Debates of the Senate (Hansard)
3rd Session, 40th Parliament,
Volume 147, Issue 84
Wednesday, February 9, 2011
The Honourable Noël A. Kinsella, Speaker
Wednesday, February 9, 2011
The Senate met at 1:30 p.m., the Speaker in the chair.
Hon. Catherine S. Callbeck: Honourable senators, I am pleased to rise
today in recognition of International Development Week. Every year during the
first week of February, International Development Week provides Canadians with
the opportunity to learn more about the good work that so many Canadians are
engaged in abroad. These dedicated people have an impact on a wide range of
topics: human rights, health care, infrastructure, disaster preparedness,
education and economics, to name a few. All in all, the ultimate goal is to
build a greater quality of life for people in developing countries.
This week also allows Canadians to discover more about life in developing
countries and how they can become involved.
In my home province, the University of Prince Edward Island is participating
in its tenth International Development Week. The highlight of the many events
will be an on-campus public presentation by our own Senator Dallaire, who will
speak to students about the role they can play in the lives of those in
developing countries. Community events like the ones at UPEI demonstrate that
Canadians care about international development and the well-being of others.
I was disappointed to hear that the Canadian Teachers' Federation has been
denied funding for its five-year proposal to provide professional development
programs for teachers and curriculum development programs in Africa, Asia and
parts of the Caribbean.
For more than 50 years, Canadian teachers have travelled overseas to help
improve education in developing countries. Without this funding, the work of
thousands of Canadian teachers will end. I urge the federal government to find
ways to work with the Canadian Teachers' Federation to ensure that their
outstanding tradition of service is not lost due to a lack of funding.
Honourable senators, Canadians involved in international development are to
be commended for the difference they are making around the world. We should be
proud of the role these Canadians play on the world stage and we should assist
them wherever possible to achieve their goals.
Hon. Carolyn Stewart Olsen: Honourable senators, I rise today to
invite all honourable senators to attend the Atlantic Ballet Theatre of Canada's
world premiere of Ghosts of Violence on February 15 at the National Arts
Our government is a proud supporter of the performing arts. The creation of
this production was supported in part by the Government of Canada, Status of
Women Canada, Atlantic Canada Opportunities Agency and the Canadian Council of
Ghosts of Violence is an emotionally charged ballet inspired by the
stories of women who have lost their lives as a result of family violence.
This ballet, combining multiple forms of media and performance art, aims to
capture the tragedy of the erased memories and aspirations of those often-silent
Ghosts of Violence is the largest initiative undertaken by the
Atlantic Ballet Theatre company in their 10-year history.
Launched in 2002 and based in Moncton, New Brunswick, the Atlantic Ballet
Theatre of Canada is one of Canada's most ambitious ballet companies. The
members of the ballet have been successful ambassadors for both New Brunswick
and the Atlantic region and have played national and international shows,
touring in the United States, Germany and Italy.
In September 2010, the company had the honour to premier its new ballet,
Fidelio, in Bonn, Germany, at the prestigious Beethoven Festival, where they
were well received and performed to packed audiences.
The Atlantic Ballet Theatre company members are known for using their art to
reach out to people. Ghosts of Violence aims to raise public awareness
about the terrible, heartbreaking epidemic of domestic violence. Statistics show
that one to two women are murdered every week in Canada, with young women under
the age of 25 four times as likely to be killed.
Family violence is a problem that affects families from every part of our
I am proud of the Atlantic Ballet Theatre of Canada for using this original
medium to promote dialogue on this difficult topic. The ballet was conceived and
choreographed by the Atlantic Ballet Theatre's artistic director and
choreographer, Igor Dobrovolskiy.
Two years ago, the company was overwhelmed and astounded by the reaction of
victims to a short piece they did on domestic violence. Women who had never
spoken out found a voice and so the full-length ballet was born.
This ballet was inspired by the Silent Witness Project that began in New
The Silent Witness Project is a travelling exhibit of life-sized red wooden
silhouettes, each representing a woman murdered by her partner. There will be 21
silhouettes from several provinces at the NAC.
Honourable senators, this excellent company has worked very hard to bring its
performance to you, and I hope you will join me on February 15 and attend this
made-in-New Brunswick landmark production.
Hon. Lucie Pépin: Honourable senators, last Monday I received a visit
from three McGill University students representing the Canadian Federation of
Medical Students. These future physicians are concerned about the lack of
socio-economic and geographic diversity in our medical schools. They believe
that this situation exacerbates family doctor shortages and physician scarcity
in communities that are already underserviced.
Medical schools encourage diversity, but still do not attract enough
candidates from rural or low-income backgrounds. Some social and financial
obstacles have been cited as the cause of this demographic imbalance.
Students from low-income or rural backgrounds are less likely to consider
medicine as a viable career option.
They are also put off by the costs associated with studying medicine. Most
medical students are from wealthy families. Almost 47 per cent of medical
students report family incomes of more than $100,000. In Canada, only 19.7 per
cent of households have this level of income.
The Canadian Federation of Medical Students would like to address the
disparity in access to medical studies. The CFMS is asking for government
subsidies to cover tuition for students from low-income families. The
Association of Faculties of Medicine of Canada supports these subsidies, which
already exist in the United States and Australia.
It is pertinent to know that students from low-income families are more
likely to practise family medicine and to treat disadvantaged patients.
Research also shows that students from rural areas are 2.5 times more likely
to practise in rural communities. Given that it may be easier to keep physicians
who have grown up in rural areas from moving away, we need more programs that
will attract candidates from these areas to medicine.
It is also important to establish mentorship and information programs that
would target the socio-economic groups least represented in faculties of
medicine. Preparation required to enter a medical school often begins in high
Dr. John Wootton is the president of the Society of Rural Physicians of
Canada. He says that "if there is two-tier health care in Canada . . . it's
urban versus rural." It is a fact that 30 per cent of Canadians living in rural
and remote areas have difficulty accessing health care.
The Government of Canada is working with the medical community to increase
the number of health care professionals in these areas. However, we must be more
innovative and lay the foundation for solutions by creating the conditions for
equitable access to medical education.
I hope that, in this quest for solutions, careful consideration will be given
to the recommendations from the Canadian Federation of Medical Students.
Hon. Donald Neil Plett: Honourable senators, on December 16, 2010, we
lost a great Manitoban and a great Canadian. Former Manitoba Premier Sterling
Lyon passed away following a brief illness at the age of 83. He leaves behind
him a great legacy. He was truly a political champion for both Manitobans and
Sterling Lyon was first elected to the Legislative Assembly of Manitoba in
1958 in the Winnipeg riding of Fort Garry. He was later named as the attorney
general by Premier Dufferin Roblin after the Conservatives won a majority
government in 1959. In his time in the Manitoba legislature, Sterling Lyon also
served as Government House Leader, Minister of Public Utilities, Minister of
Municipal Affairs and Minister of Mines and Natural Resources.
In 1974, Sterling Lyon tried his hand at federal politics, narrowly losing
the riding of Winnipeg South to Liberal James Richardson and subsequently
returned to provincial politics.
In 1975, Sterling Lyon was elected leader of the Progressive Conservative
Party of Manitoba. In 1977, Lyon was elected as the seventeenth Premier of
Manitoba, leading the Progressive Conservative Party into power in the Manitoba
legislature. He served as premier from 1977 to 1981.
In his time as premier, Sterling Lyon took a strong role in the repatriation
of the Constitution and in the creation of the Charter of Rights and Freedoms,
which continue to have an impact on Manitobans and all Canadians. He is well
known for butting heads with then Prime Minister Pierre Trudeau regarding the
inclusion of the notwithstanding clause in the Charter of Rights and Freedoms,
which created the defence of the supremacy of elected parliaments over unelected
Lyon's government was defeated by the NDP in 1981 after only one term in
office, in large part due to his strong fiscal conservatism and prudent
government spending policies. Lyon subsequently acted as Leader of the
Opposition for two years after the 1981 election. In 1983, he stepped down as
the Conservative leader and in 1986, retired from politics.
In 2002, Mr. Lyon was inducted into the Order of Manitoba, and in 2009, was
also made an Officer of the Order of Canada for his many accomplishments,
including the expansion of community-based health and social services and
modernized governmental financial procedures in Manitoba.
Sterling Lyon was not only a great public servant but also a great friend,
husband and father. Though he was a hardworking man with a busy schedule, he
always managed to find time to spend with his friends and family, whether it was
hunting with his sons or spending time at the cottage. Sometimes family time was
found with a little help from clever scheduling. On election day in 1981, once
campaigning was over, Lyon took his son out duck hunting for the afternoon.
Sterling Lyon was a man of strong personality who truly had a profound
influence on all Canadian lives. To quote Shakespeare:
He was a man, take him for all in all, I shall not look upon his like
Honourable senators, please join me in acknowledging Sterling Lyon and his
many notable contributions to our province, Manitoba, and our country, Canada.
Hon. Jane Cordy: Honourable senators, while Nova Scotia is always a
great place to be, the last two weeks of February will be especially exciting.
The 2011 Canada Winter Games will begin in Halifax, Nova Scotia, this Friday,
February 11. Thousands of young athletes will be in Nova Scotia to compete in
the 2011 Halifax Canada Games. These athletes have dedicated much time and
effort in developing skills in order to represent their provinces in their
respective sports. We know that these talented young people will compete with
determination and strive to win but will also display fine sportsmanship. I
would like to extend to all athletes my congratulations and best wishes for a
successful competition. I would especially like to send best wishes to Brandon
and Liam Dimmer who are neighbours of mine in Dartmouth and members of Team Nova
Scotia. I would like to recognize the thousands of volunteers who will help to
make the Halifax Canada Games a success.
I invite all honourable senators to Halifax to enjoy these Canada games.
There will, of course, be the athletic competition but, in addition, there will
be outdoor concerts to enjoy, featuring artists such as Joel Plaskett, Matt
Mays, Sloan, and Great Big Sea.
Honourable senators, the 2011 Canada Winter Games are shaping up to be a lot
of fun with Atlantic Canadian hospitality at their heart. It will be a great few
weeks, so come and celebrate with us.
