be different, but they both have to adjust to the rule of
law: equality before the law.
Justice Lamer says that there must be a choice, in effect an option between a
military judge alone and a military judge with a panel. As Senator Joyal
carefully pointed out, that is the essence of the rule of law: social justice
and criminal justice. The accused has the right to choose or to elect, as he
said, his or her modality of defense, as opposed to the prosecutor deciding on
behalf of the accused as to what he should follow. If the accused could not
choose, he would be bereft and his rights would be stolen from him. The
appellate military court said this.
We now find ourselves in this situation. By the way, many times I have been
critical of the Supreme Court of Canada and the courts of this country in this
chamber, but on this occasion, I want to congratulate the military court of
justice because they have done their homework. This is a careful, cogent and
clear decision. I commend all senators to read it. One can obtain it from the
Internet. It is interesting. Trépanier v. Her Majesty the Queen is an
excellent well considered decision.
We are now left in this emergency situation. Have we learned our lesson? I do
not think so. At least from this time forward, let us proceed with some care.
There is a way through this particular trap, as Senator Joyal has put it, in
terms of the time frame and the lateness of the hour.
By the way, I am not unduly critical of the government because, in this
instance, the government received the decision from Trépanier on April
24, 2008 and the court gave the government no period of time to introduce
legislation. The government introduced the bill on June 8. It moved it forward
and here we are. That is not an unreasonable delay.
However, my point is what happened between September 2003 and April 2008, in
that period of four and a half years. The military court was frustrated because
they said the problem was there and Parliament never acted. The court said it
would put them in a bigger trap. They would not allow this case to be stayed.
Move Parliament. Deal with the question of the constitutional principles of this
Here we are tonight in this situation. Again, I want to congratulate Senator
Nolin. He brought to our attention why this matter is pressing and why we are so
trapped. We are trapped because there are 50 cases pending, some very serious.
Of course, that number will increase if there is no legislation because,
essentially, as of today, there is no criminal justice system for the military
in Canada. It is gone.
Therefore, as Senator Nolin pointed out, there are 50 cases pending. There is
no question at all that if we allow this to continue in the public interest, and
public safety and security, the dangers will increase. Many of the cases are
serious, as Senator Nolin pointed out. I have done some of my own homework on
this subject. Pending cases include manslaughter, sexual assault, sexual
exploitation, aggravated assault and trafficking, which are all serious
offences. Therefore, we have a public interest now, having been trapped by the
government with benign neglect to deal with this in an expeditious fashion, but
we are not satisfied. We cannot be satisfied with a few hours of testimony in
Committee of the Whole.
I read this bill last night, and I read it again this morning. Senator Joyal
pointed out in his speech, and I caught it, that it is not just about fixing up
the fix-it situation that we find ourselves in, such as with the Trépanier
case, but it goes beyond that. It deals with the Geneva Convention. We have
continually heard about how we must comply with the Geneva Convention, and there
are provisions in the legislation about the Geneva Convention. Quite frankly, I
cannot figure them out without doing an independent study of what that means.
I do not trust this government. Excuse me — I do not trust government. That
is our role. We have to be suspicious of government in this chamber. Our
constitutional role is to be suspicious of government. When government tells us
something, we must double-check the facts. Most governments are honest, but many
times they are not in terms of giving us facts and information.
What can we do? Early this morning, before I went to our leadership, I
decided I would call — I rarely do this — the leadership on the other side. I
told them about the invidious box they had placed us in, and we had to make a
decision within 24 hours or else the public interest and public security might
be challenged because there is no military criminal justice system in place. I
urged them to please do something about their legislation. Quite frankly, they
did, today. There was an amendment introduced today, and I will read it.
The amendment says, in section 27.1, that within two years of the date on
which this act receives Royal Assent, a comprehensive review of the provisions
and operations of this act will be undertaken by a committee of either the
Senate, the House of Commons or both Houses of Parliament that is designated by
the Senate, the House of Commons or both Houses of Parliament, as the case may
be; that within a year, after a review is undertaken or within a longer period
that the Senate, the House of Commons or both Houses may authorize, the
committee shall submit a report on review to Parliament, including a statement
of any changes that the committee recommends.
The answer is that we will not leave this matter in limbo any longer. It will
be two years. Senator Joyal pointed out that is not satisfactory. What I think
we need, as Senator Joyal pointed out, is some urgency. If we let this bill go,
it will be a stopgap measure only. It is a bridge that leads nowhere. Therefore,
at the end of the bridge, rather than jump off, we must ensure that we have
another bridge. The only other bridge that can make us comfortable in this place
is a full study to see whether or not these complicated provisions as drafted by
the government do indeed meet the requirements of the Trépanier case,
Justice Lamer's study and constitutional principles.
We are where we are. The hour is late. Sometimes history repeats itself. The
problem in this chamber, honourable senators, is that history has repeated
itself over and over and over again. For example, with respect to the
extradition bill, the government had to get it done and get it through quickly.
We held it up for three months in this chamber. Senator Nolin will recall that.
Finally, we said it was unconstitutional. The government did not listen. The
chairman of the committee did not listen. The opposition was benignly
neglectful. This is true; it is on the record.
What happened in that case is, ultimately, the Supreme Court of Canada came
down and said the legislation was unconstitutional, and several years later, the
government amended it. By the way, I do not think even that amendment is a
proper, fail-safe provision.
Let us learn our lesson this time. If the bill comes up and we deem it
unconstitutional, let us stand up and say it is unconstitutional and throw it
back to the other place with all the consequences.
On that happy note, I will conclude this rant and say good evening.
Hon. Roméo Antonius Dallaire: Honourable senators, I will address this
legislation not from a legal perspective but more as a practitioner who has
served for 36 years under the National Defence Act. I was also caught up in the
Somalia affair, which was the impetus for modernizing the National Defence Act,
and I was the assistant deputy minister in 1998 when former Chief Justice
Dickson was working with General Belzile to bring in significant changes.
I wish to say a few words only to set a balanced tone. I agree totally and
vehemently with the fact that there are elements within the National Defence Act
that still do not meet the Charter. As one of the most conservative bastions of
our society, I am surprised at times that the forces have actually moved as far
as they have. However, they have not moved far enough.
I want to balance that out with something that my colleague said. The
impression is that the National Defence Act is very sick, the court martial
system is hyper sick and the system is possibly in serious demise.
I want to read from the Right Honourable Antonio Lamer's review of the
military justice system in 2003:
. . . Canada has developed a very sound and fair military justice
framework in which Canadians can have trust and confidence.
Fifty-seven recommendations were brought forward to significantly modernize
and bring in line the National Defence Act. Out of those 57 recommendations, 52
were implemented. Two in particular related to courts martial, which is the
essence of what we are doing here. Number 23 and number 25 were not so, as it
was felt that the system was responsive to both the operational requirements of
the military and meeting, within reason, an effectiveness of the judicial
system, the Constitution and particularly the Charter of Rights.
We are now suffering the consequences of not having those recommendations
with regard to courts martial implemented. Now we are being asked to act quickly
to ensure that good order and discipline is maintained in the forces,
particularly since we have troops in the field now. The reason we have a
military justice system is to be able to respond in the field in order to ensure
that justice, good order and discipline is maintained. The system has been
emasculated and needs an immediate solution, however flawed the proposed
solution may be perceived to be.
The Judge Advocate General's testimony before the committee yesterday was
interesting. The bill was given first reading on June 6, and second reading
debate began on June 16. There were 10 days in there in which the process could
have been accelerated in order that we would have a bit more time. Time is a
significant factor in the Charter of Rights and Freedoms and people's
lives. Justice must be done not only transparently but also expeditiously.
I agree that we need to take a second look at this bill and how it will be
implemented. Perhaps Bill C-45, which will make its way here, will ultimately
solve the dichotomy between the Charter of Rights and the National Defence Act.
However, in the interim, I find it most disconcerting that on a subject of this
nature and significance we are given such little time for proper assessment.
The National Defence Act is essential. It meets the requirements of our
Constitution; it meets the necessity of keeping an operational military in the
field to fulfil the government's requirements. It still has deficiencies after
nearly 15 years of significant reform.
Honourable senators, I agree with Senator Joyal that legislation is either in
compliance with the Charter of Rights and Freedoms or it is not. If it is not,
let us bring it into line to meet the operational requirements of the military
and ensure that individuals get justice and due process in a timely fashion.
Hon. Joseph A. Day: Will the Honourable Senator Dallaire accept a
Senator Dallaire: Yes.
Senator Day: As indicated, we just received this bill and I have not
had a chance to do any research on it. I, like Senator Dallaire, am concerned
about being asked to move quickly, because haste makes waste.
Clause 2 of the bill would replace section 69 of the act with the following:
A person who is subject to the Code of Service Discipline at the time of
the alleged commission of a service offence may be charged. . .
Does that imply that, if the offence is contrary to the Criminal Code, the
accused may also be charged in a civilian court for the offence?
Senator Dallaire: The National Defence Act does cover the criminal
dimension of justice. A person cannot be tried twice. If the civilian courts
accept that a trial can take place in a court martial, the military will respond
to that. Conversely, there may be a charge that the military court prefers to
have dealt with in a civilian court. There could be a variety of reasons for
that, such as optics or the nature of the crime.
The court martial has the full breadth of criminal capabilities, but the
decision on whether an offence will be dealt with by a court martial or a
civilian court is often based on where the offence occurred, that is, in a city
or on a military base.
Senator Day: Does the accused have a choice between civilian court and
a court martial, or is that decision made apart from the accused?
Senator Dallaire: I do not remember that the individual can choose
between civilian court or court martial. However, the individual does have the
choice of having a military lawyer or a civilian lawyer to defend him. That
assessment is made by the administrator of the judicial system when the charges
Senator Day: The ruling in Trépanier was in favour of the
accused having a choice, but not a choice at that stage. It is a choice about
the type of court before which he will be tried. Senator Dallaire has clarified
that for me.
The charges here include manslaughter, sexual assault, sexual exploitation,
and so on. They are serious charges that could be dealt with in a civilian
court. I am concerned with the issue of urgency. Senator Nolin said that there
are 50 cases pending. The reason given for passing this law in haste is that
there will be a buildup of these serious cases. However, these cases can be
handled in another court system, can they not?
Senator Stratton: No.
Senator Nolin: No.
Senator Dallaire: Six or seven months ago, I was informally made aware
that there is a backlog in the court martial process, that it was creating
significant concerns. I heard that the appeal court was saying that the process
is too slow and complex and that people were not appearing in court within the
appropriate time in order that the process be judicious.
It may be significant to say that the National Defence Act and the judicial
system that implements it was based on an operational requirement of the
military to be more effective in accomplishing its duties in the field. In
garrison it responds, of course, because all individuals who are in the military
are subject to the National Defence Act. However, it is not always chosen as the
preferred option in cases like rape, manslaughter, drug offences and so on,
which can be remanded to a civilian court that may be able to deal with the
matter faster than a court martial.
From reading the proposed amendments and reading the Judge Advocate General's
testimony yesterday in the other place, I think that perhaps bringing the types
of courts martial to two from four will result in much faster decisions and in
the time lag being held to one year. It may not be as clean as one would like
it, but there is significant improvement with this bill.
Hon. Terry M. Mercer: Honourable senators, I want to again emphasize
my disappointment in having this bill sent to us at this point in time with the
expectation that we will act on it.
I understand that the legal process happened fairly quickly, but it does not
require a rocket scientist to figure out that this needed to happen quickly. It
did not take a rocket scientist to figure out that it needed to happen before we
left here to allow the military justice to continue, and that the laws needed to
I want to ensure that we put on the record one more time that this is bad
management by governments — not only this government, but the previous
government as well — where we continue to be asked at the eleventh hour to pass
legislation that we have not had enough time to duly examine, hear witnesses or
debate, and we are expected to put what is extremely important legislation in
place that will affect the lives of certain Canadians. Certain people will be
affected by this legislation. At the end of the day, we always must ask
ourselves in this place: Have we given the bill its due hearing?
While I recognize we will proceed with this bill, why do we continually find
ourselves in this situation in June and in December every year? When will we
The Hon. the Speaker: Further debate?
Senator Comeau: Question!
The Hon. the Speaker: Are honourable senators ready for the question?
Senator Comeau: Question!
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Some Hon. Senator: Agreed.
An Hon. Senator: On division.
Motion agreed to and bill read second time, on division.
The Hon. the Speaker: Honourable senators, when shall this bill be
read the third time?
Hon. Gerald J. Comeau: Honourable senators, I move that the bill be
referred to Committee of the Whole, and that the Senate do now resolve itself
into a Committee of the Whole to deal with that reference.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Motion agreed to.
The Senate was accordingly adjourned during pleasure and put into Committee
of the Whole, the Honourable Senator Losier-Cool in the chair.
The Chair: Honourable senators, rule 83 of the Rules of the Senate
of Canada states:
When the Senate is put into Committee of the Whole every Senator shall
sit in the place assigned to that Senator. A Senator who desires to speak
shall rise and address the Chair.
Is it agreed that rule 83 be waived?
Hon. Senators: Agreed.
The Chair: I now ask the witnesses to enter.
Pursuant to rule 21 of the Rules of the Senate, the Honourable Peter
MacKay, Minister of National Defence; Brigadier-General Ken Watkin, Judge
Advocate General; and Lieutenant-Colonel Mike Gibson were escorted to seats in
the Senate chamber.
The Chair: Minister, welcome to the Senate. I ask that you make your
I understand that Brigadier-General Watkin and Lieutenant-Colonel Gibson are
then available to answer questions.
After your remarks, senators will ask questions and those who accompany you
will be available to answer questions. Please proceed.
Peter MacKay, Minister of National Defence: Honourable senators, I
wish to begin by thanking you for providing me with the opportunity to appear
before you in this esteemed chamber to speak to this important bill that will
amend the National Defence Act.
Bill C-60, as I am sure honourable senators are aware, has important and
urgent implications to the National Defence Act and the functioning of the
military justice system.
As honourable senators have already been made aware, I am joined here in the
chamber by Brigadier-General Ken Watkin, the Judge Advocate General for Canada.
He is accompanied by Lieutenant-Colonel Mike Gibson.
Senators, this bill is necessary because of an impasse that was created by a
decision out of the Court Martial Appeal Court known as R. v. Trépanier.
I will come to the implications and the impact of that decision in a moment.
Briefly, this decision found that the exclusive power of the Director of
Military Prosecutions to choose the type of court martial that will try an
accused person and the duty of the Court Martial Administrator to convene the
type of court martial thus selected violates the accused person's constitutional
right to make full answer and defence and to control the conduct of that
defence, contrary to sections 7 and 11(d) of the Canadian Charter of
Rights and Freedoms.
The court held that the provisions of the National Defence Act thus violate
the Charter of Rights and are, therefore, found to be of no force and effect.
Importantly, the court refused to stay its decision, effectively removing the
authority to convene courts martial, an essential step in bringing a matter to
trial. It would also deny the ability to suspend the impact pending the
legislative amendment which is the formation of the bill before you.
As honourable senators are no doubt aware, leave to appeal the decision in
Trépanier has been sought to the Supreme Court of Canada along with a stay
of execution of the decision.
However, neither the appeal nor the stay will provide a clear, timely or
certain solution to the problems that are created by the Trépanier
decision. It is also, I should note, unknown at this time as to when that appeal
will be heard or the stay itself.
Left unaddressed, trials by court martial cannot be convened. Again, for
senators' information, there are approximately 58 cases — I checked on the
number with the Judge Advocate General prior to coming here — that we would
describe as being in the queue or in process that would be affected were the
legislation not to proceed. Serious offences could therefore go unpunished and
victims would not see justice done. This is a circumstance that we all wish to
avoid, I am sure.
I understand that Senator Nolin has provided the Senate with a synopsis on
how the military justice system works, so I will move directly to the amendments
to the National Defence Act provided for in Bill C-60.
Bill C-60 is a legislative response to ensure that our military justice
system remains one in which Canadians can trust and feel confident. It will
ensure the fairness of the military justice system both from the perspective of
an accused person and the Canadian public; and, honourable senators, it will
also ensure that members of the Canadian Forces enjoy the right to choose how
they will be tried that will parallel the rights found in the Canadian civilian
criminal justice system — that is, the mode of trial, where in the civilian
system we have a judge or a judge and jury selection. This provides for a
military judge and military tribunal.
The proposed amendments found in Bill C-60 that are before the chamber are
designed to bring clarity and stability to the court martial convening process
and allow the process to continue to function.
First, this bill will simplify the court martial structure by reducing the
number of types of court martial from four to two. It is also of interest to
senators that this was one of the recommendations in a report by the former
Chief Justice of the Supreme Court of Canada, the Right Honourable Antonio
Lamer. That report was comprehensive and touched on many aspects of the military
The remaining types of court martial will be the standing court martial, with
a military judge sitting alone, and the general court martial, with a military
judge sitting with a panel of five.
Second, this bill will establish a comprehensive framework for the selection
of the type of court martial. It sets out that serious offences must be tried by
general court martial and the relatively minor offences must be tried by
standing court martial. In all cases, however, it permits that the accused
person choose one of the two processes, so, again, it is similar to the
processes of summary and indictable offences in the civilian system and electing
the mode of trial.
Finally, honourable senators, the bill will strengthen court martial
decision-making by providing military judges with the authority to deal with
pretrial matters at an earlier stage in the process. I note that this is of
great utility in any justice system in that it allows for trial counsel to come
together in the presence of a judge to discuss certain procedural matters and,
in some instances, may lead to the resolution of the case prior to trial.
This bill would also enhance the reliability of verdicts by requiring key
decisions of the panel at a general court martial to be made by unanimous vote.
That is to say, the panel must come to a unanimous decision in handing down its
decision rather than by majority vote, which was previously the case.
Madam Chair, the proposed amendments respond clearly and unequivocally to the
concerns raised by the Court Martial Appeal Court. The amendments establish a
legal framework governing the selection of the type of court martial, parallel
to the provisions of the Criminal Code.
