Debates of the Senate (Hansard)
2nd Session, 40th Parliament,
Volume 146, Issue 61
Wednesday, October 21, 2009
The Honourable Noël A. Kinsella, Speaker
Wednesday, October 21, 2009
The Senate met at 1:30 p.m., the Speaker in the chair.
Hon. George J. Furey: Honourable senators, at approximately noon on
Monday, October 19, an explosion occurred in one of the boilers at the Cliff
Central Heating and Cooling Plant. This plant is the main supply of heating and
cooling for the Parliament Buildings as well as many other buildings within the
downtown core. A total of 48 buildings' utilities were affected by this
Public Works and Government Services Canada is currently working with all
emergency services, including the Fire Department, Police Technical Standards
and Safety Authority and Labour Canada in efforts to activate a new supply of
steam to the affected buildings from the Canadian Government Printing Bureau.
Unfortunately, colleagues, some Public Works employees were injured during
this most regrettable accident, and I am saddened today to inform you of the
passing of Mr. Peter Kennedy.
Mr. Kennedy, a Public Works employee for 22 years, was an outstanding
individual and admired by all those who worked with him. He was a dedicated and
experienced engineer who was completing his work when this unfortunate incident
occurred. Severely injured, Mr. Kennedy passed away yesterday morning surrounded
by his family and loved ones.
On behalf of the Standing Committee on Internal Economy, Budgets and
Administration, and on behalf of the Senate, I wish to extend our sincerest
condolences to his wife, Terri, and their four children.
As well, we extend our thoughts and prayers to the Kennedy family and to the
other employees who sustained injuries and those currently mourning the loss of
a fellow colleague and friend during this most difficult time.
Hon. David Tkachuk: Honourable senators, I join my honourable friend
Senator Furey in expressing my condolences to the family and friends of Peter
Kennedy, the man who died early yesterday morning from the injuries he suffered
in the boiler explosion at the Cliff Heating and Cooling Plant on Monday.
By all accounts, he was a good man, a good husband and a good father. You
cannot ask more from anyone. Peter Kennedy was a public servant. He was admired
and looked up to by his colleagues, who considered him a mentor, a highly
qualified professional engineer who was just doing his job when we was killed.
He was only 51.
After the accident, his colleagues, without fail, remarked on his kindness
and his sense of humour, and who among us would not want to work beside, with or
for such a man. On behalf of all our colleagues in the Senate, to Peter
Kennedy's family, to his wife and children and to his friends, we extend our
Hon. Jane Cordy: Honourable senators, I take this opportunity to
highlight the good work of Global Relief Outreach Foundation of Canada. Global
Relief Outreach, or G.R.O. Canada, is a Toronto-based NGO, which is currently
operating in Lesotho, South Africa.
G.R.O. Canada's goal is to provide assistance to projects that are already in
existence but lack the necessary resources and support needed to succeed. In
Lesotho, G.R.O. is supporting projects that were initiated by local groups
working in collaboration with development workers already living in their
G.R.O. has three major projects in Lesotho: The Family Scholarship Fund and
two social enterprise projects, Artisan's Collective and the Grandmothers
The Family Scholarship Fund provides academic support to orphaned and
vulnerable high school students affected by HIV and creates environments that
encourage collaborative support, strengthening students as young advocates to
join together in supporting each other and their communities.
For the Artisans Collective project, the G.R.O. Foundation has provided
start-up capital and supplies, facilitates handicraft training for women living
with HIV, and has connected them with business opportunities locally and abroad.
Over the past year, the collective has become completely self-sufficient,
facilitating business growth with their profits.
The third major project, the Grandmothers Support Group, is an initiative
that was created to help sustain a local HIV home care operation, run almost
exclusively by grandmothers. G.R.O. has worked closely with the "grannies
group" to build a small poultry production business where profits are invested
in health care kits that allow the grandmothers to provide, and expand,
home-based health care services throughout their community. As part of G.R.O.'s
sustainable social-enterprise model, this project has also become entirely
G.R.O. was created in 2006 by Canadian development worker James White and two
American counterparts, Jean Margaritis and Greg Felsen, with start-up financial
support provided by Toronto businesswoman Sharon Oatway. Two of G.R.O.'s
founders continue to live in Lesotho and work closely with the project partners.
G.R.O. Canada is now also governed by a volunteer board in Canada, including Dr.
Megan Landes, Terry Aldebert, James White and by a volunteer executive team. The
Canada-based G.R.O. operations team acts as secondary advisers to local
projects, primarily focusing on linking local groups with international
resources and maintaining the trust of donors through project follow-up.
As G.R.O. continues its work in Lesotho, Canada, the United States and
throughout the world, they continue to guarantee that 100 per cent of donated
funds are sent directly to Lesotho for direct project support and to benefit the
project partners of the communities they engage in. G.R.O. Canada seeks to
extend its mandate and mission throughout the world's developing communities,
committing to global development initiatives that respect cultural differences,
provide direct and tangible support and link the people of Canada with projects
making real difference in struggling communities everywhere.
Representatives of G.R.O. will be on the Hill this week. I look forward to
meeting with them, and I encourage other interested senators to do the same.
Hon. Michael A. Meighen: Honourable senators, as a graduate of McGill
University, I am proud to report that my alma mater and that of some other
honourable colleagues is truly on a roll.
In the recently released Times Higher Education World University
Rankings, McGill University placed eighteenth for the sixth consecutive year
finding itself in the top 25 in the world and the highest-ranked Canadian
university. In addition, McGill was judged North America's top publicly funded
Another recent accolade for McGill has come from Maclean's magazine,
which ranked its faculty of law second among Canadian common law schools. In
addition, McGill placed first for success at placing Supreme Court clerks, and
second both for the number of graduates hired at elite firms and as professors
at Canadian law schools.
The announcement of these exemplary rankings coincides with the announcement
that two former McGill students have won Nobel Prizes. Willard Boyle is one of
the recipients of the Nobel Prize in Physics, while Jack Szostak shares the
Nobel Prize in Physiology or Medicine with two other researchers.
On the heels of these remarkable developments, McGill University has just
concluded its inaugural Leadership Summit. Among other things, this marked the
$500-million milestone, or the two-thirds point, of Campaign McGill's drive for
$750 million. Perhaps the highlight of this two-day event was the conferring of
an honorary doctorate on former U.S. president Bill Clinton.
In a riveting 45-minute speech, delivered basically without notes, the former
president demonstrated why he is widely considered one of the top orators of our
time. He lauded Canada for exhibiting a "communitarian consciousness" — a
recognition of our mutual dependence on each other as manifested by a high level
of concern and care for all of our citizens. He said that the United States and
the world at large could benefit from adopting more of such an approach on
issues as varied as health care and support for the less fortunate.
The former president also spoke of the role of universities:
Canada and the United States built great, throbbing, vibrant countries,
partly on the shoulders of a meritocracy — that's really what a great
university is, isn't it? — you find a child, a young boy or girl without
regard to their background and give them a chance to learn what they can
learn, do what they dream of doing and then it all adds up to something great.
He also discussed Third World development, stating that the:
. . . intelligence you see in the young people at McGill can be found
anywhere in the world; intelligence is evenly distributed, and so are dreams,
but structure, which gives predictability of consequence to action taken and
investments in opportunity, are not. It's simply going to be impossible for us
to build the world we need unless in the wealthy countries we are ruthlessly
honest about where we are wasting money and hanging onto yesterday's way of
Thoughtful words, honourable senators. Thoughtful words indeed.
Hon. Lillian Eva Dyck: Honourable senators, this past October 4,
Sisters In Spirit vigils were held nationwide across Canada to remember missing
and murdered Aboriginal women and girls.
This is an important day to publicly call for action, accountability and
justice for Aboriginal women. Specifically, it is a time for Canadians to take a
stand and demand action in efforts to bring attention to the issue of violence
against women. This year, an astonishing 72 vigils in 69 communities took place
from coast to coast to coast.
According to the Native Women's Association of Canada, there have been an
estimated 520 reported cases of missing and murdered Aboriginal women and girls
in the last 30 years. However, there is no complete or accurate number of
Aboriginal women and girls who have gone missing or been murdered. As a result,
there is a strong possibility that many more cases have not been reported or
At the core of this crisis, there is an epidemic that exists within Canadian
society. It is an epidemic that targets Aboriginal women simply because they are
Aboriginal. High rates of all forms of violence, particularly sexualized and
racialized violence, is targeted at Aboriginal women. As a result, Aboriginal
women are five times more likely than non-Aboriginal women to die of violence.
Honourable senators, there are many underlying factors that contribute to
this problem. Take, for instance, the high prevalence of poverty facing many
Aboriginal women. Far too often, Aboriginal women and girls have no social
supports or resources in place to help them make better choices in life.
Instead, they are left vulnerable, with little or no guidance or direction in
their lives. As a result, many are left hopeless, powerless and choiceless, with
no vision forward of a healthier, safer life.
Not only is it alarming that more than half of the murders and disappearances
of Aboriginal women and girls occurred in the last 10 years, it is also
startling that the majority of them were under the age of 30. Nearly half of the
cases remain unsolved, with no charges laid. This is worrisome. It sends a
strong message that Aboriginal women are dispensable and unimportant.
Honourable senators, October 18 marked the eightieth anniversary of the
Persons Case, where women were legally recognized as persons and, therefore,
could become senators. The numbers of missing and murdered Aboriginal women make
it clear that we have a long way to go before Aboriginal women are also valued
and respected persons.
The Hon. the Speaker: Honourable senators, rule 18 requires that the
Speaker is to maintain order in the house. I am sure that you would find me
failing in that duty and consider it to be totally out of order if I was not to
point out that below the bar is the longest serving Speaker of the other place.
Hon. Senators: Hear, hear!
Hon. Mobina S.B. Jaffer: Honourable senators, today I rise to speak
about an outstanding Canadian, a dedicated public servant and a respected world
leader, the Right Honourable Jean Chrétien, and the great honour bestowed upon
him. Yesterday, our former prime minister was officially decorated with the
Order of Merit at Buckingham Palace in London by Queen Elizabeth II, making him
the twenty-fourth member of the order. This is a special honour not only for
him, but for all Canadians.
In 1902, King Edward VII established the Order of Merit to honour "those
individuals of exceptional distinction in the arts, learning, the sciences and
public service." Members of the Order of Merit are not appointed on the advice
of any government or minister; rather, these appointments are made as the
Queen's personal gift.
As an active member of the Liberal Party of Canada for many years, my
relationship with Mr. Chrétien is very long. He opened up the Liberal Party to
Canadians from all walks of life. He made it possible for my family and I to
play many roles in the party, and yet he went further — with the help of Senator
Mercer — to ensure that a diversity of people worked for the party and for
Today, honourable senators, we know the gender balance of the Senate is much
improved because of the many women Mr. Chrétien appointed to this chamber. With
the valuable support and advice of his wife Aline, he furthered the dreams of
the Famous Five, who have recently been honoured by us.