The Hon. the Speaker: Honourable senators, before continuing with
Senators' Statements, I wish to draw your attention to the presence in the
gallery of a special guest to whom I wish to say qujannamiik, which means
in Inuktitut "thank you for visiting us." Our distinguished guest is none other
than Paul Okalik, who is the Speaker of the Legislative Assembly of Nunavut. I
might add that his family name means "rabbit," and what better season to come to
the Senate of Canada than in the launch for the Year of the Rabbit.
On behalf of all honourable senators, welcome to the Senate of Canada.
Hon. Senators: Hear, hear.
Hon. Dennis Glen Patterson: Honourable senators, I would like to join
His Honour in welcoming Speaker Okalik.
There have been significant events that have recently occurred in Nunavut
and, indeed, in the international marketplace that I believe will have a
profound and lasting effect on the economic future of this rich region of Arctic
Canada, which I am proud to represent in this chamber.
The events I am referring to are Baffinland Iron Mines being acquired by
ArcelorMittal and Nunavut Iron Ore.
As you have heard from me before, Baffinland held the rights to the Mary
River Project, one of the richest iron ore projects in the world, a veritable
mountain of hematite, which is located on northern Baffin Island.
Baffinland had been advancing the Mary River Project for years and it had
reached a point where significant capital was needed to take the project through
the final development and then on to the mining stage.
While it is known that Mary River has reserves lasting at least 21 years,
there are literally hundreds of millions of tonnes of future iron ore resources,
which means that this project will provide decades of benefits through training,
employment and business opportunities to the communities of the North Baffin and
other regions of Nunavut.
Moreover, the mine will provide significant revenues to the Government of
Nunavut and the Qikiqitani Inuit Association, which will respectively receive
taxation and royalty revenues from the project. Equally important will be the
contribution that this $6 billion project will make to the GDP of our country
and revenues for our federal government.
For those of you who are not familiar with the companies that acquired this
development, ArcelorMittal is the largest steel manufacturing company in the
world and the fourth largest iron ore miner globally.
From a Canadian perspective, ArcelorMittal is no stranger to this country,
being the owner of ArcelorMittal Dofasco and ArcelorMittal Mines Canada,
formerly known as Quebec Cartier Mining, together employing over 7,000
It is also worth mentioning that several senior members from ArcelorMittal
have significant cold regions mining project experience. Phil Du Toit, the new
CEO, led the implementation of Northwest Territories' successful Diavik diamond
mine and the Voisey's Bay nickel mine in Labrador. Peter Kukielski was chief
operating officer at Teck Resources and was responsible for the Red Dog zinc
mine in Alaska, and, similarly, while COO of Falconbridge, he was responsible
for the Raglan nickel mine in the Nunavik region of Northern Quebec.
ArcelorMittal mining team is completing a green field mining project in
Liberia and, as such, will be the first mining company to bring iron ore
production to West Africa. They are aiming to achieve the same pioneering feat
in Nunavut. ArcelorMittal's partner Nunavut Iron Ore is a company that was
established to bid for Baffinland, and during the bidding process, Nunavut Iron
Ore and ArcelorMittal joined forces to secure the deal.
ArcelorMittal have confirmed that they intend immediately to pursue
development of the project.
Mary River is very unique in a very unique and special part of the world.
This project potentially presents tremendous opportunity for the Nunavut
labour force and private sector and significant opportunities for Canada. While
the project is currently in the regulatory process, I remain confident that
Nunavut boards and agencies will make the necessary decisions and
recommendations that will ensure the Nunavut environment is respected and socio-
economic impacts in nearby communities will be manageable and beneficial. I plan
to meet the ArcelorMittal group later this month and look forward to hearing
more about their plans for the years to come.
I know I speak for all honourable senators in welcoming and supporting
ArcelorMittal as they pursue development of this special project in Nunavut.
Hon. Daniel Lang: Honourable senators, I rise to pay tribute to Leslie
Lorne McLaughlin, who passed away in Ottawa on January 8 at the age of 69.
Les started his life in Yukon at the age of three and played minor hockey in
Whitehorse, and then eventually went on to play senior hockey.
At the same time, he volunteered at the military-run radio station CFWH in
the late 1950s.
Les then began his broadcasting career at CBC Northern Service in Yukon in
1962 and was a full-time announcer operator by 1964, where he worked until 1968.
He then went to work in Montreal as the Northern Service producer, and then to
Ottawa as the producer and head of the Ottawa production unit from 1980 to 1995.
Fortunately for Canada's and Yukon's heritage, Mr. McLaughlin committed the
voices and memories of pioneers from the Yukon to audiotape, videotape, music
and the spoken word. His work will enrich Canadians for generations to come.
The Whitehorse Star, in marking his passing, referred to "the patented
McLaughlin voice, rich in baritone, authoritative in its delivery and
razor-sharp in its accuracy."
Honourable senators, I remember it well. All Yukoners remember his voice very
Mr. McLaughlin received the CBC President's Award in 1992, the Yukon Heritage
Award in 1996 and the Yukon Commissioner's Award in 2005.
After retiring from his job as producer in Ottawa, Les went on tour and
produced records of the music of the North. He was the founding producer of the
True North Concert series broadcast across Canada. Les also produced a unique
and innovative series of broadcast recordings, featuring Northern musical talent
from across the North. The series includes over 1,000 musical selections. He was
committed to the North.
Dave Brown of the Ottawa Citizen recently wrote the following about
He was modest and self-effacing, rare qualities in a media star,
particularly of the CBC variety . . . He wore oversized glasses. There were
unproved rumours he actually owned a tie. His usual greeting was to dip his
head, peer over his glasses, and smile.
Fellow senators, Canada and Yukon were well served by Les McLaughlin. Along
with his children, Mark and Angela, and their families, and his sister Margaret,
who came to be by his side for the last couple of months, we mourn his passing
and celebrate his contributions to Canada.
Hon. Donald H. Oliver: Honourable senators, yesterday I rose to speak
about Black History Month, and today I rise to speak about why that month is so
On March 10, 2010, I called to your attention a cross-burning incident that
took place in Poplar Grove, Nova Scotia.
As you may recall, a seven-foot wooden cross, reminiscent of the activities
of the Ku Klux Klan, was erected and burned on the lawn of a biracial family in
the middle of the night on February 21, 2010. A hangman's noose was attached to
the cross. While it burned, Shayne Howe, Michelle Lyon and their five children
were threatened with racially charged words of hatred.
Two brothers, Justin and Nathan Rehberg, 20 and 21 years of age, were accused
and convicted of these horrific crimes.
Crown Prosecutor Darrell Carmichael called the cross-burning incident "a
sensational message of racial hatred," signifying that there is profound
historical and cultural significance to the burning of a wooden cross with a
On January 10, Judge Claudine MacDonald sentenced Justin Rehberg to two
months in prison for inciting public hatred and two months for criminal
harassment. The next day, Justice John Murphy sentenced Nathan Rehberg to six
months in jail for criminal harassment and four months for incitement of hatred.
While handing down her sentence, Judge MacDonald said:
To act the way you did, to use the symbol of hate . . . you victimized
the family and you had an impact on the community at large.
Halifax's The Chronicle Herald ran an in-depth coverage of the trials.
Last week it published a thought-provoking, detailed, four- part series on the
cross-burning incident. Many Nova Scotians who responded by way of letters to
the editor to the series denied the fact that racism even existed.
Dan Leger, director of news content for The Chronicle Herald wrote:
There is a problem and we can't ignore it just because we fear stirring
up old resentments . . . . We did the story because it is important to shine
light on dark events, to tackle a painful issue that has long divided Nova
Honourable senators, it is the second time in Canadian history that a burning
cross has been recognized as a hate crime in a court of law. The first was in
2001 in Moncton.
It also reminds us that hate crimes and racism do, in fact, exist in Canada.
In 2007-08, more than 1,800 hate crimes were reported to police in Canada; 58
per cent of these were centred on race or ethnicity.
Honourable senators, what happened in Poplar Grove last year was an offensive
and insensitive act of hatred and, regretfully, a crude reminder that racism
still poisons our society.
Honourable senators, please join with me in doing what you can to help fight
race hatred, to promote tolerance and equality, and, finally, to raise awareness
about the benefits of diversity.
Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable
senators, I have the honour to table, in both official languages, a declaration
made by the Prime Minister of Canada, Stephen Harper, and the President of the
United States, Barack Obama, in Washington, on February 4, 2011, entitled
Beyond the Border: a shared vision for perimeter security and economic
Hon. James S. Cowan (Leader of the Opposition): Honourable senators, I
give notice that, on Tuesday, February 15, 2011:
I will call the attention of the Senate to the litany of broken promises
by the Harper administration, beginning with the broken promise on income
trusts, which devastated the retirement savings of so many Canadian seniors.
Hon. James S. Cowan (Leader of the Opposition): Honourable senators,
my question is for the Leader of the Government in the Senate. For 50 years,
Canadian teachers have volunteered their time and experience to improve
education in developing countries. The Canadian Teachers' Federation has
partnered with the Government of Canada to send Canadian teachers — over 1,900
since the program began — to developing countries around the world, working with
teachers in places such as Ghana, Malawi, Mongolia, Uganda, Mozambique, Burkina
Faso, Sierra Leone and Haiti.
The Canadian Teachers' Federation has estimated that if even half the
teachers around the world who participated in this program improve their
teaching, at least 1.4 million students would have benefited. All of this has
come crashing down. The government has rejected the request for funding for the
upcoming five years of Project Overseas. Forty thousand teachers overseas and
their over two million students will be the immediate casualties of this
An email from a CIDA official stated:
It was determined that the most recent Canadian Teachers' Federation
proposal did not meet our aid effectiveness criteria.
What criteria did the proposal not meet? What part of encouraging and
educating young people in developing countries does the government not support?
Hon. Marjory LeBreton (Leader of the Government): I thank the
honourable senator for the question. As I have said many times before in answer
to questions related to CIDA funding, our government is bringing real
accountability to development funding to ensure that our taxpayers' dollars
bring real results. We want to ensure that the money we put into these programs
is getting to the people who need it the most.
I am informed that CIDA has been working with the Canadian Teachers'
Federation for the last six months to help them adapt their programs to the
Senator Cowan: My question, of course, was: What criteria did the
proposal not meet? Perhaps the leader would take that as notice and could
respond to us so that honourable senators would know.