Furthermore, they specify the circumstances in which it is appropriate to
offer the accused the choice of the kind of court martial he or she will appear
before. The bill also clarifies certain provisions of the National Defence Act
that were interpreted in an unexpected manner by the Court Martial Appeal Court
in R. v. Grant.
In particular, the bill clearly establishes that the rules must be obeyed
when it comes to the deadline for holding summary trials. When the Court Martial
Appeal Court orders that a new trial be held following an appeal, it must be
considered a court martial. The authorities must act as promptly as possible
under the Code of Service Discipline as soon as charges are laid.
Honourable senators, at the House committee, with respect to the bill,
members voted to add clause 27.1, which is a new review clause, to the bill,
which calls upon the House, the Senate or a committee of both Houses to review
this bill two years after it comes into force and to provide a report to
In addition, the House of Commons committee voted to remove clause 28 of the
bill. Clause 28 of this bill was a transitional provision that would have
ensured that any court martial that had commenced but was not completed when the
act came into force and effect would be conducted under the old law. It would
essentially grandfather cases that were already in process.
In conclusion, honourable senators, let me say that the reform of the
military justice system, as with any justice system, is ongoing. Simply put, the
bill that we see before us today will move to more closely align the military
justice system with the processes found in our current civilian justice system,
while preserving the system's capacity to meet essential military requirements,
which is, again, a decision taken by the Supreme Court of Canada previously that
upheld the necessity and the constitutionality of having a separate military
The bill will also respond to the concerns expressed by the Court Martial
Appeal Court and provide Charter values and enhance the fairness of the military
justice system in the eyes of accused persons, victims most importantly, and
members of the Canadian public.
These amendments to the National Defence Act will ensure that Canada's
military justice system continues, as I said before, to have the trust and
confidence of Canadians. As well, I believe that these amendments will preserve
the key role of the military justice system in the maintenance of discipline,
cohesion and morale that is so fundamentally important to the Canadian Forces.
I believe, finally, honourable senators, that these amendments will further
modernize and strengthen the Canadian Forces as a vital national institution.
The Chair: Thank you, Mr. Minister.
Honourable senators will now have a chance to ask questions. Please identify
yourself. I remind senators that our rules allow 10 minutes for each questioner.
Senator Nolin: Mr. Minister, good evening and thank you for accepting
our invitation. I would also like to thank your officers, especially the Judge
Advocate General, whom we are always pleased to meet, much like his
I would like to begin by expressing just how much this chamber cares about
all matters of military justice. Over the past 10 years, the Canadian military
justice system has had to work extremely hard to adapt to the new Canadian
constitutional reality. In the end, the Canadian military justice system was
able to adapt or has tried to adapt to this reality.
We received the bill today and obviously it is urgent. Of course, this
chamber does not want to be part of the problem but definitely wants to be part
of the solution. We started this process 10 years ago. We still do not
understand why important issues such as a fair trial and rights under the
Charter of Rights and Freedoms are dealt with in such a hurry. Obviously we
cannot say that we do not accept it; we will have to deal with it. However, we
still do not understand why, every time, these matters are late in coming.
Obviously, we do not like that. Minister, I think it is fair for me to ask you
that question and it is fair for you to give us some kind of reassurance.
Could you reassure us? You understand our problems, but you also have your
Mr. MacKay: There are many reasons why this bill is being introduced
at this time.
As you may know, there is another bill, Bill C-45, pending in the House of
Commons. That particular piece of legislation contains a good number — in fact,
52 or 57, I believe — of recommendations that were identified in the report with
recommendations from Mr. Justice Lamer. The reason I am pointing this out is
that there are two separate bills that, in reality, should be one.
What occurred, senators, was that the decision in the R. v. Trépanier
case arrived at the end of April, after the legislation that was to put in place
the recommendations of the Lamer report had already been tabled and had begun
its process. The Department of National Defence attempted to have that bill
amended to include these particular amendments, and it was determined by the
Clerk of the House of Commons that that was not appropriate because it went
outside the scope of the bill.
To your question as to why this took 10 years, the short answer is that there
was never a court decision that specifically struck down the constitutionality
of the modes of trial and the prerogative, if you will, of the chief prosecutor
in the military justice system to make these elections as to mode of trial.
Having said that, the recommendation was there; it was made some time ago. It
simply was not deemed to be of urgency. It is urgent now because, without a
doubt, if this anomaly is not fixed our court system can literally grind to a
halt. That is to say, the almost 60 cases that are waiting in the queue cannot
proceed because of this gap that currently exists that says it is
unconstitutional until such time as we have this amendment that brings these
provisions more in line with both the Charter and the civilian justice system.
I would also point out that when these court decisions are handed down, as
they were in the case of R. v. Trépanier, oftentimes a judge will, within
his or her discretion, allow for a delay. That is, delay the implementation of
the effect of the particular case until such time as the government has the
opportunity to make legislative amendments such as the one found in Bill C-60.
The reason the judge did not do that, in all honesty, may have something to do
with the very fact that you are raising; namely, that previous recommendations
had been made and not acted upon.
In simple terms, senators, we are here doing now what could have been done
previously, but we are doing so out of a sense of urgency because of the case
law and the demand that falls to the Department of National Defence. Most
importantly, it falls to the Judge Advocate General, in his capacity; and the
necessity to ensure that there are no miscarriages of justice, and victims see
that the system is functioning and that their rights are being taken into
account; and that individuals who have a right to full answer and defence and a
speedy trial have those provisions honoured and respected.
Senator Nolin: I am sure that many of my colleagues will be interested
in talking about this 10-year period with you.
On May 30, the Director of Military Prosecutions filed an application for
leave to appeal and an application for the stay of the decision with the clerk
of the Supreme Court of Canada. Mr. Minister, if the bill is passed, does the
government plan not to follow through with the application for leave to appeal?
Mr. MacKay: No. The government plans to continue the appeal.
There are two separate issues here. The first deals with the constitutional
matters that form the subject of the decision of the judge in R. v. Trépanier;
that is, the identified invalidity, if you will, of the provisions of the
National Defence Act because they were found to be outside the Charter. Second,
there are process issues that stem directly from the way in which the judge has
worded his decision. There are issues that turn more on policy matters that we
feel are worthy of appeal.
Having said that, the crux of the issue will be addressed by the passage of
Bill C-60. As far as proceeding with the appeal, we still believe that there is
legal merit in having that matter adjudicated upon by the Supreme Court of
Canada, which is the reason we have proceeded.
In regard to the subject matter on which I anticipate there will be a
question, as to the application for a suspension of the application of the
decision, the final decision should be and will be made by the independent
director of prosecutions.
That is the appropriate place for it to be made. It is an arm's-length
decision that would be made within the department. I am talking about the stay
here, as opposed to the actual merits of the case. That subject would be best
addressed by the prosecutor who is handling the case.
Senator Carstairs: Welcome, minister.
The Senate does not like getting bills in June. There is a House order in the
other place which directs that the House of Commons will rise on June 20. We do
not have a similar house order here but, if we followed our normal practice, we
would not have even dealt with this bill at second reading until Thursday. The
earliest it could have gone to committee would have been Thursday. The earliest
it would have come back would have been next week, which would have meant that,
should we want to introduce an amendment, we would not be able to do so because
your House is not sitting.
The Senate agreed to speed this process up. We do not get much credit from
this government for anything that we do, but I would like to get a little credit
In terms of the bill, I am led to believe that it actually goes beyond
Trépanier and it includes other aspects that would, in and of themselves,
not be necessary in order to address the Trépanier decision. Why has the
government decided to, if you will, gild the lily?
Mr. MacKay: First, honourable senator, I respect your work ethic with
respect to this bill because I recognize that it is coming very late in the
process. As I mentioned earlier to Senator Nolin, the reason for that is the
timing in which the decision in R. v. Trépanier was received.
Having said that, there have been efforts made to bring this bill forward, as
I mentioned earlier, by coupling it with Bill C-45. We were unable to do that
for procedural reasons, which I have mentioned.
As far as your question with respect to this going outside the scope of the
Trépanier decision, I am not aware of any additional scope that you are
referring to. This bill is very specific in its intent, and that is to address
solely the concerns around the constitutionality that were addressed by the
court. It is specifically about ensuring that the mode of trial and election of
trial mirrors the system of the civilian justice system and modernizes the way
in which trials and pretrial hearings are conducted.
The addition that you may be referring to, if I might, is allowing for
counsel, prosecution and defence to meet with the judge — which is also a
relatively new process in our civilian system — in the hopes of working out,
pretrial, certain procedural or jurisdictional issues that might become
contentious and time consuming in the trial. This is a particular concern when
juries are sitting. As we know, the jury system requires people to take time out
of their lives; it is a civic duty, of course. It can often be quite time
consuming when disputes arise mid-trial.
Pretrial hearings are meant to allow for these discussions to occur in the
presence of a judge. I believe that this is a sensible and modernizing process
that should be included in our military justice system. It is not meant to go
beyond the scope of the bill; it is meant to enhance the military justice system
and also, again, marry it with a system that is now in place in our civilian
Senator Carstairs: Let me put a simple question.
Clause 30 of Bill C-60 reads as follows:
The definition "court" in section 4 of the Geneva Conventions Act
is replaced by the following: . . .
Why did your government think it was necessary to amend the Geneva
Conventions Act in order to address the Trépanier case?
Mr. MacKay: Would you repeat that?
Senator Carstairs: Clause 30:
The definition "court" in section 4 of the Geneva Conventions Act
is replaced by the following:
Why would your government think it was necessary to amend the Geneva
Conventions Act as part of this bill in order to address Trépanier?
Mr. MacKay: Senator, this is simply making the wording consistent. In
the military justice system the modes of trial are referred to by their proper
names, which are the general court martial and standing court martial. This is
consistent with the wording in the National Defence Act. That is separate from
the word "court" because it refers to the wording in the National Defence Act,
which is not to be confused with the civilian court system.
It is a matter of consistency. It is not meant in any way to mislead; in
fact, it is meant to bring greater specificity to the language contained in the
Senator Carstairs: That does not answer my question. This clause is
not necessary in order to address the Trépanier decision. That is the
substance of my overall question. Why did your government feel it was necessary
to gild the lily?
Mr. MacKay: With respect, I disagree. It is not gilding the lily; it
is making the language consistent. It is what is often described as a
consequential amendment which is meant to provide consistency in legislation.
I am sure your experience here goes beyond my own, but when bills are
introduced often there are consequential amendments made to a whole range of
other bills. This is meant to provide for a consequential amendment in language
to clarify and provide greater specificity in referencing another bill, another
piece of legislation, namely the Geneva Conventions Act.
The Chair: I would like to remind the two other witnesses that should
you wish to intervene and respond to a question, please feel free to do so.
Senator Grafstein: Welcome, minister. Thank you very much for coming
here this evening.
This is an unusual situation for us because, as Senator Nolin alluded,
several of us here have been dealing with the National Defence Act for over 15
years. We are part of the original committee that raised the constitutional
issues in 1998. We were told we had to push through with that legislation by the
government of the day. At the time we did, and the only thing we could do is ask
for a five-year review. We got the five-year review, and it was very clear at
that time that the last bill second reading was unconstitutional.
The Senate said it, the former Chief Justice of the Supreme Court of Canada
said it and governments ignored it — not just yours. You are quite right; the
Trépanier case is clear that the appellate provisions of the section of the
military justice system were frustrated by this. That is why they did not give
Parliament any leeway. I think they are amply justified in calling for
amendments, and here we are.
Our problem is this: Is it that urgent now? I wish to explore that with you.
If the situation is so urgent, why the provision in the House that gives us
another three years before we return to look at this question? When you look at
legislation as amended today, it will be another three years before another
report will come down with no binding effect, so we are back to pre-Lamer under
Let me take you through the steps for the moment. I do not deny what we have
been told about this bill. I have done some research. It is true there are a
number of outstanding cases. We were told 50; you have now said it is 56 or 58.
Why would that press the Senate to pass this legislation tonight if, in fact,
those people are charged with offences that the military could choose to proceed
with under the Criminal Code rather than the military code of criminal justice?
Why is there such pressure on you, the government and the Senate to pass this
bill when the more serious cases could proceed under the civilian court process?
Mr. MacKay: If I may, I acknowledge, as the honourable senator has
pointed out, that there is a long and tortured history with respect to
amendments that were called for by Mr. Justice Lamer, former Chief Justice
Dickson and the Senate. The reality is that this entire package of amendments is
overdue. I reference the fact that with Bill C-45 we will have more of the
Bill C-60 is a stand-alone bill because of the timing of the handing down of
the Trépanier case. You asked: Why now and why the urgency? In no
uncertain terms, there is real jeopardy for the 58 cases that I referenced, some
of which have very serious implications. A Supreme Court case that you would be
aware of, R. v. Askov, allowed for the dismissal of cases on the basis of
undue delay. You are aware of the old maxim that justice delayed is justice
denied. The deadliest form of denial is something that can jeopardize people's
faith in our justice system.
First, some of these cases cannot be tried in the civilian justice system
because some charges do not necessarily exist in the civilian justice system.
For example, offences such as leaving a rifle in a vehicle, mishandling a piece
of military equipment or disrespecting a senior officer simply do not exist in
the Criminal Code.
Second, in some instances, these offences are alleged to have occurred in
another jurisdiction, for example, in theatre in Afghanistan. To try the matters
in a civil justice system would mean submitting our soldiers to the justice
system of a foreign jurisdiction.
Those are two reasons with respect to the backlog of cases where we do not
have an option to proceed by way of a civilian court system. I return to the
fact that this caseload will only increase. If it were determined at some future
date that these amendments were to be granted and more cases were underway
before the courts, the potential would exist for stopping those trials and
restarting them or facing the prospect of a future tribunal to say, "That would
be double jeopardy because you cannot stop and restart a case." That is a
long-standing legal maxim that might be argued by defence counsel.
If I may, I will turn to Brigadier-General Watkin so that he might add to
Brigadier-General Ken Watkin, Judge Advocate General, Department of
National Defence: Honourable senators, it is a privilege and an honour to be
here. I have the privilege of superintending a world-class military justice
system. That was clearly set out by late Chief Justice Lamer in his 2003 report
where he indicated not only that it is a justice system in which Canadians can
have trust and confidence but he quite rightly noted that it is also a justice
system that other parts of the world are studying and have modelled in terms of
reforms that they have chosen to make.
There are two aspects to your question, senator: First, what is the effect of
the judgment; and, second, what options are there in terms of dealing with the
judgment to try to mitigate that effect. As a superintendent of the justice
system, I must look at the effect of the judgment, which happened seven weeks
ago, to put it in context. In particular, as the Judge Advocate General, I am
interested in certainty, predictability and timeliness in a justice system that
is fair, meets the needs of the accused, of society, and, importantly, of
The Court Martial Appeal Court clearly ruled that the section providing for
the convening of courts martial, which is a condition precedent to the beginning
of the court martial, was of no force and effect. The Director of Military
Prosecutions and other actors in the military justice system since that time
have continued to endeavour to make the military justice system work. That has
included continuing with the courts martial that were already convened and,
where the accused raised issues in terms of wanting to choose the type of trial,
those matters have been referred back. I wish to outline some of the uncertainty
that the present void is creating within the military justice system.
The Court Martial Administrator, who is the authority who convenes courts
martial and whose powers were struck down in the legislation, has returned all
the preferred cases to the Director of Military Prosecutions. There is no
provision available in the National Defence Act for that to happen, and it is
not clear what the legal authority is to do that.
The Court Martial Appeal Court suggested to the Director of Military
Prosecutions that it be the Director of Military Prosecutions who offers the
right to elect the type of court. There is no provision in the National Defence
Act stating that. In terms of the types of court system we have and the
punishments currently in place, the general court martial has a military judge
and a panel and can give sentences up to life imprisonment. This would be
recognized as a civilian criminal court with a jury. As well, we have the
standing court martial, which has a military judge alone. Each type of court
martial has different powers of punishment.
A general court martial can give up to life imprisonment and the standing
court martial can give imprisonment up to two years less a day. Therefore, if an
accused is charged with an offence that can attract more than two years less a
day and they are given the choice of the type of trial, they can self-limit the
punishment that a court can give them. That is extremely problematic from a
superintendent's point of view, from a systemic point of view, and in terms of
how victims would view the military justice system.
In the cases that have gone forward, different approaches have been taken by
the military judges because of the existing void in terms of dealing with these
offences. Even if the Director of Military Prosecutions were to offer an accused
the choice of trial, nothing is set out in the law to deal with an accused who
chooses not to choose, which is clearly set out in the Criminal Code and would
be mirrored. Of course, this is problematic in terms of the points I started out
with in respect of clarity.
The issue was raised with respect to transfer of cases to civilian
authorities, which falls under section 273 of the National Defence Act, and, in
certain cases, that is an option. However, it is not clear that busy civilian
courts will want to be burdened with such trials, in particular if those courts
involve offences that occur outside of Canada.
The other point that I would raise stems from a decision in Généreux,
a 1992 drug trial case of the Supreme Court of Canada. Such a case would be
incorporated into the military justice system as an offence under Canada's drug
laws. The Supreme Court said that recourse to the ordinary criminal courts
would, as a general rule, be inadequate to serve the particular needs of the
Further, as has been noted by the minister, we might have specifically
enumerated offences, such as disobedience of a lawful command, conduct to the
prejudice of good order and discipline, and abuse of subordinates. However, in
our justice system we incorporate the criminal laws of Canada. That is done for
a variety of reasons, in part to ensure that when we go overseas, we are able to
deal with a broad range of criminal offences. In addition, Canadian values are
instilled in our troops, and they understand that they must follow those values
wherever they are in the world.
The problem with proceeding to the civilian criminal courts, if the civilian
authorities will take the charges with those types of offences, is that we might
still have, out of the same incident, other offences that might attract life
imprisonment under the enumerated offences. Then, we have a multiplicity of
proceedings in terms of proceeding in that way.
The way to deal with this situation is to find a means that provides
certainty and clarity, removes the present problems that the actors within the
system are trying to address and meets the needs of the accused. Clearly, this
legislation is broadening the rights of the accused and it also meets the needs
of the system.