Mr. Chrétien was also aware that there existed a common evil that haunted
humanity equally. He believed that members of Parliament needed to possess these
preoccupations in common in order to ensure the world would be a better place in
the future. Today, he works in many countries around the world, including my
country of origin, Uganda, to improve the lives of the people in these places.
Mr. Chrétien has great respect for this institution of Parliament and urged
that its members respect each other the very same, despite their differences.
In his final speech to the House of Commons, he noted:
We try too much to attach the personalities and so on about everything and
small things. I urge all members of Parliament not to fall into the trap that
sells newspapers, but destroys the institution.
Honourable senators, though I could stand before you today and recite all the
milestones Mr. Chrétien has achieved throughout his career, I feel the best way
to honour him is to celebrate his passion for the welfare of Canadians and the
institution of Parliament.
Some Hon. Senators: Hear, hear.
Hon. Hector Daniel Lang: Honourable senators, I rise today to
recognize a nationally and internationally renowned artist who has captured the
magic of Canada's Yukon and presented it to the world. I speak of Yukon's one
and only Ted Harrison.
This past week, Val and I were fortunate enough to accompany Ted and his
biographer, Katherine Gibson, to a tea hosted by Ms. Harper to honour Ted and
the hanging of his 12 original illustrations of Canada at 24 Sussex Drive.
Ted has donated this valuable collection to the Canadiana Fund and was
thrilled to have them displayed in the foyer of the Prime Minister's residence.
While there, Ted had the opportunity to meet Ms. Harper's daughter's grade 5
class who had been studying his work.
I also want to thank Harvey Slack and Paul LeBarge, who were in attendance
and worked hard to make this event happen.
Later in the week, Ted had an exhibition and an eastern Canadian book launch
of his biography, Ted Harrison: Painting Paradise, by Katherine Gibson.
It is well done and I recommend that all senators consider acquiring a copy of
this biography for their collection of Canada's works.
Over the years, Ted Harrison has been bestowed with numerous honours,
including the Order of Canada. At 83 years of age, Ted continues to paint and
his work is sought after by collectors and curators alike. Yet today, his works
have not been included in our National Gallery of Canada. In fact, no one from
Yukon is represented in the National Gallery.
I know that many of Ted's fans and admirers are asking why. It is my hope
that this national prestigious recognition will come sooner than later.
Hon. Catherine S. Callbeck: Honourable senators, my question is to the
Leader of the Government in the Senate.
Last month, when the G8 had its first international conference on violence
against women, the Government of Canada was not represented.
Some Hon. Senators: Shame.
Senator Callbeck: In fact, the only person from Canada in attendance
was opposition MP Irwin Cotler, who was invited as a special speaker.
Does the federal government not recognize that violence against women is a
serious issue in this country?
Hon. Marjory LeBreton (Leader of the Government and Minister of State
(Seniors)): I thank the honourable senator for that question.
Of course, the government recognizes that violence against women is a serious
issue. Anyone suggesting anything different is misrepresenting the facts.
As Honourable Senator Callbeck knows, our government has launched a massive
campaign to deal with the issue of elder abuse. Many of the templates and rules
follow along the same campaigns used in the past, not only by the federal
government but also by provincial governments, on violence against women.
I do not think this issue has anything to do with partisanship; there is
nothing partisan about this issue. Whether one is a Liberal, a Conservative, an
NDP or whatever, the issue of violence against women is dealt with seriously.
I appreciate the honourable senator's question so that I can put on the
record that violence against women, and violence against any member of society,
is something that will not and cannot be tolerated.
Senator Callbeck: With all due respect, minister, actions speak louder
than words. If the Canadian government considered violence against women to be a
serious issue, why was the government invisible at this first G8 conference?
I find it embarrassing that Canada was not represented, as the other G8
countries were, by ministers or ambassadors. Why was the minister or her
representative not in attendance at this G8 conference?
Senator LeBreton: I will specifically ask that question. Attending
conferences is not the only method that the government or anyone uses in dealing
with violence against women. As a government and as a society, we take many
steps to provide conditions where women can advance in our society. Women — I
have said this before — are throughout society. They are in lobbies like this
one. More women are graduating from universities. More women are in law, health
and all aspects of university, the sciences and technologies. There are even
more women in the trades.
Violence against women, as I mentioned a moment ago, is a serious matter. It
is not a political matter. Anyone who tries to make it a political matter is
doing a great disservice not only to themselves but to women in general.
Senator Callbeck: I agree with the minister that the issue is serious.
No, it is not a political matter.
However, if the government takes violence against women seriously, why was
the minister or her representative not at that first G8 conference on violence
Senator LeBreton: As I have already told honourable senators, I am not
aware of any of the circumstances surrounding the reasons.
A person's participation at a conference, in and of itself, does not deal
with the serious issue of violence against women, or violence against anyone in
our society, for that matter. I do not know why. There are probably good and
valid reasons. I will endeavour to ascertain what they might be.
To suggest that because a minister did not go to a conference, the government
does not treat the issue of violence against women seriously, is insulting.
Hon. Claudette Tardif (Deputy Leader of the Opposition): Honourable
senators, today the Liberal women's caucus released the third volume of its Pink
Book, An Action Plan for Canadian Women.
Some Hon. Senators: Hear, hear.
Senator Tardif: The Liberal Party takes women's issues seriously, as
these issues are also issues of concern to all Canadians.
On the other hand, this government has cancelled the Court Challenges Program
providing women with a voice before the courts; it has shut 12 Status of Women
offices across the country; it has cut funding for advocacy groups and research;
it has denied real pay equity; and it has reneged on early learning and child
care agreements that the previous Liberal government had signed with all
provinces. Women in Canada deserve better.
My question is simple: When can Canadians expect the first volume of a
Conservative pink book, or is slashing former support programs the only platform
this government has to offer to Canadian women?
Hon. Marjory LeBreton (Leader of the Government and Minister of State
(Seniors)): Honourable senators, I understand this book is the third volume
of the Pink Book. I hope it is more successful than the two previous books.
We in the government, we on this side of the chamber and we in the
Conservative Party do not have to put out a Pink Book to demonstrate our
commitment to women's issues.
Some Hon. Senators: Hear, hear.
Senator LeBreton: As a matter of fact, our political party gave women
the vote and our political party had the first woman cabinet minister.
We have this age-old argument in this chamber that the programs in place
under the honourable senator's government should have been carried forward
automatically by this government. When we came into office, we were elected on
our own platform.
To quote a famous woman in the Liberal Party, when she talked about the
Liberal child care program, she said it was a cash cow for government. That was
We believe in the full participation of women in Canada's economic, social
and democratic life. I am proud that we have the highest proportion of women
appointed to cabinet in the history of the country. In this past election, our
party showed its commitment to the political engagement of women by electing the
most of all parties, 23, representing 37 per cent of Conservative female
There is this mythology that somehow or other we cut funding to the Status of
Women. We did not; we increased funding. Typical Liberal policy was to have
several people sitting in offices talking to each other. We put money in the
communities to help women where they work and live. That is what we did.
As honourable senators know, the Minister of State for the Status of Women is
working on developing an Action Plan for Women. As a woman, I am quite insulted
that Senator Tardif would think that, somehow or other, the Liberal Party has a
corner on the women's market. It does not.
Senator Milne is shaking her head because she does not like what I am saying.
During her statement, I heard Senator Jaffer talking about all the things
Jean Chrétien did for women. I was once in a position to do something for women,
and it involved appointments. In the prior Liberal government, less than 15 per
cent of appointees were women, and they held all the stereotypical positions —
various health boards, Employment Insurance, and the like.
When we came into government, we named women to the head of the Export
Development Corporation, the Civil Aviation Tribunal and the Veterans Review and
Appeal Board. We raised the number of women in major positions from less than 15
per cent to 33 per cent. By the way, one of the appointments that we made as a
government was none other than Mobina Jaffer.
Senator Tardif: Honourable senators, it is obvious that this issue is
a very sensitive one for the government.
It is also obvious, honourable senators, that the Conservative government
does not see things through rose-coloured glasses. Under this government, the
word "equality" was erased from the Status of Women Canada mandate. But equal
rights are a fundamental value of Canadian society.
When will the government stop silencing organizations that fight for women's
equality? When can women expect to see the Court Challenges Program reinstated?
Senator LeBreton: Honourable senators may think I am a little
emotional about this issue. I am emotional, because I am sick and tired of the
mythology and this idea that only Liberals can speak for women. That is simply
not the case.
In terms of equality, our government actually increased the budget of
programs under Status of Women Canada by 42 per cent. That is 42 per cent more
than was spent on the Women's Program under the previous government.
I get emotional about this issue because I know what I am speaking about. I
was involved in advancing and promoting women for many years in the Conservative
Party, and I am extremely proud of Prime Minister Stephen Harper, of the women
we have in our cabinet and of the commitment we have to women in this country.
Hon. Jane Cordy: Honourable senators, my question is directed to the
Leader of the Government in the Senate.
We learned on Sunday that the Conservative government's presentation of the
second report on the progress of its widely publicized Economic Action Plan came
at a cost of $108,000 to Canadians. Not included in the tab was the cost of
bringing the Challenger jet to the event. The best guess of that cost would be
$22,000, leading to a total of at least $130,000.
The photo op that took place in Cambridge on June 11 could and should have
taken place in the House of Commons, at little or no cost. Instead, the Harper
government carefully crafted a closed, Conservative-only event. Again, it seems
apparent that this government is simply unable to draw the line between tax
dollars and the Conservative Party coffers when it comes to promoting itself.
At a time when Canadians are losing their jobs and having a hard time paying
their bills, did this Prime Minister believe it was good management that the
government spend over $130,000 of taxpayers' money to stage this photo op?
Hon. Marjory LeBreton (Leader of the Government and Minister of State
(Seniors)): Honourable senators, that is really rich, Liberals worrying
about taxpayers' dollars.
The fact is that the government brought in an Economic Action Plan in
January. At the insistence of the opposition, it was decided that there would be
regular reporting of the progress of the stimulus packages and the Economic
We have been clear on this from the beginning. We believe that the country is
bigger than Ottawa. We do not apologize whatsoever for the Prime Minister
travelling around the country, whether to Saint John, New Brunswick, or
Cambridge, or wherever, to promote the government.
Furthermore, instead of relying on newspapers for her research, if the
honourable senator had delved into this issue, she would have realized that over
$50,000 of that money was spent on printing, in both official languages, the
update on the Economic Action Plan.
Senator Comeau: Requested by the Grits.
Senator Cordy: None of us — no senator, no Prime Minister, no MP —
should ever apologize for travelling around and meeting Canadians, but what we
should apologize for is using taxpayers' hard-earned dollars for partisan
These events were Conservative-only events where no media questions were
permitted. Indeed, during the event in Saint John, New Brunswick, a New
Brunswick member of Parliament, Brian Murphy, was refused admittance not once
but three times.
Some Hon. Senators: Shame!
Senator Cordy: Recent investigations by the Ottawa Citizen and
the Halifax Chronicle-Herald reveal that a disproportionate amount of the
stimulus package contained in the Economic Action Plan is being distributed to
Conservative-held ridings, while the rest of Canadians, including my riding in
Dartmouth, wait for their fair share of stimulus money.