The difficulty I have is that this is not an isolated incident. This is
reminiscent of the decision that the government recently took to axe funding to
KAIROS. The minister responsible for CIDA and her parliamentary secretary both
repeated in the other place, over and over, that KAIROS did not meet the
official criteria for funding. Then the president and vice-president of CIDA
unequivocally stated that they, representing CIDA, had recommended KAIROS for
renewal of its $7 million grant. Honourable senators will know that KAIROS is an
NGO that focuses on human rights, poverty and other justice-related issues.
The Canadian Teachers' Federation, which is engaged in sending teachers to
some of the poorest places in the world, tries to help build a better tomorrow
in those places through education.
The CTF was told their application was rejected not on the merits, but
because of a technicality, and this after they had worked with CIDA for 18
months on the new proposal.
What technicality was it that justified killing this excellent program? In 18
months, through that whole period of time when CIDA was helping CTF with the
preparation of the proposal, not once did CIDA alert CTF to this technicality.
Why not? Is this just another example of CIDA taking the fall for a decision
made elsewhere in government?
Senator LeBreton: We understand that CIDA officials expressed direct
concerns with the Canadian Teachers' Federation regarding a lack of focus, a
lack of sustainability and a lack of budgetary information.
Having said that, the Canadian Teachers' Federation is more than welcome to
address these issues and apply for funding under a new call for proposals.
With regard to KAIROS, Minister Oda has always been clear. As I have said
before with regard to funding by the Canadian International Development Agency,
often projects do not meet government priorities, which was the case with
KAIROS. We cannot fund every single proposal that is made. People who receive
funds from various government programs are not guaranteed that they will receive
them in perpetuity. Other new people and agencies are applying for funds. In the
case of work that was done by KAIROS, KAIROS has partner organizations, such as
the United Church of Canada and Lutheran World Relief, which have been funded
and are continuing with that good work.
Hon. Jane Cordy: The leader said that one of the reasons the Canadian
Teachers' Federation was not given funding was because of lack of
sustainability. This program has been going on for over 50 years. I would think
that program is sustainable.
Mary-Lou Donnelly, President of the Canadian Teachers' Federation, outlined,
as Senator Cowan has said, that the Canadian Teachers' Federation was rejected
not on the merits of the program they proposed but on a technicality. A program
that has been in place for over 50 years, where volunteers give teacher training
and curriculum development programs in Africa, Asia and parts of the Caribbean,
has been rejected on a technicality. It has been rejected, the leader said,
because of lack of sustainability. I find that reason to be incredible.
Can the Leader of the Government, as Senator Cowan said, please tell us what
this technicality was?
Senator LeBreton: Honourable senators, I believe I was clear that it
was more than a technicality. I will repeat: The agency officials expressed
concern with the Canadian Teachers' Federation regarding a lack of focus, a lack
of sustainability and a lack of budgetary information. I think those concerns
are a little more than a technicality.
As I have said many times, and I will repeat again, there are many worthy
causes for which CIDA is approached for funding. CIDA funds many organizations.
Simply because some organizations are funded does not mean that the funding goes
on in perpetuity. Other bodies and agencies deserve to be considered as well.
Honourable senators, I repeat: Concerns were expressed with the proposal by
the Canadian Teachers' Federation about lack of focus, lack of sustainability
and lack of budgetary information. Those concerns are important, since we are
talking about taxpayers' dollars. The federation has been invited, and they are
more than welcome, to address these issues that were raised with them directly
and apply for funding under a new call for proposals.
Senator Cordy: Let me get this straight. CIDA told Mary-Lou Donnelly,
President of the Canadian Teachers' Federation, that they were rejected because
of a technicality, but the leader is telling us that, in fact, it was not only a
technicality; the CIDA officials were wrong when they spoke to Mary-Lou
Donnelly. Is that what the leader is saying?
Senator LeBreton: I am simply saying that I was not party to the
conversation between the CIDA official and the individual the honourable senator
mentioned. I am reporting to the honourable senator what was reported to me by
officials. I did not use the word "technicality"; the honourable senator used
the word "technicality".
Hon. Céline Hervieux-Payette: Honourable senators, for a number of
years now I have been working with the Inter- Parliamentary Forum of the
Americas. We work with the entire continents of the Americas — North America,
South America and Central America. We have to deal with CIDA. I have seen our
staff exhausted because they sometimes have to renegotiate the same contract
In terms of reporting — and this point was mentioned also in the previous
report of the Senate on CIDA administration — the demands for specific analysis
of projects, et cetera, are beyond any requirements in the private sector.
Will the leader at least report to us what specifications CIDA requires? Are
the requirements state-of-the-art in terms of administration? Everyone we speak
to in this country about CIDA requirements in terms of financial reporting find
the requirements are beyond the imagination and certainly not according to best
practices. I want to ensure that the federation has not been subjected to
standards that no one else is applying anywhere in society.
Senator LeBreton: Honourable senators, as we know, there are many
pressures on CIDA for funding. They perform great work around the world.
Obviously, complaints about CIDA are something that CIDA must put up with. There
are always groups that complain about the process they must go through when they
make applications to CIDA.
Without all of the details, I believe that in the application process for
funding through CIDA, CIDA follows a process where accountability is important.
Furthermore, the aid that they fund is effective and targeted, and goes to those
places where it is most in need.
Hon. Terry M. Mercer: Honourable senators, I am having difficulty with
this answer. The leader talked about lack of focus, sustainability and budgetary
information. The focus is 50 years of doing a job around the world and helping
thousands of teachers and millions of students improve their lives in Africa,
Asia and the Caribbean region. The sustainability is this program has been
delivered over 50 years. Budgetary information is provided in all the
What prompted me to rise to my feet was the talk about the Canadian Teachers'
Federation not meeting the requirements for filling out an application. I recall
only a short while ago, as honourable senators will recall, that the Prime
Minister had a big event where he talked about the commitment of the
Conservative government to cutting what — red tape. He was cutting red tape.
It seems to me, honourable senators, that a program like this one, which has
been praised by people across Canada and around the world as a terrific program,
is a great place to show the kind of leadership that the Prime Minister seemed
to indicate he wanted to demonstrate: by cutting the red tape and by ensuring
that this program receives funding and receives it now.
Senator LeBreton: Honourable senators, there is a big difference
between cutting red tape and demanding accountability. Again, honourable
senators, the government is committed to making Canada's international
assistance more focused, more efficient and more accountable.
We want to ensure our assistance is getting into the hands of those who need
it most. One of the first measures we took in this area, although I did not hear
much praise in this place, is that we untied food aid. We were a major donor to
the World Food Programme. Our new aid-effectiveness agenda focuses assistance on
food security, children and youth, and sustainable economic growth. That is what
I mean by focusing — drawing attention and being more accountable for our
food-aid dollars, which are widely sought after.
With regard to the Canadian Teachers' Federation, obviously they have been
delivering this program for some time. That is obvious. However, that does not
mean that this program continues in perpetuity, and it does not mean that at
some point in time these programs will not be looked at. If CIDA has found a
problem with lack of sustainability, lack of budgetary information and lack of
focus, I believe it is incumbent not only on CIDA officials but also on the
Canadian Teachers' Federation to work together, as they appear to be doing, to
resolve these issues.
Senator Mercer: Honourable senators, it is incumbent upon the Canadian
Teachers' Federation to do so, but the federation has been collaborating with
CIDA for the past 18 months. During those 18 months, could someone from CIDA
have asked the Canadian Teachers' Federation to provide CIDA with more financial
information? Could someone from CIDA have made it clear that CIDA was not happy
with the teachers' description of sustainability? Could someone at CIDA have
asked to learn more about the sustainability of the federation? Could someone
from CIDA have mentioned that CIDA feels that the federation is not focused
enough, even though the Canadian Teachers' Federation has been in this business
for 50 years?
Over 18 months, combined with the Prime Minister's commitment to cut red
tape, you would think this would be a no-brainer, that you could get this done
quickly and that you could continue to deliver quality services to teachers and
students around the world, helping to raise the level of education of the
poorest of the poor.
Senator LeBreton: Honourable senators, that is a very interesting
comment, because that is precisely what appears to have happened between the
Canadian Teachers' Federation and the CIDA officials.
Honourable senators, the Canadian Teachers' Federation has been told that
they are most welcome, once they address these issues, to apply for funding
under a new call for proposals.
Hon. Roméo Antonius Dallaire: Honourable senators, the leader's
position on accountability and ensuring that funds are well spent and oriented
is commendable. The leader's position is based on Bill C-2. However, honourable
senators, what happens if the organization is blind in the field?
The Canadian International Development Agency has a body of about 1,200
employees, of whom barely 75 are actually in the field looking at the programs,
monitoring the programs, influencing the programs, in order that those who are
delivering these programs get the right advice from the agency and that they
have a continuous positive flow.
Honourable senators, perhaps the problem is that there are too many CIDA
employees writing nearly postgraduate documents in that building on Promenade du
Portage and not enough hard information coming from the field to actually take
far more enlightened and appropriate decisions than some of the ones we have
been seeing recently.
Senator LeBreton: Honourable senators, I will not stand here and
prejudge the hard work that the officials at CIDA do and I will not presume that
they are not working very hard in the field to address these issues. That is
unfair to them. It is unfair to the hard-working public servants who work for
CIDA and are working to resolve many of these issues in the various trouble
spots and the poorest parts of world. I think they do an excellent job. There is
proof now that with more focused efforts — and I go back to untying food aid —
there are some real results.
Honourable senators, I will not stand here and give credence to Senator
Dallaire's comments about people sitting around writing papers and not being in
the field. I do not think that is fair. If we look at the Foreign Affairs and
International Trade model, the percentage of people working out in the field is
far greater than the percentage of people who are working at DFAIT in Ottawa.
The honourable senator's comments are unfair to CIDA officials and I will not
be part of them.
Hon. Roméo Antonius Dallaire: Honourable senators, I am not sure
whether the leader should bring Foreign Affairs and International Trade into the
debate, because over the last years we have gutted Foreign Affairs and, in fact,
that department is just a whisper of what it used to be.
Honourable senators, concerning CIDA, I am not talking about the people and
whether they are hard-working individuals. On the contrary, they are working
incredibly hard. These individuals must be working hard because you have to have
nearly a postgraduate degree to get a project approved through CIDA because so
many hoops have been created and there is so much prioritization that it costs
more to get a project in there than will be realized in monetary return.
