- SENATORS' STATEMENTS
- ROUTINE PROCEEDINGS
- QUESTION PERIOD
- ORDERS OF THE DAY
- Statutory Instruments Act
- Point of Order
- Study on Federal Government's Responsibilities to First Nations, Inuit and Metis Peoples
- Study on Prescription Pharmaceuticals
- Social Affairs, Science and Technology
- Volunteerism in Canada
Tuesday, November 6, 2012
The Senate met at 2 p.m., the Speaker in the chair.
The Hon. the Speaker informed the Senate that a message had been received from the House of Commons returning Bill S-201, An Act respecting a National Philanthropy Day, and acquainting the Senate that they had passed this bill without amendment.
Hon. Elizabeth Hubley: Honourable senators, I am pleased to rise today to congratulate a fellow senator, the Honourable Catherine Callbeck, on receiving the 2012 Red Cross Humanitarian of the Year Award at a ceremony held in Charlottetown recently. This award is presented annually to individuals who have demonstrated the spirit of humanity through volunteer work, advocacy, leadership or philanthropy in their community or around the world.
Senator Callbeck was honoured for her involvement in the advancement of women, women in politics, early childhood development, literacy, family resource programs, various charitable and public service groups and organizations at all levels.
As you know, Senator Callbeck not only has had a very distinguished political career but also has dedicated much of her life to helping others.
The senator says that growing up in a small Island community, she learned about reaching out and helping others, but it was her first experience in politics that truly opened her eyes to how much help is needed. When she was first elected to the P.E.I. legislature in 1974, she was named Minister of Social Services. In this ministry, she learned first-hand the many challenges and tragic situations some Islanders face. She says this experience had a tremendous effect on her, and in turn she has spent much of her life helping others.
Senator Callbeck has been a friend and colleague of mine for many years, and I know first-hand the positive impact she has had on the lives of so many Islanders. The dedication, energy and focus she puts into helping others is remarkable, and I know she will continue to support others as the years go on.
Honourable senators, please join me in congratulating Senator Callbeck on receiving this great honour.
Hon. Senators: Hear, hear!
Hon. Yonah Martin: Honourable senators, I rise today during Veterans' Week not only to recognize the importance of the brave men and women who fought and sacrificed in various wars but also to recognize the animals that served loyally alongside them.
Throughout history, in war and in peacetime, animals and mankind have worked alongside each other. As beasts of burden, messengers, protectors, mascots and friends, the war animals have demonstrated true valour and an enduring partnership with humans. The bond is unbreakable, their sacrifice profound.
I was personally touched by the story of stray dogs that adopted and comforted our soldiers who were defending the hills of Korea. In 2013, we will mark the 60th anniversary of the Korean War armistice.
Lloyd Swick, who was here in our chamber last Thursday, acknowledged by our Speaker, a World War II and Korean War veteran, is the driving force and visionary of the Animals in War Dedication Project. While attending a Remembrance Day service at the site of the National War Monument in the fall of 2009, Lloyd recalled a large painting that hung on his high school wall. It depicted a horrific scene on the battlefield during World War I, horses and mules, submerged in mud, straining in their harnesses with their human comrades with their shoulders to the wheel as they struggled to free artillery gun carriages. Being a veteran, Lloyd knew first-hand what war animals went through alongside their masters.
A few days later, Lloyd presented his idea to the NCC committee. He wanted to show that recognizing the contribution of animals in war was a way to thank war heroes that made such an important contribution to Canada's military triumphs. The National Capital Commission was thrilled with the project.
Mr. Swick founded the Animals in War Dedication Committee, which is a small, tenacious group of people from all walks of life. They have come together in one common goal: to help create a national dedication that will honour war animals of all species who have given their lives and their loyalty, serving alongside their human comrades on the battlefield.
The Animals in War Dedication, created by artist and sculptor David Clendining, was unveiled at Confederation Park in Ottawa on Saturday, November 3. This dedication was a long-awaited but fitting tribute to all the animals that served, suffered and died alongside our Canadian and allied soldiers. Honorary patron Laureen Harper was in attendance, joined by NCC Chair Russell Mills, Mayor Jim Watson, war veterans and other invited guests.
We will remember them. Nous nous souviendrons d'eux.
Hon. Betty Unger: Honourable senators, I rise today to report that on September 17 it was my great pleasure to join with Alberta Lieutenant Governor Donald Ethell at Government House in Edmonton to present Queen Elizabeth II Diamond Jubilee Medals to 30 exceptional Canadians. It was a beautiful fall day, made all the more so by the Lieutenant Governor, who charmed everyone with his wit and warmth, as we individually recognized the vital contributions made by each of the medal recipients to their communities and to our province.
All of the Albertans we honoured in Edmonton that day were nominated by their peers, vetted by an independent panel, and deservedly known and admired for their impressive accomplishments and generous philanthropy. The recipients represent a broad diversity of accomplishments that includes, to mention a few, a Korean War veteran who has worked tirelessly to help other veterans; a holocaust survivor who has documented a history of the Polish community in Alberta; a hockey coaching genius, famed for his contributions to the modern Canadian game; another who is affectionately known as Edmonton's "Mother Teresa" for her dedication to the sick and terminally ill — and she is in her mid-eighties, by the way; a woman who has been dubbed "the Human Lie Detector" and who is sought out globally for her expertise in linguistic lie detection, which only one in five people is qualified to teach; and finally, an outstanding volunteer, educator and artist whose ornate pysanky have been presented to no less than Their Majesties Queen Elizabeth and Prince Phillip, and His Holiness Pope John Paul II.
I would now like to read their names for the record: Norman Thomas Arthur, Jerry Aulenbach, Roy Bickell, Sister Annata Brockman, Bob Butlin, Deb Cautley, Pat Cooke, Richard Currie, Clare Drake, Michael Frey, John Goode, Arthur Gould, Jozef (Joe) Harasimiuk, John Holmlund, Dorothy Jamieson, Sig Jorstad, Nejolla Korris, Dr. David Lynch, Denny May, Robroy McGregor, Ken O'Shea, Jeff Polovick, Boris Radyo, Maria Romanko, Rosanna Saccomani, Wally Stokes, Marian Stuffco, Eva Tomiuk, Claudette Vague and Rachelle Venne.
By showing our appreciation for fellow citizens who give so much to our communities, the medals honour a noble Canadian tradition of civic responsibility that has helped to make Canada the best country in the world.
Hon. David Tkachuk: Honourable senators, last week I had the honour of tabling the annual financial statements and audit report for the year ending March 31, 2012. This was the third tabling of such an audit and the first taking place for the year ending March 31, 2010.
I am pleased to note that for the third year running these audits have resulted in a clean audit opinion. This accomplishment denotes with reasonable assurance that the financial statements present fairly and in all material respects the financial position, statement of operations and cash flows of the Senate of Canada.
These financial statements, presented by the Clerk and the Director of Finance and Procurement, fulfill the requirements of the Senate Administrative Rules that the Clerk shall prepare and lay before the Senate annually a statement of accounts of the Senate. The Senate of Canada has opted to use Canadian public sector accounting standards as the basis of these statements, and the auditors conducted their audit in accordance with Canadian generally accepted auditing standards.
Once again, the external audit firm of KPMG praised the Senate administration for its commitment to financial transparency and accountability, noting the culture of diligence that has been established in the financial processes.
I bring that up because I am sure we will not have a newspaper article on this particular Senate report. There is nothing really negative to report so I am doing my best to lay out the record.
Honourable senators, I invite all of you to join me in thanking the Clerk of the Senate, Gary O'Brien, and the Director of Finance and Procurement, Nicole Proulx, and their team for their excellent work in producing the Senate of Canada financial statements for the 2011-12 fiscal year.
Most of all, I want to thank Senators George Furey and Carolyn Stewart Olsen, who are on the steering committee, and all members of the Internal Economy Committee for their hard work.
Hon. Donald H. Oliver: Honourable senators, I rise today to commemorate another successful edition of Small Business Week, which was held from October 15 to 19. I was scheduled to speak on this matter on October 18 but I was in Quebec City for 10 days with the IPU.
According to a new survey, more than half of Canadian boomers have either started or are considering launching a small business prior to their retirement. These new statistics make Small Business Week as important as ever.
This year marked the thirty-third year that the Business Development Bank of Canada organized this national celebration that pays tribute to the contributions that small- and medium-sized businesses make to the Canadian economy.
Throughout the week, the BDC hosted a series of conferences, seminars, information sessions, luncheons, trade fairs and more across the country. These events allowed entrepreneurs and business owners many opportunities to share and celebrate success stories, network with other business leaders and learn innovative ideas. This year's theme was: "Aim High! Invest in Your Future."
Honourable senators, in 2011 Canadian small businesses employed approximately 5 million people. It represented 48 per cent of the total labour force in the private sector and these businesses contributed slightly more than 30 per cent to Canada's GDP. The Government of Canada recognizes the fact that small businesses are an engine of job creation in Canada.
Last year, Budget 2011 announced a temporary hiring credit for small business of up to $1,000 per employer whose total Employment Insurance premiums were at or below $10,000 in 2010. This credit provided needed relief to all small businesses by helping to defray the costs of hiring new workers and allowing them to take advantage of emerging economic opportunities.