On the other hand, the Parliamentary Budget Officer's report issued last week
highlighted the fact that the details are so scarce that it is impossible to
confirm whether the measures have had an impact at all.
Some Hon. Senators: Question.
Senator Cordy: In Oakville last month, after a Tory candidate said
that a project was killed because the riding was Liberal, the Prime Minister
said that he could provide a list of announcements made across the country.
Three weeks later, when Stephen Maher, a reporter for the Halifax
Chronicle-Herald, made repeated requests for the list the Prime Minister's
Office told him to stop bothering them. They suggested he click on 6,000
individual links on a government website and make his own list.
I ask the government leader: Is this the government's idea of openness and
Senator LeBreton: Honourable senators, as I said, they rely on Stephen
Maher and Glen McGregor for their research and, of course, their in-house
reporter Joan Bryden.
It is interesting that now these individuals are saying they cannot find out
where the money has been spent. The last two days they have been accusing us of
spending the money. It is the old saying: "You can't suck and blow at the same
Honourable senators, the fact is the so-called study of Stephen Maher and
Glen McGregor chose arbitrary measurements of $1 million plus. I will list some
of the biggest projects. These are just the ones in Toronto, where there has
been a half a billion dollars allocated and there is not a Tory seat there. As
well, the Mayor of Toronto thanked the Prime Minister for all the effort by this
When Stephen Maher and Glen McGregor get together with Gerard Kennedy, you
can be sure it will be pretty lousy research.
I will go through some of the biggest projects. These are the ones Stephen
Maher, Glen McGregor and Gerard Kennedy did not bother to mention. There are
some worth hundreds of millions of dollars, such as the Evergreen Transit Line;
the Toronto-York Spadina Subway Line; the Sheppard Subway Line; and the Ottawa
Convention Centre, which are all located primarily in opposition ridings.
If senators look at the electoral map for the last election, the majority of
the land mass in this country is represented by Conservative candidates.
However, we do not follow riding boundaries. We work in consultation with the
municipalities and the provincial governments, and certain members of Parliament
have had a certain amount of money ascribed to them. Why? It is because the
Trans-Canada Highway runs through their riding. Of course, that is supposedly
infrastructure in their ridings.
Stephen Maher and Glen McGregor were at it again today on the Recreational
Infrastructure Canada program. I will give more examples.
In Ontario, of the 57 maximum $1-million projects, 28 were allocated to
government ridings and 29 were allocated to opposition ridings.
Some Hon. Senators: Oh, oh.
Senator LeBreton: The article falsely states that the
Conservative-held riding of Kenora received more projects than any other riding.
The NDP-held riding of Trinity-Spadina has the most projects in Ontario,
receiving 67 of 766 projects, totalling $13 million.
In Atlantic Canada, out of a total of 130 Recreational Infrastructure Canada
projects, approximately 85 have gone to opposition ridings.
In Alberta, there is only one opposition-held riding — we cannot help that —
yet our government invested $1 million toward a local facility in that
In Saskatchewan, there is only one opposition-held riding — we know who that
is — yet our government has invested in four Recreational Infrastructure Canada
projects in that riding alone.
In the province of Quebec, the Quebec government is the prime contractor for
infrastructure and as such it is they who prioritize the projects, not the
federal government. Thus far, only one project under this program is in a
I would suggest that Senator Cordy call her good friend, Stephen Maher, and
maybe get her other friend, Joan Bryden, to write a true story next time.
Hon. Lorna Milne: Honourable senators, whenever I can hear myself
speak I will carry on with my question, if I may.
My question is to the Leader of the Government in the Senate. I am sure she
will be astounded to realize that.
This week marks Citizenship Week. It is an event to encourage all Canadians
to reflect on the value of citizenship, what it means to be a Canadian, and the
rights, privileges and responsibilities of citizenship. However, for the 81
remaining lost Canadians who are still being denied citizenship due to
oversights in the current legislation, this week is a reminder to them that
their rights, privileges and responsibilities are still out of their reach.
What is this government doing to ensure that these 81 people are able to
either gain or regain their citizenship as soon as possible?
Hon. Marjory LeBreton (Leader of the Government and Minister of State
(Seniors)): Honourable senators, I thank Senator Milne for the question. As
you know, Minister Kenney and the government have initiated many changes with
regard to so-called lost citizens. I do realize there are still 81. I do not
have a specific answer, but I will be happy to take that question as notice.
Senator Milne: I thank the minister for that. These people appreciate
very much what Minister Kenney did for them, but still there are the 81 left.
There has been promise after promise that they would be looked after. Why can
the government not expedite matters for just 81 people? Many of these people
served in World War II in the Canadian Forces and deserve to be recognized as
Canadians. I hope the minister can spur some action on this matter.
Senator LeBreton: I thank the honourable senator for the question. At
one time Senator Milne and I sat on the same committee where we actually dealt
with this issue. I believe the Speaker was involved as well. As I said in my
answer to the previous question, I will certainly take the question as notice
and report back as soon as possible.
Hon. Jerahmiel S. Grafstein: Honourable senators, I have a question
for the Leader of the Government in the Senate. I wish to return to the same
topic I have been raising here for several days and that is the jobless
recovery. Today I feel it is appropriate that we focus on the jobless recovery,
especially as it affects women.
It seems in recent statistics that joblessness has affected women more than
men. We all believe in equality and therefore it appears to be unequal in terms
of even the few jobs that are being created.
It seems that single working mothers, female students, older single working
women, and women below the poverty line are all feeling a larger detrimental
effect from the jobless recovery. Could the Leader of the Government provide us
with statistics to affirm this information?
Much of this information comes from newspapers, and I would appreciate it if
the government could give us precise numbers in all those categories.
Assuming I am correct, does the government have an additional plan B to deal
with this situation?
Also, if the leader provides us with the statistics, would it not be useful
for us to convene, if she would agree, a Committee of the Whole so that all
honourable senators on both sides could contribute to this debate to help
working women and women in the workforce who are not able to get jobs?
Hon. Marjory LeBreton (Leader of the Government and Minister of State
(Seniors)): I thank the honourable senator for the question. As he stated,
there much misinformation out there about the profiles of people who are
unemployed. Recently I happened to be reading or watching something where it
showed that a disproportionate number of people who have lost their jobs are men
and that many women are in jobs in education and health care, which have not
been as affected by the worldwide economic downturn.
With regard to low income workers and immigrant women, I do not have
statistics before me. I will certainly find out if there is such data. I believe
there must be; I just do not have it. I will take the question as notice.
As I have said to Senator Grafstein before, decisions of the Senate to have
committee meetings are not within the purview of the Leader of the Government in
Senator Grafstein: I appreciate that answer. I saw that report as well
with respect to professional working women. I think there was some information
to indicate that professional working women are being less detrimentally
affected than men at that particular segment and that niche.
My question is much broader than that, and I hope the leader will
differentiate her response to the other sectors I have raised, all of which is
based on anecdotal information. Up-to-date statistics are not available, other
than through the Department of Finance and the Bank of Canada.
Senator LeBreton: I thank the honourable senator for that. I will
certainly try to get the information.
The Hon. the Speaker: Honourable senators, I wish to draw your
attention to the presence in the gallery of the participants of the Seventh
Canadian Parliamentary Seminar.
On behalf of all honourable senators, I welcome you to the Senate of Canada.
Hon. Senators: Hear, hear!
Hon. John D. Wallace moved third reading of Bill C-25, An Act to amend
the Criminal Code (limiting credit for time spent in pre-sentencing custody).
He said: Honourable senators, it is my pleasure to speak at third reading to
Bill C-25, a proposal to restrict the amount of credit awarded for time an
accused person spends in pre-sentence custody. The proposed legislation responds
to the government's commitment to tackle crime and make our streets safer by
limiting the credit for time served by an accused remanded because of their
criminal record or for having violated bail.
Bill C-25 will provide the courts with guidance in sentencing by limiting the
amount of credit that courts may grant to convicted criminals for the time they
serve in pre-sentence custody. That is sometimes referred to as remand.
Courts have traditionally granted a two-to-one credit for pre-sentence
custody to account for certain factors such as overcrowding in remand centres,
lack of rehabilitative programs more commonly available in sentenced custody,
and the fact that time spent in remand does not count towards parole
In some instances, courts have awarded credit at a higher ratio than two to
one where the conditions of detention were very poor, for example, because of
Enhanced credit has contributed to the growth of the remand population; that
is, those accused in custody awaiting trial and sentencing. That is now greater
than the population found in sentenced custody in Canada's provincial and
The latest data indicates that remand represents 54 per cent of admissions to
provincial and territorial facilities. This is why provincial attorneys general
and correctional ministers encouraged the Minister of Justice at their meetings
in 2006 and 2007, and again in September of 2008, to limit credit for pre-sentence custody as a way to help reduce the growth of their remand population.
This support was confirmed with the appearance of two western ministers of
justice and attorneys general before the Standing Senate Committee on Legal and
Constitutional Affairs on October 1, 2009.
The Honourable Alison Redford from Alberta and the Honourable Dave Chomiak
from Manitoba voiced their unequivocal support for Bill C-25 as an effective
approach to deal with the increase in the remand population.
There are several reasons why credit for pre-sentence custody has contributed
to the increase in the remand population. Some contend that awarding enhanced
credit for pre-sentence custody may create an incentive for the accused to
deliberately choose to stay in remand custody in hope of getting a shorter term
of imprisonment once they have been awarded credit for time served. Evidence of
such an incentive is more than anecdotal.
In R. v. Sooch, the Alberta Court of Appeal had to determine whether
the offender, sentenced for aggravated assault and who failed to apply for bail
in order to accumulate time spent in remand, should be given more than one day
for every day spent in remand.
The court stated that enhanced credit for time spent in pre-sentence custody
should not be awarded where the offender deliberately chose not to apply for
bail where bail is a viable possibility.
Moreover, across the country court cases are becoming more complex and
therefore longer. Many criminal cases now involve numerous court appearances.
The result is that offenders spend less time in sentenced custody because they
spend too long in remand.
For example, in 1994-5, about one third, or 35 per cent, of those in remand
were being held for more than one week. Ten years later, 2004-5, those held for
more than one week had grown to almost one half, 45 per cent, of the remand
population. It is important to note that there are currently other initiatives
underway to streamline the administration of justice. Bill C-25 is an important
contribution to this overall objective.
The practice of awarding more than one day for every day spent in remand
creates the impression that the sentence imposed is shorter than it should be
and does not properly reflect the gravity of the offence and the degree of the
responsibility of the offender. Canadians have said, loudly and clearly, that
they would like to see more truth in sentencing by bringing the practice of
giving double time credit for pre-trial custody to an end.
This is exactly what Bill C-25 does. It proposes a general rule of limiting
credit for pre-sentence custody to one to one in all cases. However, it gives
courts the discretion to grant up to one and a half days for every day spent in
pre-sentence custody where that is warranted. Severe overcrowding could be one
of those circumstances justifying granting more than one day for every day spent
in pre-sentence custody.