In terms of broadening the rights of the accused, it is clear, as Chief
Justice Lamer noted in his report, not all rights have to be constitutionally
based. As he indicated, we should not strive only for a system that cannot be
constitutionally denied. This point is the crux of the difference of the appeal
versus the difference of the legislation.
The question of the scope of the Charter and the scope of the constitutional
rights is clearly one that should be before the courts. From a policy
perspective, wanting to extend a right that has been the policy recommendation
trend in the last five years is a separate issue. That is the focus in which the
legislation is offered.
Lieutenant-Colonel Michael Gibson, Director of Law, Military Justice
Policy and Research, Department of National Defence: I may be of assistance
to the house in understanding the previous question regarding the providence of
clause 30 of the Geneva Conventions Act. The explanation is simple.
I was the instructing counsel in the drafting of this bill. When one sits
down with the legislative drafters of the Department of Justice as instructing
counsel, part of their responsibility and duty as Department of Justice counsel
is to examine the corpus of federal legislation to ensure the coherence and
consistency of that legislation.
This is simply a consequential amendment. In section 4 of the Geneva
Conventions Act, there is a definition of what "court" means. It enumerates
the four types of courts martial — standing court martial, general court
martial, disciplinary and special general. You will recall that one of the
provisions of Bill C-60 is to reduce the number of types of courts martial from
four to two. Therefore, to ensure that the Geneva Conventions Act is accurate,
all that amendment does is reduce the number of courts martial listed there from
four to two, to ensure its consistency.
Senator Fraser: Minister, as I am sure you are aware, we heard
interventions this afternoon in this chamber in the debate to the effect that,
while we understand the valid reasons for wishing to pass this bill
expeditiously, there was significant distress that the Senate was not able to
conduct its usual due diligence — particularly on bills of this importance — and
suggestions for some mechanism that would allow us such due diligence even after
the bill is passed.
In that context, colleagues may wish to know that I received a letter from
the minister earlier this evening, which struck me as being constructive in
tone. He said that he looked forward to my response; but since it was addressed
to me as Chair of the Standing Senate Committee on Legal and Constitutional
Affairs, and the committee has not had a chance to consider the letter, I was
not in a position to give the minister a response.
Minister, I wonder if you would mind if I read that letter into the record to
inform the proceedings here this evening. It is dated today's date, June 17,
2008, and it is addressed to me, as chair of the committee.
The body of the letter reads:
I am very appreciative of the Senate agreeing to consider Bill C-60 on an
expeditious manner. It is important that our military justice system can
continue to operate.
I would ask, however, that your committee consider studying the
provisions and operations of Bill C-60 and provide me with a report on your
findings and any recommendations the committee may choose to make by
December 31, 2008. The government will review these recommendations and
provide the committee with a written response that could include proposed
amendments within 90 calendar days.
Thank you for your kind consideration of this request, and I look forward
to your response.
Peter G. MacKay.
It is on the letterhead of the Minister of National Defence.
Minister, I found this letter to be extremely constructive. I will undertake
to raise it with the committee at the earliest opportunity, and the committee
will decide whether it wishes to seek an order of reference to conduct such a
I would like you to expand a little bit on the undertaking that you provide
here, that "The government will review these recommendations and provide the
committee with a written response that could include proposed amendments within
90 calendar days."
I assume that we should understand that the proposed amendments would reflect
the recommendations of the committee. Obviously, you cannot give me an ironclad
guarantee of anything right now, because you do not know exactly what the
committee would recommend. We might take leave of our collective senses and
recommend something utterly impossible. Absent that, I assume what we have here
is an undertaking from you that if this committee provided a reasoned,
reasonable argument for specific recommendations, you would be prepared to act
on those recommendations.
Mr. MacKay: That is entirely correct, Senator Fraser. First, I should
express my appreciation for putting that letter into the record. I am prepared
to seek leave to table this particular letter. I did endeavour to see that all
senators were given a copy of the letter to which you have referred, that was
With respect to the spirit of the letter, that is exactly what I have sought
to do — to be constructive in allaying any fears due to the expedited nature in
which this bill appears before you and the process we are undertaking here this
evening. Were there to be a necessity to revisit the provisions and the impact
that this legislation is to have, should the matter lead to this chamber or the
House of Commons necessitating amendments to the National Defence Act that
impact directly on the subject matter here, we would certainly receive those
recommendations and endeavour to embody the spirit of those recommendations into
amendments into the National Defence Act.
It is, for lack of a better word, an insurance policy to provide you with
some level of comfort that the normal due diligence and the time required to
look at the subject matter of great importance, as you have stated, will not be
forsaken and that we will have the opportunity to bring the subject matter back.
As I referenced earlier, the body and the bulk of the recommendations
contained in the report of Mr. Justice Lamer will, in good time, appear before
this chamber. I suggest that you will have a lot more to work with than the
limited provisions that are affected by this particular bill.
The Chair: The minister has asked leave for this letter to be tabled.
Is leave granted?
Hon. Senators: Agreed.
Mr. MacKay: I also have the clause-by-clause analysis of the bill,
which I think was also provided to honourable senators. No? I am prepared to
table that information as well.
The Chair: Is leave granted to table clause-by-clause information on
Hon. Senators: Agreed.
Senator Fraser: I also note that the minister properly wrote his
letter to me in both official languages, and I think we should table both
versions. I can provide them to the page if the minister has not already done
Senator Mercer: Minister, general and colonel, welcome to the Senate.
We are happy to have you here, although I will not ask substantive questions
about the bill itself; it is the process that I have complained about for some
time. Justice delayed is, indeed, justice denied. However, speeding up the
process does not allow for good legislation or the good participation of
parliamentarians in the debate.
Minister MacKay, you have stated that it is important and urgent. My
colleague Senator Carstairs has indicated that we do not like receiving bills in
June. That is true, especially when it is June 17 and, by all reports, we may be
out of here on June 18 or maybe as late as early next week, after
Saint-Jean-Baptiste Day. Regardless, that does not leave us much time to study
I am concerned that we are receiving the bill today and, under the gun of
legislative timetables or traditional legislative timetables, we are expected to
rush this through. We are meeting tonight in Committee of the Whole. It has not
been referred to the Standing Senate Committee on Legal and Constitutional
Affairs, which it would normally be.
I would like some explanation from you as to why this has happened. This is
really not a question of 10 years, as you referred earlier to Senator
Grafstein's or Senator Nolin's mention of 10 years. This is not a question of 10
years but rather of two or three months. That is from the time the decision came
down, from the time it was obvious that amendments needed to be made, and until
the time the bill arrived here.
I know it may go to management of the other place that you may not have
control over. However, you put us in a position where some of us do not feel
comfortable dealing with what is obviously very important legislation within a
time frame that we cannot give it the due study that it deserves.
Mr. MacKay: Thank you for the question, senator. There is no denying
that and I would be the last person to suggest that this is not an unusual
circumstance that was brought about largely because of the handing down of the
Trépanier decision, which, in effect, nullified the process by which
modes of trial were to be elected. As a result, we did endeavour, as I recounted
earlier, to amend Bill C-45, which was already before the House of Commons. Upon
being blocked procedurally, we introduced this stand-alone legislation.
I would point out the obvious here: This is a very narrow bill and it deals
in very specific and very — I would suggest — non-controversial terms to remedy
the system to allow for the continued administration of justice in our military
courts. Having said that, I recognize your question is about process and the
process most notably in the other place which, to say the least, can be
acrimonious. When you put a bill into the queue, so to speak — to have it
presented, tabled and to go through the procedure in the House of Commons with
which you are very familiar — there is a selection process that very often
depends, as it did in this case, on the goodwill of the opposition. They need to
recognize the non-partisan and practical reality that there is serious delay and
serious harm that could stem from the anomaly that has been created by the
Trépanier decision. That anomaly is a void in our justice system.
It is for those reasons that we have taken this extraordinary step of
expediting this bill. I do not want to say the word "bypassing" because we
have procedurally followed the path which any legislation would follow. However,
we have done so at breakneck speed.
That is where we find ourselves now in the process that leads legislation,
whether it originated in the House of Commons or in this chamber; we are
following that process and doing so out of necessity, I would suggest. However,
it does rely on the participation and the proactive goodwill of all members and
all senators to see that this matter is addressed.
If the process were to stop at this point, I will not say, "The sky will
fall." However, serious harm can flow from that decision. Therefore, I would
urge all senators to continue this process, with the proviso that I have put
forward through this letter; on the understanding that, should there be a
requirement for further examination, amendments or a revisiting of this matter,
I will certainly undertake — and I have undertaken in that letter — to bring the
matter back for future amendments.
Senator Dallaire: Minister MacKay, I would like to ask a direct
question and give a bit of mitigating information before you give your response.
How is it possible that we have been caught out? We have been in operational
theatres now since 1991. We have had the massive reforms by Judge Dickson.
General Watkin was intimately involved with that reform. We have had the
five-year review by another justice of the Supreme Court. Both of these
gentlemen are ex-colonels and familiar with the military system, also. There are
recommendations to be implemented. We know that 52 out of 57 recommendations
were implemented. These were not. They are sitting there.
Why did we not implement these recommendations? The Judge Advocate General in
the other place said that the current system of four courts martial met our
requirement. However, obviously, at one point, it did not meet it anymore.
Is it because we have had so many courts martial, we do not have enough
judges or lawyers to handle them? Is it because we have an increased tempo or
increased size of force and maybe that section or organization is not built up
enough? Is it because you have a massive backlog and that backlog has created a
momentum in which, all of a sudden, this objection by a judge in the appeal has
Is there an inability by the Judge Advocate General branch to handle what is
coming through the system, as courts martial? Is it changing or seeking to
change the National Defence Act because of these courts martial and the appeals
on its own, without suddenly being caught by this appeal court more than five
years after Justice Antonio Lamer's report said that we should be looking at
Mr. MacKay: Senator, first, there was, you may recall, a difference of
opinion on this issue between Justice Lamer and Justice Dickson. That is to say
that Justice Lamer was of the view then that there was a breach of
constitutionality, if you will, in this mode of election. Justice Dickson was
not of the same view and, therefore, did not make the recommendation. Therefore,
there was not that urgency at the time. Some might view that as normal. Judges
very often sitting on the same case disagree, which is why we have dissents.
There was also a policy issue in addition to constitutional issues when it came
to adapting and adjusting the justice system.
Your points regarding the backlog in the normal course of events is a
question above and beyond this particular subject matter. I think I would prefer
to refer the question to the Judge Advocate General himself, who can speak to
the capacity of our current Office of Judge Advocate General and directorate to
handle the caseload before them.
Senator Dallaire: You have indicated that this is not within the
context of the bill. Referring to the Judge Advocate General, I would just like
to bring your attention to the fact that, when this bill was proposed, we are
also talking about the Court Martial Appeal Court of Queen v. Grant. In
that case, we mentioned it is not a breach of the Charter. However, the matter
that was statutorily required to be tried by court martial was due to the
passage of time, to be retried by a summary trial. There was a need to clean up
the timeliness aspect also. Am I not correct?
Mr. MacKay: You are correct. Yes, there were implications subsequent
to Trépanier in the case of the Queen v. Grant. Yes, there is an
issue that is also being addressed in this particular legislation that stems
from the decision in the Queen v. Grant decision.
Brig.-Gen. Watkin: You have raised two issues and one is the whole
question of the delay in the four and a half years. I might set that aside for a
second to address the other question that you raised in terms of backlog and
It is true that the Grant case was related to that issue. We have a
two-tiered system in the military justice system of summary trials, which
happens at the unit level and that the legislation clearly sets outside. It was
one recommendation of the late Chief Justice Lamer that there be a one-year
limitation on trial at the unit level. Then the matter would be sent to court
martial if it did not happen within the year. That is clearly there to emphasize
the need to deal with matters summarily. It is called the summary trial for a
purpose; it is meant to be exactly that.
That has happened in the system. The military justice system, like the
Canadian justice system writ large, has challenges of trial delay. I included
the issue of trial delay in the military justice system in my annual report as
one of my main concerns.
A number of initiatives are ongoing. Last year, we were in the process of
receiving a final copy of a review from the Director of Military Prosecutions on
its handling of cases. It examined its processing of files and its resourcing to
determine what, if any, additional procedures or bodies would be put in place to
make that part of the process more efficient.
We are in the process of looking at the Directorate of Defence Counsel
Services. As you are aware, every member of the Canadian Forces has the right to
be represented by a lawyer at trial. This is unique to justice systems in
Canada. We have a fully-funded legal aid system whether it is a military
lawyer, fully-qualified and called to the bar in a province of Canada, or a
civilian lawyer. The accused has the right to be represented by civilian
In addition, in my office, I have a review ongoing by a working group with
representatives from the military chain of command and from various parts of my
office. The working group looks at ways to streamline the system to determine
how to maintain the necessary fairness for individual soldiers. We also want to
see where we can be 10 years down the road from the reforms that were introduced
following Chief Justice Dickson's report. Internally, we want to determine what
recommendations can be made in statute, in regulation or as matter of policy to
address the trial delay issues.
Therefore, as an organization, we are looking at the issue of trial delays.
As the superintendent of the military justice system, I am concerned and we are
addressing the issue.
Senator Dallaire: What about the delay of four and a half years?
Brig.-Gen. Watkin: I would like to address that issue, senator. The
four and a half years arises counting back from the report of the late Chief
Justice Lamer. That report was referenced here tonight.
The Senate is well aware of the significant reviews that took place at the
end of the late 1990s that included the Somalia Commission of Inquiry and two
reports by the late Chief Justice Dickson. Those two reports had a number of
recommendations, the vast majority, although not all, of which were followed.
That resulted in Bill C-25 and the significant amendments.
As the minister has mentioned, the reason why it was set out in the
legislation — I was not involved in that part — is that it appears there is a
part of the second report prepared by Chief Justice Dickson stating that it
would be the Director of Military Prosecutions who would inform the individual
convening the courts what type of trial would occur. At that point, he was
recommending that it would be the chief military judge.
Five years later, the Right Honourable Antonio Lamer looked at the situation
as mandated by the review process. He raised the issue of whether there should
be two types of trials and whether there should be a right to choose given to
the accused. However, with respect to the issue that it raised at the
constitutional level, that was a matter left in the policy realm regarding the
It was in that context in which the report was reviewed and it was reviewed
very seriously in terms of what options were available. The other piece that is
not clear to the public was that there had been previous Court Martial Appeal
Court decisions. This is the same level of court that there was in Trépanier
and Nystrom, which I will talk about shortly. These cases held that
it was not a problem having a member of the chain of command who could choose
the type of court. That was the old convening authority of which you would be
aware. There was already binding case law that said this was not problematic.
In 2005, in the Nystrom case, the Court Martial Appeal Court of Canada
addressed this issue for the first time. They indicated that they would not
comment on it from a constitutional perspective, but they had serious concern
that we were not paralleling the civilian justice system. That matter was
examined at that time and the Director of Military Prosecutions changed her
policy in May 2006. The policy allowed an individual accused, if they wished, to
request the type of trial they would have, that she would then pass on to the
That request was made seven times at the level of the Director of Military
Prosecutions and, in each case, the accused was given his or her choice.
The other piece, which is not clear from the factual record, is that the
Trépanier case was relying in part on the information in Chief Justice
Lamer's report. In fact, at that time, there were standing courts martial being
Chief Justice Lamer identified one of the concerns the system had was the
lack of a unanimous verdict. That was part of his understanding why courts were
not proceeding to have panel courts because of concerns that it did not mirror
the civilian system and because of administrative concerns.
Two years ago was the start, again, of disciplinary courts martial, which is
a panel court. Last year, 20 per cent of the courts martial in the Canadian
Forces involved the equivalent of a judge and jury.
I have tried to determine the statistics in the civilian system. I know there
are many lawyers in the Senate. I certainly cannot put my hand on my heart and
say with 100 per cent certainty, but the best statistics I can find are that
approximately two per cent of trials in the civilian justice system are jury
trials. We are at 20 per cent. Therefore, in terms of the accused and their
ability to go before panel courts, we are certainly there.
About seven weeks ago, the Court Martial Appeal Court determined that this
was a constitutional issue. We have reacted in that time and have focused on
putting before Parliament a bill that addresses Trépanier, which also
referenced the Lamer report. We have focused on those issues and those parts of
the unanimous vote that would solidify this form of trial in our system and
provide extra rights to the accused.
Senator Dallaire: I fully recognize the urgency of this bill.
Senator Andreychuk: Mr. Minister, I do not know if you want to answer
this question or the Judge Advocate General.
I am looking at the proposed section 18, which would change clause 202.12(1)
and then continues in section 19 to change sub-paragraph (3).
I understand this is a consequential amendment. However, I am more concerned
on the issue of fitness to stand trial. Recently, we have become more and more
acquainted with the consequences of sending troops overseas. The government has
responded with new programs to assist the troops.
It seems that this section does not quite mirror what we do with charges in
the civilian courts. That would be a policy concern to me. Are you factoring in
the new understandings of "fitness"?
Brig.-Gen. Watkin: The provision to determine if someone is unfit to
stand trial was brought in a number of years ago to ensure that we did as much
as possible to mirror the civilian justice system.
As I have mentioned, each of our accused is represented by qualified lawyers
and defence counsel. There is a process in place in the legislation that allows
those issues to be raised. We have had past cases where the issues that you
mentioned had been raised before courts martial. The judge will listen to the
evidence in terms of doing that and make a determination as to fitness to stand
From my perspective, we have a system which is very much attuned to this
issue. Like the civilian justice system, it has a process to enable an accused
person to put this before the court and have a court rule on this issue.
Any justice system is capable of further review and analysis. Interestingly
enough, as part of the court process, the accused can challenge any of the
provisions and come before the Court Martial Appeal Court and may, like the
Trépanier case, end up before this house as a result of recommended changes
to the legislation.
We are attuned to the issue and the problem and very concerned that accused
persons' rights are met at courts martial.