More recently, Economic Action Plan 2012 extended the temporary hiring credit for small business for one more year, and Canadian business owners are taking advantage of it. A recent Bank of Montreal survey shows that 24 per cent of Canadian businesses plan to increase the size of their workforce and to hire new employees in 2013.
Prime Minister Harper also marked Small Business Week. He said:
Our government is committed to ensuring that small business owners have the opportunities and tools they need to invest, innovate and grow in today's ever-changing global environment.
This is why our government is:
1) reducing taxes, regulations and red tape that inhibit growth;
2) putting in place digital and transportation networks to increase exports of goods and services; and
3) enhancing access to international markets through new free trade agreements.
In a press release the Canadian Bankers Association also highlighted how banks help SMEs thrive by providing financing to 1.6 million SMEs. As of June 2012, Canada's domestic banks authorized close to $88.5 billion in credit to these businesses, an increase of 11 per cent since the beginning of 2008.
In conclusion, honourable senators, SMEs with fewer than 100 employees represent 98 per cent of all Canadian businesses. As Prime Minister Harper said, they "truly are the backbone of the Canadian economy."
The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence at the table of our newest reading clerk, Suzie Seo, parliamentary counsel.
Suzie first started with the Senate Law Clerk's Office in 2004.
Hon. Senators: Hear, hear!
The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Mr. David Marit, Mr. Doug Steele, and Ms. Shelley Kilbride. They are the guests of the Honourable Senator Wallin.
On behalf of all senators, I welcome you to the Senate of Canada.
Hon. Senators: Hear, hear!
Hon. David P. Smith, Chair of the Standing Committee on Rules, Procedures and the Rights of Parliament, presented the following report:
Tuesday, November 6, 2012
The Standing Committee on Rules, Procedures and the Rights of Parliament has the honour to present its
Following the entry into force of the revised Rules of the Senate on September 17, 2012, your committee has, pursuant to rule 12-7(2)(a), continued to consider the Rules and now recommends as follows:
1. That rule 2-7 be amended by the addition of the new subsection (6) as follows:
"Speaker may leave the chair
2-7. (6) When the sitting is suspended or the bells are ringing, the Speaker may leave the chair for the duration of the suspension or the bells.";
2. That rule 12-3 be amended by replacing subsection (2) by the following:
"Committee membership — certain committees
12-3. (2) The number of members appointed to the following standing committees shall be as indicated:
(a) the Standing Committee on Internal Economy, Budgets and Administration, 15 Senators;
(b) the Standing Committee on Rules, Procedures and the Rights of Parliament, 15 Senators;
(c) the Standing Senate Committee on Official Languages, nine Senators;
(d) the Standing Senate Committee on Human Rights, nine Senators;
(e) the Standing Senate Committee on National Security and Defence, nine Senators; and
(f) the Standing Committee on Conflict of Interest for Senators, five Senators.";
3. That rule 12-22 be amended by replacing subsection (5) by the following:
"Reports on user fees
12-22. (5) If a user fee proposal has been referred to a properly appointed and constituted committee, and that committee does not report within 20 sitting days following the day it received the order of reference, it shall be deemed to have recommended approval of the user fee.
User Fees Act, subsection 6(2)"; and
4. That all cross references in the Rules, including the lists of exceptions, be updated accordingly.
The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?
(On motion of Senator D. Smith, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)
Hon. Yonah Martin introduced Bill S-213, An Act respecting a National Day of remembrance to honour Canadian veterans of the Korean War.
(Bill read first time.)
The Hon. the Speaker: Honourable senators, when shall this bill be read the second time?
(On motion of Senator Martin, bill placed on the Orders of the Day for second reading two days hence.)
Hon. A. Raynell Andreychuk: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:
That the Standing Senate Committee on Foreign Affairs and International Trade be authorized to examine and report on Canadian foreign policy regarding Iran, its implications, and other related matters;
That the papers and evidence received and taken and work accomplished by the committee pursuant to the orders of the Senate on Thursday, February 2, 2012 and Thursday, June 14, 2012 be referred to the committee; and
That the committee submit its final report to the Senate no later than December 31, 2012 and that the committee retain all powers necessary to publicize its findings until January 31, 2013.
Hon. Wilfred P. Moore: Honourable senators, my question is for the Leader of the Government in the Senate. It is following along my questions last week with regard to veterans and funeral expenses and the payment of those expenses.
We learned yesterday that two thirds of the applications received by the Last Post Fund are rejected: 29,853 requests have been made, and 20,147 of these have been rejected. The executive director of the fund says that the criteria for eligibility are completely out of touch with today's reality, with veterans of the Afghanistan War and the Cold War being ineligible. Apparently, only veterans of the Second World War and the Korean War are eligible. Could the Leader of the Government please explain why these rules have not been updated to reflect the reality of a nation that has been at war for the past decade?
Hon. Marjory LeBreton (Leader of the Government): I thank the honourable senator for the question. Our government, as he knows, honours Canada's veterans and their families by making sure they receive the benefits they need in life and also when they have passed on. That is why we provide assistance for funeral costs and pay for all burial costs, which together provide, on average, between $7,000 and $10,000 for veterans who could not otherwise afford it. Since 2006, we have provided this assistance to over 10,000 veterans and their families.
The government has also provided other benefits to honour and help Canada's veterans and their families after they have passed away, including the Community War Memorial Program, introduced by our government in Canada's Economic Action
Plan 2010, which provides funding for community cenotaphs to honour those who have served. We have expanded the Veterans Independence Program, which helps surviving family members of veterans of the Second World War and veterans of the Korean War by committing $282 million in Budget 2008.
Senator Moore: The projected cost of overhauling the eligibility and increasing the federal contribution for burials for veterans is estimated to be between $7 million and $12 million annually. We know that the government has spent $28 million celebrating the War of 1812. I will not talk about the money spent on fake lakes and flying limos.
It is clear to me that the government has had the opportunity to fix this situation since the Veterans Ombudsman's report of 2009. Two of his most important recommendations were, first, that the level of funding for veterans' funerals has not kept pace with the rising cost of funerals and should be increased to reflect industry standards; and, second, that the funeral and burial program should be extended to all veterans.
In putting this question to the leader, I remember last year that Senator Pépin asked a question with regard to the same issue. On September 27, 2011, in a delayed answer, the government said that:
The department continues to listen to stakeholders' concerns as it explores options for program improvements in a fiscally prudent manner.
Given the fiscal prudence mentioned and the need that is apparent from the fact that two thirds of these requests have been turned down, I would like to know what the government is doing in a fiscal manner. Has it talked to the Last Post Fund and veterans who have experienced this lack of fiscal help?
Senator LeBreton: Honourable senators, the purpose of the program, as it was established some time ago, was to assist those veterans and their families who are in need of this assistance. The figure that I put in my answer to the senator's first question, an average of between $7,000 and $10,000, is available for veterans who could not afford the funeral charges. As a result of this program, 10,000 veterans and their families received assistance. That is what the program was set up for. There is an adjudication process when people apply for these funds, and it is clear that a significant number of people applied for and received assistance, to the tune of some 10,000 veterans and their families.
With regard to suggestions about changing the program, I am sure that the suggestions are made and are properly considered by the Department of Veterans Affairs.
With regard to that specific part of the question, I will ascertain what processes have been followed and whether there are any further recommendations to be considered.
The $7,000 to $10,000 takes into account the rising costs of burial. It used to be $2,000 or $3,000, then up to $5,000, $6,000 and $7,000, and now up to $10,000. Ten thousand veterans and their families have qualified for this program.
Senator Moore: The maximum range is $7,000 to $10,000, which I agree is a notable contribution. However, it does not seem to bear up to the evidence that has been brought forward by the Executive Director of the Last Post Fund. He is indicating that the most they have been getting is $3,600. Perhaps the leader could get the figures for us. For the one third who received assistance, what was the range for them and what was the actual median amount they received? In asking for that information, I would also like to know if the government is prepared to look at the criteria and to extend this program to veterans of the Afghanistan conflict and of the Cold War.
Senator LeBreton: I am not privy to the adjudicating body in this regard, and I do not have available the processes they follow. With that in mind, I will take the question as notice.
Senator Moore: With regard to the answer the leader gave last September about the department listening to stakeholders, could she please find out whether the Last Post Fund was one of the stakeholders that was consulted in looking to improve this program?
Senator LeBreton: When I answered the question last September, I was probably responding to the admirable record of this government in improving the various services available for veterans.
With regard to the Last Post Fund, as I indicated, I will take that question as notice.
I have answered this question. I would be happy to go through all of the points that I have in my speaking notes on our support for veterans. However, I do believe that the government has made a very significant and ongoing effort on many fronts to better serve our veterans and to make sure that they live their lives with dignity and in good health through the various programs that we have provided through the Department of Veterans Affairs.
Of course, as I have said, there are always individual cases that arise with some special circumstances attached to them, but, generally speaking, I think it is safe to say that we have made great strides in the various programs that we offer to veterans to thank them for their services to our country and also to ensure that they lead full and meaningful lives as they live into the future.
Hon. James S. Cowan (Leader of the Opposition): A follow-up question. Does it not strike the leader as odd that the government would be supporting a program where more than two thirds of the applicants are rejected? Does that not strike the leader as odd? I am not quarreling with the other things the government has done for veterans. They may be fine, and undoubtedly the leader is correct that one can always find areas to be improved, but on the issue raised by Senator Moore with respect to the Last Post Fund, when the government knows that they are supporting a program and more than two thirds of those who apply are rejected, surely a light goes on that says something is wrong here, does it not?