Where accused are remanded for having violated bail or because of their
criminal record, the credit must be limited to one day for every day spent in
pre-sentence custody in all cases.
Courts have already recognized that those held in custody due to their bail
violations or criminal record warrant less than two to one credit for
pre-sentence custody. These reforms reflect accepted practices.
Extra credit should not be allowed for repeat offenders and for those who
have violated their bail conditions.
Bill C-25 also proposes to address the lack of clarity with the current
practice of awarding credit for pre-sentence custody. It is not rare that only
the resulting term of post-sentence custody is reported and no statement of the
consideration of pre-sentence custody is communicated in the reasons for
sentencing. This, of course, deprives the public of information about why time
spent in pre-sentence custody results in a convicted criminal receiving a lower
custodial sentence than the court would have otherwise imposed.
This, in turn, negatively affects the confidence in the administration of
This bill will require courts to note on the record the offence, the amount
of time spent in custody, the sentence that would have been imposed without
credit, the amount of credit awarded, and the sentence imposed. Courts would
also be required to record reasons for any credit granted.
These requirements will result in greater certainty and consistency in the
sentencing process, and will improve public confidence in the administration of
This bill will result in an increased number of offenders serving a federal
sentence, which is two years or more, and an increased number of federal
offenders that will spend a longer time in federal custody.
Concerns have been voiced about the impact on the capacity of our federal
prisons, but the Minister of Justice has confirmed that he is confident that
there is such capacity. This additional time in the federal system may present
the opportunity for longer programming that may have a positive impact on the
I appreciate the support of the provinces and territories for this
legislative amendment to provide greater truth in sentencing, and I urge
honourable senators to support expeditious passage of this bill.
Hon. Serge Joyal: Honourable senators, this issue of Bill C-25 is a
serious one. Surrounding this bill there has been a lot of — I will use a word
that I do not like to use on the Senate floor — "politicking," which is
essentially concentrating attention on political slogans instead of looking at
the merits of the bill. My intention this afternoon, in reply to Senator
Wallace, is to concentrate on the merits of the bill and avoid any politicking
or political slogans.
The problems I have with this bill are threefold. The first one relates to
the Charter. This bill has three serious Charter implications. I am not
inventing them for honourable senators this afternoon; I draw those conclusions
from the testimony of five experts that we heard. I will quote from them later
in my intervention this afternoon.
Second, this bill will have a serious impact on the condition prevailing in
the prisons for the inmate population and the staff that is there to maintain
order and serve them.
Third, this bill will affect drastically the most vulnerable in the prison
system, namely, people suffering from mental disorders, Aboriginal people and
women. As an aside on the bill's impact, we heard from the president of the
Canadian Association of Crown Counsel that it will clog the bail courts. That is
not the impact that is wanted by those who drafted the bill. I totally recognize
the objectivity of their intentions, but that impact is what we heard from the
Let me return to my first point: This bill will have serious impact on the
Charter and will be open to challenge in the courts.
As senators, it is one of our duties, when we are called upon to support the
bill, to question its implications for the Charter. In the respected
intervention of our esteemed colleague, Senator Wallace, neither yesterday nor
today did he answer those issues that were raised by the witnesses, which the
honourable senator well knows — as do Senator Nolin, Senator Angus and Senator
Carignan, who sat during the long hours that we spent studying this bill.
Honourable senators, let me report what we heard from those experts. First,
we heard from Michael Spratt of the Criminal Lawyers' Association that:
Bill C-25, if passed, will result in constitutional litigation. Bill C-25
offends the Charter. It will have the real effect of doing something that we
do not seek to do in sentencing. In sentencing, we seek to treat like
offenders who commit like offences in similar ways.
One can imagine a number of scenarios where like offenders who commit like
offences and who have like personal circumstances are punished differently.
One of those punishments is spending an inordinate amount of time in remand
facilities with no programming and harsh conditions, much like the individuals
who did not get their bail hearing today. They are not receiving programming.
. . .
Pre-sentence detention is not lenient, it is cruel.
The impact of this bill is that it will treat people who are in remand
differently than people who will be sentenced, having been freed once the charge
is laid. That is one side effect of the bill as it is drafted.
Mark Lapowich, from the Canadian Council of Criminal Defence Lawyers, stated:
I do not think there will be any doubt . . . that there will be Charter
challenges. In terms of specific challenges, we can envision challenges under
section 7, deprivation of, life, liberty . . .; and a challenge under section
11(b), undue delay. We can see stay applications being brought; and, as
was mentioned previously, for cruel and unusual, in terms of your specific
point that you raised with respect to how horribly we have done in the past 50
years in relation to upholding treaties that we may be part of.
In other words, there will be Charter challenges on the basis that the
sentence applied to one accused will be different from the one applied to
another accused with exactly similar circumstances but in a totally different
context. That situation offends the natural justice principle that people who
are guilty of the same offence under the same circumstances should be given the
same sentences and should bear the same consequences.
Let me quote, honourable senators, from another of those representatives from
the objective groups that we normally hear from. The secretary of the national
criminal justice section of the Canadian Bar Association, Eric Gottardi, said:
I think the prospects of constitutional challenges to the legislation are
quite high. I think they could be many and varied. . . . I think the
likelihood is quite high that that there will be constitutional challenges of
That view is from the Canadian Bar Association.
We then heard testimony from the president of the Canadian Association of
Elizabeth Fry Societies, Lucie Joncas, who said:
I am also concerned about whether such a practice would be considered
constitutional. Given that, in 2000, the Supreme Court recognized that it was
perfectly justified, and given that detention conditions at provincial level
have deteriorated significantly, I do not see how the practice can be said to
be no longer justified.
What are the court decisions that those experts refer to? They are
essentially the unanimous court decisions of at least four appeal courts of
provinces: the Court of Appeal of Quebec — from which I will quote immediately;
the Court of Appeal of Alberta; the Court of Appeal of British Columbia; and the
Supreme Court of Canada.
What does the Supreme Court of Canada rule on that principle of one for one —
one day in pre-sentence custody versus one day once an offender is sentenced in
I quote from the decision of R. v. Wust, a unanimous decision in 2000,
at paragraph 45, which states:
In the past, many judges have given more or less two months credit for each
month spent in pre-sentencing detention. . . . The often applied ratio of 2:1
reflects not only the harshness of the detention due to the absence of
programs, which may be more severe in some cases than in others, but reflects
also the fact that none of the remission mechanisms contained in the
Corrections and Conditional Release Act apply to that period of detention.
"Dead time" is "real" time.
In lay terms, what does that paragraph mean? It means that when someone is in
remand custody, that person has no access to rehabilitation programs. The time
that person is kept in pre-sentence custody cannot be counted as time toward
conditional release — parole release. The person does not benefit from any of
those programs that exist once an offender is in prison serving a sentence. The
person experiences harsher conditions in pre-sentence custody than if that
person is in jail once the sentence has been imposed by the judge. This is an
important element and one that the Canadian Bar Association, under the signature
of its chair, responded to on September 15, indicating that unjustified
disparity in sentencing could result from the passage of Bill C-25.
The Canadian courts have upheld the principle that judges must take into
account the different time and the quality of that time when prisoners are held
under pre-sentence conditions as opposed to being held in jail. Let me quote the
decision of the Court of Appeal of Quebec of 2005, a decision for which appeal
was sought in the Supreme Court of Canada, which appeal was denied. In other
words, that decision of the Court of Appeal is seen by the Supreme Court of
Canada as being definitive. I quote from paragraph 40.
Thus, there are two primary reasons for this practice: the harsher
conditions of interim detention and the impossibility of being granted parole
during this time. That is why interim detention has become known as "dead
One of the most eloquent conclusions of that decision is found at paragraph
Furthermore, the 2 to 1 ratio cannot be considered an advantage for the
This is very important. Some people have the perception that the two-for-one
or the one-for-one-and-a-half is a benefit, a premium. With that option comes
the perception that it can be stretched, but this is not what the court has
ruled. The British Columbia Court of Appeal ruled on a similar matter last year
with regard to a decision in August 2008 on the case of R. v. Orr. I
quote from paragraph 20 of the decision.
A lesser credit, generally in the ratio amount of one and a half-to-one
seems more appropriate where the offender has been held for the pre-sentence
period in an institution where post-sentence type programs are available. A
refusal by a sentencing judge to allow any credits seems to me an erroneous
approach having regard to the majority of existing authorities in Canadian
appellate courts and the Supreme Court of Canada.
That is the most recent decision.
In other words, it has been established quite clearly that you have to
maintain a balance between the time served in pre-sentence custody and the time
served in prison. This bill equates the one-to-one challenges that form the
fundamental principle of Canadian courts — the Supreme Court of Canada and all
the provincial appellate courts — to rulings to maintain a relationship to the
It is easy for public opinion to support the one-for-one principle, but it
violates one essential principle: Those in pre-sentence custody do not have the
benefit of programs available for rehabilitation to reintroduce them into
society. We want released prisoners on the streets to behave like good Canadian
Honourable senators, that is my first point. There are two other sections of
the bill for which the constitutionality has been raised. One was raised by
Senator Baker yesterday, the proposed section of the bill that allows the judge,
in imposing that kind of sentence, to withhold the reasons. We all know that a
sentence is appealable. It is a fundamental principle just as you can appeal the
principle that you are found guilty. Those are the fundamental principles of our
common-law criminal system. This bill takes away the obligation of judges to
justify and explain the reasons for the sentence. That would go against that
fundamental principle of our system, and there is no doubt that could be
challenged in the court. I will not elaborate by quoting cases in the Supreme
Court of Canada because the jurisprudence is clear.
There is another aspect of the bill that could be open to a court challenge,
and that is a point Senator Nolin raised with one of the expert witnesses,
namely, the arguments as to why a person should be detained in pre-sentence
custody. The testimony we received from Mr. Munson on this is clear. If it was
interpreted differently than what we were told it could be interpreted as, that
could be open to challenge.
There are at least three aspects of this bill that raise important
fundamental constitutional issues. That is my first point.
My second point, honourable senators, is that this bill will create more
dangerous conditions in Canadian prisons, endangering the health and life of the
inmate population as much as the personnel charged with the responsibility of
operating the prisons. I am not inventing this situation. We had the benefit of
hearing from the Canadian prison ombudsman, a person who is neutral and is there
to look into the prison system, receive complaints, evaluate the context into
which the prisons operate and make recommendations.
We heard from Mr. Howard Sapers, the Correctional Investigator of Canada, on
September 30. Here is what Mr. Sapers testified during the study of this bill.
. . . Bill C-25 will likely lead to a significant increase in the offender
population managed by the Correctional Service of Canada.
I underline "a significant increase in the offender." He continues:
A significant increase in the federal inmate population will affect the
safety and security of that population, as well as individual inmates' ability
to receive programs and services that will assist their timely and safe
reintegration into their home communities.
Listen to this aspect of his testimony.
