Previous Sittings
Previous Sittings

Debates of the Senate (Hansard)

1st Session, 41st Parliament,
Volume 150, Issue 151

Tuesday, April 16, 2013
The Honourable Noël A. Kinsella, Speaker


Tuesday, April 16, 2013

The Senate met at 2 p.m., the Speaker in the chair.



Business of the Senate

Hon. Claude Carignan (Deputy Leader of the Government): Honourable senators, there have been consultations among the parties, and it has been agreed that photographers may be allowed on the floor of the Senate for this afternoon's meeting, so that they may photograph the swearing-in of the new senator with as little disruption as possible.


New Senator

The Hon. the Speaker: Honourable senators, I have the honour to inform the Senate that the Clerk has received a certificate from the Registrar General of Canada showing that Scott Tannas has been summoned to the Senate.


The Hon. the Speaker having informed the Senate that there was a senator without, waiting to be introduced:

The following honourable senator was introduced; presented Her Majesty's writ of summons; took the oath prescribed by law, which was administered by the Clerk; and was seated:

Hon. Scott Tannas, of High River, Alberta, introduced between Hon. Marjory LeBreton, P.C., and Hon. Betty Unger.

The Hon. the Speaker informed the Senate that the honourable senator named above had made and subscribed the declaration of qualification required by the Constitution Act, 1867, in the presence of the Clerk of the Senate, the Commissioner appointed to receive and witness the said declaration.


Congratulations on Appointment

Hon. Marjory LeBreton (Leader of the Government): Honourable senators, it is with great pleasure that I stand here today to mark the swearing in of our newest colleague, the Honourable Scott Tannas.

As you know, the Province of Alberta has pioneered the reality of Senate elections in Canada. The first elected senator was Stan Waters, elected in 1989 and appointed by the Right Honourable Brian Mulroney in 1990. Bert Brown and Betty Unger followed, with their election in 2004, but their elected status was ignored by the previous government. It was only following the election of a Conservative government that they were subsequently appointed when vacancies occurred in 2007 and 2012.

Of course, they were followed by Doug Black in January of this year, having been elected by the people of Alberta in 2012.

Honourable senators, we now have the fifth elected Canadian senator, Scott Tannas, who on March 25 was summoned to the Senate by the Governor General on the advice of Prime Minister Stephen Harper.

Senator Tannas was born and raised in High River, a small town in southwestern Alberta that is known to me — I have been there a few times — but it is perhaps best known as the birthplace of Canada's sixteenth Prime Minister, the Right Honourable Joe Clark.

Scott's father, Donald, was a school principal and was later elected as the Progressive Conservative MLA for Highwood. His mother, Christine, was an emergency room nurse.

From a young age, Scott Tannas developed a lifelong commitment to the concept that hard work was the key to success, whether it was as an employee at the local hardware store or as the proprietor of smaller entrepreneurial endeavours. It was always important for Senator Tannas to be part of a team in order to diligently build a business, large or small.

Always interested in politics, perhaps due to the influence of his father, Scott served on student council and was even dubbed "Senator'' by his fellow students. Raised with a strong commitment to public service, he always hoped that someday he would have a chance to serve his community and fellow Canadians in some capacity.

After attending university, Scott took on a variety of jobs in order to save the money he needed to buy a small insurance agency in his hometown. He eventually purchased the business, which quickly morphed into a diversified financial services company with more than 1,500 employees. During this time, he married his university love, Taryn, and together they raised four children — Mary Christine, Emily, Zachary and Alex.

Senator Tannas has also been involved with local charitable organizations. He is a director and fundraiser for SOS Children's Villages Canada, and chairman of the Western Communities Foundation, which he founded to support the communities in which Western Financial Group operates.

Senator Tannas's hard-working and assiduous approach to business, exhibited from a young age, will surely serve him well in his new role as a senator for Alberta.

I must mention that years ago — 25 years, in fact, though it is hard to believe it was that long ago — I interviewed Senator Tannas for a political job here in Ottawa. He did not get the job, and he returned to Alberta to start his insurance business. I must have been asleep at the switch that day or something — one of the many days. The senator recently reminded me of this story and told me that he is determined to impress me this time.

I invite my Senate of Canada colleagues to join me in extending a warm welcome to Senator Tannas.

Hon. Senators: Hear, hear!

Senator LeBreton: The appointment of yet another elected senator underscores our government's commitment to reforming Canada's upper chamber.

Our government received a strong mandate from Canadians to achieve a more democratic and representative Senate. As I have mentioned many times in this place, we are unwavering in our commitment to ensuring the Senate of Canada represents Canadians from coast to coast to coast as an effective and democratic institution.

The reference to the Supreme Court of Canada on February 1 marks progress towards this commitment.

It is important to remind all senators sitting in this chamber today that we have a very important responsibility to all Canadians. As parliamentarians, we play a crucial role in the legislative process. In theory, we are the chamber of sober second thought. In practice, we add significant value to the consideration of government legislation, as well as private members' business. We conduct valuable and thorough studies in our committees resulting in substantive reports that not only assist the government in formulating policy but also represent the wide-ranging views of Canadians.

We have a duty to advance the interests important to the communities in which we live, work and play. As parliamentarians, we are representatives of the people of our regions and provinces. This important role is one that cannot be emphasized enough. From coast to coast to coast, we represent the many faces of Canada.

I must reiterate that regardless of what party we represent or what ideology we may have, we are here for the same purpose: to contribute to the betterment of our country through our service to Canadians. Let us all remember this as we move forward.

Welcome again, Senator Scott Tannas.

Boston Marathon—Victims of Tragedy

Silent Tribute

The Hon. the Speaker: Honourable senators, before we proceed, I would ask senators to rise and observe one minute of silence as a gesture of solidarity with our American neighbours in light of the tragedy that occurred yesterday in Boston.

Honourable senators then stood in silent tribute.

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Her Excellency Diloram G. Tashmukhamedova, Speaker of the Legislative Chamber of the Oliy Majlis of the Republic of Uzbekistan. Her Excellency is accompanied by a delegation of parliamentarians.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Senators: Hear, hear!

The Hon. the Speaker: Also, honourable senators, I wish to draw to your attention the presence in the gallery of Lieutenant-General Yvan Blondin, Commander of the Royal Canadian Air Force, and Mr. Terry Chester, National President of the Air Force Association of Canada. They are accompanied by other members of the Royal Canadian Air Force and the Air Force Association of Canada. They are guests of the Honourable Senator Day.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Senators: Hear, hear!



Mr. Bharat Masrani

Congratulations on Appointment as President and CEO of TD Bank Group

Hon. Donald H. Oliver: Honourable senators, a few months ago at a private lunch at TD Bank in Toronto, I asked Ed Clark, TD CEO, if there was room in his succession planning for a visible minority to replace him. Without hesitation he said yes. I was positively delighted by this news.

I was even more pleased when, on April 3, Ed Clark announced that Mr. Bharat Masrani will become the new CEO of TD Bank. This marks the first time in our history that a visible minority will lead one of Canada's largest financial institutions.

On July 1 of this year, Mr. Masrani will become chief operating officer, a transitional position, and on November 1, 2014, he will be appointed Group President and Chief Executive Officer of TD Bank Group.

Honourable senators, this is one of the highest manifestations that the business case for diversity is both understood and working in Canada.

Bharat Masrani will succeed Ed Clark, who has successfully managed the bank since 2002. Not only is Mr. Masrani highly qualified, but, as Mr. Clark said, he also brings a continuity of strategy, culture and values to the position.

Mr. Masrani was born in Uganda, Africa, of Indian parents. His family emigrated to the United Kingdom in the 1960s, and he then moved to Canada.

He earned a bachelor's degree in administration with honours in 1978 from York University, and a Master of Business Administration from its Schulich School of Business.

He began his career with TD in 1987 where he started as a commercial lending trainee. In no time, he climbed up the corporate ladder. He has held a number of senior executive positions with TD over the years, most recently as Group Head, U.S. Personal and Commercial Banking, TD Group; and President and CEO of TD Bank, America's Most Convenient Bank. Under his leadership, TD Bank — a Canadian bank — has become one of the 10 largest commercial banks in the United States, with more than 28,000 employees and some 8 million customers.

Honourable senators, on April 3, I met and warmly congratulated Mr. Masrani at a TD event. Here is what The Globe and Mail had to say about his appointment:

It is a significant moment in the Canadian banking world, making Mr. Masrani, who is of South Asian descent, the first visible minority to ascend to the corner office of a major Canadian bank, in a business that is often criticized for the homogeneity of its senior ranks.

Mr. Masrani said he does not personally look at it from a diversity lens but added:

If my future role inspires individuals to seek out leadership positions or motivates organizations to commit to creating a more diverse and inclusive environment, I feel great about that.

Honourable senators, we are one step closer to shattering that glass ceiling that prevents visible minorities from climbing to the upper ranks of our private sector. This is certainly a bellwether occasion in our history.

Please join me, honourable senators, in congratulating future CEO of TD Bank, Mr. Bharat Masrani.


Air Force Appreciation Day

Hon. Joseph A. Day: Honourable senators, it is becoming a tradition for me to draw the attention of the Senate to Air Force Appreciation Day, which we mark today. Once again, senators are invited to meet some of the men and women of the Royal Canadian Air Force, veterans as well as active members, at the annual parliamentary reception, which will be held today from 5 p.m. to 7 p.m. in room 256.


Today, I would like to add to the Senate record that His Excellency the Governor General recently honoured 34 members of the Canadian Armed Forces with Meritorious Service Decorations. Included among the recipients were nine air force personnel involved in Canadian international aviation engagement support operations. These recognitions resulted from the participation of Canadian aviation personnel in diverse theatres of operation, including Libya and Afghanistan, as well as outstanding contributions to our aviation operations at home.

Today, the Royal Canadian Air Force is responsible for the enforcement of Canada's airspace security with 14,500 regulars and 2,600 reservists and with the support of 2,500 civilians.

Canadian partnership with the United States in aviation security through the North American Aerospace Defense Command, NORAD, is one of the great examples of shared peacetime security protection on our planet.

In Canada, the foundation of our search and rescue capacity of our citizens rests with aviation personnel.

In times of peace, we take for granted both our internal and our peripheral security and safety, but in times of crisis, our dependence on the training and expertise of the men and women in uniform will inevitably be tested. We as parliamentarians must ensure that our Canadian men and women in all branches of our forces have the resources to meet those challenges.

Today, we have almost 400 aircraft in service. Ours is the largest air force in the Americas after the United States and Brazil.

The presence of air force personnel is pan-Canadian. Notable communities that receive economic stimulus from the Royal Canadian Air Force presence include Kingston, Trenton, Bagotville, Cold Lake, Goose Bay, Gander, Shearwater, Greenwood, Winnipeg, Comox, North Bay, Moose Jaw and Borden.

We Canadians are justifiably proud of our Royal Canadian Air Force personnel.

Honourable senators, I hope you will be able to join me at the annual Air Force Appreciation Day reception this afternoon so that you can join me in thanking our air force personnel both retired and active and still serving, as well as industry personnel.

Family Law Reform

Hon. A. Raynell Andreychuk: Honourable senators, I rise today to support and applaud a recent initiative of the Chief Justice of Canada, Chief Justice Beverley McLachlin. Under her leadership, the National Action Committee on Access to Justice in Civil and Family Matters has begun looking into ways to reform family law.

In the early 1970s, there was much discussion on this matter across Canada. In fact, I accepted a judicial appointment to pursue this issue.

Some initiatives were taken to minimize the damaging effects to a family when a breakdown occurs.

The hope was for a unified family court system focused on dispute-resolving procedures, one that would employ the adversarial system only as a last resort.

The focus was to help children through moments of crisis and change in families.

The adversarial system, as it now operates, is time-consuming and costly, and often serves to escalate the tensions in the family. More particularly, it is not sufficiently child-focused.

Early reports indicate that the committee's Family Justice Working Group is leaning towards a mediation and settlement approach. This is to be commended.

I would ask the Senate to add its voice in supporting this process to bring about necessary changes in our family law system.

While the issues have been known for decades, the attention that the Chief Justice and the committee have placed on them deserves our immediate, critical attention.


Le Droit

One Hundredth Anniversary

Hon. Marie-P. Charette-Poulin: Honourable senators, this year marks the one-hundredth anniversary of the only French-language daily newspaper in Ontario, Le Droit.

To me, this anniversary serves as a perfect reminder of one purpose of the Senate of Canada, which is to represent and protect the minorities that make up this great country.

Le Droit was founded in 1913, in the wake of Ontario's controversial Regulation 17.


This regulation threatened francophone rights by restricting the use of French as the language of instruction to primary grades and designating English as the language of instruction and communication in all Ontario schools. Regulation 17 would have been the death knell for French in Ontario. Le Droit was established in this climate of adversity by the Missionary Oblates of Mary Immaculate of Ottawa, after the hard-fought battle by the francophone teachers of École Guigues, which was located in the shadow of Parliament Hill.

Honourable senators, I will repeat that the history of Le Droit reminds us of the vital mandate of the Senate of Canada. Le Droit worked with francophones to fight a law that could have led to a cultural genocide in Ontario. Even today, its motto is apt: "The future belongs to those who fight.'' The fight against Regulation 17 was won in 1927, in large part because of the efforts of Le Droit. This was just one of the first fights for Franco-Ontarians, who all too often face the challenge of protecting the rights granted by the Constitution of Canada.

I would like to take this opportunity to pay a resounding tribute to everyone who has contributed to the important work of Le Droit in the past century. I would ask you to congratulate the entire team at Le Droit, which proudly defends and promotes the Franco-Ontarian community and francophone rights. I wish Le Droit another 100 years of success.


World Autism Awareness Day

Hon. Mobina S. B. Jaffer: Honourable senators, on April 2, landmarks around the world were lit up in blue: the Christ the Redeemer Statue in Rio de Janeiro, the Empire State Building in New York City, the Great Buddha in Japan, Humayun's Tomb in India, the Sydney Opera House in Australia, the Leaning Tower of Pisa in Italy, and entire skylines in cities like Chicago and Shanghai.

Nearly 3,000 structures in over 600 cities, 45 countries and 6 continents were illuminated in blue to shine a bright light on autism. Were it not for the hard work of Senator Munson, the Toronto City Hall, the Vancouver Harbour Centre, the Peace Tower and many other Canadian buildings might not have been among them.

Honourable senators, Senator Munson's incredible dedication, hard work and perseverance demonstrate just how much he cares about autism and autism awareness. Senator Munson has been advocating for children with autism and their families for more than a decade. The United Nations General Assembly adopted a resolution to recognize World Autism Awareness Day on December 18, 2007.

On June 6, 2008, Senator Munson introduced Bill S-237, An Act respecting World Autism Awareness Day. Of course, only a few months later, an election was called.

When Parliament resumed in November 2008, Senator Munson again introduced Bill S-213, also called An Act respecting World Autism Awareness Day. Days after Senator Munson delivered his second reading speech, Parliament was prorogued.

On January 27, 2009, Senator Munson introduced his bill for a third time in the form of Bill S-210. The Senate passed Bill S-210, and the House of Commons Standing Committee on Health was about to begin its study when, for a second time in as many years, Parliament was prorogued.

Senator Munson introduced the bill once again on March 10, 2010, this time as Bill S-211. The Senate passed the bill with amendments, the House of Commons began its review, and then Parliament was dissolved and the writs were dropped — but Senator Munson was not to be deterred.

On October 4, 2011, Senator Munson introduced Bill S-206 which, as honourable senators know, received Royal Assent a little over a year later on November 1, 2012, after five bills, years of work and endless dedication.

Senator Munson is tirelessly dedicated to the issue of autism because it is estimated that 1 in 88 Canadian children has autism spectrum disorder, up from 1 in 110 two years earlier. Autism awareness could not be more important. I am absolutely certain that Senator Munson would have reintroduced his bill 50 more times if that is what it would have taken for his bill on autism to become law.

What I have learned is that Senator Munson is a senator who truly cares about Canadians, especially Canadian children, who we represent.

Senator Munson and Senator Marshall have perhaps the most unenviable jobs in the Senate. In their roles as whips they have to manage diverse personality needs and requests. They both do extremely well because they care. When Senator Munson says "no'' to one of my requests, I can tell that it sometimes hurts him more than it does me, but I also know that he will do everything in his power to help encourage and support me: That is who he is.

I am lucky, as we all are, to count on Senator Munson and Senator Marshall as our friends and colleagues.

I hope honourable senators will join me in recognizing the incredible work that Senator Munson does to advocate for Canadians with autism.

Hon. Senators: Hear, hear!

Income and Wealth Inequality

Hon. Don Meredith: Honourable senators, I rise today as an executive member of the All-Party Anti-Poverty Caucus to discuss a very prominent and alarming trend in Canada: the inequality of wealth distribution among citizens.

Since the recession in the early 1990s, many Canadians have struggled financially. Strong labour markets between 1993 and 2008 increased economic stability, but financial gains were predominantly among Canada's rich, creating a significant gap in wealth between rich and lower class earners. Citizens for Public Justice will present a report, entitled Loving Our Neighbours: Reducing Inequality by Lifting Canadians out of Poverty, to the House of Commons Standing Committee on Finance this week.

Canada's wealth is concentrated among 20 per cent of the population, accounting for 47.5 per cent of the country's total market income. Many factors have contributed to the centralization of wealth in Canada, including the loss of well-paying manufacturing jobs, increased executive salaries and the expansion of low-wage sectors of the economy, such as service and retail. As a result, approximately 3 million Canadians live on incomes below Statistics Canada's low income cut-off rate, averaging just over $27,000 annually after taxes.

Canadian social programs are not keeping up. According to the Centre for the Study of Living Standards, Canada's income security system is one of the weakest among developed countries, ranking number 25 out of 30 countries studied.

Many groups in Canada are vulnerable to poverty. My focus today will be the struggle of single working-age individuals and single-parent families. I believe it is the collective duty of Canadians to care for the disadvantaged in our society. Ensuring that all Canadians have a good standard of living will not only save money but will reduce the negative impacts on society caused by poverty, such as high crime rates and barriers to education.

Almost one third of single working individuals live in poverty in Canada. The average unattached working individual lives on an annual income of just over $10,619 per year. Due to a decrease of full-time employment, many of these individuals work part-time or in contract positions. One in four are employed in low-paying jobs, which are defined by the Organisation for Economic Co-operation and Development as paying less than two thirds of the median wage, or the equivalent of approximately $13.33 per hour.

Honourable senators, our government has recognized the need to assist this group and has introduced the Working Income Tax Benefit in 2007, which was increased in 2012 as well. I strongly support the recommendation of the Citizens for Public Justice to increase the benefit and to widen the eligibility requirements to benefit more Canadians in need.

Honourable senators, single-parent families have historically struggled with economic instability and are three times more likely to experience poverty than two-parent families. With a median after-tax income of $39,900 annually, it is clear that these families are in crisis. Our government has strongly supported these families through initiatives such as the Universal Child Care Benefit and the Child Tax Credit, but there is much more work to be done. Increases to these benefits for low- and modest-income families would significantly improve their lives.