Honourable senators, I am stating that systematically within that department
they have lost contact with the field because they are all sitting doing
paperwork and flying in and out instead of being deployed with authority in the
field. They should be in the field monitoring, advising and ensuring that
programs do not go sour, as the leader seems to have described with this current
project with the teachers.
Hon. Marjory LeBreton (Leader of the Government): Honourable senators,
my comments are the same as they were in relation to the honourable senator's
comments about CIDA officials. It is incorrect for the honourable senator to
suggest that the hard-working public servants at Foreign Affairs and
International Trade are not what they used to be. It is incorrect to suggest
that something is lacking, when in reality nearly 60 per cent of DFAIT's
rotational employees are currently posted abroad. Those currently based at
headquarters provide valuable support to those people who are working in the
I hope they are paying attention to what the honourable senator is saying,
because I think he is seriously undermining the hard work of our employees at
Hon. Jean-Claude Rivest: Honourable senators, my question is for the
Leader of the Government in the Senate. The government is currently looking at
merging — if it is not already done it is about to be done — the Toronto and
London, England stock exchanges. This issue is very important to the entire
Can the minister tell us whether one of the fundamental conditions for the
Government of Canada agreeing to this transaction will be the preservation of
trading activities in Vancouver — to a smaller extent — and also in Calgary and
especially Montreal? We must protect the derivatives market — the activity in
the Montreal stock exchange — which was part of the agreement concluded when the
Montreal and Toronto stock exchanges were merged.
Can the minister assure us that the Canadian government will not agree to
this extremely important transaction unless there is a firm guarantee that stock
trading activities in Montreal, Calgary and Vancouver will be protected?
Hon. Marjory LeBreton (Leader of the Government): I thank the
honourable senator for the question. The Minister of Industry is looking to see
how the Investment Canada Act applies to this proposed transaction. The act, as
we know, allows for a 45-day period for ministerial review. That is the extent
of what I will say on this matter. It is obviously in the news.
There is nothing more to say other than that the minister is looking to see
how the Investment Canada Act applies to this proposal.
Hon. Tommy Banks: Honourable senators, my question is to the Leader of
the Government in the Senate. In the previous line of questioning about CIDA,
the leader referred several times to the government's commitment to
accountability and said that she had not received applause. However, honourable
senators, the leader's government received applause when, in the interest of
accountability, it appointed a Parliamentary Budget Officer. Applause was given
to it in this place. The leader received congratulations from this side, because
it was a good move.
However, the relationship between the leader's government and the PBO has not
been sanguine entirely. This past Monday, a question of privilege was raised in
the other place regarding her government's refusal to release the cost estimates
of its tough-on- crime legislation.
The Prime Minister is a pretty good piano player and quite a versatile one,
but since last autumn, the only tune that this government seems to be playing is
about putting more and more people in jail for longer and longer.
Honourable senators, Canadians have a right and we here have a right to know
just how much these American-style super-prisons will cost. The Conservative
government has replied that it is not required to submit the estimates to the
Parliamentary Budget Officer, citing cabinet confidence.
That is a red herring, I think, because the legislation has been introduced
and it is now in the public domain. It is a perfectly reasonable thing to ask
how much it will cost. The Parliamentary Budget Officer is asking that question.
For a government that claims to be transparent and accountable, the leader
must recognize that the Parliamentary Budget Officer cannot do his job if he is
not given the information with which to do his calculations. He cannot provide
estimates. He cannot provide comments on estimates. He cannot provide comments,
as he is supposed to, on proposed government spending unless he is given the
Will the leader tell us why her government will not provide the Parliamentary
Budget Officer with the information on the cost of building prisons and housing
Hon. Marjory LeBreton (Leader of the Government): Honourable senators,
I am well aware of the question of privilege in the other place regarding the
cost of our crime bills. I can only report to Senator Banks that the government
will be responding to this very shortly.
Senator Banks: Honourable senators, I hope the government will respond
by answering the question the PBO is asking. I suppose this is a comment and not
a question, but with a spring election looming —
Some Hon. Senators: Oh, oh.
Senator Banks: There is a spring election looming.
I believe the minister will agree that there can only be two reasons for not
providing that information. One is that the PMO has contempt for the PBO, which
I think might be the case, or there is a simple fear of backlash from taxpayers
who are beginning to get fed up with irresponsible government spending.
Senator LeBreton: I am very interested in the assuredness the
honourable senator speaks of about having a spring election —
Senator Comeau: They have to get rid of Iggy.
Senator LeBreton: That must be it.
The fact is that the government is governing. There will be a budget brought
down. The budget will continue on with our economic plan in the interests of
jobs and the economy. We are not anticipating an election but, of course, we
have to be mindful of the coalition. The coalition has said that they will
defeat the government, so we will be ready.
Some Hon. Senators: Oh, oh!
Senator LeBreton: This government has survived in a minority position
for five years now, which is even longer than their beloved Lester Pearson. At
different times through that process, we have had many pieces of legislation
passed with the support of one or other, or sometimes all, of the opposition
parties. That is how we got the legislation through.
The Liberal Party itself has supported us on many initiatives, such as our
past budgets. The NDP has supported us. That is quite a different matter from
the three parties coalescing to defeat the government and cause an election
where their intention is to raise taxes for Canadians.
Senator Banks: My final question is this: Does the leader not
understand that she is part of a coalition? Does she not understand that there
will be an election unless the NDP caves, and then there will be a
Conservative-NDP coalition, which is a very interesting concept?
Senator LeBreton: The fact is that we will be presenting a budget and
we operate completely as a government in the interests of Canadians. If one or
other party decides to support our initiative, then that is their decision and
the honourable senator will not have his wish of having an election so his party
can deal with its own leadership problems.
Hon. James S. Cowan (Leader of the Opposition): Honourable senators,
my question is not about the Bloc-Conservative coalition. I will make that
My question is simply this: Why in the world can the leader not explain to
Canadians and provide to the Parliamentary Budget Officer and to honourable
senators and members in the other place the cost of the proposed legislation
they are asking us to pass? It is impossible to believe that the government has
not costed their legislation. What is wrong in principle with providing that
information to parliamentarians who are called upon to vote for it? Could the
honourable senator explain that to us, please?
Senator LeBreton: I would like to ask the honourable senator what part
of yes he has trouble understanding. I have already said the government will be
responding very shortly.
Senator Cowan: Will the government be providing that information to
parliamentarians in the other house and in this house before we are required to
vote on the legislation? Yes or no?
Senator LeBreton: There is a question of privilege by the honourable
senator's colleague in the other place who is from the same province he is from.
I have a lot of background material on that particular member of Parliament.
Talk about someone turning themselves inside out and now saying exactly the
opposite of what they once said.
In any event, I can only repeat what I just said. The government will be
responding to that Liberal member's question of privilege very shortly.
Senator Cowan: The leader is not answerable for the actions of her
colleagues in the House of Commons, but she is answerable and responsible to her
colleagues in this chamber. Will she give us an assurance that, before we are
asked to vote on any further so- called tough-on-crime legislation, our
committees at least will be provided with the best estimates that the government
has as to the cost of implementing that legislation?
Senator LeBreton: Honourable senators, it only stands to reason that
if there is a question of privilege in the other place and we said we will
answer it, then we will obviously answer it with some type of answer. That is
all I can say.
The Senate proceeded to consideration of amendments by the House of Commons
to Bill S-6, An Act to amend the Criminal Code and another Act:
1. Page 1: Delete clause 1.
2. Page 3, clause 3: Add after line 28 the following:
"(2.7) The 90-day time limits for the making of any application
referred to in subsections (2.1) to (2.5) may be extended by the
appropriate Chief Justice, or his or her designate, to a maximum of 180
days if the person, due to circumstances beyond their control, is unable
to make an application within the 90-day time limit."
3. Page 3, clause 3: Add after line 28 the following:
"(2.7) If a person convicted of murder does not make an application
under subsection (1) within the maximum time period allowed by this
section, the Commissioner of Correctional Service Canada, or his or her
designate, shall immediately notify in writing a parent, child, spouse
or common-law partner of the victim that the convicted person did not
make an application. If it is not possible to notify one of the
aforementioned relatives, then the notification shall be given to
another relative of the victim. The notification shall specify the next
date on which the convicted person will be eligible to make an
application under subsection (1)."
4. Page 6, clause 7: Replace line 9 with the following:
"3(1), within 180 days after the end of two years"
5. Page 6, clause 7: Replace line 19 with the following:
"amended by subsection 3(1), within 180 days"
Hon. Claude Carignan: Honourable senators, I move:
That the Senate concur in the amendments made by the House of Commons to
Bill S-6, An Act to amend the Criminal Code and another Act, Serious Time
for the Most Serious Crime Act, and
That a message be sent to the House of Commons to acquaint that House
Honourable senators, as the sponsor of Bill S-6, An Act to amend the Criminal
Code and another Act, I would have preferred that the House of Commons not amend
the bill. Our government also would have preferred that. Nevertheless, the
government believes that the bill should continue through the legislative
process with the proposed amendments.
Indeed, at the House of Commons Standing Committee on Justice and Human
Rights meeting on November 23, 2010, four amendments were adopted with the
support of the three opposition parties. Two of the amendments had to do with
the time limit for making an application for parole under the faint hope clause.
A third amendment had to do with notifying the families and loved ones of murder
victims. The fourth amendment was to delete the short title.
At present, applicants have 90 days in which to submit an application for
parole under the faint hope clause, pursuant to sections 745.6, subsections
(2.1) to (2.5) of the Criminal Code and to the transitional clauses of
subsections 7(2) and (3). The 90-day time limit was considered enough time given
that Correctional Service Canada helps inmates prepare their applications at
least one year before they have served 15 years of a life sentence.
One of the three amendments regarding the time limit for submitting an
application to a judge — the proposed subsection is 745.6 (2.7) — aims to
increase the time limit from 90 days to 180 days, if inmates are unable to do so
within 90 days due to circumstances beyond their control. The other two
amendments are concurrence amendments meant simply to replace the 90-day time
limit with a 180-day time limit.