. . . the current level of tension and violence within Canada's
penitentiaries is already excessive. For example, for the first quarter of
this fiscal year, the most recent data available, the correctional service
reported a staggering total of 2231 security incidents and 577 reported
physical injuries to inmates. During this three-month period, the security
incidents included assaults on inmates, disciplinary issues, inmate fights,
medical emergencies, self-inflicted injuries and three deaths.
That was in three months. Multiply that by four and you will have at least 12
deaths, at least 10,000 security incidents and at least 2,000 reported physical
injuries to inmates. Why? Because this bill, when it is implemented, will bring,
according to the statistics we received from Statistics Canada justice division,
10 to 12 per cent more inmates into the prison population.
Again, I refer you to the testimony of the ombudsman. "A significant increase
in the federal inmate population will affect the safety and security of that
population, as well as individual inmates' ability. . . ."
I questioned Mr. Don Head, the Commissioner of the Correctional Service. I
have his testimony here. I tried to get from him the percentage of the so-called
increase in the Correctional Service of Canada budget that will be devoted to
dealing with that influx of 10 per cent more inmates and the consequences that
it will have on the safety and the health of inmates and personnel. Here is what
I got. Mr. Head answered:
In terms of disclosing the numbers, at this point I cannot disclose them
because they are considered to be cabinet confidence.
In other words, honourable senators, we were told that this information was
out of our reach in order to determine if this bill would have a severe impact
on the health and life of the inmate population, with the proper balance of
budgetary investment to maintain the current level of safety, which is critical
according to the ombudsman who reported to us.
This is important because it deals with the kind of approach we should have
regarding the inmate population. It would be easy, honourable senators, to mount
public opinion against the inmate population. "Let us keep them in prison. Let
us lock them somewhere and we do not want to hear about it." However, we need
to try to understand who those people are. Are they all the Clifford Olsons of
this world? Are they all criminals who are beyond the reach of rehabilitation or
are there different kinds of citizens among them who are victims themselves, in
a way, as a result of the circumstances of family, education, birth and so on?
I want to draw to honourable senators' attention that this bill will have a
disproportionately severe effect on the vulnerable populations in the prisons.
Who are they? It will be surprising for you, honourable senators, to understand
that it will be the offenders suffering from mental disorders.
The population of our prisons is composed mainly of Aboriginal people. About
20 per cent of Canadian inmates are of Aboriginal origin. They form 3 per cent
of the Canadian population and yet they form 20 per cent of the inmate
population. In Saskatchewan, it is as high as 80 per cent and above 50 per in
In other words, we are dealing with offenders with significant social
backgrounds. One cannot just say, "We will lock them up and forget the key and,
when they get out, everything will be fine."
Again, I quote from Mr. Sapers, the ombudsman, who reported that:
This is of importance to the study of Bill C-25 because offenders with
mental illnesses and cognitive difficulties are often held in pre-trial
custody. We know that the prevalence of offenders with significant mental
health issues upon admission has doubled in the past five years.
In fact, another witness stated that the ". . . Aboriginal adults admitted to
remand custody increased by 23 per cent compared to a 14 per cent increase in
the total remand admission rate over that same period."
In other words, we are putting more Aboriginal population in prison and
remand. This is a serious problem, honourable senators, if we add that to the
people suffering with mental disorders. The problem with people who are affected
by mental disorders is that, as Mr. Sapers stated, "Federal prisons are now
housing the largest psychiatric population in the country. . . ." It has
doubled in the past five years. If one was to ask where are the majority of the
Canadians who suffer from psychiatric problems, the answer would be that they
are in prisons. They are not in psychiatric institutions or under the kind of
care that one would like to have if someone in their family suffered from a
Mr. Sapers also stated:
. . . despite the need, the capacity of the federal correctional system to
respond to and treat mental illness is largely reserved for the most acute or
seriously chronic cases — those receiving psychiatric treatment in one of the
five regional treatment centres. Most other mental health problems receive
limited clinical attention, at best.
This means that, when those people have served their time, they are released
onto the street with no real capacity to reintegrate into a normal course of
life. It is so much so that the accessibility to rehabilitation has been
severely cut by the lack of funds.
Let me quote from Mr. Zinger, the Executive Director and General Counsel of
the Office of the Correctional Investigator. He testified at the committee:
The Correctional Service allocates only two per cent, under $41 million of
a $2.1 billion total annual budget, to offender programming.
For now, offenders have to contend with long waiting lists for programs and
with cancelled programs because of insufficient funding or lack of trained
They also have to deal with delayed conditional release because of the
service's inability to provide the timely programs they require.
They must therefore serve longer time before parole consideration.
In other words, there is not enough capacity to offer the programs that would
help those inmates to reintegrate into normal life.
Honourable senators, you will understand those aspects of Bill C-25, outside
the hoopla of the political game of name-calling and trying to address emotion
rather than the substance of this bill, is very serious.
I will conclude by referring to another witness whom we hear from very rarely
at the Standing Senate Committee on Legal and Constitutional Affairs. I have
been serving on that committee for 12 years now and we have never heard a
representative of the Crown counsel. Why? Of course, the Crown counsel is the
Department of Justice, either provincial or federal. It is the government. This
time, we heard from the President of the Canadian Association of Crown Counsel,
Mr. Jamie Chaffe. It was extraordinary to have him testify. He said that, from
his association's perspective, it was certain that there would be an increase in
the workload in the bail system. That could only be reasonably expected since
part of the sentencing process would be imported into the bail hearing itself,
which would likely be fully litigated by defence counsel and the Crown. In other
words, by trying to alleviate the condition in the remand centre, we will be
clogging the bail court.
Mr. Chaffe was questioned by all of us around the table because it was such
an important element to consider before supporting this bill. We thought this
information had to be shared with all senators in this chamber before voting on
I do not doubt that the intention of the government to try to frame the
discretion of the judges is a legitimate objective.
However, when it is framed in a way that there are unintended consequences in
the system, either in the courts by clogging the bail courts or in the prisons
by creating more dangerous conditions, and by putting the weight on those who
are the most vulnerable, the result might not be the one contemplated at the
beginning. There has to be the proper commitment of budget and human resources,
and the proper capacity of monitoring such that this initiative will be sound,
humane and will serve the objective, which, as Senator Wallace has said, is to
increase safety and security in Canada.
Honourable senators, that might be a different tone than what you have heard
in the hoopla surrounding the debate on this bill. However, those are the
serious considerations that I thought were useful to bring to your consideration
before you vote on this bill later today or this week.
Hon. Jerahmiel S. Grafstein: Honourable senators, if Senator Watt is
to enter the debate, I want to ask some questions.
Thank you, Senator Joyal for that presentation. This topic is not new to this
chamber or the committee.
In 1994, the Minister of Justice Allan Rock — I see a senator on the other
side nodding in agreement — who came from Toronto, raised the issue for the
first time because of the overcrowding of the court system in terms of bail,
remands and prisons. The rationale for that decision taken by the Minister of
Justice was that the court system and jails in Toronto were overcrowded. It was
going from bad to worse. There was agreement on both sides at the time that this
bill needed remediation.
Having said that, it is my understanding that the court system in Ontario —
the province I represent — is worse today than it was then. I look at other
members from Ontario. They should take a look at this question before they opine
on this bill. I think they will come to the same conclusion. The court system in
Ontario is worse today in terms of clogging the courts, reasonable remands and
bail. Prisons are also more crowded today than they were 14 years ago.
Did this evidence come forward to the committee as to whether there were
budgets available at the provincial, municipal and federal levels to expand
space availability in prisons that will be required if this bill goes into
Senator Joyal: Honourable senators, I will quote Ken Crawford,
corrections staff representative from the Winnipeg Free Press on the
sixth of this month:
All provincial jails within this province are presently overcrowded. . . .
Our institutions are at the breaking point.
The honourable senator was talking of Ontario; this article is from Manitoba.
The newspaper was reporting about a mutiny in the correctional centre in
Brandon. The article continued:
They'd like to see trailers to house at least 200 people in order to ease
overcrowding. The trailers can house 20 to 60 people, said the union
The article goes on to quote Peter Olfert, Manitoba Government and General
Employees Union president:
(The province) are looking as moving as quickly as they can to provide
In other words, this problem is not peculiar to Ontario. It is the same in
Manitoba, according to what I read. I would say it is the same in Quebec.
If I remember correctly, in June, a front page article in La Presse
described conditions in the provincial prisons. Although some provinces might
have announced budgetary initiatives, construction will not keep up with the
increase of population we will experience by adopting minimum sentences, or by
the fact that remand population will increase. This increase is not because
people want to stay in prisons, but because cases are more complex. That is the
witness testimony we heard. Cases are more complex, hearings are longer and
personnel in the courts are not always available. A clogging of the court system
exists generally, and it needs a massive injection of funds.
We have to take into account that element of reality with all the bills we
are requested to vote on. We continue to add to a system that is already
cracking all over the place. At a point in time, we must understand that what we
do may have an unintended adverse effect because we are creating additional
pressure in the whole system.
Senator Grafstein: Honourable senators, I have another question
relating to Toronto and my province of Ontario. It is my understanding that the
urban Aboriginal population in Toronto is the largest in Canada in absolute
numbers. While there is a problem in Regina, Winnipeg and other places in the
West, the largest problem in quantitative terms is in Toronto.
Senators from Toronto will know the statistics well when we talk about the
homeless. At least two thirds of the homeless on the streets in Toronto are
Aboriginal. Of the Aboriginal community on the streets, about two thirds of them
— maybe more — are on the streets because of psychiatric or emotional problems.
This information is confirmed in a report.
Again, we have a more intense problem in Toronto. I assume the committee
sorted this problem out as well. When we come to the question of bail, remand or
incarceration, Toronto now has probably the largest proportion of Aboriginals
convicted in Canada without any remediation.
Did this issue arise in the committee study? Have you any comments about that
Senator Joyal: We did not hear any witnesses from the Aboriginal
community. I want to put that information on the record. We did not hear
representatives of the Assembly of First Nations, other national groups that
represent Aboriginal people or provincial groups like the Cree or Innu of
The issue came to us as a side issue. As I mentioned earlier, we will create
additional pressure on the system. Our colleague, Senator Watt, who intends to
speak this afternoon on this issue, is a member of the committee. He has raised
this issue regularly with the witnesses. At a point in time, that problem must
be addressed. It cannot be ignored. It is the major problem of the Canadian
At this stage, we could not study more than the purpose of this bill and the
reference we received from the Senate, which was to study the scope of the
Senator Grafstein: Finally, we have been confronted in the past — I
look at new senators in regard to this problem — with a situation in the
criminal justice system and other places where a bill is not in sync with the
economic reality. I suspect and assume this bill is not.
Did the committee — all members of the committee — give any consideration to
suggesting an amendment that will allow the bill not to come into effect if it
is passed until such time as Her Majesty the Queen and cabinet can be satisfied
that there are adequate facilities both at the court level and in the prison
system to accommodate the increase in prisoners incarcerated?
Senator Joyal: The answer is no, honourable senators.