Honourable senators, all Canadians have the right to live free from poverty. Improvements to Canada's tax system have reduced the gap between the rich and the poor, but much more needs to be done. As the cost of living continues to outpace income growth, Canadian families are surging further into debt and into poverty. Cross-national research shows societies of balanced wealth benefit from longer life expectancy, learning capacity, social mobility and mental health statistics.

I urge honourable senators to support income equality in Canada and to support measures to equalize Canada's wealth by reviewing the Citizens for Public Justice report.



Temporary Foreign Worker Program

Hon. Pierrette Ringuette: Honourable senators, day after day in recent weeks we have seen in the media that Canadians are angry about the actions taken by the Royal Bank and iGATE. We should all be outraged by their abuse of the Temporary Foreign Worker Program to hire cheap labour at the expense of Canadians who end up unemployed.

For several years now I have been talking about the lack of oversight of this program.

The Royal Bank of Canada apologized last week without actually taking any positive action. The apology to Canadians cannot be real if the heart of the issue is not addressed.

It seems strange that a company like RBC, which earned a profit of over $2 billion in the first quarter, should have to resort to such tactics. How much profit is needed to justify displacing and laying off loyal employees?


The alleged point of the Temporary Foreign Worker Program is to allow companies to fill positions with foreign workers when qualified Canadians are not available to fill the jobs. According to the latest Statistics Canada numbers, there were over 13,000 graduates from math, computer and information sciences in Canada in 2010 and over 50,000 enrolments in 2011.

There are Canadians qualified for these jobs — they are already doing these jobs — but they cost more. That is the real appeal of the Temporary Foreign Worker Program, which allows employers to pay 15 per cent less than the local average wage for that position.

There are media reports that 18 of Canada's 50 biggest employers are using the program, and the Alberta Federation of Labour obtained a list of more than 4,000 companies using a fast-track process of the program since April of last year. There are certainly legitimate needs, but how can there be that many companies using the program when we still have an unemployment rate of 7.2 per cent?

RBC's partner, and the mastermind behind this fiasco, is iGATE, an American-based company that specializes in outsourcing work to their India centres. According to their website, this company prides itself on revolutionizing the "IT and business process outsourcing solutions market space.'' Their whole purpose is to take jobs away from Canadians, and the Temporary Foreign Worker Program is, unfortunately, helping them do so.


In 2006, iGATE was penalized by the U.S. Department of Justice for discriminating against American citizens in its employment practices by giving preference to non-permanent residents.

There are also concerns about the treatment of workers who are in Canada through iGATE. They are threatened, and their temporary status is used to keep them in line.

We all want Canada to be a place where companies can grow and prosper. Must we do this at the expense of Canadians who simply want to earn a living?

Later this week I will move a motion calling on the Senate to examine the Temporary Foreign Worker Program to see how this program can be used to help Canadians instead of hurting them.


Canadian Human Rights Tribunal

2012 Annual Report Tabled

The Hon. the Speaker: Honourable senators, pursuant to subsection 61(4) of the Canadian Human Rights Act, I have the honour to table, in both official languages, the 2012 annual report of the Canadian Human Rights Tribunal.

Study on Federal Government's Responsibilities to First Nations, Inuit and Metis Peoples

Ninth Report of Aboriginal Peoples Committee—Government Response Tabled

Hon. Claude Carignan (Deputy Leader of the Government): Honourable senators, I have the honour to table, in both official languages, the government response to the ninth report of the Standing Senate Committee on Aboriginal Peoples, entitled: Additions to Reserve: Expediting the Process.


The Estimates, 2013-14

Main Estimates—Reports on Plans and Priorities Tabled

Hon. Claude Carignan (Deputy Leader of the Government): Honourable senators, I have the honour to table, in both official languages, the Reports on Plans and Priorities, Main Estimates, 2013-14.

The Senate

Membership of Standing Committee on Conflict of Interest for Senators Modified

Hon. Marjory LeBreton (Leader of the Government): Honourable senators, I move, seconded by the Honourable Senator Cowan:

That pursuant to rule 12-27(1) of the Rules of the Senate, the membership of the Standing Committee on Conflict of Interest for Senators be modified as follows:

The Honourable Senator Frum is added to the committee to fill a vacancy created by a senator's retirement.

(Pursuant to rule 12-27(1), the motion was deemed adopted.)


International Cooperation

United Nations Convention to Combat Desertification

Hon. Mobina S. B. Jaffer: Honourable senators, my question is for the Leader of the Government in the Senate.

According to the Food and Agriculture Organization, since 1990 more than 11 million people have died as a consequence of drought and more than 2 billion have been affected by drought. Droughts are a primary cause of most ill health and death because they deny access to adequate water supplies and often trigger or exacerbate malnutrition and famine. Drought has had more impact on human lives in the last 23 years than any other physical hazard.

As of March 2013, 194 countries and the European Union had ratified the UN Convention to Combat Desertification. Along with the United States, Japan, Germany, the U.K., France, Italy and others, Canada was a leader on this issue. Canada contributed $290,644 to the convention's budget in 2011. That is less than one millionth of a per cent of Canada's annual expenditures. Now, Canada is the only country in the world not to be a party to the convention.

My question is the following: If the government chooses to quit an organization of every single country in the world dedicated to solving this important problem, how does it propose to make meaningful progress in helping to save more than 2 billion lives?

Hon. Marjory LeBreton (Leader of the Government): Honourable senators, that would have been a very laudable objective if that was, in fact, what this organization did. Canada's contribution was basically spent on people meeting and discussing issues, and not delivering services where the services were required to be delivered.


Senator Jaffer: In September 2007, the United Nations Convention to Combat Desertification adopted a 10-year strategic plan to be in place from 2008 to 2018 to enhance the implementation of the convention. The 10-year strategic plan focuses on improving the living conditions of affected populations; improving the condition of affected ecosystems; generating global benefits through effective implementation of the convention; and mobilizing resources to support implementation of the convention through building effective partnerships between national and international actors.

If Canada did not want to sit in on any more committee meetings, why did it stop participating in a strategic plan that may have resulted in less meetings and more action?

Senator LeBreton: Again, our government has changed Canada's approach with regard to CIDA from the way things were done in the past to a new approach. We are committed to making Canada's assistance more effective and efficient.

As I have pointed out, we felt that the money for this program was being spent more on bureaucrats having meetings than on combating desertification. Canada has helped almost 4 million farming households in 11 countries across Africa access nutritionally enhanced and drought-resistant bean seed varieties. This is real work dealing with real people. Canada has helped to provide over 250 million children with vitamin A supplements and has helped over 30 million people gain access to clean drinking water.

These are the programs to which we are directing our efforts rather than paying UN bureaucrats to attend meetings.

Senator Jaffer: Honourable senators, I asked the leader why we would withdraw just before the strategic plan was to be implemented. She spoke about how Canada is helping in Africa. Africa is a very large continent, and we know that there is a severe problem with desertification there. What really upsets me is that Canada was learning things from participating in this convention that were benefiting our own country.

In Canada, southern regions of the Prairies and the Interior of British Columbia, my home province, have been severely affected by drought. The impact of agriculture, forestry, industry, municipalities, recreation, human health and ecosystems in Canada is significant, and scientists predict that the problem will only worsen due to climate change.

Why are we withdrawing from such important work, which not only literally raises the quality of life for millions but also saves lives?

Senator LeBreton: First, we gave notice. Second, we committed to paying the dues that we agreed to.

I do not believe, honourable senators, that sitting with a group of UN bureaucrats will do anything to help deal with the drought problem, wherever it may be. I have just put on the record many examples of our workers actually working with countries, delivering programs for planting nutritional food and providing clean drinking water. That certainly was not happening with this bureaucratic body. Rather, Canada's money was going basically to send people to meetings.

National Defence

Budget Reductions

Hon. Roméo Antonius Dallaire: Honourable senators, my question is for the Leader of the Government in the Senate. The leader has enjoyed using the term "age of darkness'' with regard to national defence.

Inflation in military systems is about 7 per cent per year and the cuts in the last budget approach $2.7 billion. Those cuts will be implemented by stealth, as we did not hear much about them in the budget speech. Considering that, the government is getting very close to the age of darkness of which they have been accusing us.

Why are these significant reductions being made with so little information being provided to the Canadian people in general and specifically to the members of the Canadian Forces, who cannot even talk about them due to cabinet confidentiality? Why is defence spending being cut by stealth rather than openly saying, "We are changing the policy and this is the amount of money you have to work with?''

Hon. Marjory LeBreton (Leader of the Government): Honourable senators, let the record show that it was not this government or this side that described the situation in the Canadian Armed Forces as a decade of darkness. That was the former Chief of the Defence Staff under the previous government.

As I have said before, honourable senators, the Department of National Defence and the Canadian Forces have seen unprecedented investments in their budgets since the year 2006 when we formed the government. We have delivered new planes, new trucks and new tanks. We set up a process to deliver a new federal fleet of ships.

In the wake of these unprecedented investments, coupled with the end of the combat mission in Afghanistan in 2014, our government and the Department of National Defence, like all departments in the government, need to balance the administration of these investments with taxpayers' interests. That is the proper thing to do and that is what we are doing.

Our government will continue to ensure that the military capabilities are in place to defend Canada and to protect Canadian interests.

Senator Dallaire: I suppose that both sides are being repetitious, but let me provide a bit of information, if I may.

The current budget has within it, in the DND capital program, 31 major Crown projects. A major Crown project is anything over $100 million. It is interesting to note that with this budget 17 of them have been moved to the right. "Moved to the right'' means that the project is being delayed. A few people will be kept in the office to keep the paperwork going, but essentially the delivery of those systems is being moved by whatever number of years they are moving to the right, and the average is about three years.

This is a very cute way of cutting budgets. The government says, "We will get you equipment, but we will give it to you in the future and, by the by, in the interim we will cut your budget by the amount of money you would have spent throughout those years to bring those essential systems in.''

If the government is saying that it will keep the forces capable and responsive and will provide them with equipment, why is it moving so much of the major systems, from ships to trucks to delivery of aircraft, to the right when it has recognized that these things are absolutely essential for the operational effectiveness of the forces?

Senator LeBreton: I have answered that question. Each department of the government, the Department of National Defence being no different, has to balance the administration of the investments that it is prepared to make with the interests of the Canadian taxpayer.

The government has made key strides in renewing the run down and decrepit equipment that the Canadian Forces had when we came into government. For the air force we have provided new cargo aircraft such as the Globemaster and the Hercules; for the army we have provided tanks, trucks, light armoured vehicles and Chinook transport helicopters; and for the navy we have modernized frigates and put in place the National Shipbuilding Procurement Strategy which will help the navy to fulfill its missions at home and abroad.

Obviously, honourable senators, much has been done, and much has yet to be done, as the honourable senator has indicated. As I pointed out, the Department of National Defence is responsible to manage the needs going forward and also the interests of the Canadian taxpayer.

Senator Dallaire: The bulk of the major Crown projects were started under the previous government. The initial investments were made by the previous government and the allocation of resources — that is, the spending timelines to bring in those systems — was established by the previous government.


This government took over that program and accelerated a few things — I will not negate the tanks or the C-17s. However, there are another 29 absolutely essential items started by the Liberals that are still sitting out there in what we call the "development phase,'' which is pushing paper, not cutting steel. If the priority was so significant to this government, why were those items not accelerated versus being moved to the right, such that the Canadian Forces have to use much more duct tape than perhaps they used under the Liberal government?

Senator LeBreton: Honourable senators, that is not true. Our government needs to balance the administration of these investments with taxpayers' interests. We will ensure that our military capabilities are in place to defend Canada and protect Canadian interests.

With the withdrawal from Afghanistan and the changed mandate there, the Department of National Defence is looking at their overall plan through a different set of eyes. We have different needs today than we had three or four years ago. The Department of National Defence, like all government departments, has a responsibility to manage their programs and be mindful of hard-earned Canadian taxpayers' dollars.

Senator Dallaire: Honourable senators, I have a supplementary question. Is cutting the quality of life a way to manage the programs? Is cutting the quality of life of veterans and their families, after they have served overseas and are now back in garrison, a method of ensuring that we get the best bang for our investment buck? While we are cutting the quality of life, the attrition rate is going up because they, who have already served, and their families see that services are being reduced significantly. They are questioning whether or not there is a sense of loyalty on the part of government to those who have served by taking care of them when they are at home and need that extra care upon their return, versus eliminating that care.

One example of that is the risk pay exercise of a week or so ago. Overnight, we will cut the risk pay in an operational theatre, in the middle of that operation, because we are trying to save money. I will acknowledge that the Prime Minister had to intervene to change that, but it raises the question: Who is working at DND? I would like to know from the honourable leader whether she could query the Minister of National Defence as to who was on the panel that decided to cut the risk pay at midstream in a mission — a scenario that had not changed from its start. Were they Treasury Board officials? Were they serving officers? Who ultimately took that decision?

Senator LeBreton: Honourable senators, the comments about the treatment of our veterans are false. I have read into the record, and I am sure the honourable senator would not want me to read it in again, although I am prepared to do so, about all the improvements we have made with regard to the treatment of our veterans.

The decision on danger pay was taken by an arm's-length committee with direct delegated authority from Treasury Board. As the honourable senator pointed out, the Prime Minister intervened and asked the committee to re-examine this matter. Certainly, honourable senators, all currently deployed members in Afghanistan will continue to receive their same hardship and risk allowances and all other entitlements, such as foreign service operations pay and tax relief.

As the honourable senator acknowledged, the Prime Minister and the government were not part of this decision, but rather they asked the arm's-length group to re-examine the issue. At the same time, we have assured ourselves that no one currently serving in Afghanistan will have any of their pay, benefits and danger pay touched.

Senator Dallaire: Honourable senators, I have another supplementary question. This means that the next rotation will not get it. There will be one more rotation and I understand from the leader's comment that the next gang will not get that pay, which will create some interesting friction within the forces.

Having an arm's-length group of bureaucrats or others, who have never been under fire and who have probably sat in Ottawa all their lives, take these decisions is one thing, but where are the politicians in this decision? Where are the generals who look at the decision of this arm's-length group and say that this is stupid, it makes no sense and is disloyal? Where were they when they should have taken that recommendation and said, "No, we do not implement something that dumb; we will continue to be loyal to those who are committed in the theatre and to that mission; and we will not cut what they and their families expect to receive as risk pay during their tour?''

Senator LeBreton: Honourable senators, I made it clear that the government asked the arm's-length group to re-examine this issue. The honourable senator is stretching it a bit to suggest that it automatically means that on the next rotation they will not receive danger pay. I pointed out that the group was asked to re-examine this.

The honourable senator asked where the politicians were in this. I pointed out that when the politicians became aware of the decision, action was taken. He also referred to where the generals were at the time. Under this government, the generals and higher-ups in the Canadian Armed Forces are not politicians. They might have been in the previous government, but they are not under this government. Perhaps when the honourable senator was in a high-ranking position in the Canadian Armed Forces he considered himself a politician and not a member of the Canadian Armed Forces.

The decision was made by an arm's-length group, and the Prime Minister has requested that this whole issue be re-examined. At the same time, we have assured ourselves that the people currently serving in Afghanistan will not be affected by this in any way.

Senator Dallaire: On a supplementary question, honourable senators, the leader is correct in saying that generals are not politicians. However, such matters do not get to the politicians until they have worked through the staff and the generals. If the generals acquiesced on this, where was their sense of loyalty to those troops? Then, they sent it up to the politicians, who are no wiser, and they acquiesced as well. We found ourselves having to revert to the Prime Minister of the country to help troops get $400 more per month. Surely someone between the Prime Minister and the staff officer who came up with that brilliant idea could have taken the decision. Can the leader not tell honourable senators who that was so that we will see if they do the same thing again in the future?

Senator LeBreton: Honourable senators, I will not cast aspersions on the hard-working and loyal members of the Canadian Armed Forces, and I am surprised that the honourable senator would do that. I would not go around accusing people of doing things they have not done.

The arm's-length group has operated for some time attached to Treasury Board. The bureaucracy or the Canadian Armed Forces reported this, I believe, as soon as the information became available and the Prime Minister took immediate action.


Official Languages

Bilingual Information from Ministers' Offices

Hon. Maria Chaput: Honourable senators, my question is for the Leader of the Government in the Senate. On October 5, 2011, I expressed concern about the fact that the Department of Foreign Affairs and International Trade decided that business cards should be printed in English only. The Leader of the Government in the Senate then said that the whole affair was, and I quote, "again an example of relying on information in the newspaper.''

Last week, Mr. Fraser, the Commissioner of Official Languages, concluded that the minister violated the Official Languages Act as well as the Federal Identity Program.


My question is quite simple: why, when the transgression was so very clear, did the government not simply acknowledge its mistake and reaffirm its commitment to our country's linguistic duality?


Hon. Marjory LeBreton (Leader of the Government): Minister Baird has just returned from a very successful trip through Asia and the Middle East, representing Canada. All Canadians can be proud of his hard work promoting our interests and values. I think Canadians, no matter what language they speak, can be proud of Minister Baird.

Minister Baird has always had bilingual cards. This is a fact. Obviously, political games are still being played around this issue. Minister Baird absolutely has bilingual business cards, which, of course, are what all of us, everyone who works within the government and adheres to the principles of the Official Languages Act, would have.


Senator Chaput: Honourable senators, now we have yet another minister, the Minister of International Cooperation, who, by all accounts, insists that all his correspondence be sent out in English. He would have us believe that that is not the case. Does the Leader of the Government in the Senate not believe that the Minister of International Cooperation would have acted differently if the situation with the Department of Foreign Affairs had been handled better? Will the government change its tune, live up to its responsibilities and require all of its departments to respect our country's linguistic duality at home and abroad?


Senator LeBreton: In her preamble, Senator Chaput talked about the minister saying that that was not the case. She said that he — and I am paraphrasing — wanted people to believe that. He wanted people to believe it because it happens to be true, and those stories are not based on fact.


Hon. Claudette Tardif (Deputy Leader of the Opposition): Honourable senators, public servants' right to work in the official language of their choice is at the heart of Part V of the Official Languages Act. We know that as a result of budget cuts, the departments are having fewer internal documents translated and, in some cases, they are asking employees to write in English instead of using the translation service.

How are public servants supposed to claim their rights under these circumstances, when the ministers who are supposed to be setting an example are circumventing the law?


Senator LeBreton: I just said that that is not the case. I would hope that all departments, all ministers and all people who are involved with the government would completely adhere to and comply with Canada's Official Languages Act.

Prime Minister's Office

Official Photographer to the Olympic Games—Non-Disclosure Contracts

Hon. Terry M. Mercer: Honourable senators, we learned last week that the Canadian Olympic Committee paid thousands of dollars to an Ottawa photographer who was removed from the London Olympics assignment and replaced with a photographer from the PMO. The compensation was necessary to cancel the contract in order for the PMO to get their man on the tour.