Senator Andreychuk: Am I correct in saying that if we were to study
and review we could look at this entire area, but within this bill, all you have
done in touching the fitness to stand trial is the consequential amendment of
Brig.-Gen. Watkin: Yes, that is correct. The purpose of this bill is
simply to be a consequential amendment. The focus of the bill is to have the
system avoid the uncertainty which I already mentioned and to provide the rights
to the accused framed by Trépanier and by reference to Chief Justice
Lamer's report. The result of that is expanded rights to the accused. A number
of consequential amendments flow from that, but they are truly consequential
Senator Andreychuk: To confirm with you, clause 18, which changes
202.12(1), is a consequential amendment and does not change in substance how we
would look at the fitness to stand trial and the process; is that correct?
Lt.-Col. Gibson: Senator, the answer is yes. To provide a slight
degree of specificity to that, when we were drafting that provision, as I
mentioned before, the drafters went through and did a word search. Since we were
reducing the number of trials to two, we knew that the only type of judge-alone
trial that would be in our system henceforth would be a standing court martial.
That is why it was decided to include the words "standing court martial." In
essence, it is a consequential amendment in light of the change in the number of
courts proposed in the bill. There was no substantive change.
Senator Milne: Minister, I believe your preliminary remarks stated
that this bill addressed the problems because of the Trépanier decision
and nothing else. However, Senator Dallaire has pointed out clearly that it does
address something else. It adds at least three clauses that amend the National
Defence Act because of the Grant decision.
Was there some urgency in that? Why did you put them in this bill rather than
leave them to the second bill that you intend to bring in?
Mr. MacKay: I believe I answered this question earlier. The Grant
decision had similar concerns expressed: that is, the constitutionality of the
election of mode of trial and the denial of the accused to have a say in the
mode of trial.
The Trépanier amendments similarly cover the concerns raised by R.
Senator Milne: "Similarly cover" them? I am sorry; I do not follow
you there, sir.
Mr. MacKay: I am sorry; what is your question?
Senator Milne: I do not follow what you mean when you say "similarly
Mr. MacKay: Senator, the issues with respect to the very specific
amendments contained in this bill are aimed at changing the mode of trial and
moving from four to two modes of trial. That was also the subject matter of the
case R. v. Grant. This bill speaks specifically to those concerns around
changing the mode of trial.
There is an additional change in the system in that it also allows for
counsel to have pretrial consultations with a judge.
Senator Milne: Turning to Senator Andreychuk's question on clause 18
of this bill, we are simplifying everything; we are moving to two modes of
trial. However, if someone is found unfit in the first court martial to stand
trial, the military judge shall cause the Court Martial Administrator to convene
a standing court martial, the second court martial, to hold an inquiry and
determine whether sufficient admissible evidence can be adduced at that time to
put the accused person on trial again, the third court martial. This is not
particularly simplifying matters.
Mr. MacKay: It is, in fact.
Lt.-Col. Gibson: Minister, I might be of some assistance on that
point. As I pointed out earlier, we were not engaging in any substantive change
to that particular provision. We indicated that we would have one type of court.
In order that honourable senators understand the operation of that provision,
it is meant to take place after the passage of time. In the event of an initial
finding of unfitness to stand trial of court martial, the act provides for a
subsequent review at periodic intervals to see if there is still sufficient
The clause states that when it comes time, two years down the road, to see
whether the person is still unfit and whether there is still sufficient evidence
to put the accused on trial if they were subsequently to become fit, the
mechanism to accomplish that will be a standing court martial.
Senator Joyal: Welcome, Mr. Minister. I must tell you that I
appreciate the courtesy of your opening remarks to the Senate. Sometimes your
colleagues testify here and do not show the same kind of appreciation of Senate
work. Personally, I appreciate the cooperation you have shown us tonight.
Returning to the question put by Senator Nolin, I am not sure that I
understand the logic of the position you have given as an answer.
It is my understanding that if this bill is adopted then the Department of
National Defence would accept the principle of election of trial by an accused
as serving section 7 and 11(d) of the Charter. I thought that this bill
settled that question in relation to election of trial. However, we find
ourselves in the bizarre position whereby tonight you suggest that we do that.
Personally, I think that is the right thing to do.
Tomorrow evening, if the bill receives Royal Assent, you will run to the
Supreme Court and try to convince the Supreme Court that this is wrong and that
we should return to the status prior to Bill C-60 where, in fact, an accused
within the army should not have the right to elect trial under section 7 and 11(d)
of the Charter.
It seems that you have a double interpretation of the same principle. I would
rather concur with this bill to satisfy the principle of the decision. On the
other hand, I can understand that there might be some, to take your words,
policy issues that need to be addressed. However, the principle should stand.
Mr. MacKay: That is the intention, senator. I can assure all
honourable senators that were an appeal to be granted by the Supreme Court that
was to in any way determine that the decision in R. v. Trépanier was
incorrect and that the constitutional violation that was pointed out by the
judge was not the case, we will not then revoke this bill or change the law or
go about putting in place a military justice system that would reinstitute the
four modes of trial and then uncouple or unlink the military system from the
civilian justice system. We have every intention of following through on the
full application of the law here.
I would, however, submit to you that there are still elements of the decision
which are worthy of review by the Supreme Court.
I might again call on Brigadier-General Watkin to expand on that for your
Senator Joyal: It would be helpful for us to satisfy that we are not
undoing with one hand what the other hand is trying to accomplish.
Mr. MacKay: No, and I very much appreciate your question. This is
somewhat of an anomaly where we would continue with the appeal should the
legislation be passed. There are valid reasons for doing so. I will ask
Brigadier-General Watkin to expand on that explanation.
Brig.-Gen. Watkin: The issues before the Supreme Court of Canada are
those of a constitutional, legal nature. The Trépanier decision itself
identified one of the fundamental principles of the Canadian military justice
system, which is constitutionally recognized in the Charter.
The provision, section 11(f), particularly recognizes that offences
under Canadian law dealt with by military tribunals basically have an exemption
from the constitutional recommendation of the right to a jury trial for civil
trials. It is in the context of first addressing that. Then the court went on to
say that it falls under another provision of the Charter, whether it is section
7 or section 11(b). That is one of many legal issues that arise in the
The Director of Military Prosecutions at this stage is seeking leave to
appeal, so that issue is not settled yet. They are also seeking a stay of
execution as well as an expedited hearing.
The issue of the appeal is in its initial forms of seeking leave. If and when
leave is granted, then the constitutional issues would be put before the court.
I think it is important to identify that having legislation and going before
an appellate court is neither shocking nor necessarily unique. The example that
I provide in that case is R. v. Genereux, which was the 1992 case of the
Supreme Court of Canada involving the military justice system where there was an
appeal to the Supreme Court of Canada. In the intervening period, Queen's
Regulations and Orders were amended, and the Supreme Court of Canada in that
case commented favourably on what the amendments were. There are other examples
under Canadian law.
There is the question, by policy, of what is the best thing to do in terms of
meeting the rights of Canadian men and women serving in uniform. Clearly, there
has been an indication by both Chief Justice Lamer and by the Court Martial
Appeal Court in Trépanier, and in Nystrom previous to that, in
terms of the direction they would like to see. There is the separate issue of
the scope of the Constitution and the scope of the decision from a legal
constitutional perspective, which equally is the position being put forward by
the government, and would benefit analysis at the next level of appeal court.
As the minister has indicated, it has not been my experience to remove
soldiers' rights under the military justice system. Our focus is to have the
best system possible for the men and women in uniform.
Senator Joyal: However, as much as I understand it for the military
justice system, the principle — and I think Senator Nolin, in his opening
remarks, stated it in better terms than I can express — is that the system must
operate as closely as possible to the common law criminal court system. In my
opinion, it is only when there are elements of policies that would command some
specific arrangement that the military justice system could detract from the
principles of the common law system.
If they go to the court, would the court give them permission as to what
level of this decision they will argue that the principles of the Trépanier
case went beyond or did not satisfy the means of the military justice system
to the point where they seek a redress?
Brig.-Gen. Watkin: Of course, the matter is before the courts. In my
mind, it is not a question. The issues and arguments are properly before the
courts. The question, in terms of this legislation, is: Does it provide, from a
policy perspective, increased rights to the accused that allows the system to
function in terms of meeting the requirements of the military justice system?
I concur fully that a fundamental requirement of our justice system is to
meet Canadian values. As I mentioned from Chief Justice Lamer's report, it is
not only those values prescribed in the Constitution. The question of whether it
is a constitutional right is different from the issue of whether it should be a
right in terms of individuals to be able to have this choice.
Something that has also been mentioned here tonight is that one of the
reasons the military was not in favour of going down this road was the concerns
that they were from an administrative perspective.
In 1994, there was a unanimous decision of the court with a court martial
appeal in the Graveline case, which said they fully understood why one
would want to have the option of the convening authority in order to pick the
type of trial. The danger would be in having a general court martial in a remote
location. Of course, our justice system operates across Canada and worldwide.
In the intervening time and even in the last couple of years, I mentioned
that we are at 20 per cent now in terms of panel courts. We will see if that
changes when the accused has the ability to choose. We do not yet know whether
they will have a preference for standing courts martial or for general courts
martial in terms of the type of trial they want. We have a greater comfort level
in terms of our ability to have a court martial system, which is at the
20-per-cent level in terms of the number of panel courts we deal with.
From a policy perspective, some concerns that we have had through experience
and the changes that were made by the Director of Military Prosecutions have put
us in a better position to address these issues in light of the Trépanier
Senator Joyal: Do you think that with this bill, the court would
presume the system you propose is operational in the context of the mandate of
the Canadian Armed Forces in that you will be able to, with this bill that will
have become an act of Parliament by that time — that is, if they grant you
permission to argue your case — you will be in a better position to convince the
court this is not the proper system to follow?
Brig.-Gen. Watkin: I would never presume what a court would presume. I
am in a difficult position in trying to answer your question. That is the nature
of the court process. The judges truly are independent, and they will come down
with the decision they think is best framed for the military justice system. I
will react to that decision in the course of my duties, and we will see whether
other people will react as well in terms of the decision to be made.
Senator Grafstein: This is only a mechanical question. I want to be
clear to you and to the military that we in no way, shape or form in the Senate
have been critical of the military system, of the officers that serve so nobly
in the system or their concern for social justice. On the contrary, in my speech
earlier today I complimented the military court of appeal for bringing this
matter to a halt, which we commended them for.
I do not want anyone to leave this Chamber with the impression that any of
us, certainly not myself, who are critical of Parliament would be critical of
the military and its efforts to provide a social justice system that, as you
say, is admired around the world.
With that said, I am now concerned with the legislation again because time is
of the essence. Justice delayed is justice denied. Why does it take,
essentially, 90 days from the time the decision came down to implement this bill
after the legislation? If I read the legislation carefully, it says that we
started on April 24; May 24 and June 24 passes us by. Let us assume for the
moment that the bill passes within the next few days; there is still another 30
days after Royal Assent to implement this bill.
Why does it take so long, keeping in mind that you have been working at this
for all these many hours and days, if time is of the essence?
Mr. MacKay: In your preamble, you referenced the respectful
deliberations, discussions and speeches that have taken place in this chamber. I
follow the deliberations of your chamber.
I commend the tenor, the tone and the attention to detail on matters related
to our justice system and our military system. I commend all honourable senators
for the way in which you conduct yourselves, in particular on matters of
national importance such as this where there is a great deal at stake. I would
even go so far as to say that in the House chamber we could probably learn from
your decorum and the way in which you deal with these matters.
To your point on the 90 days, from the time this decision was handed down,
there was an immediate recognition of the necessity to move quickly. We looked
at a number of options, including appealing to the Supreme Court. That option
was pursued, and there was some hope that the Supreme Court would find it
necessary to suspend the application of Trépanier to allow this process
When it became clear that we would not get leave to seek a stay, we looked at
bootstrapping this bill, with amendments, into Bill C-45. We attempted to do
that. That was denied by the Clerk of the House of Commons based on procedure,
so we found ourselves in this dilemma. We then moved post-haste to deal with it
in a stand-alone fashion and went about the sometimes very arduous task, to
which you can relate, of seeking unanimity among all parties in the House. We
briefed the defence critics and justice critics of the opposition parties in an
effort to seek their consent, and that took some time.
On a personal note, I was away for much of last week and previous to that
because of repatriations and my attendance at a NATO summit in Brussels last
Senator Joyal: Minister MacKay, you alluded to recommendation 23 of
Justice Lamer. I have that recommendation in front of me. I will ask the clerk
to provide you with a copy. You might want to read it quickly to refresh your
In your opening remarks, you mentioned Bill C-45. Its summary lists the
subjects that are covered by Bill C-45. As I understand it, all but two of
Justice Lamer's recommendations would have been covered by Bill C-45. Am I
Mr. MacKay: Fifty-two of fifty-seven recommendations were included.
Senator Joyal: That means that there are still recommendations to be
acted upon. Is Bill C-60 your complete answer to recommendation 23?
Mr. MacKay: This recommendation deals with the anomaly of having a
court martial that could try minor offences versus serious offences. It is that
dividing line in the sand, if you will, between what, in our criminal justice
system, would be indictable for summary offences or hybrid offences where there
is an election.
Yes, this is an attempt to have the military justice system mirror the civil
criminal justice system by allowing the accused to elect trial by judge or by
judge accompanied by another body, which is commonly known as a jury in the
Senator Joyal: Which other recommendations are left for the department
to act upon that are not covered by Bill C-45 and Bill C-60?
Mr. MacKay: I do not have Bill C-45 in front of me.
Are you are asking me which recommendations we are not proceeding with that
are contained in this other bill?
Senator Joyal: If Bill C-60 and Bill C-45 are enacted, which
recommendations of Justice Lamer would remain for the department to deal with?
Mr. MacKay: As you know, Bill C-45 has not been to committee. The
committee, in its wisdom, may choose to refuse to accept all of the amendments
contained therein or to add amendments with regard to the remaining
recommendations of Mr. Justice Lamer.
Bill C-45, as we discussed earlier, has a much broader scope. The breadth of
that bill could very well, at the end of that much more involved process,
incorporate all, some, or fewer of the recommendations made by Mr. Justice
Senator Joyal: In other words, there is still space for additions to
Bill C-45 and Bill C-60 with regard to the remaining recommendations that the
former Justice Lamer put forward in his report of 2003?
Mr. MacKay: That is correct. The drafters of Bill C-45 drafted with
the direction and advice of the Department of National Defence, and the Office
of Judge Advocate General would have been intimately involved. Those
recommendations made their way into Bill C-45.
Again, at the risk of repeating myself, our preference would have been to
have a single bill. We would never have the audacity to try to pass a bill as
comprehensive as Bill C-45 through both chambers in 72 hours or less. There is a
great deal of information contained in Bill C-45 that will require the scrutiny
and the committees of both Houses.
The short answer is yes. It is still possible to amend Bill C-45 by removing
amendments or adding amendments with regard to recommendations of Justice Lamer
that are not currently contained in it.
Did you wish to add anything to that, Brigadier-General Watkin?
Brig.-Gen. Watkin: Not all of the recommendations of Chief Justice
Lamer went to the heart of the military justice system. I do not have the full
list in front of me. For example, one recommendation was that the court martial
administrator should be a deputy head. Some of the recommendations are policy
choices in terms of what is required for the administration of the public
Fifty-two of the fifty-seven recommendations were accepted in whole or in
part. We clearly want to put forward that it was the late Chief Justice Lamer
who made these recommendations, and they were seriously studied within the
department and within the office of the Judge Advocate General. The question is
about taking those recommendations, assessing them against the needs of the
military justice system and making recommendations, putting them into
legislation and making it go forward.
One recommendation which was not accepted in whole was the notion of a
permanent court. However, Chief Justice Lamer had recommended an interim
approach, which was looking to put in place amendments that would allow you to
give the powers that a judge at a permanent court would have and setting up a
working group to look at what he acknowledged was a very complicated issue in
terms of creating another court under the Canadian justice system. That review
did take place. The view was that the amendments could be put in place in terms
of putting forward the powers for the judge, so the judge would have the powers
set out under the legislative scheme to allow them to deal with the issues
before them, meet the needs of the military justice system so that the system
would be fair and efficient and maintain its character, which it has always had,
as a court being convened to deal with a specific issue.
That is an example of one of the issues that was put forward. That is why you
will find in Bill C-45 specific references to the authority of judges, and
particularly pretrial, in terms of the authority they have.
Senator Nolin: If I may, minister, I will ask my question to the Judge
I understand the reason you want to maintain the appeal. The Constitution's
interpretation of the appeal court is probably not the one you want to keep, and
you want the Supreme Court to clarify that situation. That is what I am reading
from the answer of the minister and your answer.
What about the stay? Why do you maintain in regard to the request to the
court to stay the decision of the appeal court?
Brig.-Gen. Watkin: Just to clarify, one of the questions that is put
before the court in leave to appeal is this: Is there a matter of national
importance which the Supreme Court should hear? That is the first issue they
will deal with. Then the constitutional arguments will be put before the court,
and they will make their determination. That is what is being suggested to the
court; namely, that there are arguments of national importance that should rise
to the Supreme Court level.
Senator Nolin: That is exactly what we want to hear. That is the
question we are asking you.
Brig.-Gen. Watkin: The question with respect to a stay is simply that.
At the court martial level, a request was made for a stay of the effect of the
judgment, and the Court Martial Appeal Court refused to grant that.
The next level, in terms of being able to address that, is at the Supreme
Court level. As it stands today, we have a system that, as I have already
identified, is not functioning in terms of courts being preferred and convened
because of a lack of legislative basis and the problems that the existing courts
are running into as they try to operate. That is the effect of a stay of
execution at the Supreme Court of Canada level.
Senator Nolin: We understand that. What is not in Bill C-60 that the
court will stay? What is so important for the national interest? That is what I
want to hear. What is so important?
Mr. MacKay: If I could, in short order, we did not want to be
presumptuous. That is the short answer. If this particular bill is to pass, the
necessity of a stay no longer exists.
Having said that, we do not want to pre-empt the vested right and the
decision-making authority of the prosecutor who is handling this case. It is
more a question of the appropriateness of this Senate, this body, this
legislation or anyone other than the prosecutor who is handling that file to
make the decision to withdraw the necessity of seeking a stay from the Supreme
I suspect strongly, and, again, I would not prejudice that decision, that
were this legislation to pass, were this issue then to be addressed as far as
the constitutionality, there would be no necessity for a stay.