Senator LeBreton: The criteria for the program are well known. As with any government program, people will apply for funds even though they do not meet the criteria. Again, the board that makes the decisions basically follows a set of guidelines applied across the board to the veterans' families making these applications. I think one could probably think of any number of government programs where people will apply, perhaps not understanding the criteria or the bench line that has to be followed. I can imagine there are many government programs where people make application thinking, "I will apply," and they
are rejected because they do not meet the criteria. I cannot answer specifically with regard to this program, but I am sure the body that is in charge of this follows certain criteria. I think it is rather significant that 10,000 families have been assisted on average between $7,000 and $10,000.
Senator Cowan: The senator pointed out a few moments ago that the executive director of the Last Post Fund said it is not $7,000 to $10,000. There is a cap of $3,600. Perhaps the leader could get back to us and let us know if that information is correct.
I would be astonished if there were other government programs where two thirds of the applicants were rejected because they did not meet the criteria. I would be interested if the leader could provide some evidence to support that statement.
Senator LeBreton: We are dealing with a program meant to assist a certain group of people without the personal means to have a proper burial. All I can say is that 10,000 families have been approved and have accessed these funds, and the amount of money expended has been between $7,000 and $10,000.
Hon. Roméo Antonius Dallaire: The previous Minister of National Defence got into a lot of hot water when we started to take casualties overseas, not because we were taking casualties but because of how we were taking care of the casualty and the family in regard to, as an example, the whole burial process. At the time, he was able to diffuse, with significant loss of credibility, I am afraid, the situation by having the Department of National Defence review its funding for burial.
National Defence buries its dead. They are still serving and they are veterans, so they also fall under that rubric of Veterans Affairs and DND. Because they are still serving, DND covers their burial expenses, and the amount of money the department provides is $13,600. However, when a person is finished serving and passes away and does not have a cent to his name, Veterans Affairs Canada, through the Last Post Fund, takes care of this veteran, who also served overseas and fulfilled his duties. This veteran who is out of the service and was not killed in action but dies subsequently, often due to injuries, gets $3,600. He does not get $7,000. I question where that figure comes from, unless someone is doing some averaging.
Would it not be logical that between National Defence, who bury their dead who have been killed in action, and Veterans Affairs Canada, who bury their dead who have been injured and subsequently have lived and now are penniless and need to be buried, we probably would come closer in the numbers game to assist in giving decent, honourable burials to both of them?
Senator LeBreton: I can only repeat, honourable senators, what is a fact. The government provides assistance for funeral costs and pays for all burial costs, which together provide on average between $7,000 and $10,000 for those veterans who could not otherwise afford it. Since 2006, we have provided this assistance to over 10,000 veterans and their families. That is a fact. That is clearly what has taken place. Obviously, those families who need assistance in burying their loved ones are found to be eligible because of their personal circumstances, and the Department of Veterans Affairs has responded.
Senator Dallaire: My supplemental is that as far as I know, only the pope is infallible.
Officials sometimes make mistakes. We are basically asking you to take the figures you have, and the information we have just provided, and go back to the department and ask for clarification so that we can have the same confidence that you seem to have in the accuracy of these figures.
Senator LeBreton: I already committed to Senator Moore that I would take his question as notice and provide more information than I have at my fingertips.
Senator Dallaire: Forgive me. The leader was responding to Senator Moore, I hope, regarding the fact that there are some veterans who are ineligible for the Last Post Fund versus all veterans eligible for the Last Post Fund. Since the New Veterans Charter, there have been questions about whether the new generation of veterans has access to the Last Post Fund. That might be clarified also.
Senator LeBreton: I would be happy to do so.
Senator Moore: In November 2010, when then Minister of Veterans Affairs Blackburn was asked about this very topic, he said that the government is on other priorities but at the same time trying to uncomplicate the issue of funeral costs because one can say that at Veterans Affairs Canada everything is always super complicated.
One of the criteria in order to qualify for assistance under the Last Post Fund is that a veteran can make no more than $12,015. Given the cost of normal living circumstances and the cost of funerals today, it would seem to me that this is not a complicated issue — the criteria that should be looked at. This is one of the main standards that I think should be reviewed, and I would ask the minister, when she is pursuing the other information that I asked for, to please ask her colleagues or the Minister of Veterans Affairs to look at increasing the maximum amount of income that a veteran may earn before qualifying for application to the fund.
Senator LeBreton: Senator Moore did refer to the former Minister of Veterans Affairs, Minister Blackburn, who quite rightly spoke frankly about some of the problems back then in the Department of Veterans Affairs, including the issue of privacy of people's personal files. Great strides have been made, not only by him when he was Minister of Veterans Affairs but subsequently by Minister Blaney, to improve services to veterans and to fix some of the systemic problems.
With regard to the honourable senator's specific question, I do not have, as I mentioned, all of the criteria and the process that was followed in order to reach that criteria, but I will be happy to seek a written response.
Hon. Jane Cordy: Honourable senators, like Senator Cowan, I was quite surprised when the leader said there were many government programs where 67 per cent of the applicants are refused. Could she give us examples of that?
Senator LeBreton: Honourable senators, the honourable senator simply asked whether I believed there were programs that the government offers where people make application but for
which they are not qualified. I was referring to the fact that that is a distinct possibility for many programs. I was not making a statement about a specific government program. Therefore, I will not take the honourable senator's question as notice.
Hon. Roméo Antonius Dallaire: Honourable senators, a ceremony was held this morning in front of the National War Memorial. The Minister of Veterans Affairs invited the members of the House of Commons and Senate committees on veterans affairs to attend in order to pay tribute to Canada's veterans on behalf of all parliamentarians.
I think our minister is a good guy. He is from Lévis and he has a great deal of common sense. I thought it was a really nice gesture, and I hope this will be repeated and built upon next year, in order to give parliamentarians the opportunity to express our deepest gratitude to our veterans. After all, parliamentarians, along with the executive branch, are the ones who decide when to send our soldiers into situations where they risk being injured or killed.
My question is this: when I look at this and look at how things are reported on Radio-Canada and TVA in French, and on CBC in English, I see that anchors on English-language networks have been wearing the poppy since November 1. Everyone wears it.
I know that people in this field have a code of ethics and a dress code, and since it is an organization that falls under federal jurisdiction, I would have thought that the people who deliver the news to the public would be instructed to wear a poppy beginning on a specific date.
Can the Leader of the Government tell us, first of all, why not everyone at Radio-Canada wears a poppy and, second, if they will be instructed to wear one?
Hon. Marjory LeBreton (Leader of the Government): Honourable senators, I agree with Senator Dallaire on one thing: Minister Blaney is a good guy from Lévis. I am sure the honourable senator saw this morning at the ceremony with the memorial ribbons, as we saw yesterday in the ceremony here in the Senate chamber, that he is profoundly moved by the stories he hears and the work he is doing on behalf of our veterans. He talks about excursions to the battlefields with obvious emotion. He is a tremendous Minister of Veterans Affairs.
The announcement that he and Minister MacKay made this morning about the memorial ribbons allows families to wear a ribbon in recognition of the support of their fellow citizens for the efforts of their loved ones.
With regard to Radio-Canada, honourable senators, I will not comment. I would hope that all Canadians, who live in a free and open society, wear the poppy in recognition of the sacrifices of the men and women who went into the battlefield to protect our rights and freedoms. I would hope it would be a given that people would want to wear the poppy in honour and recognition of those wonderful citizens of this country.
Honourable senators, thanks to our veterans and those who fight for us, we do live in a free country. In a free country, we do not go around and order people to do things from on high; we would hope they would make that freedom of choice on their own.
Senator Dallaire: Honourable senators, I believe wearing a poppy at this time of year is part of the dress code of a federal public servant who is speaking to all people of the country and reflective of a policy of the country, meaning we are respecting our veterans, and that they would, if not imposed — find whatever word you need — recognize and respect the wish of the federal government to recognize the poppy as appropriate dress when they are in front of the cameras at this time of year. These are not their personal beliefs; this is them simply being the mouthpiece of news. I would hope the leader would reconsider that aspect.
Hon. Roméo Antonius Dallaire: Honourable senators, that brings me to a different dimension of the services and benefits question.
As the leader was saying, our minister is a good guy, he is very concerned, and so on. As we look at what veterans are receiving, we have come to the realization that we now have a new generation of veterans who have more combat time in more complex scenarios than World War II veterans. In fact, the World War II veterans' associations have articulated that. These complex missions, like Afghanistan and so on, have called those troops into very complex scenarios, and they have served outright combat time that exceeds a large number of those in World War II.
I am looking at the benefits and philosophy of the benefits they get when they are injured or come back as veterans. I notice in Australia, all of their benefits are non-taxable. I also notice that in the GI bill of the United States, even the revised one, all their benefits are non-taxable. In fact, families are taken care of by the veterans' administration there, unlike here, and those benefits are also non-taxable.
In Canada, the only thing that is non-taxable is the lump sum. Everything else is taxable.
Could the leader tell me why we have a different philosophy in that regard? Previous to the New Veterans Charter, the monthly benefit was non-taxable.