Would the leader kindly tell us how much more money we are going to have to spend to keep up with this level of micromanagement by the PMO?

Hon. Marjory LeBreton (Leader of the Government): I answer for the Government of Canada; I do not answer on behalf of the Canadian Olympic Committee.

Senator Mercer: We want to refer to the person who made this move to the Canadian Olympic Committee. It was Dimitri Soudas, the former director of communications in the Prime Minister's Office. This is all of the little tentacles of the Harper government going into all of these committees. Honourable senators, it is just arrogance on behalf of this government and on behalf of the PMO. It is to the point that I wonder whether, when she goes to the Independent grocery store, which there are two of in her hometown of Manotick, the Leader of the Government in the Senate checks to find out whether the person packing her groceries is a card-carrying member of the Conservative Party.

The leader might think this statement is ridiculous, but we have seen the muzzling of scientists and the firing of heads of departments and commissions for speaking out against the PMO. Now, a photographer is pulled from the Olympics.

Honourable senators, what is next? What are the ethical guidelines this government operates under? What will the government interfere in next? Who is next to lose their job because they are not a card-carrying member of the Conservative Party?

Senator LeBreton: The honourable senator says one might think that this is ridiculous. He is right; I do think it is ridiculous.

Senator Mercer: Perhaps the leader could help us to understand. The contract that was cancelled for the photographer for the Canadian Olympic team is one case. How many more cases are there? Can the leader tell me how much more money has been spent by this government on buying out contracts and buying the silence of people by having them sign non-disclosure clauses when they agree to this? How many more non-disclosure clauses have been written by this government for people who have legitimate contracts with the Government of Canada?

Senator LeBreton: First, I just said that I do not and cannot answer for the Canadian Olympic Committee, but, honourable senators, speaking of contracts, I would like to see even a piece of paper showing us where the $40 million went in the sponsorship scandal.


Delayed Answers to Oral Questions

Hon. Claude Carignan (Deputy Leader of the Government): Honourable senators, I have the honour to table the answer to the oral question asked by the Honourable Senator Moore on March 5, 2013, concerning the Service Canada investigations. I also have the honour to table the answer to the oral question asked by the Honourable Senator Cowan on February 26, 2013, concerning the Service Canada investigations.

Human Resources and Skills Development

Employment Insurance—Service Canada Investigations

(Response to question raised by Hon. Wilfred P. Moore on March 5, 2013)

A review, which started in January 2013 and ended in March 2013, was conducted to ensure the integrity of the Employment Insurance (EI) Program.

1,200 EI claimants across Canada were randomly selected and were visited by our employees. The claimants who were part of this review were subject to the same rights and obligations as all EI recipients as per the EI Act and Regulations.

Regarding the request for the questionnaire provided to clients, it should be noted that, as part of the review, clients receive a "Direction to Report'' letter, which includes one of the attached questionnaires, depending on the type of benefits.

(For text of questionnaires, see Appendix, p. 3675.)

Regarding the request for the written instructions to investigators used for this review, this information is classified `Protected B'.

(Response to question raised by Hon. James S. Cowan on February 26, 2013)

For the 2009-10, 2010-11, 2011-12 fiscal years, Integrity Services identified respectively $119.1M, $136.7M, and $128.7M in fraudulent claims for Employment Insurance (EI) benefits. For those who have committed fraud, the Department does not track clients at the individual level, however, we do track the number of fraudulent claims (112,561 in 2009-10; 115,812 in 2010-11 and 104,909 in 2011- 12), as there may be multiple cases of fraud related to one client.

The following statistics are available in the Public Accounts of Canada.

2009-2010 E.I
# Fraudulent claims 112,561
Amount of Fraudulent Overpayments $ 119,124,773.00
Amount recovered in 2009-2010 $ 21,721,005.00



# Fraudulent claims 115,812
Amount of Fraudulent Overpayments $ 136,713,797.00
Amount recovered in 2010-2011 $ 26,010,979.00



# Fraudulent claims 104,909
Amount of Fraudulent Overpayments $ 128,656,145.00
Amount recovered in 2011-2012 $ 26,781,284.00

In addition, at the end of fiscal year 2011-12, there was an estimated value of $330M in unaddressed EI incorrect payment. Based on past results, it is estimated that of this amount, $170M would be related to fraudulent claims.

Concerning the recovery of outstanding debt, Canada Revenue Agency provides recovery for the Department.


Speaker's Ruling

The Hon. the Speaker: Honourable senators, on March 19, 2013, as the debate resumed on the motion, as amended, of Senator Cools, seconded by Senator Comeau, concerning the question of privilege relating to the actions of the former Parliamentary Budget Officer, clarification was sought by Senator Cools as to whether or not there were now two questions rather one question before the house.


The Order Paper, at motion 144 under Other Business, reads as follows:

Resuming debate on the motion, as amended, of the Honourable Senator Cools, seconded by the Honourable Senator Comeau:

That this case of privilege, relating to the actions of the Parliamentary Budget Officer, be referred to the Standing Committee on Rules, Procedures and the Rights of Parliament for consideration, in particular with respect to the consequences for the Senate, for the Senate Speaker, for the Parliament of Canada and for the country's international relations;

And on the motion of the Honourable Senator Tardif, seconded by the Honourable Senator Cowan, that the question be referred to a Committee of the Whole for consideration.

Initially, upon the request for clarification, the Speaker sought to explain that order number 144 now contains, in the third paragraph, a proposal that has characteristics of a superseding motion. This proposal was introduced during debate on March 7, 2013, by Senator Tardif, who stated that: ". . . pursuant to rules 5-7(b) and 6-8(b) I move: that this motion be not now adopted but that it be referred to a Committee of the Whole for consideration.''


Senator Cools rose on a formal point of order and introduced a number of important considerations from the Rules of the Senate and the parliamentary procedural literature, all of which are reported in the published Senate Debates for March 19, 2013. Senators Tardif and Carignan each contributed to discussion on the point of order. Senator Carignan stated that: ". . . it seems fairly clear to me that Senator Tardif's intention was to propose an amendment . . .''. At this point Senator Cools stated that ". . . if this is an amendment, it is a different matter.'' In light of this Senator Cools stated that she "would like to withdraw'' the point of order.


The Speaker has been asked to evaluate the current status of motion 144. At the outset, it may be noted that Senator Tardif's proposal — to refer the entire motion relating to the case of privilege, not the actual case of privilege itself, to a Committee of the Whole — is unusual. When speaking to the point of order, the Deputy Leader of the Opposition indicated that "There may be no precedent for such a motion. . . .'' This does not mean that the motion is necessarily out of order, but it does make the uncertainty, indeed the concern, voiced by Senator Cools understandable. The point of order was therefore a legitimate effort to ensure that the Senate is following proper procedure. To assess this, I will return to the Rules of the Senate.



The Rules do, in general, allow a motion of the type moved by Senator Tardif. Rule 5-7(b) provides that notice is not required for a motion "to refer a question under debate to a committee.'' Rule 6-8(b) then states that during debate on a question, a proposal to "refer the motion to a committee'' is one of the limited class of motions allowed. In neither case do these rules identify exceptions relating to a motion on a case of privilege. It should also be noted that rule 5-8(1)(f) states that a motion to refer a question to committee, if it does not relate to a bill, is debatable. Motions to refer the question under consideration to committee are not common, but they do arise on occasion. When such a motion is before the Senate, debate is on the motion to refer the question to committee, although in point of fact this debate may be far-reaching. If the motion is adopted, the matter goes to that committee for study. If the motion is defeated, debate on the original motion resumes.


It is certainly true, as Senator Cools pointed out, that rule 13-7 establishes a number of parameters that govern debate on a motion moved on a case of privilege. Of particular relevance to the present issue, rule 13-7(4) limits debate to three hours; rule 13-7(3) limits all senators to only one speech of 15 minutes, effectively removing the right of reply; and rule 13-7(1) makes clear that the motion can only be moved after the ruling on the question of privilege, even though debate may not begin until later that day. Other provisions of rule 13-7 generally apply only on the first day of debate.

In situations in which the analysis may be ambiguous, it is helpful to refer to the principle, expressed by several Speakers, that matters should generally be presumed to be in order unless the opposite is clearly demonstrated. As stated in a ruling of February 24, 2009, "In situations where the analysis is ambiguous, several Senate Speakers have expressed a preference for presuming a matter to be in order, unless and until the contrary position is established. This bias in favour of allowing debate, except where a matter is clearly out of order, is fundamental to maintaining the Senate's role as a chamber of discussion and reflection.'' Senator Tardif has outlined how her motion can be seen as fitting into the general framework of the Rules. As such, there is a reasonable basis to allow debate to continue, so that the Senate itself can decide how best to proceed.


Before concluding, there are two final issues to address. First, as already noted, there is a limit of three hours for debate on Senator Cools' motion. Any time taken in debate on Senator Tardif's motion counts towards that three hour period. Second, the restriction on a senator speaking once, contained in rule 13-7(3), only applies to the main motion. If there is an amendment or some other type of debatable motion moved during the three hours of debate, a senator who has already spoken to the main motion could speak again.


Trusting that this analysis has been helpful to the chamber, debate can continue on the motion.

Criminal Code

Bill to Amend—Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator White, seconded by the Honourable Senator Maltais, for the second reading of Bill S-16, An Act to amend the Criminal Code (trafficking in contraband tobacco).

Hon. Jane Cordy: Honourable senators, I am speaking today to Bill S-16, An Act to amend the Criminal Code (trafficking in contraband tobacco). It amends the Criminal Code by creating a new Criminal Code offence of trafficking contraband tobacco and legislating new mandatory minimum penalties of imprisonment for repeat offenders.

Contraband tobacco sales were significant in the late 1980s and the early 1990s. The Liberal government elected in 1993 took measures to counter these rampant contraband tobacco operations. They reduced taxes on cigarettes. They increased enforcement efforts. They increased penalties. They allowed the proceeds of crime to kick in related to tobacco smuggling. These measures were largely successful as cigarette smuggling was reduced by the mid-1990s.

Today's contraband tobacco operations are quite different from those of the 1990s, as Senator White explained so well in his speech on Bill S-16. In the 1990s, the cigarettes smuggled back into Canada were products manufactured legitimately, whereas today's contraband tobacco products are illegally produced, transferred and sold in Canada. These activities go on to fund other organized crime across the country. As opposed to the products smuggled in the 1980s and the 1990s, these products do not undergo any kind of quality control or inspection and, as studies have shown, these contraband cigarettes often contain impurities such as rodent and human feces, mould, insects and insect eggs. That in itself is disgusting and should cause a reduction in the purchase and usage of these products, but unfortunately the low cost makes it too attractive for many.

The shockingly low cost of these products, $8 per carton versus nearly $90 per carton for legal cigarettes, makes it incredibly easy and affordable for young people to purchase. One study found that nearly one third of cigarette butts found on school properties across Canada were contraband.

Currently, contraband tobacco offences are prosecuted under the Excise Act providing for monetary fines. Creating the new offences under the Criminal Code for these types of crimes gives more powers to the federal government to pursue longer jail times for offenders and can provide harsher penalties for those involved in organized crime. The change was explained by one department official as providing greater flexibility to prosecutors, which is good.

There have been some concerns raised about this government's legislative strategy to deal with contraband tobacco. Aboriginal and First Nations leaders have expressed concerns that this bill will worsen the serious issue of incarcerated First Nations youth. At a time when the incarcerated Aboriginal population comprises over 20 per cent of the federal prison inmate population while only making up 4 per cent of the Canadian population, they fear more Aboriginal youth who are tempted into these activities will ultimately end up in prison in increasing numbers. These concerns were raised by Brian David, Chief of the Ontario portion of the Akwesasne First Nation, who said that recruiters — some from outside organized crime groups — work hard to pull young people on the reserve into smuggling. A CBC News article quotes him as saying:

Every time our youth is taken, every time he's convicted, every time he's sent away, that's a part of our future that's taken away.

Chief David expressed concern that youth who go to jail as small-time players in these activities in the community will return as hardened criminals.

Honourable senators, those who break the law should be penalized. Those involved with contraband tobacco should be penalized. Any tobacco is harmful to Canadians, but contraband tobacco can be particularly harmful. We know that young people are more likely to purchase illegal cigarettes because of the low cost.


Honourable senators, I would have hoped that the Prime Minister or the Minister of Aboriginal Affairs could have met with Aboriginal leaders before bringing this bill forward. Dialogue and consultation may have alleviated the fears of Mohawk leaders who are worried about the effect Bill S-16 may have on the young people in their community.

Lloyd Phillips, a chief on the Mohawk Council of Kahnawake said:

I feel they're approaching it all wrong. . . . They're trying to come down with a heavy hand. . . .

Chief Phillips believes that proper regulation and increased cooperation between Canada and the United States would be more effective.

Honourable senators, it would seem that consultation, cooperation and a multi-pronged approach, rather than more mandatory minimums, would have resulted in better legislation.

I am pleased to see this government acknowledge the considerable problem contraband tobacco operations have become in Canada. I am in favour of legislation which aims to curb these activities and limit young people's access to tobacco products, particularly contraband tobacco. Teenage smoking is a health issue. It is important for the health of our young people that the Government of Canada be continually vigilant and proactive in countering all smoking but particularly teenage smoking. We know those who start smoking at a young age are likely to continue smoking for a long time.

As I stated earlier, those who deal with contraband tobacco should be penalized. The Conservative government once again chooses to do this by bringing in mandatory minimums for repeat offenders. There is no proof that mandatory minimum sentences work and yet once again the Conservative government's solution is mandatory minimums.

I have heard from an official of the Department of Justice that the deterrent effect of mandatory minimum sentences is speculative. The deterrent effect of mandatory minimums is speculative, and this seems to be the government's solution to any new law relating to crime. Surely we can do better than same old, same old.

We know that increasing the taxes on tobacco products usually causes an increase in the sales of contraband tobacco, yet the government introduced Bill S-16 dealing with slowing the trafficking of contraband tobacco while at the same time announcing, in the 2013 budget, tax increases on tobacco. Such a measure does not make any sense to me.

The changes made by the Liberal government in the 1990s, which reduced trafficking significantly, were a multi-pronged approach and included a reduction in tobacco taxes. This government introduces mandatory minimums for trafficking in Bill S-16 while at the same time increasing tobacco taxes, which is shown to increase trafficking. Why can we not have a plan? Why can we not have a multi-pronged approach that will really work to greatly reduce or, to be really optimistic, would eliminate the sale and trafficking of contraband tobacco products? More taxes are being raised. They said they would not raise taxes but they are doing it again and again, but never in an open and accountable way, always in an underhanded way.

Honourable senators, we know that contraband tobacco is harmful to the health of Canadians. We know that it hurts convenience store owners. We know it reduces tax revenue for the government.

Senator Mitchell: It is the only carbon tax they have.

Senator Cordy: We know that it funds organized crime.

I look forward to the opportunity to study this bill in committee and to address the issues raised by those concerned with the trafficking of contraband tobacco products. I would hope that the committee will hear from First Nations groups and youth experts about whether or not this bill will actually address the problem of trafficking contraband tobacco.

Hon. Hugh Segal: Would the honourable senator accept a question?

Senator Cordy: Yes.

Senator Segal: I believe the senator will know that one of the unintended results of Prime Minister Chrétien's decision not to enforce the tobacco laws or the criminal laws is because he was advised by security and police that to do so could cost lives on all sides and to reduce the taxes produced a massive increase in young girls taking up smoking in a fashion that will produce serious health problems for hundreds of thousands of young women in this country. Is the honourable senator still of the view that that was the best way to proceed, allowing that change in the core cost structure to seduce many more young women into smoking in a fashion that will produce desperate health consequences for them in the future? Is that her view and advice to this chamber?

Senator Cordy: I believe the honourable senator brought forward a motion on contraband tobacco and I actually spoke in favour of that motion.

As I said numerous times in my speech, I am against contraband tobacco. Quite honestly, I am against smoking of tobacco whether it is legal or illegal. I have an allergy to tobacco and I think it is very harmful to the health of Canadians. The idea that young people get involved in smoking is unfortunate. Studies show that young people are getting involved in smoking and how tobacco companies lure young people into smoking. It is outrageous.

We had a bill brought forward here a few years ago on the small cigarillos with flavoured tobacco. I was the critic for that bill and Senator Keon was the sponsor. Again, I spoke at that time to say that we should do whatever we can to stop smoking, particularly in young girls, which seems to be the one demographic where smoking is increasing. We are seeing a dramatic drop in smoking from most demographic ages, but when you look at young girls it seems to be one of the few areas where the numbers are growing stronger. I believe we should do whatever we can to stop trafficking in contraband tobacco. I think we should be doing whatever we can to stop smoking overall for the good health of all Canadians.

Senator Segal: May I ask the honourable senator another question?

As she will know, having been the critic on that previous effort introduced into this chamber by Senator Keon, to do away with basically candy and other flavoured cigarettes that are aimed specifically at attracting young people to smoking at a very early age, one of the difficulties that the Crown faced when that legislation was passed was that no sooner did that legislation go into effect than the contraband tobacco industry produced absolutely similar products at a fraction of the price, dumped on high school campuses in Kingston and in cities across Canada in a fashion that gutted the impact of that legislation and produced an even greater risk because the price was lower.

Would the honourable senator not be of the view that some action on the enforcement side, as suggested in the bill before us — and this will be discussed in committee and I accept her view that study before the committee will be a constructive process — is necessary before generation after generation of young people become seduced by a process that may in fact, as Senator Cordy said, be connected not only with organized crime but with terrorist funding syndicates in various parts of Central America and elsewhere?

Senator Cordy: I thank the honourable senator for an excellent question. Also, like the honourable senator, I was disappointed to see that, despite the best intentions of the legislation on flavoured tobacco, what happened is that the companies that produce these flavoured tobaccos have skirted around the rules that were brought out in terms of size of cigars or the size of the packages. I do not know the name given to these products. They changed the size so they would actually slide around the legislation. I think we have to look again at that bill that we brought forth because both sides of the chamber supported it and senators hoped that it would provide some good to stop flavoured tobacco sales. As the honourable senator says, we know that schools are being flooded with these products. I wish it were only high schools, but it is junior high schools and elementary schools as well where one finds cigarette butts. Many of them, unfortunately, are the remnants of contraband tobacco and many of them were in fact flavoured tobacco.


I think the government should go back and look at how these companies skirted the law so that it can tighten up the law. It always seems that whatever we are doing and however hard we are trying to stop contraband tobacco, there is a greater force with probably far more money trying to find ways to skirt around the laws. As the honourable senator said earlier in his comments, the goal seems to be to get young people smoking earlier because then they are hooked on it; we know smoking is very addictive.

The honourable senator asked whether we should take action on the enforcement side. Absolutely we should. I said several times during my speech that if one breaks the law, particularly with contraband tobacco, then the full force of the law should be brought down.

My comment is that mandatory minimums do not work, so why is this government bringing forward mandatory minimums yet once again?

Senator Runciman: They do work.

The Hon. the Speaker pro tempore: Further debate?

Hon. Wilfred P. Moore: Would the honourable senator take another question?