Senator Grafstein: I did not quite hear your answer. There was some
consideration by Mr. Justice Lamer about a permanent court. I believe you have
indicated in your answer that you discarded that option. Is that correct?
Just before you complete that, I recall there was some discussion way back
when we discussed that, if my recall is correct, 10 years ago. I see Senator
Nolin is nodding his head. We were looking at other systems, for example, the
United States and other military systems, where they had established some sort
of permanent establishment, and we felt that perhaps that would develop a school
or a team of professionals who were focused on the issues as opposed to seriatim
Am I right that you have discarded that, or has that been incorporated into
Lt.-Col. Gibson: We looked carefully at that recommendation as it was
one of the more prominent ones made by Chief Justice Lamer. The way we have
characterized their response is we have accepted it in part. It is not amongst
the five we have clearly indicated were not initially accepted following the
assessment of Justice Lamer's report.
I say we accepted it in part because Justice Lamer in that recommendation
made an assessment of a number of functional or independence deficiencies in the
system, but he did not identify with any particularity how a permanent court
could remedy those, nor did he delineate in any detail what he meant by that. He
rather indicated that a working group be struck to study it, and so we did.
We concluded from that that even some of the concerns that Chief Justice
Lamer expressed would not, in fact, be addressed by a permanent court. For
example, regarding the independence of military judges, their security of tenure
would have to be addressed by separate provisions, and that is addressed in Bill
C-45. We focused on specific functional attributes where he identified a
deficiency that he thought might be remedied by a permanent court and put those
provisions into Bill C-7, ultimately Bill C-45. A couple of them have manifested
in this bill because they are necessary as part of the package for making
recommendation 23 work.
The short answer to your question is that we consider that we have accepted
it in part, senator.
Senator Grafstein: We will see some of the responses more clearly in
Bill C-45 that deal with the question of tenure, independence, and so on. We
should see them in that provision and read the two of them together.
Lt.-Col. Gibson: Absolutely; Bill C-45 is meant to be the legislative
response to the Lamer report.
Senator Joyal: I bring to the attention of the witnesses and the
minister that there are small mistakes in the decision of the court.
In paragraph 7, the court read the relevant provision, and it read section
165.15 in the English version of the act and 165.14 in the French version of the
act. They conclude in section 165.14. If you want to take the decision, you can
call it a clerical mistake, but they chose a paragraph in the French version and
a paragraph in the English version, and they are not similar paragraphs at all
in the decisions.
Mr. MacKay: You have demonstrated the value of the upper chamber in
demonstrating the meticulous nature that occurs in the examination of bills that
come before you. I appreciate that, and we will ensure that the final approved
copy, were it to be approved, would reflect that amendment.
The Chair: Mr. Minister, on behalf of all senators, I want to thank
you for joining us today to assist with our work on this bill.
I also thank Brigadier-General Watkin and Lieutenant-Colonel Gibson.
Mr. MacKay: It was a real honour. This situation in which we found
ourselves, and I as minister found myself, was unusual. I greatly appreciate
your indulgence and your respectful acceptance of this request to bring this
bill forward. On behalf of the Canadian Forces and the men and women in uniform
on whom this will have an effect, we are eternally grateful.
The Chair: Honourable senators, shall we proceed to clause-by-clause
study of Bill C-60, An Act to amend the National Defence Act (court martial) and
to make a consequential amendment to another Act?
Hon. Senators: Agreed.
The Chair: Shall the title be postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 14 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 16 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 18 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 19 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 20 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 21 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 22 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 23 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 24 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 25 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 26 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 27 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 28 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 29 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 30 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 31 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 32 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry without amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Shall I report the bill without amendment?
Hon. Senators: Agreed.
The Hon. the Speaker: Honourable senators, the sitting of the Senate
Hon. Rose-Marie Losier-Cool: Honourable senators, the Committee of the
Whole, to which was referred Bill C-60, An Act to amend the National Defence Act
(court martial) and to make a consequential amendment to another Act, has
examined the said bill and has directed me to report the same to the Senate
The Hon. the Speaker: Honourable senators, when shall this bill be
read the third time?
Hon. Pierre Claude Nolin: Honourable senators, with leave of the
Senate and notwithstanding rule 28(1)(b), I move that the bill be read the third
The Hon. the Speaker: Is leave granted, honourable senators?
Honourable Senator Nolin has moved third reading of the bill now. I will put
the question in English. It requires unanimous consent.
Hon. Sharon Carstairs: I would like to know why the urgency to do it
now and why it could not be done tomorrow.
Hon. Gerald J. Comeau (Deputy Leader of the Government): My
understanding is that tomorrow would be the last day whereby we could get into
the Royal Assent line. The Senate will sit at 1:30 p.m. tomorrow. Generally
speaking, when we go through our Senators' Statements, Routine Proceedings and
Question Period, we are close to 3 p.m. That means we would have to do
everything right after Question Period, when the Senate must rise to receive the
Governor General. At that point, if we have not passed the bill, we must wait
for the Governor General, and my understanding is that the Governor General will
be away for a period of time. We would need to come back possibly next week or
the week after.
However, if we were to proceed with this bill tonight, we would be in a
position, if the bill were to pass, for Royal Assent tomorrow.
My understanding, as well, is that this bill is not one where the judges are
in agreement to sign, so we need the Governor General's assent. I urge the
Senate to proceed with this bill tonight while we have the chance.
Senator Carstairs: Honourable senators, I will not put an obstacle in
the way of this bill, but I would have preferred to have changed the order
tomorrow so that we could at least have done this over two days and not one. We
could have had unanimous agreement to change the order tomorrow and to have
started with government bills at 1:30 p.m. That would have been my preference.
Having said that, I will not deny leave.
The Hon. the Speaker: Honourable senators, I take it there is
unanimous agreement that we have third reading now.
Are honourable senators ready for the question?
An Hon. Senator: Question!
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
Motion agreed to and bill read third time and passed, on division.
Hon. Consiglio Di Nino moved third reading of Bill C-21, An Act to
amend the Canadian Human Rights Act.
He said: Honourable senators, I will add a few words to the comments I made
on second reading.
I thank all who participated in the study and analysis of this bill. I thank
you all for your contributions. This is not a particularly complex bill, but it
is a bill that deals with a complex issue that impacts a large number of
Honourable senators, the time has come to move forward on Bill C-21, An Act
to Amend the Canadian Human Rights Act. The legislation proposes to repeal the
exemption granted in section 67 of the Canadian Human Rights Act. Once this
exemption is eliminated, all Canadians, including those residing in First
Nations communities, will have full access to human rights protection
When Parliament endorsed the Canadian Human Rights Act some 30 years ago,
section 67 was considered a temporary measure. Its inclusion was something of a
compromise, needed to establish a regime that granted unprecedented levels of
rights and protection to the vast majority of citizens. Unfortunately,
subsequent attempts to repeal section 67 failed. Today, decisions taken under
the terms of the Indian Act remain exempt from the provisions of the Canadian
Human Rights Act. This effectively means that the rights of one group of
Canadians are not afforded the same legal protection as those of other citizens.
It is discrimination, pure and simple.
The injustice of the situation has been well-documented by a long list of
authoritative groups — two parliamentary committees, including the Standing
Senate Committee on Human Rights, which studied and reported on Bill C-21
without amendment — who have called repeatedly for the repeal of section 67.
Eight years ago, Parliament's statutory review of the Canadian Human Rights Act
made the same recommendation. Numerous international groups, including the
United Nations Human Rights Committee, have gone so far as to censure Canada for
keeping section 67 on the books.
The legislation now before us is the product of a lengthy process of
collaboration, review and refinement. An initial version of the bill was
introduced into Parliament two years ago. A committee in the other place
suggested significant changes to a subsequent version. This government, in the
interests of moving the legislation forward, agreed to most of these changes.
Bill C-21 now enjoys all-party support in the other place.
Last week's remarkable events provided further impetus to approve the
proposed legislation. The Prime Minister, on behalf of all Canadians, has issued
a full apology to former students of Indian residential schools. As honourable
senators will appreciate, the apology represents an important step in the
ongoing journey towards healing and reconciliation. Bringing resolution to a
legacy of Indian residential schools lies at the heart of reconciliation and a
renewal of relationship with former residents, their families and communities.
The repeal of section 67 also paves the way for a stronger and more
respectful relationship between Canada and the residents of First Nation
communities. Bill C-21 honours the commitment made by this government on
numerous occasions and reiterated in the Speech from the Throne. Last week in
this chamber we heard Aboriginal leaders express their support for the repeal of
section 67 and call upon us to pass the bill.
Honourable senators, today we can show Canadians and the international
community that we believe in justice for all, that all citizens should be equal
before the law and that the rights of the most vulnerable members of society
must be protected. Bill C-21 offers a practical and careful approach to the
repeal of section 67 — an approach that enjoys widespread support and finally,
after 30 years, we will close this legal loophole.
I urge honourable senators to support Bill C-21.
Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak
at third reading of Bill C-21. This legislation will repeal section 67 of the
Human Rights Act. The section 67 exemption prevented complaints of
discrimination if the alleged discrimination action involved matters covered by
the Indian Act or was done under authority pursuant to the Indian Act for the
last 31 years. Today, we will close this human rights gap so that First Nations
people can enjoy human rights protection afforded other Canadian citizens.
Aboriginal Peoples Congress Chief Brazeau has informed us that:
. . . your duty is to complete the work that needs to be done on Bill
C-21. As leaders, we have important work that will follow from this piece of
legislation. The reality today is that Inuit and Metis people enjoy full
access to Canadian human rights. It is time for us to move beyond partisan
politics on the issue of human rights and bring justice to myself, my
children and the hundreds of thousands of First Nations peoples across
Canada who are still being denied their basic fundamental human rights.
This is what he said to the committee when he was present at the committee
At the committee there was a recurring concern about this legislation during
the committee stage of this bill that I feel compelled to bring to the attention
of honourable senators. This is the issue of providing enough resources to the
Canadian Human Rights Commission and to the individual complainants. When asked
if there were enough resources, the Chief Human Rights Commissioner, Jennifer
The sufficiency of resources will define the success of implementation,
and an insufficiency of resources is its greatest risk.
The Human Rights Commission has estimated it will need approximately $5
million over three years to build the capacity necessary with the passage of
Bill C-31. This funding would include an education component of $1.7 million per
year. Given that the commission is not able to gauge how many complaints it will
receive after the repeal of section 67, we must approach funding the commission
The Human Rights Commission should be commended on the groundwork it has
already done regarding the repeal of section 67. It has already created a
national Aboriginal initiative headquartered in Winnipeg. It merely waits for
funding. Commissioner Lynch said:
. . . as soon as we have funding . . . it will become a permanent
program, at which point we will be able to launch even more activities than
we have right now.
The commission's plans are ambitious and it requires funding for more than
just processing complaints before it. Chief Commissioner Lynch said:
There is some perception that our mandate is restricted to complaint
processing, and we do have a history of that, but one of the key aspects of
our implementation strategy is to work with First Nations to build
community-level redress systems and strengthen existing ones.
The chief commissioner sees enormous potential to develop a whole system that
starts with a dispute resolution structure and supported by other processes and
practices that will shift the emphasis toward the front-end prevention of
discrimination and education.
Honourable senators, what was particularly encouraging when the commissioner
presented her testimony to the committee was that she was going to be including
traditional ways of resolving conflicts in the Aboriginal communities. According
to the chief commissioner, the core principles of its programming:
. . . should have as their goal the fostering of a culture that treats
conflict resolution as a building block to creating inclusive and productive
communities and workplaces. In short, the building of this culture takes
time and resources, as well, of course, developing our dispute resolution
Chief Commissioner Lynch made a compelling statement last night. She said:
What suffers when a new activity is taken on by the Canadian Human Rights
Commission without additional funding? We are conscious of our legislative
mandate, and we do our best to fulfil it, but something has to give. If we
have no funding, if I tell you here that we can therefore not meet this
mandate, it will mean we will have to do a lesser job on another mandate
that is equally important to us and is legislated. It is very hard for us.
Another witness to the committee was Ellen Gabriel of the Native Women's
Association. She spoke of the requirements for a new system of dealing with
human rights. She said:
...there must be an appropriate and adequate implementation plan in place
before repeal occurs; the plan must contain clear time frames, identifying
principles, criteria and standards, include definitions and roles and
responsibilities for all actors in the process; and the plan should specify
how the unique needs of individuals who speak an Aboriginal language or who
live in a rural or remote area will be met.
Ms. Gabriel further stated:
There should also be means identified by which those First Nations who
are currently using the alternative dispute resolution or other traditional
or customary criteria or approaches to dispute resolution to manage human
rights complaints are facilitated to retain these approaches and engage them
prior to individuals entering the formal Canadian human rights complaint
On the issue of funding, Ms. Gabriel echoed testimony by the Chief Human
Rights Commissioner and said:
..there must be adequate funding resources and capacity in place to
respond prior to the repeal taking effect. Resources will be necessary
before and after the repeal, including means of providing redress for
complaints. Resources will also be needed to evaluate the implementation
plan, analyze outcomes and identify best practices or concerns both during
implementation and after repeal takes effect.
Honourable senators, on the issue of accessing human rights, my concerns
about providing a method whereby First Nations people can access legal aid has
only intensified after hearing from witnesses yesterday. It is true that legal
aid is not normally given to any claimant before the Canadian Human Right
Commission. In this regard, the minister stated, when asked, that First Nations
people will be treated the same as any other citizen.
On the face of this statement, it must be seen like "equal treatment," but
we all know the principles of equality. When we treat people equally at times,
we do not give them equal treatment. We know that the First Nations people face
obstacles that other Canadians do not. Therefore, it is not equal treatment. We
need to do more.
After section 67 is repealed, I know there will be some Aboriginal people who
will encounter some difficulty accessing their rights. Chief Commissioner Lynch
I expect there will be some highly complex cases brought forward that may
address issues, almost what you would call class-action type things.
Honourable senators, we must ensure that the issue of legal aid be looked at
during the 36-month grace period. There is a 36-month grace period for the
Government of Canada and the Aboriginal authorities to make the necessary
changes to comply with Bill C-21.
Honourable senators, I state to you today that our work on this issue is not
over. Reports will be submitted to both Houses of Parliament. The government
must report back its findings before the grace period of 36 months. There is
also a five-year review by Parliament. These requirements are set out in Bill
C-21. These reports are opportunities for us to ensure there is proper
programming and funding in place to assist First Nations communities to become
compliant with the Human Rights Act. It is also an opportunity for us to review
programming and learn what we need to do better to ensure the best access for
Aboriginal people to their human rights. I know we, as a chamber, will be
vigilant as, to a great degree, success of this bill depends on this vigilance.
Before I conclude my remarks, today I also want to acknowledge the work of
Senator Kinsella, who has taken leadership on this issue by introducing a
private member's bill a few years ago to repeal section 67. I also want to thank
the Human Rights Committee under the leadership of Senator Andreychuk who, also
a number of years ago, asked to repeal section 67.
In the words of the Aboriginal Congress Chief Patrick Brazeau:
Let us get on with it; let us make it right; and, let us restore the
pride in the hearts of Canada's First Nations people by according us the
same rights that every other Canadian citizen enjoys in this country today.
Hon. A. Raynell Andreychuk: Honourable senators, I want to add a few
words with respect to Bill C-21. Perhaps I have been somewhat pre-empted by
Senator Jaffer, and I thank her for her words.
The Standing Senate Committee on Human Rights looked at this issue, as well
as Senator Kinsella, in his bill. Therefore, the subject matter of the deletion
of section 67 was well known by our committee.
Yesterday, I think the committee did due diligence in hearing from all
parties who have an interest and responsibility to ensure that Bill C-21 follows
the road map that is placed within the bill. I would have preferred that the
deletion of the section and full implementation of the rights were afforded all
However, in the spirit of compromise, in the other place and in this chamber,
we have understood that perhaps there is a role for more consultation and an
effective implementation strategy.
I hope that when we come to the point of review we can come to a full and
complete study and indicate that all peoples have access to the Human Rights
Act, as it was contemplated.
The exemption was put in the act as a temporary measure. Nothing has been as
temporary as that measure, because 30 years have passed. I think this effective
timetable that has been put into Bill C-21 and the elements of putting together
a plan that will put the onus on the Government of Canada and on the Aboriginal
leadership to bring this matter to a closure.
I believe that, as Chief Brazeau said, if we had the opportunity to go across
Canada, we would have heard from individuals who wanted the exemption to be
deleted from the Human Rights Act. In fact, that is what the Standing Senate
Committee on Human Rights did previously: listened to individuals. I think that
today we can close this chapter and look to a better day for the implementation
of human rights in a more fair and just manner for all Canadians.
The Hon. the Speaker: Are honourable senators ready for the question?
Hon. Senators: Question!
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Motion agreed to and bill read third time and passed.
Hon. Céline Hervieux-Payette (Leader of the Opposition) moved third
reading of Bill S-209, An Act to amend the Criminal Code (protection of
children), as amended.—(Honourable Senator Fraser)
Hon. Ethel Cochrane: Honourable senators, I wish to speak on this
I am pleased to rise once again on the matter of Bill S-209, Senator
Hervieux-Payette's bill regarding the protection of children. As my concerns
with this bill have been stated many times before, I will try to keep my remarks
as concise as possible.
Please allow me to begin by stating that violence against children is
abhorrent. As I have said before, I believe that each one of us here will state
unequivocally that violence against children is wrong. It is wrong anytime,
anywhere. It is as simple as that.
This bill is not about violence against children. As originally drafted, it
is about removing a defence — section 43 of the Criminal Code — which permits
teachers, parents and those standing in the place of parents to use force as a
means of correction toward a child in their care, without being charged with
Section 43 provides a balance between children's need for protection and
their need for, as the Supreme Court of Canada stated in its landmark 2004
. . . guidance and discipline to protect them from harm and to promote
their healthy development within society.