I mentioned earlier, Don Head, Commissioner of the Correctional Service of
Canada appeared as a witness. He is the "big boss" of the prison system in
Canada. We tried to obtain the figures and statistics on how much of the budget
will go for bricks and mortar and how much will go to rehabilitation programs,
training, personnel, et cetera. We could not obtain proper detail on those
figures. Mr. Head told us those figures were deemed confidential documents. To
answer your question, yes, the figures exist somewhere, but they were not made
available to us.
Hon. A. Raynell Andreychuk: I have heard Senator Joyal on this bill
and other bills. I think the issues he raises are worthy of discussion
constantly, whether they were 30 years ago when I was in the court system or
The issue is the treatment of inmates and whether it serves society and the
individual. The Aboriginal issue is not a new one. It is one we have struggled
with, particularly in Saskatchewan, for decades. It may not be getting better,
but I see hopeful signs in the Aboriginal community in their efforts to deal
with their problems in conjunction with broader society.
I have difficulty in that the senator has raised issues about the entire
process of incarceration, rehabilitation and the need to protect society.
However, when I looked at this bill, it talked about one issue. The issue was
not why and how we hold people in jail. That issue has been the subject of other
bills and should be the subject of other new bills.
Our judges do not lightly take freedom away from Canadian citizens. Specific
issues in bail hearings must be addressed. When we hold someone in remand, we
deprive them of one of the most fundamental human rights: the freedom to be
mobile in society. Judges do not take that right lightly. There is room to look
at the issues of when and how we hold people in detention. For example, we used
to hold people when they could not put up recognizance, which prejudiced those
in Aboriginal communities who did not have resources, so we looked to other
However, Bill C-25 is not about that. Rather, this bill proposes that the
time an individual spends in remand will be taken into account after sentencing.
It does not deal with those who might have been held too long and, therefore,
acquitted. That is an entirely different justice matter that perhaps we should
deal with some day. The bill proposes that one day of deprivation of freedom is
one day. Why would we put it in the hands of judges to determine who receives
two-for-one credit or a one-and-a-half-for-one credit? Do we not say that an
hour is an hour is an hour?
It is fundamental to our justice system that one hour of deprivation is one
hour. Should it make a difference? Should a judge be able to say: You are in
this place so you will get 1.2 or 1.5 or 2 for 1? Should we not value every hour
of incarceration in the same way? That is the fundamental issue in this bill,
and it does not detract from all other issues raised. Those issues should be
considered in this place at another time because they are not the subject matter
of Bill C-25.
Perhaps the unfairness of long remands should be the subject of a Charter
application and the subject of scrutiny in due process in court, but not a
calculation based on a mathematical scheme?
Senator Joyal: If I may, Senator Andreychuk's participation at the
Standing Senate Committee on Legal and Constitutional Affairs is missed. I have
been a faithful attendee of the Legal Committee as has Senator Andreychuk. Her
experience is always valued and listened to carefully.
I humbly submit that there is a difference on one point. One day spent in
remand is not equivalent to one day spent in post-sentencing custody.
Certainly, an individual is deprived of his or her freedom of mobility in both
cases, but an individual serving a sentence in prison has access to
reintegration and rehabilitation programs not available to those in remand. As
well, an individual serving a sentence in prison is able to count the number of
days to early release under specific conditions, et cetera. One day served in
prison is not the same as one day spent in remand. Professor Julian Roberts,
from the University of Oxford's Centre of Criminology, told the committee that
one dollar is equivalent to one dollar, or one day in jail is equivalent to one
day in prison. However, he also said that one day in jail is worth 80 cents and
one day in prison is worth one dollar. That is why the bill retains judge's
discretion to adjust the principle that some jail time is much harsher than
other jail time because of access or lack thereof to programs that reintegrate
and rehabilitate. One cannot compare in absolute terms the 24 hours spent in
remand to the 24 hours spent in prison. That is the difference. The Supreme
Court and all appellate courts have identified that difference and the bill
maintains that in principle with its discretion for judges.
As honourable senators know, clause 3 of the bill provides that discretion to
judges and puts a limit of one-and-a-half-days credit for one day in special
circumstances. Perhaps in some circumstances, as the Supreme Court has said,
one-for-one is equal and fair because both facilities have equal access to
programs and services. The Supreme Court has said that. One-for-one could exist
but we must retain the principle that judges' discretion is required to
rebalance the freedom lost.
The Hon. the Speaker pro tempore: Honourable senators,
Senator Joyal's time has expired. Is the honourable senator asking for time to
Senator Joyal: Honourable senators, I will take one more question.
Senator Andreychuk: Honourable senators, I support some judicial
discretion because it serves as the pressure valve that helps the system to
work. However, I recall a system that provided rehabilitation in remand. The
closer we come to saying a day is a day, the closer we will come to addressing
the issues surrounding the proper holding of people and the expectations
pre-trial and post-trial, which was the original intent of the system. Would not
Senator Joyal agree?
Senator Joyal: It was the original intent of the system. Over the
years, conditions changed so drastically that there is no longer any balance
between one and the other. There is one that is less than one, and that is why
judges' discretion was introduced in the Criminal Code and retained in Bill
C-25. Discretion is left to the judge to appreciate the special conditions that
might exist in remand so that individual's are treated fairly. Lack of fair
treatment will result in a constitutional challenge on the basis of sections 1
and 7 of the Charter. The committee heard that repeatedly from all witnesses who
appeared in respect of Bill C-25.
The honourable senator has raised an important point. At first it was
supposed to be one-day credit for one day spent in remand, but it is no longer
at par. There has to be a balance in the system. Part of the objective of Bill
C-25 is to maintain some discretion but to cap it. All honourable senators on
this side agree with the capping of the discretion of judges. However, we want
to maintain the capacity to establish that principle of balance, without which
there will be Charter challenges.
Hon. Charlie Watt:
[The honourable senator spoke in his native language, Inuktitut]
Honourable senators, before I comment on Bill C-25, I must apologize to the
Inuit community. I am not able to speak Inuktitut today because the Senate
requires more notice to arrange proper translation.
I speak today about the issue of Inuit people in the Canadian justice system.
As one of two Inuit parliamentarians, I carry heavy responsibility for my people
in this place. That responsibility must be first and foremost in my mind as I
review legislation. It is expected of me.
I speak to honourable senators today about Bill C-25. I want to make it
absolutely clear that I am not against punishing people for crimes they have
committed. However, the time spent in the prison system must be balanced with
rehabilitation. I stress that point again — it must be balanced with
Inuit are not receiving clinical treatment. Inuit, First Nations and Metis
offenders eventually return to their communities, having served longer sentences
compared to the others, and they continue to offend because they do not receive
the proper treatment they need.
The incarceration rate for Aboriginal people is nine times higher than that
of non-Aboriginals. This fact is verified by the Canadian Human Rights
Commission, which said that the situation is the number one human rights issue
It is critical for this government to conduct a thorough review of our
present system to focus on Inuit, First Nations and Metis offenders. We need to
ensure that they are provided with access to clinical assessments, culturally
appropriate rehabilitation and fair sentencing.
Bill C-25 amends the Criminal Code to limit the time taken off a sentence to
the time spent in custody while waiting for trial, commonly called "credit for
time served." Credit for time served is used to compensate individuals for the
long time spent waiting for trial and the poor conditions in remand centres.
Pre-trial custody conditions are particularly rough for the Inuit, a
complaint I have heard on a regular basis. In addition to facing overcrowded
conditions and a shortage of adequate facilities, they are far removed from
their communities and cope with a language issue, as well as cultural
Inuit, First Nations and Metis are easier to prosecute, easier to catch and
easier to incarcerate. They are less able to advocate for themselves and have
problems of literacy and challenges of various kinds, which make them more
vulnerable in our criminal justice system. They are also more likely to plead
guilty, even if they are innocent.
Honourable senators, I will take you through some of the most compelling
statements made at the Standing Senate Committee on Legal and Constitutional
Affairs regarding circumstances for the First Nations, Inuit and Metis people in
the justice system. The committee heard the following, from Howard Sapers, from
the Office of the Correctional Investigator:
This bill will have a differential impact on Aboriginal people, and this
impact should be examined carefully and mitigated.
His colleague, Ivan Zinger, said:
With respect to programs, what we see in penitentiaries is that the
Correctional Service of Canada does have some very good programming for
Aboriginal people. Unfortunately, many of those programs are delivered at
minimum security institutions and many Aboriginals find themselves, upon
admission, to be incarcerated at maximum security institutions. In those
institutions, programs are very limited, in general. . . . Those programs, by
the way, are required by law.
From Craig Jones, of the John Howard Society of Canada, we heard:
. . . Bill C-25 will do nothing to enhance "truth in sentencing." Rather,
it will contribute to greater delays, exacerbate already existing injustices
and further erode judicial discretion. . . .
Of Aboriginal People, he said:
These people are easier to prosecute and easier to catch and easier to
incarcerate. Generally speaking, they are less able to advocate for themselves
and they have multiple problems of literacy and challenges of various types
that make them more vulnerable to the criminal justice system.
In a letter to the committee dated October 6, 2009, Ms. Deborah Hatch, the
President of the Criminal Trial Lawyers' Association of Alberta said:
. . . those detained in pretrial custody were more likely to plead guilty,
less likely to have their charges withdrawn and were more likely to receive
harsher sentences than those who were not detained, even when controlling for
relevant factors such as offence type and criminal history.
Honourable senators, given the testimony, I must propose an amendment to Bill
C-25. The amendment will exempt the First Nations, Inuit and Metis from this new
law. They will continue to fall under the current system, where the judge has
the discretion and the ability to award credit for time served. This discretion
is important as the circumstances for the Inuit, in particular, are harsher than
most. There are language issues and cultural barriers that are not present with
others in custody.
My proposed amendment does not better the circumstances or correct the
duration of the remand, but it does encourage the government to conduct proper
due diligence and study the impact to the Aboriginal people, who will be
disproportionately affected by this legislation.
After proper study and consultation has been undertaken, the government can
then introduce legislation responsibly to better the circumstances for the
communities and Aboriginal offenders in the criminal justice system.
Hon. Charlie Watt: Honourable senators, in the amendment, I move:
That Bill C-25 be not now read a third time but that it be amended in
(a) on page 1, by replacing line 23 with the following:
"(3.1) Despite subsection (3),
(a) if the circum"; and
(b) on page 2, by replacing line 3 with the following:
"under subsection 524(4) or (8); and
(b) if the offender is an aboriginal person, the maximums
referred to in subsection (3) and paragraph (a) do not apply.".
Honourable senators, we have heard from the other senators that there is also
a possibility — I think it is certain from what I heard from Senator Joyal —
that there is a Charter concern. I also think this bill violates our
constitutional rights, which are under section 35.
This issue is not an easy one to deal with. I think we need to have this
matter carefully looked at, examined and mitigated.
The Hon. the Speaker pro tempore: Is it your pleasure,
honourable senators, to adopt this motion in amendment?
On the motion in amendment, Senator Murray.
Hon. Lowell Murray: Honourable senators, having voted against the
amendments yesterday afternoon, I presume it goes without saying that I would
vote for an unamended bill today, which necessarily involves my voting against
the amendment that has just been placed before you by Senator Watt.