Senator Cordy: Yes.

Senator Moore: Having heard Senator Segal's comments with regard to the evidence of young women smoking these contraband products and other tobacco products, does the honourable senator expect, when this matter comes before committee, that there will be individuals giving evidence, or will there only be written reports, as occurred when she brought forward her CCSVI issue?

Senator Cordy: My hope is that we hear witnesses at whatever committee the bill goes to, and I am not sure it will be at the Social Affairs Committee.

The idea to axe my bill was made long before witnesses were heard at committee. That was my understanding after reading information about what happened at a Conservative caucus meeting. That decision was made in February 2012.

I certainly hope decisions have not been made for whatever committee this bill happens to be brought forward to before we even hear from witnesses. I hope we hear from First Nations leaders who have expressed concerns. None of them are saying that there should be contraband tobacco; none of them are saying that. They are asking whether this is not a little bit heavy-handed, and whether we will not once again be looking at the so-called "bit players'' in the whole organization. The young Aboriginal youth will be the ones sent to jail while those making the millions of dollars will not and will continue to make millions of dollars.

It would be unfortunate if the government once again has failed to consult with the groups that are most affected. It would have been prudent had the government actually sat down and consulted with First Nations chiefs and said, "We have a big problem; let us work together to see if we can solve this problem.''

I hope also that there will be experts on young people who can say whether this will work. We have not heard any evidence yet to say whether mandatory minimums work. I would be surprised if we had witnesses other than the Conservative minister to say that mandatory minimums work. I was speaking to someone in the Department of Justice Canada, and he said mandatory minimums are not proven; their results are merely speculative. That is the best any of us can say — maybe they work, maybe they do not. There is certainly no evidence despite all the Department of Justice Canada bills coming forward with mandatory minimums.

I would hope that the committee does not have its mind made up and that we will actually listen.

This bill has not been in the other place. It was introduced in the Senate, so I would hope that we will listen to people who come forward at the committee. If changes have to be made, they can be made at committee.

Hon. Terry M. Mercer: Honourable senators, if Senator Cordy will take another question, perhaps she could clarify something she said. I think it is important that we all understand.

She talked about officials being at a meeting of a Conservative caucus. Could she explain her reference to that Conservative caucus meeting? I know she is not a member of that group, but she seems to have some inside information.

Senator Cordy: I was actually quite surprised to read in access to information materials that the head of the CIHR, Dr. Beaudet, was actually at the Conservative caucus meeting in February 2012, talking to them about my bill. The information that came through from the access to information provided five binders, each four inches thick. That is a lot of material — 20 inches of material. Maybe I should be flattered that so much time and energy was spent on my private member's bill.

Unfortunately, it showed that Dr. Beaudet spent time at the Conservative caucus meeting talking about my bill on MS. The CIHR is supposed to be, according to its website, an arm's-length agency. I do not think that attending a Conservative caucus meeting was really arm's length. Not only was he there to talk about the bill, but also he said he would provide a five-page briefing note to the minister about why the government should not support the bill. I think that is a little beyond arm's length.

Senator Mercer: Shame on them!

The Hon. the Speaker pro tempore: Are honourable senators ready for the question?

Hon. Senators: Question.

The Hon. the Speaker pro tempore: It has been moved by the Honourable Senator White, seconded by the Honourable Senator Maltais, that Bill S-16, An Act to amend the Criminal Code (trafficking in contraband tobacco), be now read a second time.

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

Some Hon. Senators: On division.

(Motion agreed to and bill read second time, on division.)

Referred to Committee

The Hon. the Speaker pro tempore: When shall this bill be read a third time?

(On motion of Senator Carignan, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.)


Royal Canadian Mounted Police Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Lang, seconded by the Honourable Senator Smith (Saurel), for the second reading of Bill C-42, An Act to amend the Royal Canadian Mounted Police Act and to make related and consequential amendments to other Acts.

Hon. Grant Mitchell: Honourable senators, I am privileged to have been chosen by my party's leadership to act as critic for this bill. However, that is not the most accurate term to describe my reaction and my position on this bill.


I am not exactly in favour of it, but I am not exactly against it. On balance, I am probably reasonably happy with it, to the extent that it does something. However, I want to make the point throughout my comments that it simply does not do enough and that it misses a very important point in the broader context in which this bill should be placed and considered.

I know Senator Lang has worked very hard on this. I congratulate him. I know he is probably pretty happy that I am standing here talking about it right now, and I am pleased to be doing that.

I will speak about two elements. The first is that I will analyze what the bill proposes to do. I will suggest there are some good things about it and there are some weaknesses, in that it could do more even than it proposes to do.

The second feature of my presentation will be to put this in that context I mentioned moments ago. This bill is one tool to address a broad cultural issue that faces the RCMP, but it is not sufficient and should not be construed as the panacea to solve the problems that we are all very aware of and that the committee is right now investigating via an in-depth study.

To his credit, the bill is really in response to the request of Commissioner Paulson. He seeks to have the power to structure and manage the RCMP in a modern way. He says he has been burdened by a structure that does not and has not kept up with the demands of modern policing. More specifically, or perhaps in a more colloquial fashion, Commissioner Paulson says he requires the power to get rid of the bad apples. There are a number of features of this bill that might respond to that, that will respond to some other concerns and that will help.

First, the bill is designed to enhance, to some extent, public review of what the RCMP does, although that enhancement is still very limited. It certainly does not meet the test that was established in the recommendations by a number of inquiries, including those done by Justice O'Connor, Mr. Brown and many others, in fact.


Currently, there is a review board that is called the CPC, which is the Commission for Public Complaints Against the RCMP. It is a civilian commission, by and large, that undertakes to review public complaints from at least a quasi, if not completely, objective point of view. It has been limited in its ability to perform that function perhaps as aggressively, broadly or intensely as some would hope.

There has been a reaction to that in this bill to create a new body that has broader powers, which is called the Civilian Review and Complaints Commission for the RCMP. It will have powers, and I think these are all new. It will have powers to call witnesses and to subpoena them. It will have powers to request information from the Commissioner of the RCMP. It will have the power to initiate special inquiries at its own initiative. It will have to tell the minister it wants to do that, but it will still have that power.

This initiative is an effort to meet the concern that there is no independent civilian review of the RCMP, an initiative and a feature of almost every major police force across the country today. If one wants to have a modern police force, it is almost inevitable, given the experience of major police forces across the country, that one must have a fully functioning civilian oversight board. I will get into some of the differences between what the CRCC proposes to do and what a civilian board that would provide more broad oversight — as is the case in these other police forces — would look like.

Even at that, the CRCC is limited in the powers it has been given. For example, while it can ask and demand information relative to its inquiry or investigation from the commissioner, the commissioner can simply shut that down with a letter saying that he does not agree this information is appropriate, that it should be privileged information, and that it will therefore not be made available to the CRCC.

In defence of that problem, there are those who will say that, "Yes, but this can be referred to a third party, the third party can adjudicate, and then the two sides — the commission and the commissioner — can go back and think about that adjudication and perhaps that will change things.'' There is no final appeal in that and, in fact, it is very cumbersome.

What is more interesting is that it could be made to be commensurate with the function and the powers of the Security Intelligence Review Committee, SIRC, which has oversight over CSIS. That board is very much a model that would work extremely well in the RCMP's case. It does not have these limitations. The members of SIRC are given security clearance. The only information they are not able to get is information that is cabinet confidential or that has solicitor/client privilege. They have more power and are open to any range of information. Beyond that, they are given clearance and they are entrusted with it. There has never been a problem with that and it has functioned extremely well.

Why, I would ask, would we limit that from the CRCC, which has every bit as important a role, perhaps an even bigger hill to climb and a cultural issue to solve? Limiting its power is almost like an approach of avoidance. It is almost as if the government and the commissioner want to fix the problem, but they draw back in the face of that extra step, the extra force and intensity needed to really fix it. This is not an easy problem to fix.

Whereas the CRCC can initiate an investigation at its own devices, its own accord, the commissioner can halt that investigation with a letter saying this is encroaching on some kind of investigation that is being done, perhaps by the RCMP, into a matter that is related. It gives power back to the commissioner, reduces the power of the CRCC; even as it gives that power, it takes that power away. That seems to be unnecessary and, in fact, counterproductive.

It is also true that while the act will provide for the CRCC to do joint investigations with provincial police authorities — that is very important because in many cases the RCMP does provincial policing or works in provinces that have their own police forces — there will be cases where an issue could arise that needs investigation which concerns the RCMP and a provincial police force. That is good. Where it falls down is that there is no provision for the CRCC to be involved with joint investigations into national security issues that may arise. There is no provision or structure within which it could conduct a joint investigation with CSIS or CSE, for example. That is a limiting feature which could be easily remedied and it would allow for greater flexibility and effectiveness in this regard.

Honourable senators, the real failure of this feature of the bill is that it only pays lip service, if I could be so aggressive, to the idea of a real civilian oversight board. The real civilian oversight board, for example, in my city of Edmonton, which functions extremely well and has for a long time, has had excellent relationships with the police chief and the police force. It has far broader powers that allow for a greater objectivity and a public look. There is nothing like the kind of accountability and transparency that it has been able to provide. Not only do they have responsibility for supervising investigations of problems or complaints with respect to the police force — that would be about as much as the CRCC has — but, in addition, they have direct authority over working with the police chief and approving each annual policing plan for the City of Edmonton.

That is not just lip service, because they also have final authority and a role to play with the police chief in developing the budget for implementing that plan. People I have spoken to there have said that, generally speaking, the chief of police will end up getting 80 to 90 per cent of whatever plan and budget he or she has worked out. However, consistently this civilian oversight body has had a role in determining the last 10, 15 or 20 per cent of how that plan should work. Therefore, it also provides some real advantage to the police force and police chief.

For example, political concerns related to councilors and mayors do not go to the police chief; they go to the civilian oversight body, the Edmonton Police Commission. The police commission handles those kinds of inquiries and complaints from the public as well. They are able to provide objectivity and a buffer, and supervise the complaints process.

The commission has all but the final word in hiring the chief of police. Ultimately, that goes to the city council, but the fact of the matter is they play a huge role in hiring the chief of police. They also have to authorize the hiring of senior police officers under the chief of police at the recommendation of the chief of police. If one compares that role to the one that is considered and accommodated in this bill for the CRCC, one will see there is a great difference.

To the extent that the government, and perhaps the commissioners, had a say in this is perhaps to say we are getting oversight. However, we are not getting the kind of public oversight with the CRCC — although it may be augmented to some extent — that I believe makes a fundamental difference in the way these police forces across the country, such as the Edmonton Police Service, have been structured. This bill fails in that regard to the detriment of making true progress in changing the culture, enhancing and augmenting the culture of the RCMP and the way it needs to be done.

The second major area that the bill addresses is special investigations. There is always attention. If an RCMP officer encounters a serious incident or is involved in a serious incident, injury or death caused, perhaps, by an RCMP officer, there is always a suspicion if the RCMP were to investigate its own. This has been addressed in this bill in a pretty effective way. There may be just one slight problem with it.


First, there is a hierarchy in the form of a checklist of who will do the investigation. In provinces like Alberta, where there is a provincial-based special investigations board, that board would do the investigation of a serious incident in the RCMP; that would be the first choice.

In a province where that is not available, then the next choice would be a police force other than the RCMP. Apparently, only in those cases where there is an isolated detachment or there is not an easily accessible "other police force,'' the RCMP would conduct their own investigation. Some have concerns with that. I believe that that will be ameliorated to some extent because the minister has the power to appoint a third party and observer in that process, but it is not, perhaps, as objective as we might like, given the pressures and the public concern with the RCMP at this time.

The third area that this addresses is grievances, internal problems of an RCMP member that a civilian or a full member non-civilian member will have. There have been real problems in that grievance process. For one thing, they have been awfully slow. Some have taken as long as five or ten years. They have been cumbersome, even the minutest problem. One example that is used is a $10 claim that was turned down. I think it took years and years to get through the process and to be addressed.

There is also the problem of real objectivity, which has been borne out greatly by recent concerns with sexual harassment and bullying in the RCMP, and that is that the review and grievance process is not outside the chain of command. The officers assigned to assist a person with a grievance or a concern are perhaps moved to the right, as our colleague Senator Dallaire would say. To some extent, they are still in the chain of command and their career advancement is still very much dependent upon their position in that chain of command.

That process has two problems. One, it may be that the process is not as objective as it might be. I am not saying that is the case, but there are people who feel that is the case. Second, many people I have spoken with say they are very afraid to grieve in that process because they do not have an objectivity and they do not necessarily feel that they get the kind of representation that they might get from a more objective process.

That brings me, honourable senators, to the issue of a union. Unions are controversial in this Senate and in many areas of debate in the country, but most of the major police forces across the country have a union.

This is a special case. I think all of us agree that, for example, in the most extreme cases where an RCMP member might have to be dismissed — and that has hardly ever happened for some of the infractions and code of conduct infractions that we have seen — we would want to know that they are being protected in their interests, that that individual RCMP officer is being protected fully and adequately in an objective sense. We can only imagine what it is like to get into some of these serious instances where you are in the heat of the moment, your life is in danger, you see something that might look like a gun in someone's hand and you shoot, and it is injury or death. When we step back and say that it looks overly aggressive, we were not there and we do not know what it is like to be an RCMP officer in that situation.

I think Canadians and RCMP members want to know that every last step has been taken from a powerful, objective point of view to make sure they have been treated fairly and justly before a decision is made to dismiss. Tribunals and appeal processes will be set up, but even so, the process may not be all that much unlike the tribunals we already have in the RCMP, and there is some question about how powerful and objective they could be.

Ultimately, the commissioner got his most aggressive demand or evident demand, and that was the power to fire. Although there are some restrictions on that power specifically — there is an appeal process — he has the authority to delegate that power to fire to lower echelon officers and supervisors in the RCMP command structure. That is not, of course, all bad. It has been noted over and over again that of the code of conduct cases in any given period of time in the RCMP, even those that have been of a criminal nature and seen to be of a criminal nature, almost no one is fired.

That brings me to the second point in my presentation, and that is that this bill will help. It will help with some public oversight, but not enough. It will help to some extent with the grievance process to make it quicker, but elements of it will be weak. It will help to some extent to enable special investigations; I think it is quite strong there, but it could be tweaked a bit. It will help with the power to fire, and perhaps the commissioner will now be able to get rid of those bad apples.

The problem with this bill is that it really misses the point. Every single step in this bill, practically, is a step that deals with a problem after it has occurred. A grievance is after a problem or alleged problem has occurred. You fire someone after a problem has occurred. You do a special investigation into a serious incident after the incident has occurred. You do a public complaints review after someone from the public, or in this case, even from the RCMP, has complained that something has occurred or allegedly occurred. It begs the very question of how a culture has to be changed so they do not occur in the first place.

There are those who will say it is not that much different from other police forces, and we saw stats which I thought are very weak. In fact, the CPC chair, Mr. McPhail, proposed that only 26 cases out of the 780 he reviewed were actually code of conduct or criminal or sexual harassment cases.

A number of things happened. First, many people simply will not bring forth a case because they know what happens to the people who do. There has been ample evidence and concern, at least, of allegations of bullying and further harassment, promotion, career destruction and so on. Many people do not come forward.

When they do come forward, some of these cases are sidelined — some in a good way in that they are mediated and settled — but they never get to the point where they are actually reported. They only get reported once the paperwork starts. Mr. McPhail, who got all his evidence and all the files from the RCMP, had no audit powers. I am not saying the RCMP did not give him everything he thought he could get, but maybe they were not clear on what he should have had.

However, let us contrast that to the breadth of the problem evident in the case of the special review that, to his credit, Deputy Commissioner Callens did in B.C., where civilian member Simmie Smith was called upon to do a study. Four hundred and sixty-two people came forward to talk about bullying. That is just in British Columbia. Only five of those were men because very quickly they realized that the women were reluctant to share their concerns, some of them deeply personal, often of a sexual nature, in the presence of men. There was evidence of bullying against men as well. That says something about the breadth and depth of the problem.

Not only that, but we have not seen the same kind of assessment in Alberta, Saskatchewan, Manitoba, Ontario or in any of the Atlantic provinces. It is not enough to say simply, "We are as good as any other police force.'' It would not be enough to say that anyway. There should be zero tolerance for this, and we should be driving to zero to get that, and there should never be any suggestion that we would relinquish that objective.

I believe that there is ample evidence of a broad-based cultural problem. These problems occur long before this bill will ever kick in, and it is always kicking in after the fact. This begs the very question of the issue of how to change a culture.


There are some red flags that indicate that it is not clearly understood that that would be required in the powers to understand and fix that problem. There are many of them, for example the fact that this is all after the fact but somehow is being construed as the panacea solution. It is not; it is one tool in the tool box.

Not only that, but there is really nothing to say in this bill that it will not actually make the problem worse. If it is that the power to fire will be augmented and will be pushed down to officers and NCOs with supervisory responsibility what is to say the harassers will not just have more power to fire the ones complaining about being harassed? I am not saying by any means that every RCMP member falls into this category; it is probably a relatively small group of people.

Not only that, but let me go back, and I know it is a sore point for all of us, to the case of Sergeant Donald Ray, and I use his name because it was made public in a tribunal that released publicly. He was found by a three-person tribunal to have exposed himself, among other things, in the RCMP offices. The tribunal considered whether to fire him and decided not to because they received some interesting letters from friends who had worked with them who said he was a good guy. He was docked, I think, 10 days' pay, reduced one rank — still a sergeant — and sent to British Columbia, where one can ski, play golf and swim all on the same day.

There were three RCMP officers on that tribunal. There is nothing to say, if I am not mistaken, that those three RCMP officers could not be on one of the conduct appeal boards that will review dismissals under this new process.

My concern is that this bill actually may just beg the very question of how to change a culture that needs changing.

I knew the Chief of Police of the Edmonton Police Service which was, when he started, called the Edmonton City Police Force, in the late 1980s and early 1990s, Doug McNally, a remarkable, fine police officer and a fine person. He set about to change the culture from a forced, militaristic kind of police force to a service, a walking-the-beat kind of police force: a huge cultural change. He told me that he personally had hundreds upon hundreds of meetings, face to face, one on one, two or three people, bigger meetings as well, over a long period of time, because he had to make that case and drive that case to change the culture.

I do not know whether this is entirely true or whether it is all that has been done; I am sure it is not. In this case, six videos were sent out and people were to sit down and watch the video. That is not how it works. To change a culture is a huge effort. The case of Doug McNally is instructive.

We had representatives of the RCMP before the committee. The RCMP will argue they are putting in a respectful workplace program, which is a great initiative. A couple of things are red flags to me. I asked the senior person of human resources what the budget was. They did not know what the budget was. If it is top of mind and important, one would know what the budget is.

It became apparent that there is no national structure or national direction, and each division is required to put in this respectful workplace program. That leaves a lot to be desired.