Repealing section 43 repeals that balance. As honourable senators are aware,
the use of force permitted by section 43 is restrictive. This section itself
. . . the force is not to exceed what is reasonable under the
From the court's 2004 decision, we know that the correction must not be the
result of the caregiver's frustration, loss of temper or abusive personality;
the correction must not be punitive and must not focus on the gravity of the
child's wrongdoing; the child must not be incapable of learning because of a
disability or some other contextual factor; the force must not be used against a
child under the age of 2 or over the age of 12; the force must not involve the
use of objects, or slaps or blows to the head; and the force must not cause
bodily harm or raise the reasonable prospect of bodily harm and must be of a
minor, transitory and trifling nature. These guidelines make it clear that only
very limited use of force is permissible under section 43.
Notwithstanding these facts, our colleague, Senator Hervieux-Payette, is
resolute in her belief that our children would be better off without this
section in place. So intense is her wish to repeal section 43 that she told the
Standing Senate Committee on Legal and Constitutional Affairs on May 14:
If this bill is not adopted, I will spend the rest of my career in Ottawa
bringing it back. Perhaps we have to get used to that idea.
However, there is a serious problem with repealing section 43 without
providing additional defences in its place. It risks exposing parents, teachers
and those standing in the place of parents to the likelihood of being charged
under the assault sections of the Criminal Code. This concern was also expressed
by the Supreme Court of Canada in its 2004 decision, which states:
Without section 43, Canada's broad assault law would criminalize force
falling far short of what we think of as corporal punishment. The decision
not to criminalize such conduct is not grounded in devaluation of the child,
but in a concern that to do so risks ruining lives and breaking up families
— a burden that in large part would be borne by children and outweigh any
benefit derived from applying the criminal process.
Honourable senators, in my opinion, this is a valid and fundamental concern.
According to our law, a person commits an assault when he or she applies force
intentionally to someone else without consent, either directly or indirectly, or
when he or she attempts or threatens to do so, or causes the other person to
believe that he or she could do so. Consent is the difficult component when
looking at the roles of parents and teachers in relation to children.
The reality is that consent may not all be there. For example, can we say an
out-of-control, non-compliant child is giving consent while being forcibly
dragged off for a time out, where he or she must sit for 10 minutes to
contemplate the consequences of mouthing off to father and mother? Without the
defence that section 43 affords, the child's consent may be necessary, even for
something as simple as a correctional tool like a time out. I think we need to
ask ourselves whether this is the standard that we truly want to set. The
problem, honourable senators, is that there is no balance. Providing guidance
and discipline to a child sometimes requires the use of non-consensual touching,
but it is difficult to allow for that in the absence of section 43.
During our committee hearings, there was a great deal of debate as to whether
common-law defences or other Criminal Code defences could be used should section
43 be repealed. In particular, much was made of the common-law defence de
minimis as the solution for all the problems that would flow without the
protection offered by section 43. Other provisions of the Criminal Code were
also discussed, including self-defence, preventing assaults against others and
the defence of property.
The argument put forth was that these would be sufficient to protect parents,
teachers and those standing in the place of parents in the absence of section
43, but legal professionals disagreed.
Mr. Lapowich, from the Canadian Council of Criminal Defence Lawyers, spoke to
the committee about these defences. He said:
In our respectful submission, however, they would not be available in
many situations. That is the danger that you run into when you change the
Criminal Code. If you repeal section 43, you run that risk. Self-defence,
defence of others and defence of property would not have applicability to
many of the situations that we are discussing here.
Mr. Boxall, from the Criminal Lawyers Association, said:
However, defence of "necessary" only applies to imminent harm. That
will not protect a parent who thinks his or her child should go to bed, come
home from the playground, turn off the pornography channel, not use the
Internet, stop being cruel to the cat, et cetera. It will not cover any of
Assuming the concept of de minimis non curat lex exists in law —
and I like to think it does — success in advancing it is limited. I have
been in front of judges that say it does not apply in domestic concepts. It
is far from clear there is such a concept in law, let alone rely on it.
We were also warned about the danger to families and peoples' reputations if
we were to rely on the courts to resolve this issue of non-consensual touching
of children by parents and teachers. Mr. Lapowich also spoke to this matter. He
The damage to our clients can be done by the simple charge itself,
especially if it is publicized. People always remember the front-page
article about being charged with sexual assault. No one remembers an
acquittal two years down the road after a trial.
Mr. Boxall, once again, said:
By the time the court sorts out the case six months to one year later,
someone has been removed from their home, denied access to their children,
and denied contact with their spouse. The damage is done. Yes, children need
to be protected from violence but children also need parents.
Mr. Del Bigio, from the Canadian Bar Association, told the committee:
There is a disruption to the family. There is the criminal charge itself.
Then, if there is a trial, it creates a situation where family members,
including the child, will be testifying against the parent who has been
charged. There are the penalty consequences of a conviction and the further
consequences that might impact the family such as, for example, loss of
employment. The potential consequences are far-reaching and in many ways
quite dramatic. They need to be thought of carefully.
Mr. Eric Roher, a partner with Borden Ladner Gervais, explained to the
Charges against educators — as I am sure you know — are well publicized
in the media. Teachers' reputations, positions and professional status are
at stake. As a matter of practice, they are suspended from their positions,
often with pay, pending the outcome of their investigations, sometimes
without pay. If they are acquitted or the charge is withdrawn, teachers
accused of assault are usually transferred to another school. There is a
stigma attached to this criminal charge, which is significant, even if the
charge has no merit.
Significant stigma is attached to this criminal charge, even if the
charge has no merit. Mr. Justice Westman pointed out in a 2005 case that men
and women who have been charged who are educators may have their lives —
private and public — destroyed; families may be broken up. He is talking
about the emotional well-being of these individuals.
He is talking about the emotional well-being of these individuals. The risk
to families and the risk to reputation are real and must be taken seriously.
Last year, New Zealand repealed its counterpart to our section 43, replacing
it with legislation that no longer permitted the use of force for the purpose of
correction. However, during their debates, they deemed it necessary to provide
some allowance for parents and those standing in the place of a parent.
Mr. John Hancock, senior solicitor with Youth Law in Auckland, New Zealand,
reminded us that his is the only common-law nation to have removed this defence.
Even then, it saw fit to put back into law a list of exemptions to allow for the
use of reasonable force, recognizing that it is no longer permitted for
correction. This was done because it was determined that balance was required
between the need to protect children and the need to ensure they have the
guidance and discipline they need.
Fortunately, the committee members learned from the lessons of New Zealand.
They recognized that in the absence of section 43, parents, teachers and those
standing in the place of parents require some kind of protection against the
assault provisions of the Criminal Code. The amendment that was passed by the
committee, with abstentions, allows the use of reasonable force other than
corporal punishment. It also specifies that it may be used only for certain
purposes, including preventing or minimizing harm to a child, criminal behaviour
and excessively offensive or disruptive behaviour.
Honourable senators, I continue to support the inclusion of section 43 of the
Criminal Code and I continue to oppose this bill. However, I recognize, in the
game of numbers, I am losing here. With all of that in mind, if section 43 is to
be repealed with passage of this bill, at least it will happen in such a way
that families will not be harmed.
Senator Hervieux-Payette: Honourable senators, I will respond to some
of the concerns raised by Senator Cochrane. I would like to take this
opportunity to thank the many witnesses who shared their expertise, experience
and knowledge to help senators examine this bill.
I would like to give a bit of a background. More than 200 associations that
work with young people in Canada support the repeal of section 43. Within these
associations are pediatricians, psychologists, psychiatrists and sociologists. I
realize that people working in the legal field may have slightly less experience
with human behaviour, and worry more about enforcing the law than about
I remind honourable senators that studies by Statistics Canada show that
children who receive physical punishment are generally between the ages of three
and six, and the vast majority of them are hit regularly. One study showed that
children who are hit regularly over a period of six to eight years can suffer
from effects that range from depression to suicide, and that they often drop out
of school and later have difficulties finding a job.
I agree with Senator Cochrane's view that children need protection.
Protection against violence also means protection against immoderate actions and
actions that do not help discipline a child, but rather show impatience and a
loss of self-control. I agree that children can be disciplined, but they can be
disciplined using other means. The experts have all proven that children are
very intelligent and can be corrected without having to use physical force.
I would also like to reiterate that this bill is very important to me given
that I worked on the first bill to address youth protection in Quebec. I also
worked on reforming the legislation here in Ottawa the first time the Young
Offenders Act was amended. Many years of experience have shown that young people
who are in trouble with the law have generally been subjected to corporal
I would like to remind honourable senators that the Supreme Court decision
included two important dissenting opinions, by Justice Arbour and Justice
Deschamps, who considered children's rights in light of the fact that, in 2009,
Canada would have to grant children their full rights and regard children as
persons who have rights equal to those of adults. Children are entitled to their
full physical integrity.
Continued violence threatens the lives of children.
I would remind you that today, June 17, the Council of Europe begins its work
to abolish physical punishment permanently. The aim of that European institution
is to reform the legislation of the council's 47 member countries. However, I
should tell Senator Cochrane that 18 of those countries have already prohibited
corporal punishment at school and at home.
The Council of Europe prefers to focus on the need to change people's
thinking, primarily by promoting more positive education methods that are in
keeping with scientific research into humankind. According to the Council of
Europe, legislative reform does not mean that parents who spank their child will
be taken to court, but hitting a child is perhaps more serious than a light
Human apply to everyone. "Children are not minipeople with minirights,"
says Deputy Secretary General Maud de Boer Buquicchio.
Canada is far from being a leader in this area. Sweden, which passed
legislation 20 years ago, has one of the lowest youth crime rates, and children
there are generally treated very well, as a result of parental education.
This bill will make it possible to implement the amendments that were adopted
by the honourable senators — and which I support — and will give the government
one year to introduce information programs on how to discipline children without
using violence, so that Canada does not lag behind other OECD countries.
I thank you, honourable senators, and I would especially like to thank the
Chair and Deputy-Chair of the Committee on Legal and Constitutional Affairs for
working so hard on this bill. I hope that honourable senators will support the
amendments made in this chamber and the comments of the Honourable Senator
Fraser, who explained them.
Hon. A. Raynell Andreychuk: Honourable senators, I want to add a few
words with respect to this bill.
Two Senate committees have studied the issue of corporal punishment and the
rights of the child and what is in the best interests of a child. First, the
Standing Senate Committee on Human Rights spent nearly three years looking at
the international Convention on the Rights of the Child.
I want to put on the record that the Convention on the Rights of the Child
was ratified by all countries, except two. However, when one looks at the issue
of corporal punishment, the issue is defined differently in all of these
countries. Despite the fact of adherence to the Convention on the Rights of the
Child, there are many countries that are silent as to what is appropriate
interaction with a child, with a view to control or restraint, and what is not.
The UN specialist on children said violence has no place with children. I
believe that is an appropriate approach.
Corporal punishment, as we knew it many years ago, is not an issue in Canada.
The Supreme Court, in its excellent decision in 2004, indicated that corporal
punishment cannot be used in any way for children under 2 or over 12. They
limited the understanding that societies are in transition. They limited some
aspects between the ages of 2 to 12.
Honourable senators, my own point of view — and not the view of my colleagues
— is that the decision was fair in the fact that it recognized we had a
different approach to disciplining children 50 years ago or 100 years ago. The
court recognized that we are in something of a transition. They pointed out that
no corporal punishment should be used on young children; it would have no affect
under age 2. Over 12, it might have a counter-productive effect.
Therefore, they pointed out how and when some application of force can be
used for children between 2 and 12. While it has not led to that many cases in
the courts, it is still, I think, a little confusing. My previous role was as a
family court judge. How do we tell a parent that they cannot physically
discipline a child under 2 but at the age of 2 plus one day, parents can use
certain disciplines? I think that provision is confusing in some ways.
I understood why the court did not want to go the full extent. However, the
court said in the majority judgment that society was evolving and that violence
— hitting and striking — was not acceptable.
I think the issue of corporal punishment is over in Canada. It is not
advocated by anyone.
Three governments — the present government and the previous two governments —
indicated that they did not advocate corporal punishment. They looked to
alternate ways of punishing children as more appropriate — time outs and all of
the other alternatives — and that education was absolutely necessary.
The debate should not be about hitting or striking a child. I do not think
that is where the debate lies. The debate is that the UN Convention on the
Rights of the Child is a transforming type of legislation. It points out the
needs and rights of children. One of those rights is the right to grow without
corporal punishment and being struck; in other words, to live without violence.
However, they put it in context of a world that is violent and they say our
children should be protected. Senator Dallaire is one of the people in this
chamber who has joined forces with others to say that child soldiers should not
be utilized. That practice is violence against children.
It is not only what parents do with children; it is that violence should not
However, we live in a violent society and we have different kinds of
children. The UN Convention on the Rights of the Child says that violence should
not be utilized but it also says a child has the right to a family and the right
to grow up with guidance and education. Children cannot become responsible
citizens if adults do not play a part in their lives.
We graphically heard in the apology last week, which all parties joined into,
about parents who lost control of their children and children were put into
Indian residential schools. Not only did this treatment sever the cultural,
linguistic and appropriate parenting for those children; we are suffering
decades and generations later from that act.
Honourable senators, when we talk to parents, we should say that it is
appropriate to discipline children, and that some touching and force may be
necessary. If they have a child who is out of control and attacking another
child, how do they talk to that child? Perhaps some movement to disengage those
two children is necessary.
That is what section 43 is all about.
The case law has moved dramatically to say that the force must be reasonable;
"no more force than is reasonably necessary" is the phrase that riddles all
the cases. Also, the Supreme Court of Canada said that any touching in a
corrective manner should be trivial and transient. In other words, parents
cannot lash out against their children. They must use and exercise judgment.
The onus will be on them because, after all, section 43 was a defence after
assault charges are laid. It is to allow a parent or teacher to come to a court
and say: I did it because it was necessary and in the best interests of the
child. It is not to exempt the behaviour of the parent. It is a heavy onus to
put on parents to have to defend themselves.
In fact, we should be guided by the rule of law, not by the rule of
discretion. If we take out section 43, some people say that police and
prosecutors will not go after parents who acted appropriately. However, the
police told us they did not want that discretion and I believe that discretion
should lie with parents, not with the police. The rule of law is where we marry
the assault sections with the defence section, section 43. Therefore, some form
of section 43 needs to remain.
I would have preferred that some defences stayed as they were because then
the case law could follow uniformly. However, in our discussions, it came to the
point that we asked: What are other countries doing? It was pointed out to us
that other countries, particularly European colleagues, have banned corporal
punishment. I agree.
However, if one searches in their criminal law, there are exemptions and
there are defences. The provisions are structured differently because many of
the countries are not common-law countries. For example, Scotland has put in
defences. In France, I know that parents have more discretion in their homes
than even I would advocate, yet they have subscribed to banning corporal
Our committee looked to New Zealand, which is closest to our legislation,
having an identical section. Due to the fact we worked on the UN Convention on
the Rights of the Child, I had great interaction with New Zealand. They were
thinking of deleting their section — section 59, if I recall — which is similar
to section 43. Then good parliamentarians said: We have to let parents have some
discretion. They built back some defences. I think that is what we did.
The committee did an admirable job in beginning to understand how, in today's
violent society, we no longer control children in the way we did before. We have
the Internet that gives them all kinds of ideas, and reinforces them. People
touch out, travel miles and travel countries to interact with our children.
We know that children today have access to drugs, which causes violence. We
know there is bullying in the school and we need to ensure that we help children
and we do not just say, hands off. Children need some guidance and some
transient force, whether it is for control, restraint or other methods.
I hope, if this bill passes with the amendments, that there will be a good
look by the Government of Canada and the House of Commons to see whether we have
the best Canadian answer. I think we have started the proper and appropriate
debate for parliamentarians and Canadians. That is the signal. I wanted those
words "no more corporal punishment" in the report on the Standing Senate
Committee on Human Rights and in the Standing Senate Committee on Legal and
Constitutional Affairs. However, I think we must modernize how we give
reasonable tools to parents and children.
Honourable senators can hear my comments; the committee was riddled with
them. I want to acknowledge the hard work that the Standing Senate Committee on
Human Rights embarked on when they conducted their study on the UN Convention on
the Rights of the Child. We looked at all the things children need and I ask you
to read that report. There was some hard work from the senators here.
I also think it would be appropriate that all of us who come into contact
with children should read the minutes, the debates and the testimony of the
witnesses who came forward. I was impressed that the legal witnesses talked
about defences but, for the first time, I heard from lawyers talking about what
it is like to be part of a family.
That brings me to my final points. I think we did not do the job well in two
When we studied the Convention on the Rights of the Child, we said never
again should we pass legislation that affects young people without consulting
them, and we did not consult them. I think that in this day and age, we should
be going to a broad spectrum of youth and saying, "What world do you live in and
how does parenting help you?"
We should not reach back to what we think is correct and what we think we
should be correcting today; we should be asking the youth what kind of tools
would help them. There are children afraid in classrooms, in their homes and on
the streets. They need to tell us what would help them grow and prosper.
I regret that we did not consult fully with youth. We talked to adults. That
we talk to youth was one of our recommendations in our Convention on the Rights
of the Child report. Even more important, we were in the Standing Senate
Committee on Aboriginal Peoples the day that the apology was made in the other
place. Aboriginal people are oversubscribed in our courts. Aboriginal people are
oversubscribed in the child welfare system where families have been torn apart.
We did not consult with the Aboriginal community in a way that I think would
have been thoughtful and respectful of their place in Canada.
If this bill passes, I appeal that there be an undertaking and an
understanding that the Government of Canada do a full and adequate consultation
with Aboriginal people. The defences and the changes in this bill will affect
Aboriginal families and Aboriginal children more than the other cross-sections.
They are already the subject of too much scrutiny. It is time that they were
full partners when we make changes that so dramatically will affect them.
Regrettably, we moved on in the bill and we did not stop to do the
consultations. I understand that. We have taken a long time with this bill. I
thank the proponent of the bill for having gone through two phases with us.