I listened with great respect, as I always do, to our friends Senator Joyal
and Senator Watt. With regard to the Charter implications — and I am not in a
position to give an expert opinion on these matters — it occurs to me that if
this bill is seriously deficient from a Charter point of view, the amendments
that we defeated yesterday and the amendment that is being presented today would
be unlikely to make it Charter-proof.
Further, I have to observe, again as a layman, that the citations that
Senator Joyal placed on the record from the courts earlier today represent the
attempts by judges to articulate certain principles in the absence of a formula.
Once Parliament has, if we do, legislated a formula, then I think it becomes a
somewhat different context and we will have to see what happens. I say that even
while conceding, as Senator Joyal has implicitly pointed out, that some of the
judgments and principles expressed by the various judges and by the various
courts seem to be in opposition to what this bill proposes.
Honourable senators, the reason why I support this bill unamended is not
because I am a great fan of the general approach of the present government to
justice and correctional matters — far from it. However, I have read carefully
the debates in the House of Commons and I have followed the debates here and, as
much as I could, the discussion in our committee. I am more than impressed by —
I am persuaded by the arguments put forward not only by the Minister of Justice
but by the spokesmen for the three opposition parties with regard to this
matter. Their position — and they put it forward in almost identical terms — was
that the absence of a formula in the code and the result of that in terms of the
exercise of judicial discretion is something that ordinary people do not
understand. That has caused a great deal of concern which, as elected members of
the House of Commons, they are feeling. They believe that the absence of a
formula and the exercise of judicial discretion in these matters erodes public
confidence in the system. Frankly, I think we must take those kinds of arguments
from our elected brethren very seriously.
Forgive me, but I will inflict upon you a concern that has been on my mind
for a good long time. That is how imprudent, counterproductive and
self-defeating it is for politicians to act in the absence of some kind of
consensus on the part of public opinion and to take the position that the need
for various liberal and progressive reforms is so self-evident and the weight of
expert and legal opinion so overwhelming that we should go full speed ahead, and
public opinion will simply have to catch up. That is the kind of thing that
creates backlash and has done so in the past. It is to prevent that kind of
backlash, I think, from gathering force that the government and certainly the
three opposition parties in the House of Commons are supporting this bill.
I have no expertise in this field and no legal training or background, but
the first job I had in this city 48 years ago this fall — can you believe it —
was as a young political assistant to the Minister of Justice in the Diefenbaker
government. During that period, the National Parole Board was created and the
Penitentiary Act was overhauled. Young offenders were set aside in institutions
especially created for them to get special attention.
Senator Mercer: That was the Progressive Conservative government.
Senator Murray: It was a Progressive Conservative government, and Mr.
Diefenbaker was a famous defence attorney and argued for these reforms
eloquently. Mr. Fulton was a brilliant advocate and was able to put them forward
on a principled basis. The point is that they went out and got public and
parliamentary opinion with them and there was no backlash to any of it.
During that period, as a young assistant, I visited most if not all of the
federal penitentiaries in Canada. While visiting, especially in the region from
which I come, I came across people that I knew, that I had grown up with in Cape
Breton. The experience will always leave me with a strong sentiment of "there
but for the grace of God go I."
That has informed my approach to these matters. As I look at them, I think
about such matters as capital punishment. It took years to abolish capital
punishment in this country. Prime Minister Diefenbaker started when he took
office by getting his then Solicitor General, the Honourable W.J. Brown of
Newfoundland, to recommend the commutation of death sentences imposed by the
courts as often as he could. He then moved with a bill to restrict the
application of capital punishment by defining capital and non-capital murder.
Then the Pearson government came along, and they restricted capital punishment
further, and finally the Trudeau government came along and abolished it. As late
as the 1980s, Mr. Mulroney thought it was a sufficiently important political
issue that he promised to have a free vote in the House of Commons on the
matter, and he did. He entered the debate himself, which is not something I
think leaders should do when there is a free vote, but he did it because he was
so concerned about the way the debate was going. In the event, the House of
Commons voted against the resolution on capital punishment. I do not know how
the Progressive Conservative caucus broke down, but one thing I do recall is
that Mr. Mulroney voted one way and his seatmate, the Deputy Prime Minister,
voted another way.
Many of these matters involving criminal law and correctional reform are
terribly emotional and divisive within a political party, controversial and
contentious and one must, I think, proceed with some caution.
The criminal law reforms that were undertaken in the late 1960s and early
1970s, in the late days of the Pearson government when Mr. Trudeau was Minister
of Justice and then followed through by the Trudeau government with Mr. Turner
as Minister of Justice, I recall very well. They were dealing with matters such
as abortion, sexual relations between consenting adults; a bit later on in the
1970s, gun control.
Senator Cools: Capital punishment.
Senator Murray: Capital punishment my friend points out. One of the
reasons why they had to be so cautious on the capital punishment issue is that,
during a good period of that time, between 60 per cent and 70 per cent of the
Canadian people wanted capital punishment retained, so it behooved elected
politicians to proceed with due caution.
I remember these criminal reforms going through in the Trudeau years. Every
amendment to the Criminal Code — and there were hundreds of them, I think — went
through Committee of the Whole in the House of Commons. They were debated and
agonized over; the most painstaking attention was given. There were compromises;
the government compromised and, eventually, some kind of consensus emerged and
we had a bill.
I come to gun control, also. Previous parliaments passed gun control
legislation long before Allan Rock discovered the issue in 1993.
Some Hon. Senators: Hear, hear!
Senator Murray: Those reforms stood the test of time. When Parliament
had spoken, you did not hear Mr. Trudeau or Mr. Turner on the government side,
or Mr. Stanfield, Mr. Douglas and Mr. Lewis on the opposition side, out beating
their chests and congratulating each other on their fine work. What they said
was — and I am paraphrasing, of course, but I think I am doing it quite
accurately — "We know we have gone too far for some Canadians. We know that we
have not gone far enough for some Canadians. However, we have done the best we
can with a difficult issue."
When you come to these kinds of issues, I think a good deal of humility is in
order. These reforms have stood the test of time. It was for later generations
of politicians to take a more incautious, exclusive, dogmatic stand to treat
other opinions as if they were, if not illegitimate at least somehow "beyond
the pale," and they polarized opinion. To the extent that opinion was polarized
by those, if I may put it this way, on the left, it provoked an equal and
opposite reaction from those on the right — wedge issues. Then we come to a
situation in which one group of politicians is pointing a finger and saying, "They are soft on crime" with another group saying,
"These fellows are hangers and floggers."
It is lunacy. If one hears people saying those things in Parliament, in
Canadian politics, about each other, you know you are listening to lunatics.
There is no other way of putting it. It is nuts.
Some Hon. Senators: Hear, hear!
Senator Murray: I come back to the only point I really wanted to make.
I am usually quite suspicious when the House of Commons passes something
unanimously. If they do, I think we have to stop, especially when it has to do
with something like elections law or redistribution; to mix metaphors, "the
grinding of axes and the scratching of backs can be heard throughout the
The minister, then Mr. LeBlanc for the Liberals, Mr. Ménard for the Bloc, and
Mr. Comartin who raised some of the Charter issues for the NDP, all took the
position that public opinion was in such a state that we had to correct
misapprehensions, misunderstandings and serious reservations that are held out
If this bill passes unamended, Parliament will have acknowledged that a
problem exists and we will have taken reasonable corrective measures. We may
have helped slow down a backlash before it has gathered such force as to sweep
away the good with the bad.
When it comes to the conditions in our prisons and, indeed, to the appalling
disproportion of Aboriginals in the prison system today, I must say I do not
think that tweaking this bill or any other bill will make much difference. These
situations will need to be attacked not circuitously but directly, and they will
be attacked directly, in my humble opinion — which no one has asked for but
which I will give anyway — when we find a way to make a radical change, which is
to put restorative justice at the centre of our justice system. That will not be
done by this government, nor perhaps by any other government in the very near
future, but I think it is something that we have to get on with and it is
something that will take an awful lot of work on public opinion to achieve.
Senator Segal: Hear, hear!
Hon. Joan Fraser: Would the Honourable Senator Murray take a question?
Senator Murray: Yes.
Senator Fraser: I not only respect, but share, the honourable
senator's view that we must act with a decent respect for the opinions of
mankind. I certainly cannot claim anything like his awareness of the parole
Would the honourable senator comment on what was to me some of the most
interesting and arresting testimony that the committee heard; to wit that,
thanks to the way the Canadian parole system works, it is a virtual certainty
that any rigid arithmetic formula will end up creating instances of unfairness
as between sentences accorded to people who have committed identical offences in
identical circumstances, but one of whom got bail and one of whom did not?
Perhaps the one who did not get it could not raise the money.
The mathematical testimony was presented by Professors Doob and Webster. Then
they provided more information to the committee at our request afterwards. It
comes back to the fact that, in Canada, the parole system does not take into
account pre-sentencing custody. It only takes into account the actual sentence,
so that whatever rigid formula is adopted, depending on the circumstance of the
amount of time served in remand or the amount of time involved in the sentence —
whatever the formula — one size will not fit all.
Other countries that we have heard of that have one-for-one systems have
different parole systems —
The Hon. the Speaker: Order. As Senator Murray's 15 minutes have
expired, he is asking for an extra five minutes.
Is it agreed, honourable senators?
Hon. Senators: Agreed.
Senator Fraser: Is this a case where, despite our decent respects for
the opinions of legitimately-concerned Canadians, we need to allow a bit more
flexibility, because it is our job as a Senate sometimes to say, "Canadians do
not quite get the fine detail," or is this a case where we say, "Even if we know
that we are legislating unfairness, that is what the people want?"
Senator Murray: I am glad to have the opportunity to respond. With
regard to my friend's last observation, I do not accept, for a moment, the
argument that has been advanced by some spokesmen for the government to the
effect that the Senate has no right to amend the bill, for example, and that we
should confine ourselves as a revising chamber to changing drafting errors or
technical changes. If it is the view of my friends that the bill ought to be
amended, then amend it and send it to the House of Commons and they will have to
consider it and decide what to do with it.
With regard to the parole system, I have just two observations. I am
borrowing now from Mr. Comartin, the NDP spokesman in the House of Commons.
First, the absence of a formula is a real problem. Second, he has said — not
quite in these words but I will paraphrase, again — that there is less to this
bill than meets the eye; there still is in this bill room for judicial
discretion, and the judge is required, as I understand it, to explain when he
exercises that discretion in a certain way.
Here is another beef. I have less than two years to go here and I have to get
some of these things off my chest.
Senator Cools: Good. Go ahead.
Senator Murray: It is unfair to call it a bureaucratic instinct, but
it may be a political instinct, to try to deal with things indirectly or
circuitously. It reminds me of the bills that the Chrétien government brought in
a few years ago against which Senator Bolduc and I led the charge.
They were taking thousands of employees of Revenue Canada and the parks
system and putting them at a greater remove from ministerial and parliamentary
influence. When we got into it, we discovered that the reason they were doing it
was they found existing public service labour legislation too hard to bear.