With respect to the last amendment regarding subsection 745.6 (2.7), it
states that Correctional Service Canada must immediately notify in writing a
parent, child, spouse or common-law partner of the victim or another relative if
the convicted person does not make an application for parole under the faint
Honourable senators, I propose that we support the will of the House of
Commons and the proposed amendments.
Hon. Sharon Carstairs: Honourable senators, it is clear that the crime
policy of the government has been exposed for all of its flaws. The government
purports to tell us they are all about the victims and yet the honourable
senator stood in this place and said that he would have preferred the bill to be
passed without amendments. One of those amendments, honourable senators, was all
about victims. It was to inform the victims if a convicted murderer had not made
use of the faint hope clause and thus ease their concern about the faint hope
If the honourable senator was concerned genuinely about victims, he would
have stood up in this chamber and applauded that amendment from the other place
and he would not have said that he preferred the bill without amendments. The
crime agenda has never been about victims; it has been about vengeance; and
nothing relates more to that concept than the faint hope clause and the desire
of this government to do away with it.
It is important to put on the record what many of the churches in this
country think about this policy. I will identify the members of the Church
Council on Justice and Corrections: the Anglican Church of Canada, Baptist
Convention of Ontario and Quebec, Canadian Conference of Catholic Bishops,
Christian Reformed Churches of North America, Disciples of Christ in Canada,
Evangelical Lutheran Church in Canada, Mennonite Central Committee Canada,
Presbyterian Church in Canada, Religious Society of Friends (Quakers), the
Salvation Army in Canada and the United Church of Canada.
What has the Church Council on Justice and Corrections written in a letter to
Prime Minister Harper with respect to his crime agenda? The letter stated:
Dear Mr. Prime Minister,
The Church Council on Justice and Corrections (CCJC) is most concerned
that in this time of financial cuts to important services you and the
government of Canada are prepared to significantly increase investment in
the building of new prisons.
Proposed new federal laws will ensure that more Canadians are sent to
prison for longer periods, a strategy that has been repeatedly proven
neither to reduce crime nor to assist victims. Your policy is applying a
costly prison response to people involved in the courts who are non- violent
offenders, or to repeat offenders who are mentally ill and/or addicted, the
majority of whom are not classified as high risk. These offenders are
disproportionately poor, ill- equipped to learn, from the most disadvantaged
and marginalized groups. They require treatment, health services,
educational, employment and housing interventions, all less expensive and
more humane than incarceration.
The Canadian government has regretfully embraced a belief in
punishment-for-crime that first requires us to isolate and separate the
offender from the rest of us, in our minds as well as in our prisons. That
separation makes what happens later easier to ignore: by increasing the
number of people in jail for lengthier sentences you are decreasing their
chance of success upon release into the community.
The vision of justice we find in Scripture is profound and radically
different from that which your government is proposing. We are called to be
a people in relationship with each other through our conflicts and sins,
with the ingenious creativity of God's Spirit to find our way back into
covenant community. How can that be if we automatically exclude and cut
ourselves off from all those we label "criminal"?
Increasing levels of incarceration of marginalized people is
counter-productive and undermines human dignity in our society. By contrast,
well supervised probation or release, bail options, reporting centres,
practical assistance, supportive housing, programs that promote
accountability, respect and reparation: these measures have all been well-
established, but they are underfunded. Their outcomes have proven to be the
same or better in terms of re-offence rates, at a fraction of the cost and
with much less human damage.
Public safety is enhanced through healthy communities that support
individuals and families. We, therefore, respectfully ask you to modify your
government's policy taking into consideration the impact it will have on the
most disadvantaged, its lack of effectiveness, and its serious budgetary
The Church Council on Justice and Corrections
Honourable senators, the faint hope clause was introduced originally when we
introduced a bill that did away with capital punishment in this country. The
clause was put in place for two reasons: first, the belief that people could be
forgiven, that they could change and that they could reform; and second, the
genuine concern that if people were sentenced to life imprisonment for 25 years
with no eligibility for parole for committing first degree murder, it might
place an unfair burden on those who were in the business of helping to
incarcerate — specifically the guards.
If people have no hope, then what is their justification for good behaviour?
What is their justification for trying to live their lives in a better fashion
and in a better manner? The faint hope clause was added in the hope that it
would challenge them to do just that; and it has been highly successful. Never
has an individual released in Canada under the faint hope clause committed
another murder. Over 97 per cent of them have never had any further difficulty
with the law.
Senator Mercer: Is it 97 per cent?
Senator Carstairs: Yes, it is 97 per cent. Yet, we want to imprison
them longer; for what reason?
Senator Mitchell: It is disgusting.
Senator Carstairs: I remind honourable senators who intend to vote for
these amendments, and thus for the bill, that once passed, the bill will do away
entirely with the faint hope clause for anyone convicted of murder. It will not
apply to those convicted before its passage. The 90 days was increased to 180
days so they could still apply, except anyone convicted from date of prorogation
For those people eligible to apply, what do they have to go through? Who do
they have to convince? First, they must convince the judge that they have
reformed sufficiently to be given permission to appear before a jury. If the
judge says, no, that is the end. If the judge says, yes, they go before a jury.
They must convince the jury that they have reformed so that the jury grants them
permission to go before the Parole Board of Canada. They must then convince the
members of the Parole Board of Canada to release them.
Honourable senators, they must go through all of those stages before they can
be released into the community; and yet, this government wants to eliminate that
Honourable senators, I cannot support that. I cannot support legislation
based on vengeance. That is not what I was taught as a child and it is not what
I believe in as an adult. It is not, I believe, a part of the Canadian value
Hon. Pierre Claude Nolin: Why does Senator Carignan agree that we drop
the short title?
Senator Carignan: I believe that, after careful review of Bill S-6,
the House of Commons made a few minor changes, namely to the title and changing
the deadline from 90 to 180 days where appropriate.
The House of Commons and the Liberal opposition in the House of Commons
agreed on the principles of this bill. They voted in favour of the bill. I
cannot recommend that honourable senators oppose minor changes. I think we need
to get to the heart of the matter and protect victims and victims' rights, and
we have to make sure that a life sentence is a life sentence.
Senator Nolin: I would like another clarification. Amendments 2 and 3
suggest a paragraph (2.7). Are there two paragraphs 2.7 in clause 3 of the bill?
Senator Carignan: I have received the ninth report of the Standing
Committee on Justice and Human Rights and indeed, it mentions paragraph (2.7). I
imagine that both paragraphs (2.7) will follow in subsection 1 and in subsection
2. That is how I understood the report because clause 3 states: ". . .be amended
by adding after line 28 on page 3 the following."
(2.7) is being added, but was already adopted. I gather part 3 will have a
second subsection to clause 2.7. That is how I understood it. Unfortunately,
this is a report that was not presented as a bill to amend, which would have
allowed us to identify specific flaws like the one Senator Nolin has flagged,
but that it is how it is written in the report.
Senator Nolin: I think His Honour should address this inconsistency
before we vote on the bill. We are being asked to adopt two paragraphs that
would have the same number in the same clause. Before we can properly vote on
the amendments, I think His Honour should clear up this matter.
I feel very strongly that there cannot be two paragraphs with completely
different text that share the same number. I implore His Honour to intervene so
that we can vote on this bill properly.
The Hon. the Speaker: Honourable senators, the question before the
chamber is very clear and if, over the course of debate, other amendments are
proposed, that is a different question. If there are no amendments, then we will
be debating the amendments proposed by Senator Carignan, seconded by Senator
Hon. Joan Fraser: Honourable senators, I do not think Senator Nolin
phrased this as a point of order but, if necessary, I will. Senator Nolin has
drawn our attention to the fact that the material before us gives two
identically worded instructions to do "the following," except that "the
following" is different in the two cases. I think Senator Nolin has a valid
point in saying that we need clarification on this matter, so I am seeking that
from you, Your Honour. If it takes a point of order, would you consider it to be
a point of order?
The Hon. the Speaker: I do not consider it to be a point of order. I
think that we have identified something in debate and, when we identify
something in debate that needs modification, the way to deal with it is to move
an amendment to see whether or not the house agrees to make that change.
Senator Murray: The bill was amended by the House of Commons.
The Hon. the Speaker: Exactly, and we are dealing with that amendment.
If we do not like the wording, then this house has available to it options that
should be presented to the house by way of a clear question that it can deal
(On motion of Senator Banks, debate adjourned.)
Hon. Claude Carignan moved second reading of Bill C-21, An Act to
amend the Criminal Code (sentencing for fraud).
He said: Honourable senators, I am grateful for the opportunity to speak to
Bill C-21, which addresses the important issue of enhancing the sentencing
provisions for fraud.
Frauds come in all shapes and sizes and Canadians are at risk in virtually
all aspects of their lives. It is clear that fraud is a problem on which we need
to focus our attention. Today's fraudsters are highly sophisticated and anyone
can become a victim.
It is harder and harder for Canadians to tell the legitimate businesses from
the scams. The result is that Canadians and foreigners are being defrauded of
Securities fraud also diminishes the confidence of Canadians in capital
markets, in Canadian companies and in the regulatory authorities tasked with
ensuring that transactions are open, transparent and fair.
This bill contains a number of measures designed to strengthen sentencing for
people who commit serious fraud offences and it also sends the message that
these crimes have very serious consequences for victims.
The impact on victims can be enormous and devastating; they can suffer
significant harm as a result of the crime and that must be taken into
consideration by judges when imposing sentences.
It may be useful to remind honourable senators of the current state of the
law with respect to fraud.
The Criminal Code already addresses all forms of white collar crime:
securities-related frauds, such as insider trading and accounting frauds that
overstate the value of securities issued to shareholders and investors, mass
marketing fraud, theft, bribery and forgery, to name just a few of the offences
that may apply to a given set of facts.
The maximum penalty for fraud is already high. For fraud over $5,000 the
maximum term of imprisonment is 14 years.
This is the highest maximum penalty in the Criminal Code, short of life
Several specific aggravating factors for fraud are provided in the Criminal
Code, in addition to those that apply generally to all offences.
The aggravating factors require sentencing courts to increase the penalty
imposed when, for example, the value of the fraud exceeds one million dollars,
the offence involved a large number of victims, or, in committing the offence,
the offender took advantage of the high regard in which he was held in the
Canadian courts have clearly stated that for large-scale frauds, deterrence
and denunciation are the most pressing objectives in the sentencing process.