However, I still believe the other phase needs to be done. The reflection and
full participation of youth and Aboriginals is absolutely essential if we are
serious about working with the Aboriginal communities as partners. We need to
We need to have enough time for education. My concern is that while there is
a one-year lead time before implementation, we heard tonight that they needed 36
months to consult the Aboriginal community on the deletion of one clause in the
Human Rights Act after 30 years. Thirty years was the transition period and
still 36 months was needed to consult.
I am not sure that one year is sufficient to consult with that delicate
balance of Aboriginal parenting, because Aboriginal parenting is different; it
involves the whole community. I believe that we need to give serious thought to
this. I appeal that this be done before full implementation is considered.
We owe that to the youth so that we do not have to stand apologizing here
once more to the Aboriginal people for what was good intention. I have no doubt
that previous governments had good intentions toward all citizens, but time has
proven that it was not. In this case, I hope we understand that we need their
consultation and their cooperation and that we do not act precipitously.
Honourable senators, I want to thank both committees for their due diligence
in shedding light on this very important matter. Having been a family court
judge, I know what it is like when a parent has to defend him-or herself in
court. I also know what happens when you try to put that family together again
after the court has intruded. We should deal with education first and give
parents the tools to act appropriately so that our children have a better future
than perhaps some of those in the past had.
I reiterate that there is no place for hitting, striking or violence by
parents, teachers or anyone else. However, true discipline and some corrective
measures are appropriate. They may be different in different societies. We have
a diverse Canada and we should understand we have diverse parenting and diverse
I thank all members for listening.
Hon. Joan Fraser: I would like to speak and I believe Senator
Carstairs also wished to speak.
The Hon. the Speaker: We are continuing debate and not taking
questions and comments.
Senator Fraser: I wanted to respond to a couple points that Senator
Andreychuk made. She has an almost unique experience with this bill. I think she
has been part of every study of it in every incarnation in every committee.
I would like to note that in this round of study of this bill, the Standing
Senate Committee on Legal and Constitutional Affairs took on board all the work
that had been done by previous committees. That includes the work done by the
Standing Senate Committee on Human Rights and their thoughtful and careful work
that was done to hear from non-legal experts of various kinds in matters of
child care. It is not that the Standing Senate Committee on Legal and
Constitutional Affairs did not have access to that body of thought; we did.
However, the decision was made that since the Human Rights Committee had done
such excellent work on the bill in its previous incarnation and before that — as
we have been reminded — on the rights of the child generally, it was decided
that this year the Committee on Legal and Constitutional Affairs would focus on
what the Human Rights Committee had not focused on previously. That was the
legal implications of this bill and, particularly, the matter of defences
available to those accused of criminal offences.
This is what the committee did and the outcome, as honourable senators know,
was an amendment to the bill to set out explicit defences. I stood and talked
about those defences at some length last night.
On the matter of Aboriginal input, it is true that we did not make any
particular effort to bring in the Aboriginal community. However, we did invite
representatives of Aboriginal legal associations that declined the invitation.
I recall the witnesses from New Zealand telling us that their Aboriginal
community had done a reasonable amount of consultation on their bill and was in
favour of it. New Zealand has a significant Aboriginal population. That support
in New Zealand does not, of course, speak to what our Aboriginal peoples may
say, but it is interesting to note.
The final point I would note about this bill is that it does build in, as
Senator Andreychuk indicated, a year for education, communication and planning.
It is not as if this legislation were coming as a surprise; this bill has been
around for a long time. Everyone has known that it was on the agenda.
Finally, as you can tell from what has been said here, the New Zealanders
were very influential in their testimony. It is worth saying that they did not
build in any delay before their bill took effect. It took effect like a clap of
thunder the day it received Royal Assent. While it may have been like a clap of
thunder, the sky did not fall. Indeed, one witness from New Zealand said to us:
You have nothing to fear.
In fact, in New Zealand, there has not been an upsurge in frivolous
prosecutions of parents or teachers. The system is working as it should.
It is, therefore, in my view a measure of extra prudence — advisable prudence
— and caution but sufficient to build a one-year delay into this bill for all
those concerned to become fully informed about its consequences.
Hon. Sharon Carstairs: Honourable senators, I did not intend to speak
to this bill, but I must address some of the remarks made by others.
This bill, indeed, has been around for a very long time. I introduced it 12
years ago. For 12 years this bill has been before the Senate of Canada. What I
still do not hear in enough responses is the risk to children. We talk about the
risk to parents; we talk about the risk to teachers. What about the risk to
children? This bill is about the risk to children.
Honourable senators, violence breeds violence. If a child is hit, the child
thinks that hitting is acceptable. Study after study will show that kids who are
bullies are kids who have been hit.
Senator Stratton: We are beyond corporal punishment.
Senator Carstairs: Study after study will show that parents who act in
a violent way — and hitting a child is violent — have themselves been hit.
Senator Stratton: It is corporeal punishment.
Senator Carstairs: One of the saddest moments I had in the Senate when
I first introduced this bill was to have a respected colleague say he did not
support my bill because the only difference between the way he treated his kids
and the way that he was treated is that his father had used the buckle end of
the belt. That is the culture we have permitted.
The day this bill was given clause-by-clause consideration in the Legal and
Constitutional Affairs Committee, most of us had come from the apology to the
First Nations people. In that apology, the Prime Minister said, "I apologize for
the physical violence that was used against these children in Aboriginal
It has been mentioned that the Supreme Court put some parameters on section
43, but what members of this chamber have not been told tonight is that Joan
Durrant did a study following that decision, and parents have interpreted the
Supreme Court decision as saying that it is now permissible to hit children
between the ages of two and twelve. I do not believe that was ever the intention
of the Supreme Court of Canada. I think they took a petition before them which
asked if children had Charter rights on the basis of section 43, and they
essentially opined that children did not have Charter rights because they were
not 18 years of age and went on to say, however, that there were some things
about section 43 that should be addressed.
I ask honourable senators to look at case law on section 43 prior to the
Supreme Court decision. Previous case law ruled that it was acceptable to hit a
child with an extension cord, and that was justified under section 43; that it
was acceptable to kick a child down a flight of stairs, and that was acceptable
under section 43; that it was acceptable to throw a child on the front of an
automobile, strip her panties off and spank her, and that was the case just a
couple of years ago.
Honourable senators, I spent 20 years of my life teaching young people. I
watched the effect of violent acts towards children. I know violence does not
work, and I would urge us all to support this bill.
Hon. Marilyn Trenholme Counsell: Honourable senators, I am glad that I
am here tonight. I feel guilty that I did not stand up and speak on this bill
during the many opportunities that existed, but I am so glad that I am here
tonight to say a few words.
The last remarks said almost everything that I wanted to say, but this is a
very important moment. It is really, in my opinion, as important as what we
experienced last week with the Aboriginal peoples. With great respect for the
senator who spoke these words about parents being able to defend themselves, I
thought over and over again, "little children are so defenceless."
I practiced medicine for 27 years and I saw much of that. I heard a time or
two that parents had threatened their children not to tell that they had been
hit, that they had been traumatized. There are so many stories. I do not think
any of us wants to stand up here tonight and say, "Yes, I did or did not spank
my children," or "Yes or no, my parents did spank me," but I can tell you
that any child, any person who has even once been spanked never forgets it until
their dying day. It is traumatic; it is such a scar; it is such a wound. All of
the things the senator said about it leading to violence and bullying are true.
It is indefensible. There are other ways to discipline. As parents, we try to
learn other ways, but we often do not succeed. I am speaking in general now and
not necessarily speaking about myself because this is not the time for
As Minister of the Family, I learned about the terrible difficulties that
parents have in parenting. We use the words so often that parenting is life's
greatest responsibility, and yet we prepare parents so very little for this
greatest responsibility in life. This bill will give us a chance to study how we
prepare young people, whatever age, for parenting.
We cannot drive a car until we study a book and pass a test. I am not
suggesting that there be tests for parents, but I thought about this as I was
sitting here. Would it not be proper to have a leaflet, booklet or information
of some sort given to every parent at the time of the birth of each child, if
there were more than one? This new legislation, this new rule in Canada would be
If there were a question of literacy, which happens in so many cases, it
would be incumbent upon the person's attendant at that birth, or immediately
thereafter, be it public health nurses or family physician, to ensure that the
parents understood that. In that education process, other things would be
This is an important moment. Yes, parents need to understand how to parent
and how to discipline, and they need to understand the impact of their actions
or lack thereof. They need to learn so much. I truly hope that when we finish
the report on early childhood development and learning that it will mention
often the importance of parenting programs and parenting education. You cannot
have early childhood education without parenting education; the two must go
I rise tonight because I think of the defenceless children, of the wounds
they suffer for a lifetime and, as the honourable senator said, of the patterns
of behaviour. If you are hit, then why can you not hit back?
It is so unfathomable to think that you cannot hit a child until he or she is
two years old and thereafter you can hit them when they are between the ages of
2 years and 12 years. That does not make any sense, but what we are doing
tonight makes sense. Society will have an even greater responsibility to
parents, to grandparents, to teachers, to caregivers and to nannies to ensure
that education is in place to support this bill and that justice will be done.
Some Hon. Senators: Question!
The Hon. the Speaker: It was moved by the Honourable Senator
Hervieux-Payette, seconded by the Honourable Senator Fraser, that Bill S-209, An
Act to amend the Criminal Code (protection of children) be read the third time.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
Motion agreed to and bill, as amended, read third time and passed, on
Resuming debate on the motion of the Honourable Senator Banks, seconded
by the Honourable Senator Day, for the second reading of Bill S-229, An Act
to amend the Constitution Act, 1867 (Property qualifications of Senators).—(Honourable
Hon. Joan Fraser: Honourable senators, I have taken some time to
marshal my thoughts on this most important bill sponsored by Senator Banks and
on its companion motion, which appears further on in the Order Paper. I know
that all honourable senators have been waiting with baited breath to hear my
views on "Lands or Tenements held in Free and Common Socage, or . . . "Lands
or Tenements held in Franc-alleu or in Roture," not to mention the
ever-fascinating topic of the boundaries of the 1867 Quebec electoral districts.
It is a subject of very great importance that touches all of us and deserves
careful consideration. However, I suspect that at the end of a long day, when we
have already dealt with a series of serious and complex issues, the audience
will be less than attentive if I launch into a discussion of the Constitution of
Canada. Therefore, I move the adjournment of the debate for the remainder of my
Resuming debate on the motion of the Honourable Senator Milne, seconded
by the Honourable Senator Cook, for the second reading of Bill S-230, An Act
to amend the Excise Tax Act (zero-rating of supply of cut fresh fruit).—(Honourable
Hon. Lorna Milne: Honourable senators, I wish to ask Senator Comeau
when he intends to speak to this item.
Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable
senators, I will check with my colleague Senator Meighen, for whom I moved the
Senator Mercer: Where is he?
Senator Comeau: We have a long standing tradition in this place. The
honourable senator is not in the chamber at the moment but as soon as he
returns, I will inquire and report back to Senator Milne.
Senator Milne: I would point out that it is at day 12 on the Order
Senator Comeau: There is no question that this bill will not die on
the Order Paper; trust me.
The Hon. the Speaker: Honourable senators, Item No. 10 was called. Was
Senator Milne speaking to Item No. 10 or was she speaking to Item No. 11?
Senator Milne: Item No. 10.
The Hon. the Speaker: Was Senator Comeau speaking to Item No. 10 or
Item No. 11?
Senator Comeau: I was speaking to Item No. 11. Would it be helpful if
we started again?
Honourable senators, I move the adjournment of the debate on Item No. 10 for
the remainder of my time.
The Hon. the Speaker: Honourable senators, is it your pleasure to
adopt the motion?
Resuming debate on the motion of the Honourable Senator Grafstein,
seconded by the Honourable Senator Fitzpatrick, for the second reading of
Bill S-226, An Act to amend the Business Development Bank of Canada Act
(municipal infrastructure bonds) and to make a consequential amendment to
another Act.—(Honourable Senator Eyton)
Hon. Jerahmiel S. Grafstein: Honourable senators, I ask the Deputy
Leader of the Government in the Senate when Senator Eyton might opine on this
matter. It has been almost six months. Certainly, Senator Eyton could give us
that benefit so the item could be moved forward.
Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable
senators, I will speak to Senator Eyton as to when he intends to speak to this
item and let the honourable senators know.
Hon. Jim Munson moved second reading of Bill S-237, An Act respecting
World Autism Awareness Day.—(Honourable Senator Munson)
He said: Honourable senators, it is late in the evening and all have been
patient in listening to serious debates on issues dealing with children and with
the military. I am determined to deliver my speech on an issue that is very
important to me and, I believe, to this country.
Honourable senators, I am proud to present Bill S-237, An Act respecting
World Autism Awareness Day. I am also pleased that my Conservative friend,
Senator Don Oliver, is supporting this initiative in a major way.
Bill S-237 would make April 2 world autism awareness day, which would bring
the attention of all Canadians to the issue of autism, a problem that affects at
least one in 165 families in this country. Autism, a neurological disorder that
isolates people from the world around them, is on the rise in Canada and affects
more children worldwide than pediatric cancer, diabetes and AIDS combined. A
generation ago, autism was considered to be a psychiatric response to parents,
in particular mothers who were cold or not loving enough.
Thank goodness that nonsense has been dispelled.
Unfortunately, no hard knowledge has been gained. Autism remains a mystery.
We do not know what causes it. We do not know how to cure it. We do not know why
the number of children affected is growing. We do not have consensus about what
constitutes adequate or appropriate treatment, and we do not know how to pay for
When it comes to autism, honourable senators, we are in the dark. Families
across the country are on their own, struggling to find treatment and struggling
to pay for it. Marriages are breaking up. The stress is tremendous. Canadian
families with autism have to go it alone.
This became abundantly clear to me and other honourable senators when the
Standing Senate Committee on Social Affairs, Science and Technology conducted
its inquiry into autism. As you may remember, the Social Affairs Committee
studied autism. The title of our report, Pay Now or Pay Later - Autism
Families In Crisis, spoke volumes.
Intensive behavioural intervention, one of the treatments that has proven to
be effective for many people with autism, is very expensive. It costs from
$50,000 to $65,000 a year.
People with autism who receive little or no treatment often require full-time
care or institutionalization. In addition to these not inconsiderable costs,
there are moral costs; the loss of the potential of a human being. People with
autism who get the treatment and support they need can contribute to society.
Those who do not receive treatment and support retreat into themselves and some
become aggressive and violent.
I have met some extraordinary people in investigating this very sensitive
issue. I met young Joshua Bortolotti, as has the Leader of the Government. His
little sister has autism. This young man, just in middle school, has circulated
petitions, spoken publicly about autism and collected money for the cause. There
is nothing that he will not do for his little sister.
Honourable senators, there is just about nothing that I will not do for Josh.
Some Hon. Senators: Hear, hear!
Senator Munson: It is emotional to talk about these children and
I also met Stefan Marinoiu who walked all the way from Scarborough to Ottawa
this past winter. He did not get headlines for that. He walked from Scarborough
to Ottawa just to draw attention to the plight of families with autism. He has a
son aged 15 who is no longer eligible for treatment. Stefan said that from birth
to age 13 he could handle his son, but now his son has become very aggressive.
He is a big man, and he cannot handle him anymore. This man is so desperate that
he also went on a hunger strike in front of Queen's Park. He does not know what
to do anymore for his son.
I met Andrew Kavchak, a lonely protester with a sandwich board on Parliament
Hill who told me about autism and its devastating impact on families.
As I speak tonight, a gentleman by the name of Jonathan Howard is walking
across this country. He is not like Terry Fox, to whom we all paid attention.
Jonathan Howard started walking a month ago from St. John's and is walking to
Victoria. I do not know who is paying attention to Jonathan right now, but he is
walking to try not only to create awareness, which we all want to do, but also
to secure a national strategy to deal with autism. He may be in New Brunswick or
somewhere in Quebec, but he is still walking.
Josh is strong and brave and a fighter; Stefan is brave and a fighter; and
Andrew is brave and a fighter. However, for every Josh, Stefan, Andrew and
Jonathan, there are countless brothers, sisters and parents who feel alone, who
think we do not care. That is why a day like World Autism Awareness Day is
Autism is on the rise around the world, and we do not know why. April 2 has
been declared by the United Nations as World Autism Awareness Day. There was
consensus among 192 countries that there is a need to draw the attention of
people around the globe to this neurological disorder that is affecting more and
I remind honourable senators that Canada is a signatory to the United Nations
Convention on the Rights of the Child and the United Nations Convention on the
Rights of Persons with Disabilities. These international conventions bind us to
take action to see that children with disabilities enjoy a full and decent life
in conditions that ensure dignity, self-reliance and full participation in their
It is clear, honourable senators, that if we want to honour the commitment of
these international conventions, we must get to work. Children with autism in
Canada do not receive the protection they require, the protection we said we
would provide. This is Canada, the country of Tommy Douglas, of health care, of
a social safety net that provides security for citizens and a quality of life
that is the envy of the world.
We need to recognize autism for the health problem that it is, one that is
urgent and demanding of our immediate action. Canada's most vulnerable children
are falling through the mesh of our social safety net. Every province has a
different approach to treatment and funding. Parents need patience and
persistence to understand the intricacies of what they are entitled to, which
list to get on and where, and where to ask for help.
Honourable senators, these families have enough on their plate. We need to
make it easier and recognize that autism treatment is an essential health
service that should be funded through our health care system.
Some Hon. Senators: Hear, hear.
Senator Munson: Honourable senators will remember that the
Subcommittee on Population Health traveled to Cuba earlier this year as part of
our work. In Cuba we went to a school for children with autism. It was
impressive. Everyone can talk about Cuba and say that teachers do not get paid
very much, and so on, but this was impressive. There were 21 teachers for 21
children with autism.
I was in that school. One could cry to see them. The teachers were not
talking about money; they were just talking about caring. The children in that
school came from countries in Central and South America, not only from Cuba. If
Cuba, a poor country with so little, can do so much for their children with
autism, surely Canada, with a budget surplus, can step up to the plate.
I do not like to play politics, but in our report Pay Now or Pay Later
we said something. We asked for a national strategy.