Hon. Marjory LeBreton (Leader of the Government): Honourable senators, just to finish the honourable senator's recommendation that all public officials should be mandated to wear a poppy, again, the honourable senator is a highly respected military person and I would invite him to seek an audience on Radio-Canada to make that point directly there.
With regard to Minister Blaney, he does more than show profound respect; he also does a great deal to enhance the lives of our veterans, including giving them access to earnings loss benefits, a permanent impairment allowance, job replacement services, career counselling, training, access to operational stress injury clinics and rehabilitation services. These are all things that Minister Blaney is involved with on a go-forward basis so our veterans can come back from their service and contribute to Canadian society.
Senator Dallaire: Honourable senators, would the leader be prepared to assist us by informing us where the idea was introduced in the New Veterans Charter that the benefits given to injured veterans under the new charter should be taxable, when they were not in the past?
We often take examples from other countries, and they have recognized that the price has already been paid by those veterans and they should not be taxed. They even demonstrate that for large sums. As an example, in the U.K. a veteran who has lost two legs and is psychologically affected gets the equivalent of $3 million in a lump sum, versus the $285,000 one would get here, and it is non-taxable.
Could the leader query the philosophy behind the taxation?
Senator LeBreton: Honourable senators, we are a large country with a small population. Our veterans join the Armed Forces to fight for our freedoms and our rights to be meaningful, contributing citizens.
On the Order:
Resuming debate on the motion of the Honourable Senator Frum, seconded by the Honourable Senator Ogilvie, for the second reading of Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations.
Hon. Mac Harb: Honourable senators, I rise today to debate Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations. This is a bill that raises serious concerns about the health and well-being of the parliamentary scrutiny of regulations and the future of the legislative and regulatory process in Canada.
As we debate this bill, we must keep in mind the dominant constitutional role entrusted to Parliament: to make legislation, to pass law, and to oversee the regulatory process. If this bill is passed in its present form, it will further erode the power of Parliament by increasing the power of the executive at the expense of the legislator. It will also make criminals out of otherwise law-abiding citizens who would not have adequate access to the content of Canadian laws.
Bill S-12 represents a very broad grant of power to regulation makers. For those who specialize in the principle and practice of drafting regulations, this legislation is something of a blockbuster. We must give this legislation a serious review and our most careful consideration.
I personally believe this is one of the most important pieces of legislation we will examine in this place and that this bill in its present form should not be approved. However, I will say at the outset that we will support the referral of this bill to committee so it can be closely examined and amended or, hopefully, rejected.
Let me quote from Parliament's advice on this issue to the government in a 2009 briefing to the Minister of Justice. Unanimously, the Parliament of Canada and the Standing Joint Committee for the Scrutiny of Regulations said:
. . . ambulatory incorporation of material generated by the regulation-maker is frequently justified as being a more "flexible approach."
What this really means is that it allows rules to be imposed without having to go to through the regulatory process, with its requirements for examination, registration and publication. In effect, rules that Parliament intended would be imposed by legislation will be put in place by administrative fiat.
Honourable senators, I find it rather ironic that the senator is taking legislative measures that, if adopted, would remove certain powers and certain constitutional responsibilities not only from senators, but also from the elected members of the House of Commons.
The Senate is the master of its own proceedings. As such, it can introduce legislative measures. However, it would be wise for the Senate to avoid adopting measures that have an impact on the legislative powers of the House of Commons.
I want to thank Senator Frum for giving us an overview of the government's position on Bill S-12. As she explained when she moved second reading of this bill, the expression "incorporation by reference" refers to a regulatory drafting technique. When Parliament, to which the Constitution grants all legislative powers, confers a power to make regulations on the Governor-in-Council or the Treasury Board, for example, the regulation-making authority can use this drafting technique to incorporate information expressed elsewhere in another document. This information is considered included in the regulations without being reproduced word for word.
The incorporation of material as it exists on a certain date is referred to as "closed" or "static" incorporation by reference. In other words, we are incorporating by reference a document as it exists at the time, period. A regulation-maker need not be granted any specific power in order to resort to this technique, provided the regulation-maker has authority to do so under the Statutory Instruments Act.
Nonetheless, a regulation-making authority wishing to adopt a subsequent amendment to the referentially incorporated material will require an enabling provision with express permission from Parliament to do so. One way to do this is to legislate to expressly permit the regulation-making authority or the executive to incorporate documents as amended from time to time. This technique is referred to as an "open, ambulatory or dynamic incorporation by reference."
Once a document is incorporated as amended from time to time, any future change to the incorporated document will automatically become part of the incorporating regulation without having to go back to Parliament to ask for permission for the regulatory changes. Essentially, incorporation by reference of external documents, as amended from time to time, or open incorporation by reference is, in fact, permitting someone other than Parliament to delegate to make legislation. It therefore sub-delegates the future evolution of the rules to the author of the incorporated document. The use of incorporation by reference as amended from time to time, a regulation without the express authorization by Parliament, has been deemed to be improper and illegal.
Honourable senators will be interested to know that this government has used this technique 170 times since 2006 and, more often than not, without the express authorization of Parliament.
As my honourable colleague Senator Frum stated last week:
Incorporation by reference is a widely used drafting technique currently, but this bill would legitimize it . . .
Those are important words: "this bill would legitimize it."
What she has stated is true. Calling for a bill that would legitimize this action basically confirms that the government has been acting illegally by using this technique without parliamentary explicit authorization.
Bill S-12 gives us an opportunity to determine once again, and once and for all, which legal principle we would like to invoke as we set the parameters in the rules for the use of open incorporation by reference.
Why is Bill S-12 before us? It is a good question. Parliament, on a number of occasions, has warned the government and, by extension, the regulation-making authorities, that any incorporation of a document into regulations as amended from time to time must be authorized before it is used. In fact, Parliament adopted a unanimous report in 2007 from the Standing Joint Committee for the Scrutiny of Regulations that called on the government to stop using unauthorized open incorporation by reference without the permission of Parliament.
In response to the unanimous report, the government introduced Bill S-12.
As my colleague has said, this came as a result of the recognition that the current practice was illegitimate. If Bill S-12 was introduced in order to resolve the current impasse between Parliament — that is, us and the other house — it has failed to do so. In fact, this bill has made things worse.
Currently, a regulation-making authority can use incorporation by reference as long as it is referenced in the document as it was on that specific date. This is to say that static incorporation by reference is okay. However, incorporation by reference to an external document that changes from time to time, or open incorporation by reference, is not okay, unless authorized by Parliament on a case-by-case basis.
Of course there is the other side. The government's legal advisers have argued that unauthorized open incorporations by reference in federal regulations at present are not illegal. We chose, as parliamentarians and as a committee, to disagree with that interpretation. As you know, Canadian courts have traditionally supported the delegation of powers insofar as the power to take it back remains with Parliament. While theoretically Parliament could delegate these powers away and, through a repeal of the legislation, regain that power, we in this place know that this is a highly theoretical argument that ignores practical realities. The cat, as they say, will be out of the bag.
We understand that Parliament can decide to give regulation-makers this blanket power, but we simply do not think it should. Parliament should not give its power away. Technically, one could say that Parliament has the prerogative to approve or reject this bill and the government requests more power and thus we will be deciding whether or not to curtail its own powers. However, as we all know, members of the government — that is to say the ministers who would be the beneficiaries of this new power — will be in a position to vote on the bill to ensure its passing, by virtue of the fact that all 38 ministers and 28 parliamentary secretaries, a total of 60 members of the executive, sit as both members of Parliament and members of the executive. The executive, there is no doubt in my mind, will side with the government against the express will of Parliament as expressed in Report No. 80 of the joint committee tabled in December 2007 and adopted by both houses.
This is compounded by the fact that some members of Parliament may be compelled to follow party lines and vote with ministers. This will, again, result in the passing of legislation that weakens Parliament while strengthening the executive and the government by extension.
My second major point with the bill involves the application of Bill S-12 and its impact on individual citizens. As you know, regulations are drafted so that people can be made aware of their rights and responsibilities under the law. As a result, a citizen must have access not only to the content of regulation but also to any document incorporated by reference in those regulations.
As part of our Criminal Code, ignorance of the law cannot be used as a defence. Therefore, the onus is on the citizen to be aware of laws and regulations and to obey them. To facilitate this, the government has an equal responsibility to ensure that the laws and regulations are accessible for its citizens. While the bill claims to protect citizens, its weak and vague phrasing actually makes the situation worse, and citizens will find themselves unknowingly breaking the law.
While Bill S-12 appears on the surface to be benign, in fact Bill S-12, as presented and if approved, undermines democratic values and risks turning law-abiding citizens into criminals.
Let us look at the specifics. First, delegations: Parliament's position on the use of incorporation by reference has been based on the rule against sub-delegation, which is often stated by the Latin maxim delegatus non potest delegare — a delegate cannot delegate. This reflects the legal principle that an entity or a person to whom a power is delegated cannot re-delegate that power to another entity or person unless explicitly authorized by law to do so. Whether we are referring to the Governor-in-Council or a minister, board, commission or some other entity that is empowered by law to make regulation, they cannot, in the
absence of authorization, delegate their power to another person or entity to act in their place. This protects Parliament's right to choose who can exercise the delegated power. This is a basic principle of our democracy and it is entrenched in our Constitution.
In fact, section 91 of the Canadian Constitution authorizes Parliament:
. . . to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces . . .
While ultimate legislative authority rests in the hands of Parliament, as we are aware, Parliament is empowered to delegate this authority.
Incorporation by reference to a document as amended from time to time will allow a third party to assume legislative authority. This is where we find ourselves on a slippery slope. This is where Parliament loses its constitutional authority, and this is where the lines between the executive and the legislative powers become more blurred. This is where Parliament becomes less relevant.
The problem that we are faced with today has been around for some time. In a report tabled back in 1977, the joint committee advised Parliament that the incorporation into statutory instruments of external documents is acceptable provided a fixed text is incorporated, not a text as amended from time to time by an outside body. The committee at the time insisted that any such amendment be considered by Parliament's delegate and, if desirable, incorporated by positive amendment to the statutory document. The report from 1977 said:
To allow automatic amendment is to permit someone other than Parliament's delegate to make subordinate legislation . . .
Honourable senators, in 2007 the joint committee and Parliament once again expressed concerns about the increasing use of open incorporation by reference in the absence of a clear parliamentary authority. This use was seen to be improper and illegal. The government now has responded in a very interesting way. Rather than cease the illegal practice, it has decided to legitimize it or to make the practice legal. If this bill is enacted by Parliament, general rules governing the use of incorporation by reference of a document as amended from time to time will be part of the Statutory Instruments Act and will become new sections 18.1 to 18.7, as stated in Bill S-12. Under these rules, a regulation-making authority could always use open incorporation by reference and without coming back to Parliament.
As my honourable colleague Senator Frum has said, the government hoped to put in place legislation that provides clarity and an end to the inconsistency in the present use of the technique by reference in federal legislation, but clarity, honourable senators, is only one of the issues here. Clarity alone does not justify Parliament's abandoning the control it exercises when it decides on a case-by-case basis when a regulation-making authority can referentially incorporate documents as amended from time to time.
Parliament has already spoken on this question. Let me quote from what Parliament told the government in 2009:
In brief, on the question of the circumstances in which it is appropriate to use open incorporation by reference, the Committee stated that it favours a regime whereby the ambulatory incorporation by reference of Canadian federal or provincial legislation should generally be permitted. However, such incorporation concerns foreign legislation or material produced by the federal government or created by non-government bodies, it could only be incorporated by reference "as amended from time to time" if the terms of the particular enabling statute so permit.
In other words, only if Parliament approved it on a case-by-case basis.
Personally, I believe this recommendation was actually very generous to the government, in that the committee, on behalf of Parliament, was prepared to make provisions that would allow the use of open incorporation by reference, although with proper authorization.
As we know now, Bill S-12 goes far beyond what Parliament was prepared to allow in 2009. For example, we have only to look at proposed section 18.1(1), which states:
. . . the power to make a regulation includes the power to incorporate in it by reference a document — or a part of a document — as it exists on a particular date or as it is amended from time to time.
The sections mean that the regulation-making authority or the government could always use open incorporation by reference, and proposed section 18.7 makes things worse. It seems to indicate that all of the unauthorized and therefore illegal ambulatory incorporations by reference that are currently found in federal regulations will retroactively be given blanket approval.
Honourable senators, it has been pointed out that, in drafting laws, Parliament has expressly granted the power to make regulations incorporating external documents as amended from time to time. For the government to now say that these provisions are unnecessary represents a massive grant of power to regulation-making authorities and, by extension, the government.
Honourable senators, other jurisdictions have dealt with the issue head on. Let us look at a few examples. The Australian Government Office of Parliamentary Council recently updated its drafting guide for legislation, and it includes this cautionary note:
In case of material incorporated by rolling incorporation in a statutory instrument, the body responsible for making the law effectively delegates authority for amending the material, and thus that aspect of the law, to the author of the incorporated material. The author's decisions about amendments to the material are not subject to approval or review by the Legislative Assembly. This threatens the democratic principle that elected law-makers or their governmental delegates (e.g. the Executive in the case of regulations) should be fully responsible for the law that governs those who elect the representatives.
As you can see, honourable senators, the Parliament of Australia is consistent with what our Parliament has said.
Another example is from New Zealand. The New Zealand Parliament has dictated specific terms and conditions or guidelines that the regulation-making authority or government must meet before using open incorporation by reference.
Included in these guidelines is a comprehensive list of principles that should apply to any use of incorporation by reference in acts of Parliament or delegated legislation. These principles include the following: The use of incorporation by reference is only if it is impractical to do otherwise. The use of incorporation by reference should be expressly authorized by an act. The incorporated document must be clearly quantified. Rules regarding subsequent amendment to the document should be stated. The Regulations (Disallowance) Act, 1989, is to apply to enable the House of Representatives to disallow or amend the legal effect in New Zealand.
Consultation before incorporation. Documents need to be clearly drafted. Access to incorporated documents should be available. There should be accountability to the minister. There should be annual lists of incorporated documents. Incorporation by reference is not to be used if principles cannot be complied with.
Honourable senators can see the degree of detail that has been put in place in other jurisdictions, and in particular the New Zealand Parliament, in order to maintain oversight and for citizens to maintain access to relevant documents. It is essential that the Canadian Parliament dictate specific terms and conditions or guidelines that the regulation-making authority or the government must meet before using open incorporation by reference. A comprehensive list of principles that should apply to any incorporation by reference in an act of Parliament or delegated legislation should also be included in these guidelines.
Here at home there are also jurisdictions that have dealt with the question of open incorporation by reference. For example, in Manitoba, section 35(1) of The Interpretation Act states:
The power to make a regulation respecting a matter may be exercised by adopting by reference, in whole or in part, a code or standard made by a non-governmental body that deals with the matter.
Section 35(2) of that act states:
The code or standard may be adopted as amended from time to time and subject to any changes that the maker of the regulation considers necessary.
Manitoba has clearly taken measures to ensure there is oversight on the use of incorporation by reference.
Ontario, on the other hand, has taken an even stricter approach, as reflected in Ontario's Legislation Act, 2006, which provides that incorporation by reference must be done on a static basis only. In other words, the incorporated document as it exists at the time of incorporation must be included in the text of the regulation.
This seems to reflect the views that open incorporation by reference can result in subdelegation and must therefore be explicitly authorized by Parliament. It is interesting to note that the Ontario act provisions arose following the case of A.G. for Ontario v. Scott, in which the Supreme Court upheld an Ontario law. The Ontario law provided that maintenance orders obtained by wives living in England against husbands living in Ontario were in fact enforceable in Ontario. The law incorporated by reference any defence that the husband could have raised in England; therefore, whatever defence was enacted by Parliament in Westminster was valid in Ontario.
Honourable senators, this case served to prove that open incorporation by reference resulted in the Province of Ontario losing control of its own legislation. That, in my opinion, is why the 2006 amendment to the act took place.
Should the Parliament of Canada allow incorporation by reference to a foreign document as amended from time to time in its regulation, it too could lose control of legislation as a result of this sub-delegation.
As you can see, honourable senators, not only does this raise the issue of subdelegation without authorization, but it also raises the bigger issue of the loss of parliamentary sovereignty. None of us would believe that the Constitution of Canada would have made an allowance for such a thing to happen. None of us would believe that the intent of Parliament today would be to allow that to happen.
John Mark Keyes wrote an article in 2004 entitled "Incorporation by Reference in Legislation," which was published by Oxford University Press in Statute Law Review in 2004. Keyes recommended that decisions about whether to use incorporation by reference should be made by taking into account two legal considerations. The first involved the difficulties that incorporation by reference may cause in terms of understanding a legislative text. We have been calling this consideration "accessibility." The second consideration involved the allocation of power, which we have discussed at length here today. These considerations led Keyes to create a checklist of advantages and disadvantages associated with the use of this drafting technique.
In terms of advantages, he listed the following: Incorporation by reference reduces the amount of legislative text that has to be published. I agree with him on that. He also stated that it promotes harmonization with the laws of other jurisdictions, standards or agreement. I have no problem with that.
He stated that it might avoid having to translate incorporated material. Well, honourable senators, this is problematic. This could circumvent our Official Languages Act.
It might avoid updating the incorporated material if there is ambulatory incorporation by reference.
This is very interesting because it might interfere with the right of citizens to have access to this information, especially if they live in a rural part of Canada or are Native.
The incorporated material might already be familiar to those who are governed by it. This is too great an assumption to risk the disadvantages.
Mr. Keyes also lists the many disadvantages, and I agree with him on every one of them. He states that the law is fragmented between legislative text and incorporated text published elsewhere, particularly when the incorporated text contains
excessive reference to other texts. He is right on that. Also, he says that the incorporated material might not be in an official language. That is true.
The legislator has less control over the content of its legislation since the incorporated text is made by someone else, especially in the case of ambulatory incorporation by reference, since the text can be changed without any further action by the legislator. I agree with him on that too.
The drafting style or terminology from incorporated material might be incompatible with the legislative text that is incorporated. Yes. The incorporated material might be subject to interpretation in some external form. Yes. It might be hard to obtain the incorporated material, particularly if there are multiple versions. Yes. The incorporated material might be subject to copyright charges for copies. Absolutely.