We routinely see sentences in the four to seven year range for large-scale
frauds, and more recently, we have seen prison sentences over 10 years for very
large-scale cases of fraud.
The courts have been clear that a serious penitentiary sentence must be
imposed for large-scale fraud.
However, there is still much more to be done. We can strengthen the
provisions of the Criminal Code to include tougher sentences.
The bill proposes a new mandatory minimum penalty of two years for
large-scale fraud with a value of $1 million or more.
Orchestrating and operating a fraud scheme worth $1 million is a serious
crime and should carry a minimum two-year prison sentence.
The time spent coming up with, planning and executing large- scale frauds
reflects the morally reprehensible nature of the act, for which there must be
serious penalties in the Criminal Code.
Furthermore, we all know that there are fraudsters who have managed to extort
well over $1 million out of Canadians.
In addition, obviously, the mandatory minimum penalty of two years in prison
for fraud with a value of over $1 million should be seen as a starting point and
not a cap.
The government believes that cases of higher-value fraud will naturally
receive harsher penalties, and the courts have shown that they are willing to
hand out sentences of five to seven years for large-scale fraud.
However, we want to send the message that cases of lower-value fraud — but
still over $1 million — must be taken seriously even if they are on a smaller
scale than the large-scale frauds that are so well covered by the media.
The bill adds several new aggravating circumstances to those already
specified in the Criminal Code for fraud offences set out in section 380.1(1).
These new aggravating circumstances are: if the fraud had a particularly
significant impact on the victims taking into account their personal
characteristics such as age, financial situation and health; if the fraud was
significant in its complexity or duration; if the offender failed to comply with
applicable licensing rules; and finally, if the offender tried to conceal or
destroy documents that recorded the fraud or the disbursements of the proceeds.
In order to determine a sentence that suits the facts and circumstance of
each case, sentencing courts will take these new aggravating circumstances into
consideration, as well as those already set out in section 380.1 and the general
circumstances set out in section 718.2 of the Criminal Code.
The bill also includes a new sentencing measure to limit the possibility that
a person convicted of fraud could have access to or control over another
This prohibition order can be for any duration the court considers
appropriate. Violating a prohibition order would also be an offence.
The proposed new prohibition order would include some protective measures:
the judge would have discretionary authority to make such an order; the judge
could not make the order until the prosecution and the defence had the
opportunity to comment on the impact such an order might have on the offender's
ability to earn a living and other relevant considerations; the offender or the
Crown could ask the court to vary the order.
This measure will help prevent fraud by preventing convicted fraudsters from
deceiving others into handing them their money again.
Other measures in the bill focus more directly on the specific concerns of
victims of fraud: the proposals deal with restitution and with the consideration
of community impact statements.
Restitution is the return or restoration of some specific thing to its
It is part of the overall sentence given to an offender, as a stand- alone
measure, or as part of a probation order or a conditional sentence.
The Criminal Code currently enables judges to order offenders to pay
restitution to victims in appropriate circumstances to help cover monetary
losses incurred by the victim as a result of bodily or psychological harm or
damage to property caused by the crime.
An offender might be ordered to cover expenses incurred by a member of the
offender's household as a result of moving out of the household in cases of
bodily harm or threat of bodily harm.
The amount of restitution must be readily ascertainable and not in dispute.
It cannot be ordered for pain and suffering or other damages that can only be
assessed in civil court.
Restitution may be ordered as a stand-alone order or as a condition of
probation or conditional sentence.
In deciding to make a restitution order, judges must take into account the
offender's ability to pay.
Bill C-21 would require judges to consider restitution orders in all cases in
which an offender is found guilty of fraud.
A judge would have to ask the prosecutor whether reasonable steps had been
taken to provide victims with an opportunity to indicate that they were seeking
restitution. This would allow the victims to establish their monetary losses and
give them a chance to indicate that they would like to seek restitution from the
In cases where the victim requests restitution and the judge decides not to
make a restitution order, the judge will be required to justify that decision.
This measure should make it possible to avoid inadvertently omitting the
question of restitution. Moreover, victims will be able to understand why judges
decide, in certain cases, not to make a restitution order.
The bill also proposes including in the Criminal Code an optional form to
assist victims in calculating their losses.
The value of the losses incurred must be readily ascertainable and victims
will be required to provide evidence to support their claims. However, the
courts will be able to continue to accept information regarding a request for
restitution presented in other ways.
The use of the form will not be mandatory but the form will be available to
facilitate the process for victims, prosecutors and judges.
Bill C-21 also includes measures to ensure that the effects of fraud are
properly taken into account during the sentencing process.
Fraud has a major impact on victims, including financial, emotional,
psychological and social harm.
The harm done to victims continues to be an important consideration for the
courts when dealing with cases involving fraud.
Bill C-21 goes even further by recognizing the effects fraud has not only on
individuals but also on groups and communities.
The bill proposes amendments that would specifically allow statements made on
behalf of the community to be taken into account during the sentencing hearing
so that judges can fully assess the terrible effect that fraud can have on an
The Criminal Code currently provides that in determining the sentence to be
imposed on an offender, judges must consider any victim impact statements that
have been properly submitted to the court. These statements are prepared by
victims of an offence and describe the harm done to or loss suffered by the
These statements must be prepared in writing, but may also be read in court
by the victim during the sentencing hearing or presented in any other manner
that the judge considers appropriate.
In addition to the formal victim impact statement, the Criminal Code provides
that the court may consider any other evidence concerning the victim for the
purpose of determining the sentence.
Judges have given the term "victim" a broad interpretation so that people
other than the direct victim, including communities, have been permitted to
provide victim impact statements.
Bill C-21 would explicitly allow courts to consider a community impact
statement, made by a person on a community's behalf, describing the harm done
to, or losses suffered by, the community when imposing a sentence on an offender
found guilty of fraud. The statement would have to be in writing, identify the
community, clarify that the person can speak on behalf of the community, and be
shared with the Crown and the defence.
A community impact statement will allow a community to express publically the
impact the crime has had on the community. It would also make both the court and
the offender directly aware of the loss or harm that has been suffered as a
result of the fraud.
Community impact statements will provide an opportunity to help the community
begin a rebuilding and healing process by being able to describe the impact of a
crime on the community. Community impact statements may also help offenders
better understand the consequences of their actions, thus improving their
chances for rehabilitation.
Case law has demonstrated that victim impact statements serve three purposes:
to provide sentencing judges with information on the impact of the offence; to
educate the offender on the consequences of his actions with some rehabilitative
effect; and to provide a sense of catharsis for victims.
The provisions in this bill, which would create a community impact statement
provision for fraud offences, share these three purposes.
Honourable senators, I think we would all recognize that communities and not
just individuals can be impacted by crime. The proposals in this bill will make
that recognition clearer in the law.
The proposed restitution amendments and the proposed amendments pertaining to
the use of community impact statements are aimed at bringing the perspective of
victims of fraud into the sentencing process in a more comprehensive and
effective way. In doing so, it is our hope that these proposals will improve
victims' experiences with the criminal justice system.
This bill represents a big step forward toward improving the current criminal
justice response to serious fraud.
By creating a mandatory minimum sentence for fraud over $1 million, adding
aggravating factors for sentencing, introducing a prohibition order as part of a
sentence, and requiring mandatory consideration of restitution for victims, this
bill represents a complete package of reforms to reflect the serious impact of
fraud offences on communities and individuals.
This bill offers senators an opportunity to show their unequivocal support
for victims of fraud. I believe that enhancing sentencing for fraud is a
priority issue for all honourable senators.
Honourable senators, in my opinion, a theft committed using a pen is at least
as serious as one committed at knife point, if not worse. People who commit such
crimes must be severely punished. I therefore urge you to support this bill and
refer it to committee for study.
Hon. Pierre Claude Nolin: Honourable senators, if Senator Carignan
would accept a few questions, I would like him to help me reflect a little more
on the government's objective with the notion of imposing, once again, a minimum
sentence of two years. What is the goal here?
Senator Carignan: We really need to meet the victims of this type of
fraud, who have lost their hard-earned retirement savings. Many people who do
not have pensions gave contributions and trusted individuals who presented
themselves as trustworthy, who had a licence to make investments and who
embezzled money for their own use, and who embezzled all of that money. I firmly
believe that society and the people who are considering committing crimes should
be aware that the government considers this to be a serious crime. By creating a
minimum penalty of two years, it would mean that offenders would have to serve
their sentences in a federal penitentiary, which is a clear signal that the
community does not approve of this type of behaviour. This sentence would
prevent reoffending and also sends the message to others who might be tempted to
commit a crime that the consequences they would suffer are serious and that the
impact they have on the victims is just as disastrous.
Senator Nolin: In the Norbourg case, Judge Wagner said, and I am
paraphrasing, that if the maximum penalty in the Criminal Code had been higher
than 14 years, he would have given a sentence of more than 14 years.
So why impose a minimum penalty in the bill? Why not increase the 14-year
Senator Carignan: The Norbourg affair that you mentioned was a
particularly appalling case. The 14-year penalty was determined to be
sufficiently severe. The case we are talking about here has to do with crimes of
over $1 million, so not necessarily highly publicized cases like the Norbourg
affair. We believe that by setting the minimum penalty at two years, that sends
a message to the judge that an appropriate sentence should be between two and
The government is working to try to avoid another situation like the Norbourg
case, in which the individual found guilty served one-sixth of his sentence and
was released into society. It has been in the media and in the public domain.
The government is trying to avoid having a situation like that happen again. But
that will surely come through another legislative measure, another bill.
Senator Nolin: I presume that the department studied the bill and
provided you with the results. Can you tell us if you discovered that the courts
have often imposed sentences of less than two years on individuals found guilty
of fraud, under section 380, where the value of the fraud was $1 million or
more? Has it ever happened in Canada that the courts have imposed a sentence of
less than two years? If so, I would like the details.
Senator Carignan: I do not have the statistics with me. That is one of
the reasons why I am asking honourable senators to send the bill to the Legal
and Constitutional Affairs Committee.
We all acknowledge the expertise and the very serious nature of this
committee, which would request and have access to all the data, from Statistics
Canada in particular.