We need help for these children. World Autism Awareness Day that I am asking
for is a small thing we can do. It will be an opportunity to raise public
awareness of autism and the need for research, early diagnosis, access to
treatment, increased training of medical personnel and support for people with
autism and their families for as long as they need support.
I remind honourable senators that the Centers for Disease Control and
Prevention in the United States have called autism a national public health
crisis. It is a crisis. I am fully aware that declaring April 2 as World Autism
Awareness Day will not fix things overnight. Families will still struggle with
the demanding and difficult task of finding and buying care for their children.
Parents will still worry about the future. Parents will still worry about the
day when they are gone, about who will care for their children with autism. Nine
out of ten children who do not receive treatment for autism are
institutionalized. This cost to our society is huge, a tragic loss of potential
and a moral travesty.
If these children had cancer, would we not take immediate action? Would we
debate whether they deserved chemotherapy, whether we had the responsibility to
treat them? Of course, we would not.
Honourable senators, I have learned a few things in my four and a half years
here in the Senate. The most important one is that small steps lead to historic
journeys. When I walked across Parliament Hill and I met a lonely protester, a
public servant with a sandwich-board calling on the government to devote more
resources to autism, I had no idea that within a year I would ask the Senate to
study autism in depth. I did not know. I had no idea that tonight, after all
these debates, which are extremely important — I wish the gallery were full of
media — I would be tabling a bill to make April 2 World Autism Awareness Day. It
is a simple thing. I think that by declaring April 2 World Autism Awareness Day,
we will make an important statement.
I want to salute Senator Oliver for his strong support for this bill. Senator
Oliver, I want to say thank you for what you do in Nova Scotia and this country,
and I know the families that you work with in Nova Scotia. It is important for
where we will take this debate. I have 13 more years here, hopefully, and we
will fight for this cause. We will fight for a national program and national
leadership. I hope that we will say to people with autism and their families:
Yes, you matter; and yes, we care. We will say to all Canadians that autism is a
growing problem that affects their community, their schools, their workplace,
their neighbourhood, and their country. Declaring April 2 World Autism Awareness
Day is one small step in a journey to see that all people with autism and their
families have the care and support they need. I hope, honourable senators, that
you will support this bill so that we can take that step and walk with Canadians
with autism and their families and say, "You are not alone; we are here with
you; and together we will make things better."
Hon. Gerald J. Comeau (Deputy Leader of the Government): I must advise
honourable senators that the 45-minute period of time normally reserved for the
second speaker is reserved for a senator on the government side.
The Hon. the Speaker pro tempore: Senator Keon, do you
wish to speak on the bill?
Hon. Wilbert J. Keon: Honourable senators, the hour is late. I will
speak briefly. I want to add my support to Senator Munson for everything he has
done for this subject. I want to mention again something I have said before in
our conversations, and that is the tremendous need for research.
Senator Munson will recall I drew an analogy between autism and AIDS when we
first confronted AIDS. There were five patients that I operated on who died
mysteriously back in the 1980s, and we had no idea what we were dealing with.
Then we heard about AIDS. I was the vice-president of the Medical Research
Council at the time, and, indeed, I was acting president for a while when Dr.
Ball was sick. We tried to do something to deal with this situation when it hit
the horizon. We did not have a single scientist in Canada who knew anything
about retroviral research.
We asked for submissions, and the submissions we received were awful. We
could not fund any of them because the science was so bad. However, we persisted
and recruited into Canada retroviral experts, and now Canada has one of the
strongest research bases in the world in retroviral studies. AIDS, while it has
not been cured, has been converted to a chronic disease.
When we deal with the unknown, the tendency is always to jump in desperation
to try to treat a situation, and that is fine; I have no objection to that at
all. However, more important than that is, we make a strong initiative to build
appropriate scientific expertise in our country, coupled with America and other
countries, to solve this, because we do not have the scientific knowledge we
need at this point in time to manage this entity on an intelligent basis.
Everything Senator Munson said is absolutely true. For some reason, in the
Western world, autism is growing in leaps and bounds. The interesting thing is
that in Cuba, it is not. It is there, but it is not growing at the same rate.
Until we have a research establishment to target this disease, we will not
make much progress in its management.
Senator Munson, I encourage you to keep hammering at that, and I can assure
you I will support you in any way I can.
Hon. Donald H. Oliver: Honourable senators, I am delighted to rise
tonight to add my support to this important initiative undertaken by Senator
Munson. For many years now, our colleague has vocalized his concerns for
Canadian families coping with autism. Time and time again, he has emphasized the
need for a national autism program, a strategy that will ensure our most
vulnerable citizens receive the necessary health care and social support that we
Canadians value most.
Senator Munson's dedication to the well-being of Canadians with autism
inspires us all to lend our voice to this cause. This bill, to recognize April 2
as World Autism Awareness Day, is yet another example of Senator Munson's
commitment to raise awareness about autism.
Autism spectrum disorders, ASD, are an important health and social issue in
Canada. Approximately one in every 165 Canadian families is affected by ASD.
This complex lifelong developmental disability affects individuals regardless of
their race, religion, socio-economic status or geography. It has no known cause
and no known cure.
Bill S-237 is of particular importance since the number of Canadians
diagnosed with ASD has increased by 150 per cent in the last six years. In fact,
there are currently 48,000 children and 144,000 adults with autism in Canada
This bill proposes that we join the global effort to focus the world's
attention on autism. On World Autism Awareness Day, communities around the world
will speak up about autism by coordinating events to acknowledge the daily
realities of people living with this condition.
World Autism Awareness Day stems from United Nations Resolution 62/139 which
was passed on December 18, 2007. April 2 has become one of only three
disease-specific UN days.
This day expresses the UN's deep concern at the prevalence and high rate of
autism in children in all regions of the world and the consequent developmental
challenges. In fact, more children worldwide are affected by autism than
pediatric cancer, diabetes and AIDS combined.
This day will also acknowledge the ongoing struggles and extraordinary
talents of the approximately 35 million people living with autism in our
The UN resolution is an active way of encouraging member states like Canada
to emphasize the importance of universal human rights and, more specifically,
the rights of the disabled.
When speaking on the objectives of World Autism Awareness Day, UN
Secretary-General Ban Ki-moon said:
. . . let us dedicate ourselves to enabling the family, the most basic
unit of society, to fulfill its role ensuring that persons with disabilities
enjoy full human rights with dignity, and flourish as individuals.
Within our Canadian communities, individuals with ASD and their families are
longing for our support. Bill S-237 reaffirms the government's commitment to the
health and social well-being of all Canadians. Individuals with ASD are equal
members of our community, and they need to know that they are not alone.
By increasing autism awareness, World Autism Awareness Day will address
social misconceptions associated with autism. It will also discourage the
stigmatization and discrimination of autistic individuals. By highlighting their
incredible talents and potential, we are working to ensure that all Canadians
When testifying before the Standing Senate Committee on Social Affairs,
Science and Technology, Dr. Jeanette Holden of the Autism Spectrum Disorders
Canadian-American Research Consortium emphasized the importance of increasing
awareness about autism spectrum disorders. She explained:
We need to appreciate the gifts they have and their ability to be happy.
We also have to understand that many of these kids are suffering from
medical conditions that are not recognized. They may be acting out or having
problems because they are in pain from unrecognized conditions. We must ask
what is causing these behaviours. Is it because they just want to be naughty
kids and be a nuisance? No. There is a reason. They are either
intellectually frustrated or medically compromised. All of these factors
must be taken into account.
Autism Awareness Day will sensitize our communities on the difficulties of
raising a child with autism. It will create a greater support network for
As honourable senators can imagine, parenting a child with autism can be
quite challenging. It requires great patience, strength and devotion. In fact,
research has shown that families of children with autism experience high levels
of stress, more than families with other types of disabilities. This stress can
sometimes lead to despair, depression and, in the worst cases, suicidal
thoughts. These caregivers need our support.
I wish to take a moment to speak about the significant work that is being
done in Nova Scotia.
Joan and Jack Craig of Nova Scotia have done tremendous work to support
Canadian families in the Atlantic region. They are known for their devotion and
dedication to finding answers and increasing our understanding of ASD.
Their vision and generosity led to the establishment of the Joan and Jack
Craig Research Chair in Autism at Dalhousie University, which was founded in
2001. It is the first endowed chair in autism research in Canada.
Its chair holder, Dr. Susan Bryson, is recognized internationally as a
leading expert on autism and related disorders of development. The chair is
working on attention and emotion in children with autism. They are also
conducting a groundbreaking, comprehensive, multinational study on infant
siblings of children with autism. They are charting the first signs of autism in
order to develop modules for frontline physicians to use in their practices.
Jack and Joan Craig have also founded a provincial autism centre in Halifax,
Nova Scotia. This professionally-run resource centre is focused on helping
parents and professionals "access quality education about autism spectrum
disorders." The centre welcomes approximately 2,000 people a year, including
individuals with autism, their parents and siblings, students, and people
interested in learning more about ASD. It is the largest source of information
on ASD in Eastern Canada. Its extensive library and resource centre is in high
demand, so much so that they can hardly keep the material on the shelves.
The centre provides social activities for teens and young adults with ASD,
many of whom have never had social activity with peers before. Weekly events
allow individuals to interact and socialize.
The centre also focuses on introducing young people with ASD to the community
as volunteers. The outcomes of this initiative have been extremely positive
since it allows the community to better understand autism while providing
individuals on the spectrum with valuable opportunities.
The centre is also increasing awareness in Canadian workplaces and
universities. Only 12 per cent of people living with autism are employed, and
only 1 per cent of these individuals will find employment in their area of
specialty. The centre is working on bridging this gap. By working with teachers
and employers, the centre hopes to identify strategies to help create a positive
learning environment for individuals with autism.
The centre has had many successes since its 2002 opening. For instance, the
young adults in the centre publish their own newsletter called Autism Aloud
and they can chat one-on-one on the supervised chat line.
Thanks to the Craigs' passionate perseverance and dedication to the
well-being of all Canadians, I am certain that the centre will have continued
success in the future. Their work continues to provide credible information and
life-changing opportunities for Canadians in need.
As parents of a 54-year-old with autism, the Craigs understand the challenges
and rewards of parenting a child with ASD. Like any parent, parents of a child
with ASD want what is best for their child. They question whether their child is
receiving the necessary support and whether he or she will be able to live an
independent life, yet trying to find and access necessary services, effective
treatments and support networks are an ongoing challenge.
Carolyn Bateman, who is the mother of a 24-year-old son with autism and
co-founder and past president of the Autism Society of P.E.I., explained to the
Standing Senate Committee on Social Affairs, Science and Technology:
Families want older children to be independent and feel self-worth, a
sense of belonging and to know that someone cares enough that they will not
be sent to an institution or an inappropriate setting when their parents are
not around. No human being should be expected to live without that in this
This bill acknowledges the challenges that I have just described. It
demonstrates that we, as Canadians, care about these individuals. More
important, it proves that we want to increase dialogue and identify strategies
to improve their situation, yet many of us do not know the challenges related to
living or caring for an individual with ASD.
Dr. Eric Fombonne, Director of Child Psychiatry at McGill University,
. . . the typical pattern is that parents become aware of problems at age
16 or 18 months on average, and then they must wait. They go to their
pediatricians, and there is a waiting time of six to eight months before
they are taken seriously. Then they refer the child to us, and they wait in
my centre for 12 months at this point in time before they can be seen.
Anne Borbey-Schwartz, a former senior therapist and trainer in Intensive
Behaviour Intervention, explained that this waiting period often leads to
parents becoming skeptical towards "the system." She said:
. . . through months of waiting and struggling to come to terms with the
situation, their trust in the system has faltered.
The Autism Canada Foundation has also reported that, "unfortunately, many
pediatricians and other physicians are not experienced in diagnosing autism."
They also explain that many health professionals guide parents with a "wait and
see" approach or promises that the child will "catch up" one day.
Yet, early diagnosis and early intervention of ASD are keys. During his
December 7, 2006 testimony, Dr. Bernand Deslisle, a member of the
Franco-Ontarian Autism Society, explained to the Senate committee that:
. . . all the experts agree that autistic children and adolescents are
children at risk and thus their needs are commensurately great. It has been
proven that the quality of life for autistic children can nonetheless be
improved through early diagnosis and treatment, combined with subsequent
support from appropriate programs and services.
Yet, Canadians with autism spectrum disorders have unequal access to services
across the country and they are required to wait for assistance. This cannot
More worrisome still were the statements to the committee which indicated
that "the service system for adults is woefully inadequate. The recognition of
the mental health needs of adolescents and adults is very important and often
missed and misunderstood." Parents of "adult children" are left with very few
health and social support networks and continue caring for their children as
they themselves age.
Our own Senate committee "recognized that family caregivers are struggling to
provide the best care possible for persons living with autism. Their emotional
and financial hardships are very real, and a solution must be found."
Clearly better knowledge about autism is needed for all Canadians who deal
with this disorder. This includes parents, siblings, family members, service
providers and policy-makers. In advance of any strategic work to address autism,
it is essential that governments and stakeholders better understand its causes
and optimal interventions.
While services to screen and treat autism remain a provincial/ territorial
responsibility, the Government of Canada is committed to supporting the evidence
base on this important issue so that future action by provincial and territorial
governments, caregivers and families will be well-informed. The government is
therefore collaborating with a range of partners to support those with autism
and their families through research and knowledge-based activities.
For example, on October 20, 2007, the Government of Canada announced the
establishment of the National Chair in Autism Research and Intervention at Simon
Fraser University. The chair is jointly funded by the Government of British
Columbia and Health Canada and is contributing $1 million over five years on
this initiative. Moreover, a web page with links to relevant information on
autism has been included on the Health Canada website, and will continue to be
enhanced as new developments arise.
The Canadian Institutes for Health Research has also done significant work in
autism. From 2000 to 2007, it spent or committed approximately $26.1 million for
related research. This research is exploring many relevant issues, including
autism's causes, origins and treatments.
The National Autism Research Symposium, which took place on November 8 and 9
in Toronto, was also a positive development in autism research. Service
providers, policy-makers, researchers and people with autism and their families
gathered to share knowledge and to support dialogue and to discuss future
In addition to activities which support improved knowledge and awareness of
autism, the federal government already provided significant transfers to
provincial and territorial governments for health care and social programs
through the Canada Health Transfer and the Canada Social Transfer respectively.
This is good news for Canadians.
I am confident that these activities will contribute to greater evidence and
awareness of autism, and will enhance Canada's capacity to address this
Honourable senators, in conclusion, I would like to leave you with the words
of Anne Borbey-Schwartz. When testifying before the Senate committee she said,
"It takes a community to raise a child." She emphasized that "a child with
autism deserves no less." I could not agree more.
I would like to thank Senator Munson for calling on us all to recognize the
unmet needs of this community. He has lent his voice to this important cause by
reminding us that individuals with ASD and their families are in desperate need
of our support.
Honourable senators, Senator Munson's bill is our opportunity to send a clear
message to all Canadians that individuals with autism are a valuable part of our
community. By officially declaring April 2 World Autism Awareness Day, we are
giving them a voice. Let us join with other UN member states in declaring April
2 World Autism Awareness Day.
Hon. Marilyn Trenholme Counsell: Honourable senators, I know the hour
is very late, but I have to say this: I want to give great praise to my fellow
New Brunswicker, Senator Munson, for not only this bill but all of his work on
autism. It shows his passion and his compassion.
I also want to say that I applaud Senator Keon for his comments about
research because that is really the number-one thing at this time. The World
Autism Awareness Day will help, but the research is fundamentally necessary.
I did hear mention made of an autism school in Cuba. I know that Senator Keon
will bring to us valuable information in his report on population health based
on Cuba, but I want to say this: One of the very last things that Premier
Hatfield did — former Senator Hatfield — was to introduce a bill in the
Government of New Brunswick that would end segregated schools. He closed the
William F. Roberts School and it was left to the government, of which I was a
part, to bring in full integration. In the last two years, we have had another
study by a learned academic, in which New Brunswickers said yes to full
I will now tell honourable senators a little story. I know a child very well
who has autism. Up until a few months ago, he was able to have his lunch with
all the children in the school, in the cafeteria. Then, because resources were
cut, they said no, there will be a table where children like him will have their
lunch. His parents got very upset because he did not eat. He was not eating and
he was crying about his lunch and the lunch can was still full when he came
home. They looked into the matter and it was because he had been separated with
other autism children. They fought a hard battle, and I helped them, and they
got that additional teacher assistant back and the child was able to eat in the
cafeteria with all the children.
That is the message: Inclusion is so important. The awareness is important
and the knowledge that Senator Keon will bring from a country that is doing
better probably than we are. Research, yes, but let us always have inclusion. I
pay tribute to former Premier Hatfield and former Senator Hatfield for breaking
down those barriers and saying yes to inclusion in New Brunswick.
Hon. Terry M. Mercer: In light of the late hour, I will adjourn the
debate quickly, except that I do want to associate myself with comments by
Senator Munson and Senator Oliver, and also to support the Jack and Joan Craig
Foundation in Nova Scotia.
People do not understand how important are these days of recognition. By
declaring April 2 World Autism Awareness Day in this country, it brings a focus
to a problem that we have been dealing with. It took Senator Cochrane two years
to get it done. We drew the attention of this chamber and the entire country to
World Blood Donor Week, which was celebrated last week, and it brought a whole
new focus to this issue. This is extremely important.
As a former executive director of the kidney foundation and the diabetes
association, and some of us worked for the lung association over the years, I
understand how these days help focus the public's attention, and how these days
focus what we are doing.
I have had the privilege of knowing several families with autistic children.
The parents of these children, who must manage the difficulties they experience
to raise these children, are some of the most special people in the world. We
need the compassion and we need to bring to this debate the compassion that goes
beyond this place. We need to carry it out into the community, as Senator
Trenholme Counsell has talked about, with her case of the child who was
segregated in the cafeteria.
On motion of Senator Mercer, debate adjourned.
The Hon. the Speaker: Honourable senators, in accordance with rule
6(1), it being twelve o'clock midnight, it is declared that a motion to adjourn
the Senate has been deemed to have been moved and adopted.
The Senate adjourned until Wednesday, June 18, 2008 at 1:30 p.m.