I will say that Deputy Commissioner Callens has done what appears to be an excellent job, and he is really wrestling with it. He has 100 people trained to do these kinds of investigations, which again underlines that there must be more than 26 problems, but there is no consistency across the country. It appears there are no standards.

I asked the auditor of the RCMP whether an audit had been done, first of all, to do a baseline on what the situation is now in the culture and the concerns so one can measure whether progress is being made. There is much technology now, soft and technical technology, that allows for auditing these kinds of cultural features. They did not have an audit plan. They have only done a baseline audit, if one wants to call it that: Simmie Smith's study in B.C. How could one ever measure where one is going if one has not done a baseline? How would one ever know if one had gotten there if one does not have a planned audit every year as one goes? How does one know that one is not falling off the target if one does get there but is not auditing to do it?

I was quite shocked, if this is the priority that it is supposed to be, that there would not be a clear-cut fix on the budget and that there would not be a clear-cut fix on national standards and national leadership and direction in it, that there would not be a very strong element of face-to-face, senior-level-driven meetings where it is made very clear how this culture must change, and so on.

There is another disturbing element, and I know this was in the press so it may be taken out of context, but a study was done where 335 cases before a tribunal were looked at over a four-year period. They determined there were 35 cases of assault, sexual assault and harassment; 30 officers impaired on the job or while driving; 29 Mounties who gave false or misleading statements; and 16 unauthorized uses of the central police database.

A very senior officer — not mentioning names — was asked about this — it seems, in this report, to be related — who said that 95 per cent are just things where people have made mistakes.

Drunk driving is certainly a mistake, but sexual assault is not just a mistake. Giving false or misleading statements is not just a mistake. This is profoundly indicative of a problem if it is at all widespread. We do not know for sure because the RCMP has not looked at how widespread it is, and we do not have an ability to assess that adequately elsewhere, I would think.

Even at the very limit, senior officers should not be saying that kind of thing. They should be saying all of that is unacceptable, disgusting, and we will fix that, period. That is leadership, and that was not evident in this particular statement.

The other thing that is really telling is that this is a $3-billion corporation. It has 30,000 employees. There is not a doubt in my mind that Commissioner Paulson and his senior staff and 99.9 per cent of the 17,000 actual RCMP regular members are absolutely excellent police people. However, what kind of expertise is found within the confines, the structure of that organization to deal with organizational problems of the magnitude that seem to be indicated by what we are seeing? What sort of expertise do they have in changing cultures of an organization of that size, significance and complexity if all they have done essentially is policing? Even if they had some organizational experience in some other way, it would seem to me this is such a big organization, so dispersed, so diverse, so complex and with indications of serious problems that at a senior level they would want actually to bring in expertise to fix that and help with that. None of that is evident at all.

We are not even clear that they have actually consulted with the military, which has had a similar issue and progressed through it in many ways and learned much in doing so. I will mention them in a minute.

These are red flags that made me think that while there is clearly some commitment to fixing the problem, at the very least I think the problem is not adequately understood and not seen to be a cultural problem. It is seen to be some kind of technical process, a structural chain-of-command problem. It is much bigger than that, and these red flags seem to indicate that.

I want to refer to the military case, because the military had a similar issue with their organization, which came to a head with the Somali affair and the killing of a young Somali youth. That was the crunch; that was the final straw that exposed it and really began to get people's attention. That started a decade-long process, which continues even 20 years later, practically.

I refer honourable senators to an article by David Bercuson in the Canadian Military Journal, November 3, 2009, and I will refer to that to some extent. David Bercuson is a well-respected military academic from my province, Alberta.

He makes this point about former Canadian Army Commander Lieutenant-General Jeffrey, who was key in changing the culture that was evidently eroded and to some extent corrosive in the military.

The man who was the head of the army said that it was forced to change, and I mean forced, due to the institutional failures revealed in the Somali affair; and it has. Not only the army but also the entire Canadian Forces first crawled, then wandered, and then stumbled but eventually began to march forward with determination to a new professionalism rooted in the history and the values of Canadian society, based on a fighting ethos, which would not necessarily apply to the police but certainly there is an ethos, and with a democrat ethic and with one of the best educated officer corps of any army force anywhere. Instead, what is pointed out occurred. The membership in the military reiterated long-held beliefs that formal higher education was in no way a necessary prerequisite to officer selection and training. It attempted to "staff'' many of the recommendations or to convince its civilian masters to bury them or that there was little substance to this monitoring group and the conclusions it had come up with.


Senator Dallaire put it so well: Often these organizations can deflect the puck but you really need something that changes the game. That is what the military launched itself on to their absolute credit. They began with a series of very painful decisions, such as, first, they shut down the airborne. If that was not nuclear and did not catch people's attention, I do not know what would. Shortly after that period, then Minister of National Defence, Douglas Young, appointed a special advisory group on military justice and police investigation services. It was headed by a former justice of the Supreme Court of Canada, who was given one year to come up with recommendations about how to fix this; and he did so. Young included additional recommendations that totaled about 100. One key element was the initiative to revamp the education and professional development systems for both officers and non-commissioned officers.

I am not saying that is exactly what is necessary in the RCMP. We do not know and it might not be needed. However, I am trying to underline the intensity and depth to which this organization, the army and the military more generally, went to fix these problems. The military education curriculum was to be revised and an independent professional military journal was to be established — an ombudsman. A lot was done. Also, outside structure was implemented.

Then Minister of National Defence, Art Eggleton, took over and set up the Minister of National Defence's Committee to Monitor Change in the Canadian Forces and the Department of National Defence. I will quote Dr. David Bercuson:

The Monitoring Committee was given a mandate to oversee the implementation of those recommendations by the Canadian Forces and the Department of National Defence. This committee, which publicly reported twice a year to the minister, sat for six years.

In the process of that, thanks to Senator Eggleton, with us today, the committee warned that it was not interested in having the military simply check off a series of boxes. Rather, it wanted real commitment to fundamental change, and this committee began to drive it.

I could go on but the point I am making is that there was strong, independent outside civilian monitoring. It was supplemented by six other civilian monitoring bodies. Later in the process, there was a tremendous focus on re-educating, so the curriculum at Royal Military College was revamped, the Canadian Forces College introduced major new courses in national security studies and strategic studies, and a new Master of Defence Studies program was developed. Today, 90 per cent of the officers in the Canadian Forces have university degrees and 50 per cent have graduate degrees. Senator Dallaire was instrumental in this development. He was charged with a mandate to operate outside the chain of command to completely revise requirements for commissioned officers and for general officer specifications. He developed, among other things, a statement of requirement entitled Officership in the 21st Century, and for non-commissioned ranks, Duty With Honour: The Profession of Arms in Canada.

Compare that to the magnitude of the problem we know in our heart of hearts exists in the RCMP, although not everywhere; and I am not trying to smear anyone. The commissioner said vehemently that it is there and the minister said it is there. Interestingly, and this may only be a tragic coincidence, the Dziekanski case — the man who was killed in the Vancouver airport — has been declared a homicide. Perhaps that is the kind of initiative or very unfortunate circumstance that can kick-start this.

I will finish my comments by saying that Bill C-42 is certainly worth supporting; and we can gain more understanding of the bill and what can be done to make it better. I congratulate Senator Lang for what he is doing to bring in a range of witnesses and so on. However, it is important to note that this is just one tool in the box, and it may not fix the problem. In fact, it could exacerbate the problem if we are not careful.

We have to address not only a series of mechanisms that kick in after the problem occurs — after the complaints, after the harassment or after the bullying — but a broad range of initiatives that are fundamentally difficult. It requires fundamental change and a commitment at all levels in the organization to outside civilian review, monitoring and leadership if we are to change the culture that creates these problems in the first place. We all have great admiration and respect for that icon of Canadian values, the RCMP. We know what it means to this country and to people all over the world. It says a great deal about what we are as Canadians. It is a place that we must cherish and guard. We must be very careful to secure it and make it stronger once again.

Hon. Lillian Eva Dyck: Would the honourable senator take a question?

Senator Mitchell: I will.

Senator Dyck: That was an interesting speech. The honourable senator ended by expressing great concern about how the bill might exacerbate the problems for people who bring forth a complaint. Is there nothing in the bill to provide protection for someone, particularly a member of the RCMP bringing forth a complaint of sexual harassment? Is there nothing in the bill that says a complainant cannot be fired, or transferred up to Tuktoyaktuk, or assigned duties that are more dangerous? Is there nothing in the bill to protect a complainant?

Senator Mitchell: Honourable senators, this is a complex bill, and we need to do some work in committee to try to sort out exactly how it will be applied. Much of what is in the bill gives powers to the commissioner, for example, to develop the grievance process. Much of that has yet to be developed, so we do not know.

I do not want to say there is nothing in the bill that would protect a complainant because certainly there are review mechanisms with the conduct review board and the external review board that can kick in. If anyone is to be fired, there is quite a strong process. Short of being fired, other steps can be taken. The only real guarantee you would ever have that this kind of thing could not happen in certain subtle or nuanced ways is, in many cases, what is happening now. Change the culture so that it is not contemplated or put up with, is resisted and set aside, and criticized at every single point at which cultural problems are evident in any way, shape or form.

I believe that is absolutely within reach. Probably for 99 per cent of RCMP members it may be working fine, although I have evidence that it may be a little more widespread than that. No actual structural change is necessarily contemplated by the bill that would ever finally resolve the issue. You have to fix the culture of the organization to resolve it or get as close as you can to a solution.

Senator Dyck: The honourable senator talked about how the bill may set up grievance procedures and so on.


Does anything in the bill allow the incorporation of a code of conduct or ethics or values, almost like a bill of rights for employees or complainants, that would set forth the mandate or overarching ethics in which the grievance process would be developed?

Senator Mitchell: We should have the honourable senator come to be a witness. She is right on.

There is actually provision, if not direction, in the bill for the commissioner to establish what I would think is a new code of conduct because there is a code of conduct now. However, we have no idea who he will consult to do that, whether it is the rank and file, as we would say, non-civilian members of the RCMP, or whether the public will be included. Again, that would be a step in the right direction. However, it needs more than that. The idea of implementation and the structure of the military changes were based on the military ethos, clearly defined and reinforced. To this day, you can see it when you visit bases, and we could when we were in Afghanistan. You just see it. It comes out of every pore of the military organization. You have to enforce it and make it an integral part of every last feature of the culture of that organization. That takes huge effort and energy, as well as resources. Resources are an issue.

Again, there is a code of conduct, and it did not solve the problem. You have to have a strong code of conduct and implement it strongly. All of that will not happen unless there is a real commitment and an understanding that the culture has to be strengthened, guarded and redeveloped to some extent.

Senator Dyck: I have one final question. The honourable senator mentioned the Civilian Review and Complaints Commission. Does the bill outline who selects or appoints the members of that commission? How many people? Who selects them? Will there been consideration for gender and minority representation, gender in particular because it seems, in the press anyway, that there is a lot of concern about sexual harassment?

Senator Mitchell: That is a very good point. I know from the bill that there will be five members, that there cannot be any RCMP members or retired members on the CRCC, and that they are appointed by the minister. That also is a point of contention. Are they distant enough? I do not want to pile things on, but that is an issue that could be debated to the extent that the commission itself does not go far enough. I think that sort of overwhelms the other point.

However, the honourable senator's point is very well taken. There should be some effort to have balance, certainly gender balance, and Aboriginals have a huge stake in this process.

Another report about the relationship of the RCMP with Aboriginal women is very telling and quite unsettling, certainly for Aboriginals. It should be for all Canadians, and I am sure it is for most.

The Hon. the Speaker pro tempore: Honourable Senator Mitchell, I regret to inform you that your time has expired. Honourable Senator Dallaire had a question. Are you prepared to ask the chamber for more time?

Senator Mitchell: Yes, I would be pleased to answer a question if I could have more time.

The Hon. the Speaker pro tempore: Is more time granted, honourable senators?

Hon. Senators: Agreed.

Hon. Roméo Antonius Dallaire: Honourable senators, I have a short question before I ask for the adjournment of the debate. I stand here nearly directly behind my previous boss who imposed all that civilian oversight on us at the time, and I have to say that it was not pleasant. As a serving general officer, with over 30 years of experience in the force, I had to respond to six civilian oversight committees that monitored, for up to six years, how we implemented the complete readjustment of the cultural framework of the Armed Forces, a very conservative bastion of our society, how we re-articulated the ethos, and how we created a Canadian Forces leadership institute that actually studied leadership and command and how to inculcate that into the structure. Chief Justice Dickson of the Supreme Court, an excellent artillery officer, led the reform of our judicial process, the Queen's rules and regulations. Five years later, another Chief Justice of the Supreme Court, Antonio Lamer, who was also an honorary colonel in the artillery, did an in-depth review of how we did. This thing went on for years, and it was horribly painful, though not so much for the troops, who gained confidence in the leadership because they could see what was happening, including a small purge of certain senior officers who simply did not understand what was going on and did not want to change. It also provided senior leadership with the parameters they needed to command within the ethical, moral and legal dimensions of the profession.

I see this bill as a significant exercise but not the end of the exercise in any way, shape or form. I would hope that the RCMP will see it that way. This terribly long preamble is to indicate the nature of the beast that the honourable senator has been trying to articulate here, one of more than just rules and regulations, one of trying to re-articulate an ethos in a conservative paramilitary organization. Does the bill cover how long we will be watching this thing? This comes from a bit of a privileged discussion I have been having. Do we, in three or four years, go back to it and say, "How have they been doing?'' or do we expect a resettlement? Is that part of the bill being presented to us?

Senator Mitchell: As I read it, it is not. It could be that some of those elements could be developed by the commissioner through the powers that he has been given to set up grievance processes and so on.

In the testimony I alluded to earlier, it struck me that there was no real sense that they would be auditing. They did not have a process set up, and they were not talking about it. That is very important. I think it is a role that the Standing Senate Committee on National Security and Defence can play annually. We should take the gender-based analysis and program — the 37 recommendations — and ask about those every year. We should have the commissioner in here and ask, "Where are you on this one and this one?'' More needs to be done.

One other thing that is interesting to me about what the honourable senator said is how hard it was to do it in the military. It is not as easy as just bringing in a bill. What I feel as I read this bill, listen to the testimony and hear some of the statements is that they are always getting close and then pulling back. Not only should they not withdraw or limit the powers of the CRCC, as they have structured it, to just complaints, they should be demanding a public civilian inquiry and oversight. It is hard to fix this, and the RCMP needs help to do that. The more public exposure, the more assistance and the more expertise that you can get, the more powerful your initiatives will be and the more likely it is that you can fix them.

Senator Dallaire: After nearly five years or so, it was felt that the military had to go back to the Canadian people and say, "We have cleaned out the place; we have reformed.'' In fact, the term used was actually "reform'' of the officer corps. It was felt that we should have gone back to the House of Commons, just as the Somalia issue was presented in the House of Commons, and said, "This is what has been done, and you can have confidence in the forces again.'' That option might be entertained with this bill, I would suspect.

Senator Mitchell: What, in fact, is the end point? When do you get that sense, and how do you establish that you have that sense? It would take some sort of external review to do that.

(On motion of Senator Dallaire, debate adjourned.)


Energy, the Environment and Natural Resources

Committee Authorized to Meet During Sitting of the Senate

Leave having been given to revert to Notices of Motions:

Hon. Richard Neufeld: Honourable senators, with leave of the Senate and notwithstanding rule 5-5(a), I move:

That the Standing Senate Committee on Energy, the Environment and Natural Resources have the power to sit at 5:00 p.m. on Tuesday, April 16, 2013, even though the Senate may then be sitting, and that Rule 12-18(1) be suspended in relation thereto.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to.)

Northern Jobs and Growth Bill

Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Patterson, seconded by the Honourable Senator Seidman, for the second reading of Bill C-47, An Act to enact the Nunavut Planning and Project Assessment Act and the Northwest Territories Surface Rights Board Act and to make related and consequential amendments to other Acts.

Hon. Nick G. Sibbeston: Honourable senators, I first want to make a comment with reference to Senator Dyck's comment about Tuktoyaktuk. I represent Tuktoyaktuk. There is absolutely nothing wrong with Tuktoyaktuk. It would be a wonderful place for RCMP members to go. It is a small community of less than 1,000 people, on the Beaufort Sea, consisting primarily of Inuvialuit people. It is significant enough that the government is proposing to extend the Dempster Highway so that our Canadian system of highways will extend to the Arctic Ocean. Tuktoyaktuk is a very nice place.

Honourable senators, I am pleased to speak briefly on Bill C-47, which is a bill that impacts land and resource management in all three northern territories. This bill contains two new acts and amends an act that deals with the Yukon Territory. It implements provisions of the Nunavut Land Claims Agreement regarding planning and project assessment, and creates a Northwest Territories surface rights board to resolve disputes relating to terms and conditions of access to lands and water, including compensation.

This legislation fulfills commitments that were made in land claims agreements in the 1990s and, as such, have been a long time in coming. The territories have been waiting a long time for this act to come into existence. The Nunavut planning and project assessment act, for example, has been under development since 2002. The Northwest Territories surface rights board act was the result of several years' work, beginning in 2010.

The government appears to have consulted quite broadly with land claim groups, the Aboriginal governments in the north, and territorial governments and territorial organizations. I am sure the government is satisfied that it has fulfilled its duty in that regard, and it will be important for the committee studying this bill to be assured of this.

In general, I support the principles of these acts. As I said, the bodies being created were promised in land claims agreements. Indeed, both the Nunavut Planning Commission and the Nunavut Impact Review Board have been operating under terms of the land claims agreement since 1996 and will now have a legislative basis for their decisions.

The functions of the Northwest Territories surface rights board were provided through interim arbitration processes within respective land claims. Since these acts arise out of land claim agreements, it will be important for the committee to examine whether what is being delivered in the acts largely conforms to what has been promised.

The Nunavut side of the act seems to be broadly supported by the involved parties, though concerns have been raised by NTI, the Inuit organization, and by the two impacted boards which need close examination before the committee.

In the Northwest Territories, issues have been raised about the timing of this legislation. The Gwich'in, whose land claims agreement calls for the creation of a surface rights bill, have said that there is no urgency on their part to see the board created. They have also complained that they lack the capacity to deal with the bill while more complex proposals for regulatory reform, such as a land and water super board and amendments to the Mackenzie Valley Resource Management Act, are still on the table.

As well, with the recent signing of the devolution agreement, the surface rights board will soon be devolved to the Government of the Northwest Territories.

While the Government of the Northwest Territories has expressed strong support for the passage of this bill, others have expressed concerns that this will result in federally developed legislation being imposed on future territorial governments. The committee will need to examine this issue as well.

This legislation grants new powers and creates new obligations for both existing and new organizations that operate at arm's length from government but which are dependent on the federal government for their resources. The matter of whether resources are sufficient to allow these bodies to operate as designed is always at issue. It is sometimes difficult to predict exactly how much money and how many people will be required to carry out on-the-ground functions that have been designed by policy analysts and lawyers in the abstract here in Ottawa.

While in the case of the Nunavut bodies there is some track record to go by, these bodies are also given new powers and new responsibilities. In the case of the Northwest Territories surface rights board, there is no history at all. It is the creation of a new body.