Nowhere in the proposed legislation does it indicate that there will be guidelines or a checklist prior to the implementation of an open incorporation by reference in terms of accessibility or subdelegation of powers. A variety of experts who were cited in the joint committee report of 2007 have written on this issue of subdelegation without express authorization. For example, in The Interpretation of Legislation in Canada, Professor Pierre André Côté concludes:
Application of the maxim delegatus non potest delegare —
— in other words, a delegate cannot re-delegate —
— regulations may lead to a finding that they are ultra vires where, lacking an express enabling provision, an ambulatory reference is made to a[n] . . . enactment from another authority.
Dussault and Borgeat (Administrative Law: A Treatise, 2nd edition, volume 1, p. 419-420) also recognize that "ambulatory" or "open" incorporation by reference may involve a subdelegation of authority:
To permit the contrary [the incorporation by reference of provisions as amended from time to time] would be to consent to a form of implicit subdelegation. Indeed, by making a reference which would include future amendments to a text to which one refers, it would be impossible for the regulation-making authority to know what norms would result from the exercise of its regulation-making authority, and, consequently, it would be surrendering its regulatory power to a third party.
Similarly, Paul Salembier (Regulatory Law and Practice in Canada, p. 258) notes:
Where a dynamic incorporation by reference is used, however, the regulation-making authority has no idea what changes the authors of the incorporated document might decide to bring to it, and it therefore subdelegates the future evolution of the rule to the author of the incorporated document.
Here again, honourable senators, once we lose control, things may very well go off the rails. Oversight is required if we are to protect the democratic principle of parliamentary control over legislation. If we are to allow the use of open incorporation by reference, it is vital that, in each specific instance, the regulating body has been given the power by Parliament to make open incorporation by reference.
Let us now turn to the second major concern with Bill S-12, the issue of citizen access to the law — accessibility. Open incorporation by reference endangers a citizen's right to access the rules and laws by which they are governed. Incorporation by reference makes access to law more difficult as the documents are not readily available within the act or regulations. Open incorporation by reference, with its evolving documentation, makes access that much more difficult.
My honourable colleague on the government side stated:
There is no doubt that accessibility should be part of this bill. It is essential that documents that are incorporated by reference be accessible to those required to comply with them and to those who want to know how the law regulates industries or sectors of interest to them. This bill expressly provides protection so that no person could be penalized in any way for failing to comply with material incorporated by reference if that material was not accessible. This is an essential aspect of the bill that connects directly with the positive obligation on regulators to ensure that material is accessible.
While Bill S-12 takes a step in the right direction by putting the obligation on the regulation-making authority to ensure that the document incorporated by reference is accessible, the vagueness of the wording makes it difficult to believe that the citizens' rights will be protected by this legislation.
Allow me to quote specifically from the proposed bill. Proposed subsection 18.3(1):
18.3(1) The regulation-making authority shall ensure that a document, index, rate or number that is incorporated by reference is accessible.
It sounds straightforward, but what does "accessible" mean exactly?
One of my former colleagues, in fact, and former Joint Chairman of the Joint Committee on Scrutiny of Regulations, Member of Parliament Andrew Kania, explained the pitfalls of open incorporation by reference at the 2009 conference that was held in Australia. Allow me to quote:
There are in fact a great many documents that are incorporated by reference in Canadian federal regulations that are not "accessible" on any reasonable interpretation of this term. Numerous standards developed by private organizations are only available upon purchase, and may carry a significant price. Others are so obscure to be virtually untraceable. While government departments and agencies may well have copies of all of these standards and other documents, no attempt is made to make the public aware of this or to provide any information as to where
within the department they reside, even assuming they are available to be consulted by the public. Such concerns are heightened where material is incorporated "as amended from time to time". Even if one has access to a particular standard, if that standard is incorporated "as amended from time to time", how is one to know whether the copy is current?
He gave an example. The Marine Transportation Security Regulation incorporates, as amended from time to time, the Seafarers' Training, Certification and Watchkeeping Code. Mr. Kania told the conference that even with the assistance of the Library of Parliament, an up-to-date copy of this code could not be obtained on loan. Copies could be purchased through the International Maritime Organization, and the Department of Transport presumably has a copy. This level of availability clearly falls short of acceptable standards of accessibility to the law.
We need to know, honourable senators, will there be a cost to citizens to access a document that is referred to in regulations, and what costs are reasonable? Will the incorporated text in the regulation be in hard copy, or will the text be available on the Internet? Will the incorporated text be required to be registered and published in the Canada Gazette? Will citizens be required to travel from different parts of the country in order to obtain the text? Will past versions of the text always be available? Will it be clear which version applies at any given time? Will the incorporated text be available in both official languages? If only available in one language, is that accessible? Is that a definition of what is accessible?
These are only some of the important questions relating to accessibility that Bill S-12 did not deal with. The proposed section 18.6 stipulates:
18.6 A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document, index, rate or number — that is incorporated by reference in a regulation — is relevant unless, at the time of the alleged contravention, it was accessible as required by section 18.3 or it was otherwise accessible to that person.
That is a mouthful indeed. The use of the phrase "otherwise accessible" appears to override the obligation placed upon the regulation maker to ensure that incorporated material is accessible as called for under section 18.3.
Given these contradictions and the vagueness of the definition of "accessible" in the legislation, it appears that unless we amend the bill, it will be left to the courts to define what is accessible in terms of incorporated material. Those of us who sit on the joint committee have always championed the principle that, where possible, legislation should be made clear so that citizens should not have to go to the time and expense of a judicial proceeding and perhaps suffer undue prosecutions in order to determine the extent of his or her rights and liberties.
Honourable senators, court proceedings are expensive and take a great deal of time. Even though a citizen would be able to make use of the defence currently set in subsection 11(2) of the Statutory Instruments Act against conviction for contravention of an unpublished regulation, surely as parliamentarians we do not intend to make citizens go through the judicial process to achieve what good legislation should have done in the first place, that is, to spell out clearly how to make incorporated material accessible to the public. I think we would all agree that material incorporated in regulation by reference must be just as accessible as the regulation itself.
Honourable senators, this legislation would take a bad situation and make it much worse. In an effort to sidestep the illegality of the increasingly common unauthorized use of open incorporation by reference, the government has decided to make the illegal legal.
I would like to underscore the seriousness of section 18.7 specifically, which states:
The validity of an incorporation by reference that conforms with section 18.1 and that was made before the day on which that section comes into force is confirmed.
This means that the government is trying to legalize retroactively all past illegal use of incorporation by reference. This not only undermines the rule of Parliament, as expressed repeatedly by the Standing Joint Committee for the Scrutiny of Regulations, a report adopted unanimously by Parliament, it also challenges the Canadian Constitution. Bill S-12, if enacted as presented, would result in a serious shift of power in Canada, putting unprecedented control of law-making in the hands of the executive and by extension in the hands of government at the expense of Parliament. Bill S-12 also raises serious issues of accessibility for the citizens of our nation and jeopardizes the right to have open access to the law under which they are governed. While I would be pleased if this bill died before proceeding any further through the legislative process, I do, as honourable senators here will appreciate, have a great respect for the right of a bill to move to committee stage for further study and analysis.
It is apparent that there are many more specific legal issues that need to be discussed as part of this bill, along with the broader principle of subdelegation and accessibility. I look forward to a thorough and broad investigation at committee.
The Hon. the Speaker: Are honourable senators ready for the question?
Some Hon. Senators: Question.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
Senator Tardif: On division.
(Motion agreed to and bill read second time, on division.)
The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?
(On motion of Senator Carignan, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.)
The Hon. the Speaker: Honourable senators, prior to calling the next item, I wish to present a Speaker's ruling.
On November 1, a point of order was raised about the use of a document by the Honourable Senator Maltais during debate on Bill S-210, which deals with the commercial seal hunt. The senator requested and received leave that the document be tabled and distributed to all senators in the chamber. Later in the sitting, some honourable senators argued that the one-page photograph of a seal consuming a fish constituted an exhibit used to support the senator's position. Under normal practice the use of an exhibit is out of order. Subsequently, when it was clarified that leave had indeed been sought and granted, the focus of discussion shifted to what the proper practices are.
General parliamentary usage does not permit exhibits. At page 612 of the second edition of House of Commons Procedure and Practice, it is noted that:
Speakers have consistently ruled out of order displays or demonstrations of any kind used by Members to illustrate their remarks or emphasize their positions. Similarly, props of any kind, used as a way of making a silent comment on issues, have always been found unacceptable in the Chamber.
This prohibition is generally followed in the Senate. Debate by definition involves the spoken word. Reference materials such as notes on paper or tablets, or books, may be used by senators to assist them when speaking, as long as they are not disruptive and do not produce sound. Notes may be necessary for prepared interventions, but are generally not appropriate for remarks that should be extemporaneous, such as supplementary questions. Other physical objects that are employed with the goal of reinforcing a point, or that are unduly distracting, are to be avoided. Their use would, as in the case that gave rise to the point of order, require leave.
A second issue related to this point of order has to do with the general distribution of documents in the chamber. Distributing such materials to all senators during the sitting can be disruptive. Materials are only given out to all senators in a limited range of cases, including most notably when the Senate gives leave to take a bill or committee report into consideration later in the same sitting. Any other documents would only be distributed to all senators in the chamber if there is leave to do so, as happened with Senator Maltais. I would remind honourable senators that committee reports that are not for consideration later during the same sitting are not handed out as a matter of course, but can be requested from the pages. Prior to the sitting, only official publications are put on all senators' desks. Departures from these general practices are upon direction from the Speaker.