Even though it may cover only a few situations, this bill is more important
than that. Even if it only sends a message to the victims, in some situations,
that they have the right to be compensated and that the community, the
government, the House of Commons and the Senate consider that the consequences
of losing their hard-earned savings are serious, I believe that this message of
confidence in the justice system, and not just the number of cases affected,
deserves our consideration.
Senator Nolin: I understand that you are undertaking on behalf of the
Department of Justice, not just to provide statistics on any and all of these
proceedings, when the bill comes before the legal affairs committee, but to
provide details on these proceedings. It is important to be able to refer to the
individuals and cases that led you to argue for this sentence.
Senator Carignan: I will make that commitment personally rather than
for the minister.
Senator Nolin: You are here in your role as the sponsor of the bill.
You are the minister's right- or left-winger. That is why the commitment I am
asking you to make should be made on behalf of your team's captain, the Minister
Senator Carignan: I would say I am the minister's goalie, but I
promise to produce these statistics.
Hon. Pierrette Ringuette: Honourable senators, I could not help but
pay attention to Senator Carignan's speech when he began to speak about the
pension fund victims, people who took solace in the idea that their financial
future was secure in a pension fund. As you said, you are the justice minister's
goalie on this bill.
In your speech, you said that victims need to know that they have the right
to damages for their lost pension funds. You said that they have lost their
I heard your comments on this bill and saw what happened a few weeks ago in
this chamber when we voted on disabled victims of pension fund investment loss.
You, Senator Carignan, you stood and said no to damages for pension fund
investment losses, for disabled people, no less! Given all this, I am trying to
understand where you stand in terms of Canadians' investments in pension funds.
Senator Carignan: I imagine that your question refers to Bill C- 21,
which would amend the Criminal Code sentencing for fraud. We are looking at
amendments that affect the Criminal Code for criminal offences. In the case you
are referring to, there were no criminal charges brought against anyone. If that
had been the case, which I do not think it was, the victims would have benefited
greatly from Bill C-21.
(On motion of Senator Tardif, debate adjourned.)
Hon. Gerald J. Comeau (Deputy Leader of the Government), pursuant to
notice of February 8, 2011, moved:
That the Standing Senate Committee on National Finance be authorized to
examine and report upon the expenditures set out in Supplementary Estimates
(C) for the fiscal year ending March 31, 2011.
(Motion agreed to.)
On the Order:
Resuming debate on the motion of the Honourable Senator Tardif, seconded
by the Honourable Senator Rivest, for the second reading of Bill C-232, An
Act to amend the Supreme Court Act (understanding the official languages).
Hon. Anne C. Cools: Honourable senators, I rise on a point of order,
not on the substance or the merits of the question.
First, I wish to thank the sponsor of this bill, Bill C-232, the Deputy
Leader of the Opposition, Senator Claudette Tardif, for her efforts on this
bill. I believe that the Senate is enriched by her work on language and minority
Private member's bill, Bill C-232, An Act to amend the Supreme Court Act
(understanding the official languages), is out of order because it does not
conform to the settled law of Parliament and its parent power, the law of the
prerogative, which holds that bills that affect Her Majesty's Royal Prerogative
require Her Majesty's Royal Consent in her capacity as the head of Parliament
and the enacting power in our Constitution.
Honourable senators, Bill C-232's single purpose is to amend the sovereign's,
the Queen's, Royal Prerogative to appoint judges to the Supreme Court of Canada.
This purpose places this bill in that class of bills that require the Royal
Consent, that ancient parliamentary process to obtain the Queen's agreement for
either house to debate or consider any bill that affects Her Majesty's sovereign
and absolute interests.
The Royal Consent is no mere formality, nor is it a relic from other times.
It is absolutely necessary, and has been prescribed by ancient parliamentary
practice and usage. In Canada it is granted by Her Majesty's representative, the
Governor General, His Excellency David Johnston, and embodies Parliament's and
the Constitution's deference to the sovereign Queen as their head and the sole
representative of all the people of Canada. This consent does not mean agreement
to the merits or the substance of the bill, merely that the houses may debate on
Honourable senators, this bill is solely concerned with Her Majesty's
prerogative law as the fountain of justice, the fons justitiae, that
piece of prerogative law by which Her Majesty, in the person of our Governor
General, by the instrument of letters patent under the Great Seal of Canada,
constitutes and commissions Canadian persons as judges of the Supreme Court of
Canada to serve during good behaviour, for life.
Honourable senators, the legalist Henry, Lord Brougham, once a Lord
Chancellor, said that the sovereign Queen:
. . . has the absolute power of appointing all the Judges, . . .
This quote is in his 1861 book, The British Constitution: Its History,
Structure, and Working, at page 272.
The appointment, the constituting of judges, is a high and absolute
prerogative power. Bill C-232's single purpose is to interfere with this
prerogative power, this constituting power, by which Her Majesty the Queen, the
chief magistrate, transforms certain Canadian persons into judges; that is,
royally uplifted persons who have been royally vested and endowed with the high
powers, privileges and immunities, to hold court, to try causes and to pronounce
judgments. This appointment was called "raised to the bench."
The constituting of superior court judges is a royal matter of some gravity.
Bills that seek to amend that royal power need royal attention and royal
agreement even to be debated in Her Majesty's Senate and House of Commons.
Honourable senators, this bill's primary object remains undeclared. This type
of bill is rarely used. Now condemned and unused, these bills were known as
bills of disability. Bill C-232 is a bill of disability whose unspoken goal is
to disable a specific class of Canadian citizens of their legal rights that are
normally enjoyed by them. The 1981 Compact Edition of the Oxford English
Dictionary defines "legal disability" as, at page 737:
Incapacity in the eye of the law, or created by the law; a restriction
framed to prevent any person or class of persons from sharing in duties or
privileges which would otherwise be open to them; legal disqualification.
This bill proposes to disable a defined class of persons, which is all
Canada's unilingual lawyers and judges, by far the majority, from appointment as
Supreme Court judges. This bill asks Her Majesty to perform a novel act, and to
enact a statute of disability, a doubtful policy of dubious morality and dubious
legality. This bill has no precedent. These novelties alone render the Royal
Consent imperative and urgent to this debate's continuation.
Honourable senators, the mischief grows like Topsy. Its other unspoken goal
is to amend sections IV and VIII of the 1947 Letters Patent given under the hand
of King George VI. Section IV is the source of the Governor General's power to
appoint judges. The bill's drafters seem not to understand that the office of
the Governor General and the prerogative law are constituted, not by the
British North America Act, 1867, but by the royal, absolute and sovereign
instrument of Letters Patent, which antedates the 1867 Act and cannot be amended
by any bill. It is beyond amendment by any bill here.
Section IV states:
And We do further authorize and empower Our Governor General to
constitute and appoint, in Our name and on Our behalf, all such Judges,
Commissioners, Justices of the Peace, . . .
This bill also amends Section VIII, the power to constitute the
administrator, who is the person who acts in the absence or illness of the
Honourable senators, Bill C-232 is an alien and invasive creature. It
violates the substance and the design of our law of Parliament, and disturbs the
balance, equilibrium and comity between its three constituent parts: the Queen,
the Senate and the Commons. This bill asks this Senate to trench and to usurp,
to take over the exercise of the Royal Prerogative, a purely executive act — not
an administrative act, a purely executive act.
Executive functions are no part of the privileges, powers and immunities of
senators or members of Parliament, received from the United Kingdom and granted
to us by the BNA Act, section 18. Senators have no power to even debate, far
less to adopt, Bill C-232 without the Royal Consent. This bill is out of order.
Honourable senators, I shall cite the precedents that bear materially on this
bill. John George Bourinot wrote about the Royal Consent. In his 1916 book,
Parliamentary Procedure and Practice in the Dominion of Canada, he said at
. . . the consent may be given at any stage before final passage, and is
always necessary in matters involving the rights of the Crown, its
patronage, its property, or its prerogatives. This consent of the Crown may
be given either by a special message, or by a verbal statement from a
minister — the last being the usual procedure in such cases.
The Royal Consent to bills is the Governor General's royal grant of power to
either house, delivered there by a special message, or by a verbal statement
from a minister. It represents his considered decision, founded on the advice
given to him by his Crown ministers under ministerial responsibility.
Ministerial advice is pre-eminent.
Recently, there have been two compelling cases in the Senate. Two Royal
Consents were intimated here by two ministers, both of whom were Privy
Councillors and Senate government leaders.
Honourable senators, on October 4, 2001, Senate government leader, minister,
Senator Sharon Carstairs, P.C., one of the truly great women of Canada, gave the
Royal Consent for her government's Royal Assent Bill S-34. She did this
correctly as she began second reading debate. She said, at page 1379 of the
Debates of the Senate:
I have the honour to advise this House that:
Her Excellency the Governor General has been informed of the purport
of this bill and has given consent, to the degree to which it may affect
the prerogatives of Her Majesty, to the consideration by Parliament of a
Bill entitled "An Act respecting royal assent to bills passed by the
Houses of Parliament."
Senator Carstairs acted in accord with the settled law of Parliament and
ministerial responsibility. This case showed the legal role of ministerial
advice. Remember, honourable senators, this bill had been moved by the
opposition leader, Senator John Lynch-Staunton, who, by agreement with the
government, withdrew his bill to allow Senator Carstairs to introduce it,
corrected, as a government bill, Bill S-34.
The other case was on June 29, 2000. Senate government leader, minister,
Senator Bernard Boudreau, P.C., intimated the Royal Consent for the
consideration of the government's Clarity Bill, Bill C-20, saying that Her
Excellency was pleased, in the Queen's name, to give consent to the degree that
it may affect the prerogatives of Her Majesty. These two Senate precedents leave
Honourable senators, Alpheus Todd, John George Bourinot, and Arthur
Beauchesne recorded the authorities on the need for the Royal Consent to bills,
and on the sad fate of bills that are refused it. John George Bourinot wrote, at
If the introducer of a bill finds, from statements of a minister, that
the royal assent will be withheld, he has no other alternative open to him
except to withdraw the measure.
Among the many U.K. refusals, Bourinot recorded a famous Canadian refusal of
Royal Consent when our House of Commons Speaker, in 1879, withdrew a bill moved
by private member MacDonnell, because the premier informed that the Royal
Consent would be refused. Bourinot wrote, at page 415:
The premier having stated that he was not prepared to give the consent of
the Crown to the bill, the mover was compelled to withdraw it.