In addition to funding for the bodies themselves, the matter of participant funding — that is, money provided to communities and non-government organizations — to take part effectively in environmental review processes needs to be considered. While the bill provides that such funding might be made available through regulation, there remains some uncertainty as to whether it actually will be.

Given the difficulty of predicting needs in advance, the government should provide for a mandatory review of the effectiveness of the legislation. I note that a five-year review was also requested by industry groups to provide assurances that the legislation does in fact operate to provide the certainty and stability promised. Since the fundamental premise of the bill is that it will increase certainty and therefore promote economic development, it seems incumbent on the government, at some point, to prove those claims using the hard evidence a mandatory review would provide.

I urge honourable senators to send the bill to committee where these issues and any others can be raised by witnesses, so the bill can be examined and all of these issues can be resolved.

The Hon. the Speaker: Are honourable senators ready for the question?

Hon. Senators: Question.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and bill read second time.)

Referred to Committee

The Hon. the Speaker: When shall this bill be read a third time?

(On motion of Senator Carignan, bill referred to the Standing Senate Committee on Energy, the Environment and Natural Resources.)


Income Tax Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Eaton, seconded by the Honourable Senator Rivard, for the second reading of Bill C-377, An Act to amend the Income Tax Act (requirements for labour organizations).

Hon. James S. Cowan (Leader of the Opposition): Honourable senators, Senator Ringuette holds the adjournment of this debate. She has graciously agreed to allow me to speak today, but I would like to make it clear that I am not taking her place and that she is reserving her 45 minutes as the critic to speak on this bill.

The Hon. the Speaker: I should point out to honourable senators that the respective leaders have unlimited time and that 45 minutes are being reserved for the Honourable Senator Ringuette as the second speaker.

Senator Cowan: I thank Your Honour for that comment, because that leads me to the comment that many issues have been raised in this bill. I will be taking considerable time this afternoon to speak about them because the issues are of great importance. I urge honourable senators to participate in this debate as it goes forward.

I would like to begin my remarks by referring to the great American jurist Felix Frankfurter, who was an adviser to President Franklin Delano Roosevelt. He wrote a host of groundbreaking laws and went on to serve with great distinction on the United States Supreme Court. He believed that the role of law is to try to build a heaven on earth. I ask honourable senators: What kind of "heaven'' are we being asked to build here with Bill C-377?

Our new heaven will be a place where if you work for a labour organization or do business with a labour organization, then you will forfeit basic rights enjoyed by all other Canadians. That is the crux of this legislation. Why is it being done? I believe that the answer can be found in a larger story, one where the Harper government is trying to systematically silence individuals and organizations who dare to challenge it publicly.

The story began with an attack using — or more accurately, pulling — government funding. Women's organizations were among the first to feel the heavy knife of the Harper government slashing their funding. That was back when this government still was enjoying the healthy surplus it had inherited from previous Liberal governments.

Women's organizations were told that if they dared to engage in advocacy — in other words, if they came to Ottawa to speak up for the causes that their members believed in, subversive causes like child care or equal rights under the law — their funding would be cut.

International development organizations then came under fire. We all remember KAIROS. That organization engaged in such dangerous activities as social and economic justice projects with local partners in Africa, Asia, Latin America and the Middle East. Its members included radical organizations like the Anglican Church, the Evangelical Lutheran Church, the Presbyterian Church, the United Church of Canada, the Quakers, the Mennonite Central Committee Canada and the Canadian Conference of Catholic Bishops. The funding to KAIROS was eliminated.

The Canadian Council on Learning, an organization that promoted lifelong learning from early childhood through to senior years, had the audacity to say that Canada's progress on the Composite Learning Index had stalled since 2005. Its funding was cut and is now gone.

The Canadian Teachers' Federation International Education Program — gone.

The Canadian Council for International Co-operation — cut off, a 40-year collaboration ended. There were no details and no explanations — just no renewal of the contract after 40 years.

Prime Minister Harper was clear:

If it's the case that we're spending on organizations that are doing things contrary to government policy, I think that is an inappropriate use of taxpayers' money and we'll look to eliminate it.

Eliminate it he did, because there is no robust marketplace of diverse ideas for this Prime Minister. There is room for only one product in Mr. Harper's marketplace of ideas: his ideas.

Cutting funding was the first step but not the last. If there was no existing government funding that could be cut, different fronts for attack were found, and the Canada Revenue Agency was told to lead the charge. Environmental groups were quickly targeted. Senator Eaton, the sponsor of this very bill before us, launched an infamous inquiry in this chamber to tell Canadians:

There is political manipulation. There is influence peddling. There are millions of dollars crossing borders masquerading as charitable foundations into bank accounts of sometimes phantom charities. . . .

This inquiry is about masters of manipulation who are hiding behind charitable organizations to manipulate our policies to their own advantage.

Honourable senators, no evidence of any such activity was ever presented to us. In fact, when I moved a motion to have those very serious allegations referred to our National Finance Committee so they could be investigated, suddenly honourable senators opposite demurred. They had no interest in actually finding out the truth. A drive-by smear was all they wanted. Making scurrilous allegations under the protection of the privileged speech in this chamber but denying the charities in question any opportunity to clear their names was not just a drive-by smear; it was a cowardly hit and run.

Honourable senators, the next step in this carefully choreographed dance of shame was last year's budget. While cutting, among many others, the Experimental Lakes Area, Rights & Democracy and the National Council of Welfare — another dangerous organization — the Harper government found an additional $8 million for the Canada Revenue Agency to audit charitable organizations that engage in perfectly legal political activities. What was the message? Be careful — be very careful — if you dare to speak out on public policy issues.

Government scientists are muzzled; scientists whose work is paid for by Canadian taxpayers are told that they may not tell those same taxpayers about the results of their work. This government is even trying to extend its muzzle outside Canada's borders to scientists with whom Canadian scientists are collaborating.

The latest group on the government's muzzle list is librarians. They are on the list because the government believes that librarians have a propensity to engage in what they call "high-risk behaviour.'' Who would have imagined that "high-risk behaviour'' and "librarians'' would ever be found in the same sentence?

In today's brave new world, they are. The employees of Library and Archives Canada have been told that they must pre-clear "personal'' activities deemed "high risk.'' What are these high-risk activities that federal librarians and archivists are engaging in, on their own personal time, that have so engaged the attention of the Harper government?

Senator Munson: Reading.

Senator Cowan: They are teaching Canadians in classrooms. They are daring to attend conferences. Perhaps most horrifying of all, they are speaking at public meetings. The Harper government says this simply has to stop.


Scientists, librarians, environmental NGOs, international development organizations — we have seen repeatedly that the Harper government will find many ways to silence and repress dissenting voices.

Senator Cordy: You forgot to say Conservative MPs.

Senator Cowan: Now they have set their sights on labour organizations. It is trickier to muzzle them. They do not receive money from the government and they cannot be fired by the government. How to silence their voices? Bill C-377 is how.

The sponsor of the bill, the Honourable Senator Eaton, told us that it is simply aimed at promoting transparency. She said:

. . . unions, as tax-exempt organizations, should be accountable to their membership, given the extent of benefit that they and their members receive through the tax system.

It all sounds perfectly reasonable. What Senator Eaton did not mention in her remarks is that the Canada Labour Code already requires trade unions — and employers' organizations, by the way — to provide their members, on request and free of charge, with financial statements that are required by law to contain, quoting from the Canada Labour Code, "sufficient detail to disclose accurately the financial conditions and operations of the trade union or employers' organization for the fiscal year for which it was prepared.''

There are similar requirements in all provinces except Saskatchewan, which has a bill pending, Prince Edward Island and, curiously, the Prime Minister's own province of Alberta. Even in those provinces, unions such as the Canadian Union of Public Employees state in their constitutions and bylaws that members are entitled to financial statements from the union.

In other words, honourable senators, unions are already "accountable to their membership.'' If a member wants information, they can get it, by law. If, as Senator Eaton suggested, that is the purpose of Bill C-377, then we can end this right now. The bill is simply not needed. Laws are already in place to do what she wants done.

Of course, honourable senators, that is not the real purpose of Bill C-377. The real purpose is to sideline trade unions, to muffle their voices and to bury them in administrative paperwork so that they cannot do the work which they are there to do on behalf of their members. This bill is designed to impose such onerous and invasive reporting requirements that people will think twice before working for unions or doing business with them.

As originally drafted, Bill C-377 would have required every labour organization to make public the salary of every employee. The name and salary of every employee of every labour organization, no matter the size of the organization, would by law be required to be posted on the Internet, literally for the world to see.

Members of the other place were understandably shocked by this requirement. Accordingly, when the bill returned to the other place from committee, the sponsor put forward several amendments, including one that, as Senator Eaton told us in this chamber, was intended to provide that:

. . . only salaries in excess of $100,000 will require disclosure.

That indeed was the stated intent of the amendments that were introduced and passed in the other place, but, honourable senators, it is not at all clear that is what the amendments actually did. I ask for your patience because this will get a little bit confusing and a little bit technical as I go forward, and that is only because, in my view, the bill is itself drafted in such a confusing fashion. To make things a little easier to follow, I understand that the pages have copies of the relevant clauses of the bill for any senator who might be interested in following and which honourable senators will find helpful.

The place to begin this analysis is with the opening words of paragraph 149.01(3)(b). This sets out the general disclosure obligation of labour organizations. It says that a labour organization is required to file:

(b) a set of statements for the fiscal period setting out the aggregate amount of all transactions and all disbursements — or book value in the case of investments and assets — with all transactions and all disbursements, the cumulative value of which in respect of a particular payer or payee for the period is greater than $5,000, shown as separate entries along with the name of the payer and payee and setting out for each of those transactions and disbursements its purpose and description and the specific amount that has been paid or received, or that is to be paid or received, and including. . .

There then follows a long list of subsections detailing specific things that must be reported. I will get back to those shortly.

First, I would ask honourable senators to pause and look more closely at the opening paragraph. This is important because the paragraph does not end with "specifically'' or "namely'' or similar words. It ends with the words "and including.'' Basic principles of statutory interpretation mean that the words of this opening paragraph are the governing words and what follows does not limit those words, it just adds to them.

As I have said, this opening paragraph requires that a labour organization file statements:

. . . setting out the aggregate amount of all transactions and all disbursements. . . with all transactions and all disbursements, the cumulative value of which in respect of a particular payer or payee for the period is greater than $5,000, shown as separate entries along with the name of the payer and payee. . .

Honourable senators, there is no limitation here requiring the naming and disclosure of disbursements only to employees earning more than $100,000. The paragraph uses the words "the aggregate amount of all transactions and all disbursements,'' but goes on to stipulate that there must be separate entries with the name of every payer and payee, with the specific amount that has been paid or received. The only limitation is that the total amount must be more than $5,000. If an employee or contractor earns or receives more than $5,000 during the year, they must be personally identified and the amounts reported.

In fact, it was at the report stage in the other place that these opening words were clarified to make it clear that "all transactions and all disbursements, the cumulative value of which in respect of a particular payer or payee for the period is greater than $5,000'' were to be "shown as separate entries,'' along with the payer or payee's name.

Paragraph (b) sets out the general rule. Paragraphs (vii) and (viii) that follow are additions to this general rule of $5,000, but unfortunately they only confuse an already confusing reporting regime.

In the original version, paragraph (vii) was drafted to require disclosure of all disbursements to officers, directors and trustees; and paragraph (viii) was drafted to require disclosure of all disbursements to all employees, from part-time janitors to filing clerks, and up to the most senior employees.

These two paragraphs were also amended in the other place, after the bill was reported back from committee. Curiously, the amendment requiring the public disclosure of employees who earn more than $100,000 was inserted into paragraph (vii). It was tacked on to the sentence about officers, directors and trustees. As amended, the paragraph requires the reporting of:

(vii) a statement of disbursements to officers, directors and trustees to employees with compensation over $100,000 and to persons in positions of authority who would reasonably be expected to have, in the ordinary course, access to material information about the business, operations, assets or revenue of the labour organization or labour trust, including gross salary, stipends, periodic payments, benefits (including pension obligations), vehicles, bonuses, gifts, service credits, lump sum payments, other forms of remuneration and, without limiting the generality of the foregoing, any other consideration provided.

However, because of paragraph (b), which I read earlier, everyone making more than $5,000 must already be named. Paragraph (vii) does not say that anything less than $100,000 need not be reported. It does not override paragraph (b).

Honourable senators, to add to the confusion, there would appear to be a missing comma in between the clause "to officers, directors and trustees'' and the words immediately following, namely "to employees with compensation over $100,000.'' Without the comma, the sentence is exceedingly difficult to decipher.


There is also the problem that "persons in positions of authority who would reasonably be expected to have. . . access to material information'' — and those words are taken from the bill — about the unions are not covered by the $100,000 threshold. The exemption, such as it is, does not apply to them. Honourable senators, there is no definition of what is meant by "persons in positions of authority.'' In a normal hierarchical business model, which we are all familiar with, even middle-level employees have authority over others, and they certainly would not be earning $100,000 a year. Under this paragraph, if you have authority over others and have knowledge about how your union operates, your name and your salary go up on the Internet, no matter how much less than $100,000 you make.

Now let us turn to the amendment that was made to paragraph (viii). Once again, this paragraph is "included'' as part of the general rule in paragraph (b) and does not override that $5,000 rule. Paragraph (viii) states that a labour organization must provide:

. . . a statement with the aggregate amount of disbursements to employees and contractors including gross salary, stipends, periodic payments, benefits (including pension obligations), vehicles, bonuses, gifts, service credits, lump sum payments, other forms of remuneration and, without limiting the generality of the foregoing, any other consideration provided. . .

Here, of course, there is no limitation to "employees with compensation over $100,000.'' The amendment that was made to this section was to add in the words "with the aggregate amount'' before the words "of disbursements to.'' What does this mean? I do not know. Does "aggregate amount'' mean one big figure representing all disbursements to all employees and contractors? Or does it mean the aggregate amount of the various described disbursements for each individual employee and contractor? It simply is not clear, but in any event, remember, the opening words of paragraph (b) were quite clear, especially as amended, that there was to be disclosure of each employee and contractor if the total amount received was more than $5,000 — not $100,000.

Has the bill been amended as Senator Eaton told us it was? I do not believe it has. Perhaps the amendments to paragraphs (vii) and (viii) might have achieved this, but the amendment made at the same time to the opening words of paragraph (b) pretty clearly undercut that. Looking at all of this, the amended overarching obligation set out in the opening words of paragraph (b) and the amended paragraphs (vii) and (viii), I think the bill now sets out several reporting obligations, the primary of which requires separate entries naming every person who receives money from a labour organization and listing what they received if the cumulative value is over $5,000.

As parliamentarians, is that what we want to do? Are these public disclosure obligations ones we really want to impose on our fellow Canadian citizens? What public purpose or what greater principle is served by this?

The issue cannot be the tax benefit that labour organizations receive by allowing deductions for union dues. Anyone in this chamber, and I suggested this to Senator Eaton when she spoke on the bill, who is a member of a professional association pays dues and is allowed to deduct those dues from income tax. Why single out labour organizations?

Corporations benefit from some of the biggest tax deductions, yet there is no suggestion that they should be subject to this level of disclosure. Political parties, which receive special tax treatment, have paid staff, but there is no forced disclosure for them. Only labour organizations.

Remember, honourable senators, this is the same government that abandoned the mandatory long-form census because it was too intrusive. It is too intrusive to collect confidential information on things like how many bedrooms you have in your house, but it is not too intrusive to insist that persons who work as part-time filing clerks or janitors have their name and salary published on the Internet, just because they work for a labour organization. That, honourable senators, is what this bill will do.

In this country, we value our privacy. Statistics Canada has gone to extraordinary lengths to protect the information they collect. We have laws protecting the right of Canadians to privacy, yet this bill says that if you work for a labour organization, you lose that right.

My colleague in the other place, the Member of Parliament for Cape Breton—Canso, asked the Minister of National Revenue to produce the same information listed in Bill C-377 with respect to the people who work in the Canada Revenue Agency who administer the searchable charitable database. Let me read to you the answer given by the minister. This is a quote: "The Privacy Act precludes the CRA from disclosing personal information about its employees.''

Honourable senators, the CRA is being asked in this bill to require organizations to file the same information about their employees on the Internet, for the entire world to see, that Canadian law prohibits the CRA from disclosing to anyone about its own employees. Where is the fairness in that proposal?

Senator Eaton defended this bill on the principle of transparency. She said: "We require it of our public institutions, federal departments, Crown corporations and agencies.'' Well, in fact, we do not require that level of transparency. Her colleague, the Minister of National Revenue, refuses to provide it for employees she is responsible for, who are, in fact, paid directly by all taxpayers, unlike employees of labour organizations.

By the way, it is not only employees who must disclose money they are paid from labour organizations. Anyone who receives money, if the total for the year is more than $5,000, must be publicly named and the amounts disclosed on the public record, on the Internet. A small business that has a contract to fix a labour organization's photocopiers, to plough the snow or cut the grass — all must be identified by name with the amounts paid.

Honourable senators, this raises privacy issues, and it also raises issues of competitiveness for the business community. How will companies feel about disclosing the amount that they are charging each labour organization for their services? Their competitors will no doubt quickly learn to scan the public register closely, find out who is being charged what, and then use that information to their advantage. Imagine if all corporations were forced to operate this way in our economy.

The Harper government likes to say it is all about jobs and the economy, but this is a very peculiar way to go about creating jobs — to undercut the competitiveness of business and provide a disincentive for anyone to be hired by a labour organization. Remember the Jobs, Growth and Long-Term Prosperity Act? Now we know what the Harper government meant: jobs for some, but not if you work for a labour organization, and growth and prosperity, but only so long as your business does not do business with a labour organization.

This bill tries to name and shame anyone who works for a labour organization or who does business with one, stripping them of their privacy by requiring them to be publicly named with the amount they are paid posted on the Internet for their friends, neighbours and the world to see.

It does not stop there. It gets worse because Bill C-377 then turns its sights to burying every labour organization under a mountain of paper and red tape. It will require the tracking and reporting of literally every activity and disbursement possible, with particular focus on so-called "political activities, lobbying activities and other non-labour relations activities.''

Under clause 149.01(3)(b) of the bill, labour organizations will be required to produce and publicly post:

  • a statement with a reasonable estimate of the percentage of time dedicated by employees and contractors "to each of political activities, lobbying activities and other non-labour relations activities.''

I will speak more about that shortly.


  • A statement of the aggregate amount of disbursements on labour relations activities;
  • A "statement of disbursements on political activities.''

Note, honourable senators, that the word "aggregate'' has not been inserted here. In other words, every individual disbursement on so-called "political activities'' — and the term is not defined in the bill — must be tracked, disclosed and of course posted on the Internet.

  • A "statement of disbursements on lobbying activities,''

Again not "aggregate,'' every individual disbursement must be tracked and disclosed.

  • A "statement with the aggregate amount of disbursements on administration.''