Since leave was granted to table the document there is no point of order as to it forming part of our record and proceedings, and I hope the additional clarification provided will help the Senate in the future.
The Senate proceeded to consideration of the ninth report (interim) of the Standing Senate Committee on Aboriginal Peoples, entitled: Additions to Reserves: Expediting the process, tabled in the Senate on November 1, 2012.
Hon. Vernon White: Honourable senators, prior to moving that the report be adopted, pursuant to rule 12-24(1), I ask that the Senate request a complete and detailed response from the government, with the Minister of Aboriginal Affairs and Northern Development Canada being identified as minister responsible for responding to the report.
The Hon. the Speaker: It is moved by the Honourable Senator White, seconded by the Honourable Senator McInnis, that the ninth report (interim) of the Standing Senate Committee on Aboriginal Peoples entitled: Additions to Reserves: Expediting the process, tabled in the Senate November 1, 2012, be adopted and a reply be sought from the minister.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to and report adopted.)
The Senate proceeded to consideration of the fourteenth report (interim) of the Standing Senate Committee on Social Affairs, Science and Technology, entitled: Canada's Clinical Trial Infrastructure: A Prescription for Improved Access to New Medicines, tabled in the Senate on November 1, 2012.
Hon. Kelvin Kenneth Ogilvie: Honourable senators, I move:
That the report be adopted and that, pursuant to rule 12-24(1), the Senate request a complete and detailed response from the government, with the Minister of Health being identified as minister responsible for responding to the report.
Honourable senators, a clinical trial is the critical step in the approval process for new medicines to benefit Canadians. Clinical trials conducted in Canada have many benefits to Canadians. A clinical trial offers the opportunity for those suffering from a particular disease symptom to voluntarily gain access to the newest proposed treatment for their disease. If a clinical trial does not occur in Canada, Canadians must wait until the results from trials elsewhere are submitted for consideration by Health Canada for approval for use in Canada. This can represent a significant
delay in making new treatments for severe diseases available to Canadians.
In fact, there is no guarantee that a pharmaceutical company will even apply for approval in Canada if trials are not carried out in Canada. For rarer diseases and our relatively small population companies that do not conduct clinical trials in Canada may decide not to enter our market for some time.
There are other important costs to Canada if clinical trials do not occur here. A clinical trial costs millions of dollars. Those involved in organizing and conducting clinical trials are at the high end of knowledge workers. Highly trained physicians, nurses and technicians working in organized teams are the backbone of the clinical trial process. The decline in clinical trials conducted in Canada represents a significant economic loss to Canada and the dismantling of clinical trial teams. Such teams cannot be quickly created if the clinical trial infrastructure is dismantled.
Those involved in a clinical trial also represent a major knowledge resource once a new drug is approved for sale in Canada. Those who were involved with the trial represent a resident source of information to the health system with regard to dosage, effects and other key aspects of patient treatment with new pharmaceuticals.
Unfortunately, clinical trials in Canada have been declining steadily for several years, by 30 per cent between 2006 and 2010. It is important to Canadians that this trend be reversed.
There was a time that Canada, along with the U.S. and Europe, had a major advantage in hosting clinical trials: a highly trained and skilled medical fraternity whose reputation was at the highest level. While Canada's reputation in terms of skilled personnel is still at the highest level, more countries are achieving reputations for skill in this area.
Further, other countries have much larger populations, making it easier to recruit patients for a trial and thus reducing costs. Over the past decade, the Canadian dollar has risen relative to international currencies, making Canada less competitive on economic grounds.
While these specific economic factors are real, our committee was not focused on them. However, there is one area of competitive costs that did emerge from our study, that the Canadian clinical trial infrastructure is not well organized, especially in one key area. Our committee heard from many witnesses that in Canada, each clinical trial site usually requires its own unique ethics board approval before a trial can proceed. Since often hundreds of sites may be involved in a given trial, the need for a company to submit perhaps hundreds of slightly different proposals represents a major time and cost factor in carrying out a trial. This may be the straw that causes the company to avoid a trial in Canada.
It is essential that ethics board approval be secured before a trial goes forward, but why every university team requires a separate process seems hard to comprehend. One of our key recommendations is that Health Canada work with the provinces and the research teams to generate a standardized ethics board approval process.
While on the one hand your committee found that conducting clinical trials in Canada is important to us in many ways, we also heard that we must become much more transparent in providing the results of trials in order to ensure the safety of drugs approved for the Canadian market. Your committee feels strongly that Canada must move quickly to become completely transparent with regard to clinical trials and that all results identified in the trial, both positive and negative, must be posted and freely available to all Canadians. This includes the results of trials that are truncated for any reason.
The committee urges Health Canada to take all steps available under its current authority to assure transparency and urges the Minister of Health to seek additional legislative authority where needed.
In total, the report makes 12 recommendations that address issues such as enhanced leadership of the federal government; transparency of the clinical trial process; standards and accreditation of research ethics review; barriers to patient recruitment; inclusion of vulnerable subgroups of the population; drugs for rare diseases; and the need to assess patent protection and tax incentives.
The time for Canada to act is now. Implementing the recommendations contained in this report will result in an improved clinical trial infrastructure, an increase in Canada's global competitiveness in the clinical trial sector and, ultimately, improved access to innovative medicines for Canadians.
I want to leave honourable senators with this overriding position of your committee. As we stated in our news release:
First and foremost, in changing the way we do clinical trials, must be the safety of Canadians and the effectiveness of the drugs they rely on . . .
We must expect no less. I hope honourable senators will support the adoption of this report.
(On motion of Senator Tardif, for Senator Eggleton, debate adjourned.)
On the Order:
Resuming debate on the motion of the Honourable Senator Cordy, seconded by the Honourable Senator Fraser:
That the Standing Senate Committee on Social Affairs, Science and Technology which is studying Bill S-204, An Act to establish a national strategy for chronic cerebrospinal venous insufficiency (CCSVI), invite Canadian MS/CCSVI patients who have undergone the venous angioplasty for CCSVI treatment to appear before this committee as witnesses, as their experiences and expertise will provide this committee with a better understanding of the realities faced by those directly affected by this legislation.
Hon. Kelvin Kenneth Ogilvie: Honourable senators, I rise today as Chair of the Standing Senate Committee on Social Affairs,
Science and Technology to bring to your attention certain matters related to this motion. I want to assure honourable senators that in doing so, I am simply bringing issues that I feel are important in reaching a decision and that the committee will respect completely any decision taken by this body.
First, I think it is important for honourable senators to know that there is no member of the committee — and, I suspect, no member of this chamber — who is under any misapprehension about the severity of the disease MS, a progressive disease affecting some 75,000 or more Canadians. However, that is not the question. Bill S-204 is not dealing with the question of whether or not this is a serious disease.
Let me also indicate to honourable senators the nature of the treatment that is under discussion in this bill. The treatment involves the taking of a thin wire, inserting it into the groin, passing it up through the major veins, into the heart and, from there, into the veins in the neck, near the brain. This is not a trivial procedure. Very clearly, it is essential to advise people who wish to have this treatment on the safety and efficacy of the procedure.
Many patients have undergone this procedure. Some have died; some have been seriously injured; others have reported some benefits from the treatment. Many of those who reported benefits have shown relapse. Many have shown no benefit to date. Unfortunately, most of the operations have not been conducted under defined clinical trial procedures.
Your committee has held hearings on the nature of how Canada should move towards determining the appropriate way to evaluate this procedure for patients in recommending for or recommending against it.
As an example, last Thursday, the committee heard from three of the most respected people in the world with regard to this matter: Dr. Zamboni, the inventor of the procedure, appeared before the committee by video conference; we also heard from Dr. Zivadinov, who worked with Dr. Zamboni and heads a major clinic in Buffalo, New York, with regard to this kind of disease treatment and related issues; and from Dr. Laupacis, of St. Michael's Hospital in Toronto, who is recognized as an expert in evaluating the outcomes of treatments and their potential long-term benefit to patients.
All three witnesses declared unequivocally that the appropriate way to deal with reaching a decision on the benefit of this procedure is unquestionably the gold standard: the double-blind clinical trial. Dr. Zivadinov, when asked directly, applauded Canada for deciding to go ahead with such a trial and further elaborated that he felt that the Canadian trial centres are among the best in the world for conducting a trial of approximately 100 patients. All three were hopeful that studies under way in other countries would, with similar kinds of numbers, in a double-blind clinical trial study, lead to an understanding of whether or not the so-called CCSVI procedure actually helps patients with the MS disease or whether it is a condition in its own right that may generate certain symptoms that are troublesome to many people. The CCSVI condition is found in many people in the population. It is not confined to those with MS, and it is not found in anywhere near all those who are afflicted with MS.
These are some of the observations that I felt it was important for this body to take into consideration with regard to the motion before us.
Finally, I would remind honourable senators, in my experience here and reading the background, one of the areas where His Honour has been consistent is in the right of committees to determine their own procedure.
Hon. Gerald J. Comeau: I am trying to recall the last time this chamber would have instructed a committee as to who the witnesses would be before the committee. I simply cannot recall any time that has ever happened. Why would the members of the committee not determine who their witnesses are, rather than asking this chamber to instruct the committee who they are?
Senator Ogilvie: Indeed, that is an issue that is of interest to many members of this chamber. Indeed, the committee, through the advice of its steering committee, did have the expertise before it that the steering committee, at least, believes is sufficient to reach a decision on this issue.