Honourable senators, that premier was Prime Minister Sir John A. Macdonald.
Commons Debates April 28, 1879, reads, at page 1579:
Sir JOHN A. MACDONALD said this Bill affected the Royal prerogative, and
the assent of the Crown must be given to it. He was not prepared to give
that assent . . . and, as the assent of the Crown had not been given to the
Bill, it could not be proceeded with.
Commons Journals that day reads, at page 322:
Ordered, That the said Order be discharged.
Ordered, That the Bill be withdrawn.
Honourable senators, I note that Senate Speaker Dan Hays was unaware of this
when he ruled, on October 25, 2001, insisting:
There is no known example in Canada of consent being refused. This raises
the issue of whether a convention may have evolved here that consent will be
granted, making the request for it a formality.
Perhaps His Honour, Senator Kinsella, should take a fresh and probing look at
previous Speakers' rulings on the Royal Consent.
Honourable senators, Alpheus Todd wrote about the seminal private member's
precedent — remember, honourable senators, there is a difference between
government members operating under ministerial responsibility, government
ministers and private members — laid down by the great Liberal parliamentary
authority William Ewart Gladstone, while opposition leader in the U.K. Commons.
Honourable senators, you must know how these individuals influenced my life
and how much I read about these men.
In his 1869 Parliamentary Government in England, volume II, Alpheus
Todd wrote, at page 298:
This intimation should be given before the committal of the Bill. But
where a measure of this description is initiated by a private member, and
not upon the responsibility of ministers, the House ought to address the
crown for leave to proceed thereon, before the introduction of the Bill . .
John George Bourinot said the same at pages 413 and 414, which is repeated in
Beauchesne's in paragraph 728, at page 213. Beauchesne's is a repetition of
Honourable senators, I shall read the words of William Gladstone, whose work
influenced my life. One must know the influence of British Liberalism in the
On May 7, 1868, moving his address for Queen Victoria's Royal Consent, for
his private member's bill, he said:
. . . I have felt . . . that it was my duty . . . to ask the House to
present an Address requesting the Assent of the Crown, and allowing us to
deliberate upon this subject before any Motion be made in the House for the
introduction of the Bill.
Honourable senators, I shall quote one of the greats, Lord Lansdowne, a
former Governor General of Canada and a great authority who, from the House of
Lords opposition benches, laid down a germane precedent. On March 30, 1911,
relying on Mr. Gladstone, Lord Lansdowne moved an address for His Majesty's
Consent. In his stunning summary of the law and precedents on the position of an
opposition member and the Royal Consent, he said:
. . . it is certainly a breach of the law of Parliament to pass through
either House a Bill affecting the Prerogative of the Crown without the
assent of the Crown. I do not think any one will dispute that. We also
conclude from these precedents that, although this assent may be signified
at any stage, it is the proper course to obtain it before the introduction
of the Bill. But we draw this further conclusion in reference to cases where
the Bill is introduced, or is sought to be introduced, not by the
Government, but by the Opposition.
The case of the introduction of such a Bill by the Opposition is clearly
a different case from the introduction of a similar Bill by the Government,
because it is perfectly fair to assume that if the Government makes itself
responsible for the Bill it can at any moment count upon the assent of the
That, of course, is not true when the Bill is moved from the Opposition
side of the House, and it certainly does not seem fair and reasonable that,
in such a case, a Bill should not only be introduced, but, perhaps, carried
through several stages and laboriously debated under conditions which would
expose the movers of the Bill to find themselves estopped by the Government,
who would only have to signify, at whatever moment might seem fit to them,
that the Royal Assent was not likely to be forthcoming.
Honourable senators, Bill C-232 is in its final stages. It came from the
other place. About this, Speaker Lucien Lamoureux — and I have been quoting the
original precedents, not what others have written, but the originals — while
ruling in the other place on April 25, 1966, cited John George Bourinot and
cautioned, at page 434 Journals:
. . . a bill may be permitted to proceed to the very last stage without
receiving the consent of the Crown but if it is not given at the last stage,
the Speaker will refuse to put the question.
This is the Speaker of the House of Commons speaking about the last stages in
the House of Commons.
Honourable senators, to muse why the Speaker in the other place did not
refuse to put the question there, or why the Royal Consent was not sought there,
is moot. The bill is before us now, and it is still a private member's bill
moved from the opposition. For probity, order and regularity in our proceedings,
it is now imperative that the Senate receive some indication of Senator Tardif's
intentions to move an address to the Governor General praying for the Royal
Consent. I had thought that Senator Tardif's delay was for some good reason such
as discussions with the government, as in the case of Senator Lynch-Staunton.
However, Senator Tardif's recent actions in the Senate suggest that she wishes
us to carry this bill through all its stages without Royal Consent. That is the
reason, honourable senators, that I have raised this point of order. I have been
waiting for this indication. I have concern that without Royal Consent, His
Honour will soon find himself in the calamitous position where he must refuse to
put the question. I do not know whether honourable senators know what this
means, but it is an extremely serious matter.
Honourable senators, paragraph 726.(2) of Beauchesne's Parliamentary Rules
& Forms states at page 213, the consent's:
. . . omission, when it is required, renders the proceedings on the
passage of a bill null and void.
If this bill were adopted without it, it will undoubtedly face such a motion
as have many other bills that have proceeded without it. I therefore ask the
Speaker of the Senate to rule and to follow Speaker Lamoureux's ruling that:
. . . it is . . . the duty of the Speaker to determine whether this Bill
interferes with the Queen's prerogatives and to see that the proper
procedure be followed.
What I am asking Your Honour to rule on is clear: Does this bill touch the
Royal Prerogative and, if it does, are the proper procedures being followed?
Once again, I thank Senator Tardif for her hard work. I am aware that time is
I thank honourable senators for listening and for their attention. Understand
that a few hundred years of development have gone into these rules and practices
and for good reason. They are substantial and important to all of our processes.
This bill in respect of the appointment of judges is solely about the Royal
Prerogative — the lex praerogativa. It is about nothing else, and such a
bill requires Royal Consent. In addition, it is our right and privilege to be
informed by the mover of the bill as to her intentions in respect of acquiring
or obtaining that Royal Consent. I thank honourable senators.
The Hon. the Speaker: Honourable senators, Senator Cools did allude to
time. As I am always guided by that great Roman inscription, tempora,
tempore, tempera, we cannot allow time or the absence of it to interfere
with good process or good judgment.
Honourable senators, it is a house order that we rise at 4 o'clock. As
Speaker, I would like to hear as much on this matter as possible so if
honourable senators are agreed, I suggest that the house rise at 4 o'clock and
resume this item when Orders of the Day are called tomorrow. I do not want
honourable senators to feel constrained by time. Some time remains before the
house rises today.
Hon. Joan Fraser: Honourable senators, I would like to pay tribute to
Senator Cools, who is one of our unfailing and unflinching guardians of this
institution. I do not think any honourable senators listen to her learned,
heavily researched interventions on these matters without profit.
Like Senator Cools, I am something of a royalist. I grew up in a part of the
world not far from the place where she grew up. We had a profound sense of the
importance of our rights and liberties under the institution of the monarchy and
all of its rights and privileges. However, in this case, I am not sure for a
number of reasons that Senator Cools is correct.
Honourable senators, at the outset, Senator Cools seemed to suggest that the
adoption of this bill would be a novel procedure in that legislation having the
effect of disqualifying classes of persons from particular high positions in
Canada is beyond our purview. I would suggest to honourable senators that
perhaps that is not the case. We have in legislation many rules that the
Parliament of Canada has adopted about qualifications for various high
positions. Frequently, the higher the position, the more stringent the
qualifications set out in legislation. In the precise case of judges, we are
quite picky about them; and justly and rightly so. We require that judges be
lawyers. We require, among other things, that like senators they retire at the
age of 75, which disqualifies a large number of extremely qualified persons. We
require by law in the case of judges who are not members of the Supreme Court
that the court be capable of hearing and understanding proceedings in both
official languages without the aid of an interpreter. In other words, we require
that a significant number of judges of the lower courts be able to do that,
which, by extension, disqualifies a large number of Canadians, even if they are
lawyers and under the age of 75, from filling those positions. The same is true
for many positions determined by the Parliament of Canada. Therefore, on that
ground, I would argue with all the respect that I truly hold for Senator Cools
on these matters that her argument, although thought provoking in many ways,
does not hold in this case.
Honourable senators, then there is the matter of Royal Consent. On this, I
thank His Honour for indicating that this debate should continue tomorrow.
Although Senator Cools carries a great deal of this in her brain, I suspect she
spent a great deal of time researching the authorities to ensure that her
quotations and citations were letter perfect. Surely many honourable senators
wish to do the same before continuing this debate.
However, I would repeat the point that Senator Cools acknowledged. If Royal
Consent were necessary in this instance, it has been well established and
confirmed in Speakers' rulings, as His Honour knows better than the rest of
honourable senators, and I quote citation 727 at page 213 of Beauschene's Sixth
. . . a bill may be permitted to proceed to the very last stage without
receiving the consent of the Crown . . .
As honourable senators are aware, this bill is a long way from the last
stage. This place is having a dickens of a time trying to get it through second
reading, let alone committee study and third reading. While the point of order
is theoretically interesting, it would not be applicable at this time. Whatever
might be the question for Royal Consent is not a block at this stage of the bill
to the proceedings of this chamber. I would argue that it is not a block at all
in this case and that the prerogative of the sovereign is not affected in any
way by a decision of Parliament that judges of the Supreme Court should have
extra qualifications beyond those existing in law. I have not had the benefit of
Senator Cools in establishing what may or may not have been said in past
parliamentary debates. Sir John A. Macdonald is not my bedside reading, I
Some Hon. Senators: Shame.
Senator Fraser: Well, at times perhaps. A British subject I was born;
a British subject I will die. Great man though he was, I have neither his
parliamentary references immediately at hand nor those of Sir Wilfrid Laurier
and others responsible for bringing before Parliament their views on the proper
constitution of the judiciary.
Oh, dear, has my time expired?
The Hon. the Speaker: Honourable senators, at the end of Orders of the
Day, I will recognize Senator Fraser on the point of order.
(The Senate adjourned until Thursday, February 10, 2011, at 1:30 p.m.)