Honourable senators, "administration'' is not defined in the bill. Can anyone here say with any certainty what must be disclosed under this paragraph? I cannot.

Contrast this to the next requirement:

  • A "statement with the aggregate amount of disbursements on general overhead.''

What is "general overhead,'' as distinct from "administration''?

There is more. If we pass Bill C-377, every organization will need to produce:

  • A "statement with the aggregate amount of disbursements on organizing activities'';
  • A "statement with the aggregate amount of disbursements on collective bargaining activities'';
  • A "statement of disbursements on conference and convention activities''; and
  • A "statement of disbursements on education and training activities.''

This government says it is concerned about the need to train workers, but evidently the involvement of labour organizations is to be viewed suspiciously and tracked and reported.

  • A "statement with the aggregate amount of disbursements on legal activities, excluding information protected by solicitor-client privilege.''

What are "legal activities''? There is no definition in this bill. Are they the same as legal services? That is a term all of us would be familiar with. The term "legal services'' is not used, simply "legal activities.''

Here is my personal favourite:

  • A "statement of disbursements, other than disbursements included in a statement referred to in any of subparagraphs (iv), (vii), (viii) and (ix) to (xix) on all activities other than those that are primarily carried on for members of the labour organization or labour trust, excluding information protected by solicitor-client privilege.''

Can any honourable senators explain to me what is to be disclosed under this? Remember, there are severe penalties for non-compliance: fines of $1,000 for each day that a labour organization fails to comply with the reporting requirements.


  • "any other prescribed statements.''

In other words, even if we in this chamber, joined by our colleagues in the other place, decide in our wisdom that the disclosure obligations should be limited — for example, to employees who earn more than $100,000 or that we should eliminate the requirement for individual names to be included on the public record — the government on its own can simply override our changes and pass regulations prescribing the information Parliament removed. They would then say that must be disclosed.

The words "any other prescribed statements'' contain no limitation. Anything could be added: political party memberships or the home addresses of employees. As drafted, there is absolutely no limit on what the government could prescribe to be disclosed by regulation.

Honourable senators, this really is outrageous. There is no public policy that is served by this kind of disclosure. The only purpose, as I said, is to bury labour organizations in administrative work, preventing them from doing their real work, and presumably setting the table so the government can later turn to the union members and say, "See? Your union is not working for you; they are spending all their time on administration.''

As I noted earlier, there are detailed disclosure requirements in this bill related to "political activities, lobbying activities and other non-labour-relations activities.''

Honourable senators, why does this government present political activities as a bad thing? We should be encouraging citizens — individually and collectively in organizations — to engage on public policy matters, to come to Ottawa to speak with parliamentarians and government members, and to speak out publicly on issues of concern. We need more citizens engaging in political activities, not fewer.

We have a statute regulating lobbying activities and requiring public disclosure of those activities. Why do labour organizations require more disclosure than we have imposed on other organizations like banks, for instance? I ask Senator Eaton: What evil are we trying to prevent?

Honourable senators, I find offensive the attempt to suggest that political and lobbying activities are somehow not proper labour-relations activities, that they are somehow illegitimate. That is not what the Supreme Court of Canada said in the Lavigne case. In fact, the nature of labour relations, particularly under this government, is such that politics is more, and not less, a part of the collective bargaining process.

The Harper government has been in power seven years and tabled no fewer than six pieces of back-to-work legislation. Six times it has interposed itself into the collective bargaining process. Clearly the Harper government believes that politics has a place in labour relations. Why, then, does this bill try to say that it does not?

We have a federal Minister of Labour. If a labour organization meets with her, is that not a labour-relations activity? Perhaps in the doublespeak made famous in George Orwell's 1984, the Minister of Labour in the Harper government only meets with business and does so to talk about labour relations problems that businesses are experiencing.

It is evident, honourable senators, that the real objective of this bill is to suppress yet another dissenting voice, this time that of labour. That is why this bill casts political activities as non-labour-relations activities. It is trying to suggest that they are somehow improper, that labour organizations should somehow not be speaking out.

When I spoke on Senator Eaton's inquiry on the alleged "involvement of foreign foundations in Canada's domestic affairs,'' I referred honourable senators to a law signed by President Vladimir Putin in 2006 that gave Russian authorities wide-ranging powers to monitor the activities and finances of NGOs. The latest news is that Russian "tax police'' are now involved. In the past month they have conducted searches of some 2,000 NGOs, organizations like Amnesty International and Lev Ponomarev's human rights movement, under the guise of tax investigations.

I am sure we would all condemn these actions and recognize them, as the Associated Press put it, as:

. . . a wave of pressure that activists say is part of President Vladimir Putin's attempt to stifle dissent.

How is this different, honourable senators? This bill asks our tax authorities, the CRA, to enforce compliance with outrageous disclosure requirements that are now going to be imposed on every single labour organization. This will become the new priority of the CRA: going after unions, right after they have cleaned up those dangerous charities that Senator Eaton railed against.

Bill C-377 will impose substantial burdens on labour organizations. Many, I am told, are small and do their books by hand, on paper. This bill requires them, in mandatory language, subject to $1,000-a-day fines for non-compliance, to file their returns electronically. Why, honourable senators? Surely the CRA can receive and review returns in various formats. They do it every day at this time of year with our tax returns. The only reason that I can think of is that the concern is not about tax compliance, that is for CRA officials to be able to review the reports, but rather for others to be able to access them — for an employer, by way of example, about to enter into negotiations for a new contract with a union, to be able to know precisely the financial status of the union, whether or not they can afford a strike and for anti-union groups to gain access to information that they can use to their own advantage.


Of course, there are the unintended consequences, as businesses can scour the filings and find out what their competitors are charging labour organizations for services or neighbours and others can find out what some neighbour, friend or relative is being paid.

Is this what our tax code should be used for? Is this the kind of law we want to be passing?

Some Hon. Senators: No.

Senator Cowan: Is this the Harper Conservatives' view of "heaven on earth''?

Unfortunately, the closer one looks at the specific provisions of this bill, the worse it gets. Here is another example. Amendments passed in the other place at report stage added in a new subsection (5) to the new section 149.01. It now reads as follows:

(5) For greater certainty, a disbursement referred to in any of subparagraphs (3)(b)(viii) to (xx) includes a disbursement made through a third party or contractor.

Honourable senators, this would seem to greatly expand the scope of the reporting that will be required. Imagine, for example, third-party commercial entities operating at arm's length that enter into a contract with a labour organization. Paragraphs (viii) to (xx) include all the reporting obligations I listed a few minutes ago, from the percentage of time spent on political activities and lobbying activities to disbursements on administration, conference activities, education and training, et cetera, et cetera, including, as well, "any other prescribed statements.'' This could potentially require every labour organization to somehow track and disclose disbursements made by third parties with whom they have contracted. Does it seem like a reasonable proposition to anyone in this chamber to have a legal obligation to report on the internal operations of third parties who conduct business at arm's length?

As I say, this amendment was added very late in the process, with no opportunity to study or assess it in committee. I hope we will have that opportunity in committee here. I am concerned that this amendment opens up a Pandora's box of reporting obligations; and of course, the $1,000-a-day fine applies if a labour organization fails to disclose what the bill mandates.

Senator Eaton, the sponsor of the bill in the Senate, told this chamber:

Many other G8 countries, such as France, Great Britain, the United States and Australia, require similar disclosure. They have lived with the requirement for financial transparency for a long while without issue or cause.

Honourable senators, I regret to say that is simply not accurate. In the interest of time, I will focus on the experience in the United States.

Senator Eaton said the requirements proposed in this bill have existed in the U.S. "for a long while without issue or cause.'' Certainly, there is a long history, but I do not believe it can be said accurately to have been "without issue or cause.'' I commend to honourable senators a 2009 article by John Lund, Director of the Office of Labor-Management Standards. He describes the history of changes by the U.S. government in reporting and disclosure requirements for unions as having "generated considerable controversy.'' Let me describe some examples from his article.

The 1959 Labor-Management Reporting and Disclosure Act generated heated debate between Senator Barry Goldwater and then Senator John F. Kennedy. Senator Goldwater wanted unrestricted access by union members to transaction-level financial records. He argued that this was simply giving union members "at least the same right as a stockholder of a corporation.'' Senator Kennedy replied:

I would object to a corporation being compelled to give every shareholder a list of all of its customers and the prices it is quoting and all the letters of information it receives on any matter in any of the books of the corporation.

Senator Goldwater's amendment was voted down. I would suggest, honourable senators, that Bill C-377 would do precisely what Senator Kennedy objected to.

That was not the end of the issue in the United States. In 1992, during the last year of the presidency of George H. W. Bush, House Republican Whip Newt Gingrich wrote to then Secretary of Labor Lynn Martin. He asked her to take "long overdue steps'' that "will weaken our opponents and encourage our allies.'' What were those steps, honourable senators? One was to order the Office of Labor-Management Standards to make changes to the union reporting and disclosure forms to require considerably more detailed financial reporting. Immediately before submitting his resignation, OLMS Administrator Robert Guttman denounced the changes. He said they were unnecessarily burdensome, and he characterized the functional activity category reporting — the sort of reporting requirements that permeate Bill C-377 — as "a lot of junk.''

The new regulations were nevertheless adopted under President George H. W. Bush in October 1992. In January 1993, they were rescinded by President Bill Clinton. "A lot of junk,'' honourable senators, implemented deliberately to "weaken our opponents and encourage our allies.'' Some heaven on earth.

Nothing further happened until the administration of President George W. Bush — another Republican administration, another expansion of disclosure and reporting requirements imposed on unions. Several sets of changes were introduced. Notably, in contrast to what is before us in Bill C-377, President George W. Bush never tried to impose the kind of sweeping reporting requirements that are found in Bill C-377 on all unions. Large unions with annual receipts of over $250,000 had to file detailed reporting forms, but all others had much less onerous requirements.

In January 2009, just before his term ended, President George W. Bush changed the reporting requirements for the very largest unions, making them even more detailed. The new rule required, for example, reporting of the value of benefits paid to and on behalf of officers and employees. Does that sound somewhat familiar, honourable senators? These requirements were rescinded by President Barack Obama a few months later. The U.S. Department of Labor made some interesting observations when the regulations were rescinded. It said:

. . . the Department may have underestimated the increased burden that would be placed on reporting labor organizations and overestimated the additional benefits to union members and the public of the increased data disclosures.

This is not surprising, honourable senators. The very first line at the top of the form to be completed by these unions reads as follows:

Public reporting burden for this collection of information is estimated to average 536 hours per response.

Honourable senators, 536 hours is more than 13 weeks or some three months working full-time to fulfill the obligations that we are being asked to impose. In the United States, these obligations were imposed only on the very largest unions, those with annual receipts over $250,000. Under Bill C-377, they would be imposed on all labour organizations. This proposal is from a government that likes to present itself to Canadians as the government that will remove administrative burdens. The Honourable Tony Clement, President of the Treasury Board, famously vowed to cut red tape. He said:

I am pleased to announce that the government is keeping its promise and implementing a "one-for-one'' rule. This will require regulators to remove at least one regulation each time they create a new one that imposes administrative burden on business.

Reduced administrative burden for business and an avalanche of new burdens for labour — I do not remember this being promised.

Honourable senators, to be clear, these administrative burdens will not fall on trade unions only. While the discussion around this bill usually assumes that the bill will apply only to trade unions, as drafted, its scope would appear to be potentially much, much larger.


The bill's requirements apply to "labour organizations,'' and they are defined as follows:

"labour organization'' includes a labour society and any organization formed for purposes which include the regulation of relations between employers and employees, and includes a duly organized group or federation, congress, labour council, joint council, conference, general committee or joint board of such organizations.

This is a very broad definition. For example, contrast it to the Canada Labour Code. That federal law contains two definitions, one for "trade union'' and another for "employers' organization.'' Let me read to you those definitions from the Canada Labour Code:

"employers' organization'' means any organization of employers the purposes of which include the regulation of relations between employers and employees. . . .

"trade union'' means any organization of employees, or any branch or local thereof, the purposes of which include the regulation of relations between employers and employees.

Notice, honourable senators, how the wording here is virtually identical to that used in Bill C-377 — "any organization. . . the purposes of which include the regulation of relations between employers and employees'' — except that, while the Canada Labour Code distinguishes between a trade union, which is "any organization of employees,'' and an employers' organization, which is "any organization of employers,'' Bill C-377 says "any organization.'' Applying basic principles of statutory interpretation, one can only conclude that the obligations of Bill C-377 are intended to apply to both trade unions and employers' organizations, because no distinction is made in the bill between the two, as is done in the Canada Labour Code.

That means, for example, that an organization like Merit Canada, which lobbied vociferously for this legislation, would itself be caught by Bill C-377. It is certainly an organization formed for purposes that include the regulation of relations between employers and employees.

I have met with doctors, nurses and lawyers who believe that the bill may well apply to various medical and legal associations. Provincial medical associations negotiate tariffs — the pay that medical doctors receive — with provincial governments and, arguably, are organizations "formed for purposes which include the regulation of relations between employers and employees.'' Legal aid societies negotiate legal aid tariffs with their respective provincial governments. They might now be caught by this as well.

What costs are we imposing on all of these Canadian organizations to comply with this over-the-top bill? This government proudly proclaims that it will not impose new taxes, but it happily puts forward bills like this that will drive up costs for organizations with no resulting serious public benefit for Canada.

Honourable senators, proponents of this bill try to suggest that these obligations are nothing more than what is imposed on charities and government departments now, but this is simply not true. A number of questions were posed to the Canada Revenue Agency in the other place when this bill was being considered. The CRA was asked whether it was aware of any other private organization that is forced to publicly disclose the incomes and benefits received by all employees and contractors and to identify them by name and address. The response?

The CRA is not aware of a similar requirement that exists in the statutes it administers.

No similar requirement exists anywhere in any of the statutes administered by the CRA.

Senator Eaton told this chamber that:

Canadian charities have complied with similar requirements such as those prescribed in this legislation for over 35 years.

However, honourable senators, that is not what the CRA says. The CRA was asked about the proposed reporting requirements relating to political activities and whether this is simply the same thing that is required of charities under the Income Tax Act. Their answer?

No. Registered charities are not required to report the percentage of time dedicated to political activities or to lobbying activities by their officers, directors and trustees.

The public reporting required by Bill C-377 is unprecedented.

This is not, unsurprisingly, a cost-neutral bill. I look forward to other honourable senators discussing the anticipated cost of administering this bill. How the CRA will manage these costs, even as it is cutting more than $250 million from its budget over the next few years, is hard to imagine. CRA has been one of the departments hardest hit by the government's public service cuts. It is losing some 3,000 full-time positions. What will the remaining employees have to give up doing to allow them to take on this new task of overseeing the internal operations of labour organizations?

Before I close, I must also add that there appear to be serious constitutional issues with this bill. A number of constitutional experts have raised concerns, based both on the Charter and on the division of powers. They say Parliament simply does not have the jurisdiction to enact this bill.

In brief, while it is framed as an income tax bill, the fact is that this legislation is really a labour bill. If it were truly an income tax bill, why would it target only labour organizations? There are many associations and businesses that benefit from tax deductions. If this were truly an income tax bill, it should apply equally to all of these groups alike.

There is the fact that disclosure of financial information by labour organizations is already mandated by statute: by labour laws at both the federal and the provincial levels.

Bill C-377 tries to sweep provincial laws away, to say, "We think you have made bad choices, and we are going to dictate what labour organizations are required to disclose.'' This is a blatant invasion of provincial jurisdiction.

I also remark upon the irony that this bill is before us with the support of a government that refuses provinces' pleas to join with them in pan-Canadian discussions on health care reform or a national energy policy. However, when it comes to demanding disclosure from provincial labour organizations, then this government jumps to intervene.

In fact, several provinces are already on the record as opposing Bill C-377. They say it is not necessary, as members of labour organizations already have the right to obtain financial information from their organizations. The provinces express their deep concerns over the negative impact this bill will have upon labour relations in their provinces.

The government in my home province of Nova Scotia wrote:

This legislation has the potential to disrupt collective bargaining, at a time when we need greater cooperation between governments, organized labour and business to resolve our economic problems.

The Ontario government said:

This bill. . . has the potential to drastically derail collective bargaining in Ontario. In these tough economic times we need governments, organized labour, and management to work together, and this bill as passed through the House needlessly intervenes in that process.

The Government of Manitoba sounded the same caution:

[T]he Bill's requirement to publicly disclose confidential financial information will likely unbalance and seriously disrupt labour relations between employers and unions, and adversely affect the collective bargaining process in Manitoba. It is not clear what benefit, if any, this Bill offers that would counter the harm it will do to our labour relations climate, our economy, and our communities.

Manitoba also wrote:

This Bill may be seen as an incursion into, and a potential violation of, Manitoba's labour relations jurisdiction.

The Government of Quebec pointed out that Bill C-377 goes against their approach to the management of labour relations in Quebec. They cite constitutional experts who have said that Bill C-377 would be a violation of the division of powers and, therefore, unconstitutional.

Honourable senators, we have four provinces already on record opposing this bill and asking us not to pass it into law.


There are serious constitutional issues and equally serious policy issues. To be clear, there are no pressing problems that this bill is needed to address.

Not only is this bill not needed, but passing it would be the wrong thing to do. As a matter of individual, personal privacy, it is the wrong thing to do. As a matter of labour relations, it is the wrong way to proceed. The Harper government keeps telling Canadians that all its activities are focused on jobs and the economy, yet we have this bill that several provinces say will harm their ability to weather these tough economic times.

The Canada we should be building as parliamentarians is one where all Canadians are equally respected; where all are welcome to join in the public debate; where policies are tested where it counts — against ideas that challenge them, rather than accept and acquiesce; where the privacy of all Canadians is protected whether someone works for an organization that supports the government or not; and where power is used for the betterment of all, whatever one's political views. That is not what I see in Bill C-377, and that is why I am opposing its passage.

Honourable senators, I appreciate your patience, given the length of my remarks, but if this bill does somehow pass, I want the official record to show very clearly that it passed even though we all knew of its stunning shortcomings and its horrendous drafting. I have tried to highlight problems with this bill. Senator Segal did the same in his excellent remarks on February 14. I know that other honourable senators have concerns that they will raise in the chamber. However, sooner or later, we will be voting, and I want to be absolutely sure that we will be voting with our eyes wide open on this private member's bill, as the official record will show all Canadians.

Hon. Jane Cordy: I wonder if I could ask a short question. I know the honourable senator is probably quite tired.

Senator Cowan: Yes, certainly.

Senator Cordy: I thank the honourable senator for an excellent analysis of the bill and the harm that it will do.

We have all been getting huge amounts of well-researched and well-thought-out information, emails and letters and so on. I was quite surprised that the author of the bill, MP Russ Hiebert, has admitted that he has not actually received a single complaint from a union member that could not get financial information from their union. That surprised me. Why would he bring the bill in? In 2011, a total of six complaints were filed with the labour boards across the country, all of which were resolved — six complaints out of 4.2 million union members throughout Canada. I was quite surprised that Mr. Hiebert would even bring forward a bill when he had gotten no complaints and there were only six complaints out of 4.2 million union members in Canada.