Senator Bolduc and I took the position that if there was something wrong with
the labour legislation, then they should change the labour legislation. They did
not need to start removing great gobs of the public service from ministerial
I feel the same way about this. If there is a problem of that kind in the
parole system, then change the parole system. Give them more or different
Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable
senators, I seek leave that the house order that the Senate adjourn at four
o'clock be suspended only for today; that we proceed as a normal sitting day as
would happen on Tuesdays and Thursdays; that we continue that normal sitting
day; and that committees scheduled to meet at four o'clock will be allowed to
I have spoken to the other side about this and I am sure they would be
agreeable. I have talked to the non-aligned as well.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Hon. Jerahmiel S. Grafstein: May I revert to a question to Senator
Senator Comeau: Time is up. He only had a five-minute extension.
Senator Grafstein: Is time up?
The Hon. the Speaker: Two more minutes. Please proceed.
Senator Grafstein: I would like to address a question to Senator
Murray. I listened to him with great interest. He is getting things off his
chest. I will get some things off my chest as well in the next week or two.
I did not follow the honourable senator's argument. His argument was that if
there is public opinion formed against a particular aspect of the criminal law,
and when it was unanimously approved in the other place, this house should not
substitute its opinion. That was his argument.
Let me give some examples where the honourable senator went the other way.
The extradition bill was approved swiftly in the other place. Public opinion
was in favour of it. Effectively, it allowed the Minister of Justice to
extradite without being concerned about the capital punishment prohibition in
Canada. I recall at the time that we held up that matter for several months.
Those who opposed the bill lost, but the arguments made in the Senate were
argued in the Supreme Court of Canada. Ultimately, the Supreme Court of Canada
followed the opinion of those who were opposed to that bill. There was a lengthy
debate here that did exactly what Sir John A. Macdonald suggested, namely, to
put hot tea in a saucer and allow public opinion to cool.
Clearly, I think everyone here finds this bill defective. Clearly, I agree
that public opinion is with this type of bill without precise knowledge of it.
My question for the honourable senator is this: Have we given public opinion
an opportunity to cool off so that we can indicate an alternative proposal to
the public on this narrow measure?
Senator Murray: Honourable senators, I had thought the moment had
passed. I thought I used my five minutes when Senator Comeau intervened on a
matter of process. I suppose I am prepared to comment on my honourable friend's
comments, but I thought the moment had passed.
The Hon. the Speaker: Honourable senators, may Senator Murray have
leave to respond to Senator Grafstein's question?
Some Hon. Senators: Agreed.
Senator Murray: I am glad Senator Meighen is not here at the moment in
his seat. I used to hear Eugene Forsey say that he was the worst judge of public
opinion since poor Arthur Meighen died.
Be that as it may, it is not for me to say. I think there is probably not
much comparison between the public interest and public opinion on the matter of
the extradition legislation and that regarding sentencing in the criminal
system. Whether it would be a good idea to put the tea in a saucer and let it
cool for a while, I am not sure. My friends have the opportunity to amend the
bill if they wish and send it back to the House of Commons to see what they have
to say about it.
If I am in my seat at the time, I will vote against the amendment and in
favour of an unamended bill, as I indicated.
The Hon. the Speaker: Are honourable senators ready for the question?
Hon. Pierre Claude Nolin: Honourable senators, I have one point. I
will vote against the amendment and I will explain why.
The Criminal Code — even if we accept this bill which I will support —
already has a section that deals specifically with what is being contemplated.
Senator Baker mentioned it yesterday in his remarks. I will read it for you:
718.2 A court that imposes a sentence shall also take into consideration
the following principles:
(e) all available sanctions other than imprisonment that are
reasonable in the circumstances should be considered for all offenders, with
particular attention to the circumstances of aboriginal offenders.
I think that takes care of the honourable senator's concern, which I respect.
However, I will vote against the honourable senator's amendment.
Hon. John D. Wallace: Honourable senators, I rise to speak in
opposition to the amendment that has been proposed by Senator Watt. I certainly
understand the passion, conviction and heartfelt desire that he has to do
everything possible to represent properly the interests of our Aboriginal
people. I can assure the honourable senator that he is not alone with those
concerns. They are shared, I am sure, by all of us in this chamber.
However, with regard to the honourable senator's proposed amendment, there
are a couple of points that I would like to make.
First, there is no question that Aboriginal persons are dramatically
overrepresented in Canada's prisons and penitentiaries, including as remand
inmates in pre-sentence custody. However, with all due respect, I must say to
the honourable senator that his proposed amendment to this bill will not address
Bill C-25 proposes to limit the amount of credit courts award for time spent
in pre-sentence custody. It does not aim to change the reasons why an accused is
remanded in pre-sentence custody. I believe that is the actual issue at the
heart of the concern that the honourable senator was raising. Therefore, this
bill will not decrease the admission of Aboriginal people or, for that matter,
anyone else in pre-sentence custody.
My second point is exactly the same as that raised by Senator Nolin in
relation to section 718 of the Criminal Code, and I will not repeat it. I agree
completely with his comments.
There is no question that part of the complexity of addressing Aboriginal
justice is that many of the issues are cross-jurisdictional involving the
federal, provincial and territorial governments.
As a result of that, I am sure we all agree and would encourage our federal,
provincial and territorial partners to continue to work together in partnership
with Aboriginal communities to develop strategies to address the
overrepresentation of our Aboriginal peoples within the criminal justice system.
We heard, as did Senator Watt, in the hearings of the Standing Senate
Committee on Legal and Constitutional Affairs — that the provinces, territories
and federal government are well aware of the need to continue to work together
to not simply come up with one solution for one issue, but to take a completely
integrated approach to drafting amendments to the Criminal Code that produce
greater equity in our criminal justice system.
During its hearings, the committee heard that federal, provincial and
territorial ministers were meeting as far back as 2004 to develop a series of
strategies to deal with these issues in the Criminal Code. One result of that
consultation is Bill C-25. In my comments yesterday in this chamber, I referred
to the fact that the federal government and all of the provinces and territories
are in support of Bill C-25. The provinces and territories that have the largest
representation of Aboriginal peoples are well aware of the concerns of
Aboriginals and of the need to address them. As we heard directly from Minister
Chomiak of Manitoba, there is an awareness that the concerns of Aboriginal
peoples must be recognized. He provided examples to the committee of the
considerable improvements made to facilities and to rehabilitative treatment to
deal directly with the interests and concerns of Aboriginal peoples.
The final point I would make, and Senator Watt alluded to it in his comments,
is that this issue comes down to a question of the quality of the facilities and
services available throughout this country. It is recognized — and the Legal and
Constitutional Affairs Committee heard it from Minister Nicholson, Minister
Redford, Minister Chomiak and read it in all the written presentations received
by the committee — that additional funding will be required.
Senator Joyal referred to the evidence that the committee received from the
Commissioner of the Correctional Service of Canada, Don Head. I recall clearly
that Commissioner Head, in responding to a question about how our correctional
facilities would handle and deal with the implications of Bill C-25, felt
confident that Correctional Service Canada could do that. He also pointed out
that Correctional Service Canada received an additional $14 million in the 2009
Budget. For the next three years, that amount will increase by an additional $48
million. In his words, those increases are unprecedented in his experience. All
of that funding is directed toward the reality of improving the quality of our
penal facilities and the treatment within those facilities.
As Senator Joyal alluded to in his comments, Commissioner Head indicated that
in addition to those increased amounts, he has submitted an application for
additional funding to deal specifically with Bill C-25 and its implications. As
he told committee members, he is unable to provide us with the details because
the application has been submitted to cabinet. Given that it is a cabinet
document, he is not able to provide further disclosure. With respect to the
insinuation or suggestion that these numbers were kept from our committee for
whatever purpose, he had no choice. Minister Nicholson had no choice. That
matter is before cabinet. Honourable senators will recall the Commissioner Head
was very confident that those amounts would be approved, and I feel confident
they will be as well.
In conclusion, none of us should leave here thinking that this is the final
word on issues involving penal conditions and treatment. As I said earlier, we
should encourage provincial, territorial and federal ministers to continue to
work together to bring forward a comprehensive, integrated approach to
amendments affecting criminal justice in this country.
Hon. Hugh Segal: Honourable senators, I wish to speak briefly against
the motion in amendment, not because I think the purpose, spirit, sensitivity
and compassion reflected in it is not something with which we would all want to
associate, but because I think the problem is not First Nations and Aboriginals
being overrepresented in our prisons. The problem is that poor Canadians are
being wildly overrepresented in our prisons, whether they be First Nations or
not. While we all have a broad range of concerns about how poverty affects the
lives of people, enhances criminal activity in a negative way and leads to
substance abuse, bad health outcomes, bad educational outcomes and bad
productivity outcomes, this bill, which I support, does nothing to make that
situation worse. If we want to have a broad debate about those larger issues,
and our colleague could contribute to it immensely, we should do that as an
upper house. However, this bill does not contribute negatively to that
pathology. In fact, it does all the things Senator Murray said it does, which is
why I am glad to oppose the amendment and support the bill itself.
The Hon. the Speaker: Are senators ready for the question?
Hon. Senators: Question.
The Hon. the Speaker: Honourable senators, we have before us the
motion in amendment moved by Senator Watt, seconded by Senator Baker, P.C.:
That Bill C-25 be not now read a third time but that it be amended in
(a) on page 1, by replacing line 23 with the following:
"(3.1) Despite subsection (3),
(a) if the circum"; and
(b) on page 2, by replacing line 3 with the following:
"under subsection 524(4) or (8); and
(b) if the offender is an aboriginal person, the maximums
referred to in subsection (3) and paragraph (a) do not apply.".
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yea.
Some Hon. Senators: Nay.
The Hon. the Speaker: I will put the question to the house more
Will those honourable senators in favour of the motion in amendment please
Some Hon. Senators: Yea.
The Hon. the Speaker: Will those honourable senators opposed to the
motion in amendment please say "nay"?
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion, the "nays" have it.
And two honourable senators having risen:
The Hon. the Speaker: Do the whips have advice for the chair?
Hon. Terry Stratton: A 30-minute bell.
The Hon. the Speaker: The bells will ring for a vote at what time?
Hon. Jim Munson: Honourable senators, on a point of clarification,
committees are currently sitting.
Senator Stratton: The committees will suspend as soon as the bells
start to ring.
The Hon. the Speaker: Honourable senators, the vote will take place at
Do I have permission to leave the chair?
Hon. Senators: Agreed.
The Hon. the Speaker: Call in the senators.
Motion in amendment negatived on the following division:
THE HONOURABLE SENATORS
THE HONOURABLE SENATORS
THE HONOURABLE SENATORS
The Hon. the Speaker: The question now before the house is the main
motion. Are honourable senators ready for the question?
Some Hon. Senators: Question.
The Hon. the Speaker: It was moved by the Honourable Senator Wallace,
seconded by the Honourable Senator Carignan, that Bill C-25 be read the third
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
An Hon. Senator: On division.
(Motion agreed to and bill read third time and passed, on division.)
(The Senate adjourned until Thursday, October 22, 2009, at 1:30 p.m.)