The Hon. the Speaker: Is there further debate on this motion? Are honourable senators ready for the question?
Some Hon. Senators: Question.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Hon. the Speaker: Those in favour of the motion will signify by saying "yea."
Some Hon. Senators: Yea.
The Hon. the Speaker: Those opposed to the motion will signify by saying "nay."
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion, the "nays" have it.
And two honourable senators having risen:
The Hon. the Speaker: Call in the senators.
Hon. Jim Munson: Thirty-minute bell.
The Hon. the Speaker: The vote will take place at 4:30.
Do I have permission to leave the chair?
Hon. Senators: Agreed.
Motion negatived on the following division:
THE HONOURABLE SENATORS
THE HONOURABLE SENATORS
THE HONOURABLE SENATORS
On the Order:
Resuming debate on the inquiry of the Honourable Senator Mercer calling the attention of the Senate to Canada's current level of volunteerism, the impact it has on society, and the future of volunteerism in Canada.
Hon. Mobina S. B. Jaffer: Honourable senators, this inquiry has been adjourned in the name of Senator Callbeck. I have requested her permission to proceed before her and then have this inquiry adjourned in her name, if I may.
Honourable senators, I rise before you today to speak to Senator Mercer's inquiry, which calls the attention of the Senate to Canada's current level of volunteerism, the impact it has on society and the future of volunteerism in Canada.
I would like to thank my honourable colleague Senator Mercer for drawing the Senate's attention to the importance of volunteerism in Canada. I have always admired Senator Mercer for the service he personally renders to various charitable organizations, including the Canadian Diabetes Foundation, the YMCA of Greater Toronto and the Kidney Foundation of Canada. In Senator Mercer's inquiry, he stresses the importance of saying "thank you" to all donors and volunteers as a symbol of respect and appreciation. I would like to take this opportunity to thank him for all the work he does on behalf of Canadians.
Honourable senators, as Canadians, we truly understand the value of service in the name of humanity and take great pride in being recognized as a caring, generous and peaceful nation. Compassion, generosity and unity are all values that have defined Canadians for centuries. Similarly, these are also values at the cornerstone of His Highness Prince Karim Aga Khan's philosophy.
The Aga Khan is the forty-ninth hereditary imam or spiritual leader of the Shia Ismaili Muslims. The Aga Khan has emphasized the view of Islam as a thinking, spiritual faith, one that teaches compassion and tolerance and that upholds the dignity of man, Allah's noblest creation. As a proud Ismaili Muslim woman, I consider myself incredibly fortunate to be the beneficiary of the Aga Khan's guidance and wisdom.
Today, I would like to draw the Senate's attention to the volunteerism within Canada's Ismaili Muslim community and shed light on the ethics and principles that motivate Ismaili Muslims to give back to their communities and to our country.
Ever since I was a young girl, I remember my parents teaching me the importance of giving back to the community. I fondly recall getting dressed up in my Ismaili junior volunteer uniform and going to various functions organized by the Ismaili community in Uganda. Even though I was just a young girl, the older volunteers always found a task for me to complete. My own two children also proudly wore their volunteer uniforms. My husband and I watched them do all kinds of tasks, and we were proud parents of our two children.
Today I proudly watch my grandson, who is six years old, as he proudly participates in functions like I once did. I admire his eagerness to get involved and lend a hand. Whether it is organizing a canned food drive in anticipation of the holiday season, cleaning up a local park, serving food at a community event, or facilitating a clothing drive, there is always an initiative that is welcoming volunteers of all ages, even young boys of his age.
The spirit of giving has always been the bedrock of the Ismaili community's philosophy, and the importance of offering time and service is something that is instilled in Ismaili volunteers from a very young age and reinforced throughout their adult lives. For example, Challenging Ismaili Volunteers in Communities, which is commonly referred to as CIVIC, is a volunteering initiative that seeks to leave a positive impact on local communities throughout Canada. This program allows youth between the ages of 13 and 25 to become ambassadors for the spirit of voluntary service. The
impact left in local communities by CIVIC volunteers has been felt throughout many communities across Canada, as their mission is not exclusive to the Ismaili community. It is an inclusive effort to make positive contributions to the community at large, regardless of faith or origin.
On each designated CIVIC day across the country, more than 1,100 participants come together in their respective regions and contribute over 4,400 hours of voluntary service to designated projects. These projects can be geared toward the restoration of rundown neighbourhoods or the rejuvenation of flora and fauna in natural regions. CIVIC has conducted many environmental preservation projects that exemplify this mission. For example, in 2009, in commemoration of the Aga Khan's Golden Jubilee, youth in my province of British Columbia planted 50 fruit trees, which will produce approximately one tonne of fruit every year that will be donated to shelters in downtown Vancouver. It is small, voluntary acts of kindness and hard work like this that can inspire others to help on a large scale or in different arenas. The Ismaili community has always embraced the spirit of volunteerism, always emphasizing that it does not matter if one is five or ninety-five, one can never be too young or too old to make a difference.
Another example of how the Ismaili community, both young and old, came together to serve the community was during the 2010 Vancouver Olympics. The Ismaili volunteer corps was asked to help with the logistical planning and organizing of the 2010 Olympic Winter Games after being recognized by the committee and the community for their expertise in streamlining other large-scale events that we regularly hold. During the 2010 Winter Games, the Ismaili volunteers provided multi-faceted services, ranging from providing information to tourists and athletes, to managing scores of energetic crowds, to escorting senior government officials and ministers to special VIP Olympic events in and around Vancouver. By engaging in voluntary service within the larger community, the Ismaili Muslim community seeks to give back to the communities in which it lives by putting the ethics of volunteerism into action.
Not only do Ismaili Muslim volunteers offer their time and knowledge, they also organize several initiatives which raise funds for vulnerable and marginalized populations living both in Canada and abroad. For example, every year thousands of Canadians gather in 10 cities across Canada and participate in the World Partnership Walk, which is Canada's largest fundraising event that is dedicated to fighting global poverty. Since the first walk, which was held in 1985, the World Partnership Walk has raised over $17 million for international development programs and initiatives.
For the past 27 years, the Aga Khan Foundation, with the support of its devoted volunteers, has organized the walk in an effort to show Canadians what people in other parts of the world are going through and to create an awareness of being part of the global family in which every member is as valuable as any other. The Aga Khan Foundation Canada directs all of the money raised through partnership walks to sponsorship of projects focused on health, education, culture and economic development, primarily in Africa and Asia.
Another initiative spearheaded by the Ismaili community is the Ismaili Walk which is held annually in British Columbia. In fact, just a few short weeks ago, I had the honour of walking alongside 1,500 British Columbians as the Ismaili Walk celebrated its twenty-first anniversary. For over two decades, men, women and children from across British Columbia have gathered at Lumberman's Arch in Stanley Park where they have enjoyed live music, delicious food and a festive atmosphere while at the same time supporting a great cause.
In the past, the Ismaili Walk has partnered organizations such as the YMCA, an organization that I am personally very close to as I was its national president for six years, the Women's Health Research Institute at B.C. Women's Hospital, Health Centre Foundation and, most recently, the Heart and Stroke Foundation, raising awareness and funds for remarkable and deserving causes. In fact, over the past 21 years, the Ismaili Walk has raised more than $3.8 million for community organizations in the Lower Mainland of Vancouver.
Honourable senators, I would like to conclude by shedding light on the Aga Khan Foundation Canada, which is the institution that anchors many of the different projects and initiatives I have mentioned today. Aga Khan Foundation Canada is a non-denominational, non-profit international agency that supports social development programs in Asia and Africa. As a member of the Aga Khan Development Network, Aga Khan Foundation Canada works to address the root causes of poverty, finding and sharing effective and lasting solutions that help improve the quality of life for poor communities.
For more than 25 years, Aga Khan Foundation Canada has worked with Canadians to support sustainable improvements in the quality of life of poorer, marginalized communities in Asia and Africa, as well as foster dialogue on critical global issues to enhance Canada's unique leadership in world affairs. The excellent work done by Aga Khan Foundation Canada would not be possible if it was not for the hundreds of volunteers who generously give their time and lend their support to the many projects it conducts every year.
From the individuals who help organize the World Partnership Walk and the World Partnership Golf tournament, to the interns who travel to the developing world to make a difference in the lives of people residing in communities plagued by hunger, poverty and conflict, volunteers help make the Aga Khan Foundation's vision a reality.
Honourable senators, Governor General Johnston has made volunteerism a key component of his mandate as Governor General. In October 2011, at The Ismaili Centre in Burnaby, His Excellency addressed a distinguished audience at a Canadian Club of Vancouver luncheon and underlined the values and ideals which shape a vibrant Canadian identity in the 21st century and enjoined upon all Canadians the importance of volunteerism and philanthropy.
As Canadians, we pride ourselves on being generous, open-minded and forward-thinking. By working together selflessly and courageously, we can build a world for future generations that is full of opportunity. If alone we have the desire, then together we know we have the ability, and we know that when we unite we realize the potential of collaborative voluntary service.
Honourable senators, we know that no one can do everything, but everyone can do something to create opportunities for all.
(On motion of Senator Jaffer, for Senator Callbeck, debate adjourned.)
(The Senate adjourned until Wednesday, November 7, 2012, at 1:30 p.m.)