I know the honourable senator mentioned it briefly, but I wonder if he could reiterate why he thinks the government has brought forward this legislation when certainly the need for it does not seem to be demonstrated by what Mr. Hiebert has heard.

Senator Cowan: I thank the honourable senator for her question. As she suggests, there does not appear to be a public need. There is no demand from union members for this kind of reporting and disclosure.

According to most union members whom I have spoken to, even though they may not be happy with the way in which their unions are governed, it is not for a lack of information. That is not the source of their complaint or the reason for their complaints. Most union members whom I have spoken to seem satisfied with their ability to get the information that they require about the activities of their unions.

I am at a loss. I tried to address in my remarks the specific rationale for this bill that was put forward by Senator Eaton, such as issues of transparency and to make it consistent with treatment that is imposed on charities and other organizations in this country. I hope I have demonstrated that she misspoke when she said that and that those are not accurate comparisons.

In fact, the regime to be imposed under this bill is much more onerous than exists with respect to any other private organization and is more onerous than the level of disclosure that the government is prepared to allow with respect to those who work for our government. To impose it on a private organization when they are not prepared to impose it on their own employees seems to me to be a bit of a stretch.

(On motion of Senator Ringuette, debate adjourned.)

Canadian Human Rights Act
Criminal Code

Bill to Amend—Second Reading—Debate Adjourned

Hon. Grant Mitchell moved second reading of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity).

He said: Honourable senators, it is with great pleasure and pride that I rise to support this bill. We Canadians have in the past consistently been able to distinguish ourselves in the pantheon of human rights, equality and anti-discrimination leadership. Unfortunately, there is always a new frontier that needs to be fought and opened up in equality rights. Today, with Bill C-279, we address, confront and hopefully begin to open up yet another frontier. We have done much, and now we have the chance to do more.

One of the first bills that I worked on when I came to the Senate was the gay marriage bill. To this day, I believe it was one of the most interesting and significant bills that I have ever worked on, and one of the most significant things — perhaps the best thing — that I have ever done in politics. It was immensely moving the day that we passed that bill. Once again, we had established Canada as a leader in this world of rights, equality and justice in a way for which people around the world envy us for what we have here and, sometimes, for what we take for granted.

I remember a kind of a funny story, and I will share it with honourable senators. Of course, it was Prime Minister Paul Martin who launched the initiative to pass the gay marriage bill and legalize gay marriage. He was aided a great deal in that effort by Scott Brison, a Member of Parliament from Nova Scotia who happens to be gay. Scott sat just behind and beside the Prime Minister. After weeks and hours and hours of fight, debate and exhaustion, the bill was finally passed. Prime Minister Martin turned to Scott Brison and said "Scott, you had better darn well get married.'' Sure enough, Scott did get married. I do not know if it was months later or several years later. I was not there, but it was a lovely, wonderful event with a couple of prime ministers and former prime ministers, and premiers and former premiers. It was quintessentially Canadian. Since that time, my wife and I have been able to go to two marriages of gay couples. Again, they were moving, loving, understanding, warm and wonderful events that I think captured the very essence of what we are as Canadians.

Now we have the chance to distinguish ourselves again with Bill C-279, which is the bill that addresses transgender rights and gender identity. So many of us do not fully understand the kind of lives that transgendered people have to live in our country: the discrimination, the hate, the violence — often profound violence — that they are subjected to, and the alienation. In this bill we are simply being asked to help our neighbours, some of our colleagues, and some of our family members. We are asked to help them and give them some respite and acceptance, and to elevate the importance of their issues. They are asking for some protection, so they can live more protected, fulfilled and safer lives.


This bill is specifically designed to do two things. First, it will amend the Canadian Human Rights Act to specify gender identity as a fundamental right and basis for defining discrimination. Second, it will amend the hate crimes section of the Criminal Code to include gender identity as a distinguishing characteristic in defining hate crimes under section 318, and also as aggravating circumstances to be taken into consideration at sentencing under section 718.2 of the Criminal Code.

Bill C-279 will rewrite the purpose of the Canadian Human Rights Act to include gender identity. I want to read the purpose of that act and add in gender identity, because it is such a powerful statement about fundamental Canadian values of equality and justice.

The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, [gender identity,] marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

Hon. Pierre Claude Nolin (The Hon. the Acting Speaker): Honourable senators, it is now six o'clock. Is there agreement that I do not see the clock?

Hon. Senators: Agreed.

The Hon. the Acting Speaker: We do not see the clock. Senator Mitchell, please continue.

Senator Mitchell: Honourable senators, this change precipitated by Bill C-279 therefore hinges on the concept of gender identity, which it clearly defines:

. . . "gender identity'' means, in respect of an individual, the individual's deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.

Let me take this further. There is a good deal of confusion about this concept of gender identity and the implications of gender identity, though in reality this concept is not all that complicated or complex; it is just not something that many of us are fully aware of.

All of us have a gender identity. The concept of gender identity in the context of rights and the context of this bill addresses the lives of people who suffer often profound discrimination and sometimes violent abuse because of their gender identity. This would include, among others, people who are transgender, transsexual, girls who are tomboys, and women who dress or present themselves in a more masculine fashion and vice versa for men.

This bill will undoubtedly have the greatest impact in protecting transgender and transsexual people, who are the focus of some of the worst discrimination and abuse suffered by the people who fall into our category of gender identity.

Who are transgender or transsexual people? I think many of us often think of transgender people as cross-dressers — men who dress as women and women who dress as men. This is probably one of the most frequent misconceptions. Cross-dressers can often be quite comfortable with their gender and their sexual orientation and simply enjoy dressing in a way that many would see as different or inconsistent with what many hold as social norms for their gender.

On the other hand, a transgender or transsexual person is someone who has moved from the gender assigned to them at birth to the one that they experience in their heart and soul. They dress accordingly, and this is not therefore cross-dressing. For some, being expected to wear clothes associated with their birth sex has always felt wrong, like forced cross-dressing.

For those who say this definition or concept is not reflected, it is reflected in a number of areas of definition, and one is as stated by the Canadian Psychological Association in October 2010:

The Canadian Psychological Association affirms that all adolescent and adult persons have the right to define their own gender identity regardless of chromosomal sex, genitalia, assigned birth sex, or initial gender role. Moreover, all adolescent and adult persons have the right to free expression of their self-defined gender identity.

The Canadian Psychological Association opposes stereotyping, prejudice, and discrimination on the basis of chromosomal sex, genitalia, assigned birth sex, or initial gender role, or on the basis of a self-defined gender identity or the expression thereof in exercising all basic human rights.

A transgender person simply knows that they are of a gender different from the one assigned them at birth and as indicated by the physical and physiological features of their body. In fact, data from the Trans PULSE Project indicates that roughly 60 per cent of trans people are aware that their gender does not match their body before they reached the age of 10. Over 80 per cent have this deeply felt awareness prior to the age of 19. No one knows conclusively why this is the case; it just is.

Transgender and transsexual people do not make it up and they do not fake it. It is not a choice. Why would any people want to inflict upon themselves society's stigma and what follows from it by voluntarily becoming transgender? Those problems are alienation; profound lack of acceptance; fear of bullying, violence, rape and economic discrimination; discrimination in the workforce, housing and medical care; and unprecedented levels of suicide.

It seems to me that it really is unfair in some sense to question or judge something as personal and as profound as someone's appreciation of their own gender identity. Transgender and transsexual people hurt no one because of their gender identity, but they are hurt themselves relentlessly — psychologically and often seriously physically.

Oscar Wilde made a wonderful point that was quoted by MP Randall Garrison, who is the sponsor of this bill. I should point out that this bill follows on from the bill presented some years ago by Hedy Fry. Oscar Wilde's quote was: "Be yourself. Everyone else is taken.''

This bill is a step toward allowing transgender people the chance to be themselves, to be, if not absolutely and immediately accepted as they are and as they should be, then certainly not rejected, discriminated against or subjected to violence or any number of other indignities because of it.

Why is it necessary? In some senses, what I have said to this point speaks for itself, but let me go into more detail. The Ontario Human Rights Commission has noted this in a way that summarizes the case that I will build:

There are, arguably, few groups in society today who are as disadvantaged and disenfranchised as the transgendered community. Transphobia combined with the hostility of society to the very existence of transgendered people are fundamental human rights issues.


While it is not always easy to tell if someone is transgender and how many transgender people there are, estimates are that in Canada there are from one in 1,000 to one in 200 people who would consider themselves to be transgender. That is somewhere between 34,000 and 170,000 people. That range is not an insignificant number. However, even if it were far fewer, Canadians know it is in our DNA that everyone has a right to acceptance, protection and safety so that harm that transgender people endure because of other people's issues with their gender identity is the profound reason why we need this bill.

I will say it again and I want to emphasize it again: Transgender people suffer alienation profound lack of acceptance; fear of and actual bullying, sometimes on a daily basis; violence; rape; and serious economic discrimination in the workforce, as well as discrimination in housing and medical care. Research in Ontario has shown that these forms of exclusion, discrimination and violence have led to unprecedented levels of suicide, suicide ideation and suicide attempt.

Here are some telling and frightening job statistics. In recent studies, only one third of trans Ontarians were working full time and another 15 per cent had only part-time jobs. One out of every five was unemployed or on disability; one quarter were students; and 3 per cent were retired. I want to emphasize that almost 20 per cent of transgender people in Ontario at the time of this study were unemployed. That is two-and-a-half times higher than the unemployment rate generally in Ontario.

Job stability is often limited and those who choose to transition in a workplace often have serious problems in retaining their employment due to hostility either from the employer or others in the workplace. It is interesting, and this is an aside, that related to this is the problem of even getting references and academic transcripts with the correct name, pronoun and sex designation once someone has acted on their transgender identity.

Transgender people are significantly underpaid even if they can get jobs. Over 70 per cent of all transgender people are earning less than $30,000 per year. This is despite the fact that they are highly educated. Twenty-six per cent of transgender people have some post-secondary education; 38 per cent have completed post-secondary education; and 7 per cent have master's degrees or better. In total, 70 per cent of trans people have post-secondary education of some kind, up to highly sophisticated post-secondary education degrees. Yet, 70 per cent of those who are working earn less than $30,000 per year.

Rates of depressive symptoms amongst transgender Canadians are as high as two-thirds. The rate of hate crimes against transgender Canadians is very high. In fact, transgender Canadians are the group most likely to suffer hate crimes involving violence, and the incidence of this type of crime is probably under-reported because law enforcement agencies in this country do not collect statistics based on gender expression and gender identity.

Research in Ontario indicates that 20 per cent of trans people have been physically or sexually assaulted because they were transgender, and only because of that. This is very profound and disturbing. Seventy-seven per cent of trans people in Ontario reported seriously considering suicide; 43 per cent reported they had attempted suicide; and, of those who had attempted suicide, almost 70 per cent tried at age 19 or younger.

Trans youth are twice as likely as their non-trans counterparts to consider suicide. The same study indicates that those who had experienced physical or sexual assault due to being trans were twice as likely to have seriously considered suicide as those who had not had the experience of physical or sexual assault and over seven times as likely to have attempted it.

An Egale Canada survey found that 90 per cent of trans-identified youth reported hearing transphobic comments directed at them, often daily. Twenty-three per cent of those students reported hearing teachers directing transphobic comments towards them and against them. Twenty-five per cent reported having been physically harassed, and 24 per cent reported having property stolen or damaged.

We have a profound belief in equal access to health care in the Canadian identity. It is another part of our DNA. We pride ourselves on everyone having equal access to health care. However, trans Canadians find that in accessing health care — quite apart from surgeries which are not as widespread as some are led to believe — they are often denied medically necessary care by being forced to deal with the issue of their gender before they can access the service. They also suffer from poor access to psychological health care services and sometimes insensitive or hostile treatment from health care professionals based on their gender identity.

In Ontario, 21 per cent of trans people report that at some point when they needed emergency care they avoided the emergency room because of the fear of mistreatment. Clearly, no one should feel that they are safer outside a hospital during a medical emergency.

Education and the elevation of the issue are critical in the consideration of support for this bill. Some, if not most, of the discrimination these trans people suffer is rooted in ignorance and a simple lack of understanding of their circumstances among some Canadians. Canadians are not generally a mean people. We all know that in our hearts and we have consistently risen to the high road of rights issues when we grapple with them and understand them. The issue needs to be illuminated and explained, and this bill helps to shed light on this issue.

As Irwin Cotler, MP, said in the House of Commons:

The Canadian Human Rights Act is more than just an act of Parliament. It is an act of recognition, a statement of our collective values, and a document that sets out a vision of a Canada where all individuals enjoy equality of opportunity and freedom from discrimination.

As Justice La Forest of the Supreme Court of Canada said, a failure to explicitly refer to gender identity in the Canadian Human Rights Act leaves transgendered people "invisible.''

This bill educates and secures recognition of this issue in a highly visible and significant way. The debate that it has created, the foundation of understanding that it will engender in the future, and the seriousness that it imparts to crimes of violence against people on the basis of their gender identity are all significantly important in elevating and educating so that progress can be made.

Adding this feature to the hate crimes section of the Criminal Code will send a very powerful message about a discriminatory behaviour that is absolutely unacceptable. It will sustain the idea that the rights of transgender people must be recognized and respected and that transgender people must have the right to participate fully in Canadian society.

There is a range of arguments against the bill, of course, as is always the case, and I would like to address those, each in their turn.

One argument is that gender identity inclusion in the bill is not necessary since it is already covered in human rights legislation and in the Criminal Code under sex and disability, and some would also say under sexual orientation. As I say, if that is the case, then there is absolutely no harm, one would think, in simply adding belts to suspenders to make the protections even stronger and elevating and thereby educating on the issue.

Second, gender identity is not a disability. It is what someone simply is. It is who they are. The only thing that remotely "disables'' trans people is the discrimination, violence and bullying that inhibits them from having full, safe and fulfilling lives in Canadian society.

Further, sexual orientation does not cover trans people because gender is very distinct from sexual orientation. If a transgender man, who has been born a woman but lives as a heterosexual man, is beaten for who he is, it is not a question of sexual orientation to him. In order to make that designation apply, he would literally have to lie about who he is.

That gender identity is not well defined in the bill is another argument that is used. I believe it to be a spurious argument. It is defined in the bill, as I pointed out earlier in reading the definition in the bill, and it is defined in many other places: medical, legal and psychological. Concessions and compromise were made in the house already on the issue of definitions. The designations of gender expression and gender variance were not included in the bill that has come to us in favour of a clear definition of gender identity.


In fact, gender expression was removed from the bill specifically because it had been there due to concerns about definitions and scope, prominently elevated, I think, by MP Shelley Glover who on receiving that amendment to the bill then voted for it.

This is, therefore, a particularly focused bill, focused on a well-accepted and clearly defined concept of gender identity. The act's definition of gender identity has not been made up in a vacuum nor is it new. The human rights commissions and courts have done much to define it and, in fact, the Ontario Human Rights Commission has defined it in exactly the same way as it is has been entered into Bill C-279.

Gender identity is linked to a person's sense of self, and a sense of being male or female. A person's gender identity is different from his or her sexual orientation, in turn, which is also protected under the code, but people's gender identity may be different from their birth-assigned sex.

There is also the default to disaster defence. That is the defence against this bill that it will lead to the bathroom concern, that somehow men will be able to dress up as women and enter a women's washroom in order to watch or assault women and use this bill as a defence.

In fact, this is simply and utterly not the case. Trans people are way more likely to suffer assault than ever to perpetrate it. Randall Garrison, the author of the bill in the house, contacted the jurisdictions in the United States that have had these provisions in place for extended periods of time. California, Iowa, and the State of Washington replied to him. All of them reported that there had been no instances of attempts to use the protections for transgendered people for illegal or illegitimate purposes. There have been no instances — zero, none.

We only need to consider that any such activity, as is contemplated in this bathroom defence, or bathroom concern, would be so clearly criminal that no court would absolve it on this basis. Put another way, why would we risk discrimination against any law-abiding person on the basis of their gender identity because someone who may not even be transgender might dress up like a woman and undertake a criminal act in a woman's washroom? No one should be held hostage to the actions of someone else, certainly someone whom they do not even know or have the remotest possibility of influencing. Catch and convict those who do perpetrate criminal activities and protect the rest.

There is also this zero sum game concern, that this is a corollary to the disaster defence, that if the protections in this bill are given to transgender people, everyone else will lose, but it simply is not the case. It simply defies logic that the gender identity of a transgender person can in any way diminish someone else's life, unless someone — as I say, a man dressing up as a woman, whatever their gender identity is — would perpetrate in a criminal way, and that would be clearly criminal and clearly distinct from what would be protected in this act.

There is a point that was made in a letter that many of us are receiving from a certain group. I say that because the letters are always the same. The concern expressed there, again, in an argument against Bill C-279 is that somehow the definition is too subjective. It relates to a subjective state of mind, a sense of self, and how we could ever enshrine that or capture that in law. Of course, we accept absolutely outright that you cannot discriminate against people on the basis of their religion. Well, that, too, is something that is very, very deeply subjective and deeply personal, and we have had no problem defining discrimination against people on the basis of their religion. Not only that, and this may be an esoteric point, but it is not really the definition of how the transgender person feels about his or her gender identity; it is how the person who is discriminating or even being violent against that person feels about whatever it is he or she thinks that identity is. Of course, that raises a question that so often is addressed and handled in law, and that is the question of intention and of state of mind. Certainly, in the Criminal Code, there is a defence between certain levels of criminal activity based upon whether you had intention or not. The courts are always defining intention.

I set aside the argument that somehow this is too subjective. It is not. It is clearly defined within the law, it is clearly defined within the procedures of law and it will not and has not been a problem.

There is also the fear that the inclusion of gender identity in Canada's hate speech laws may spark vexatious litigation, thereby creating a chill on free expression, but again, that is without foundation. On the contrary, the Supreme Court of Canada has recently narrowed limitations on hate speech in the Whatcott case to focus on the kind of speech that promotes hatred, specifically leading to discrimination, without limiting less intense and less pernicious forms of speech.

The Criminal Code has a built-in filtering mechanism, in addition, that requires the Attorney General's consent for prosecutions for the wilful promotion of hatred under subsection 319(2). Clearly, there is a review of whether a prosecution would be warranted or ruled vexatious.

In conclusion, I would like to ask this question: Why do we not just fast-forward this? We are going to do this one day anyway. History tells us that we go through this cycle of delay with so many of these issues. It took 75 years to get women the vote and then probably 100 years to get Aboriginal people the vote.

Notably, and most recently, we can see this kind of cycle of delay and overcoming argument after argument with gay marriage, and the default to disaster position was trotted out in that debate by opponents as well. It would ruin the family and the institution of marriage — this went on for years — and helped delay the passage of gay marriage legislation, and, of course, gay marriage has damaged neither marriage nor the family. It has enriched our society, it has enriched our culture and it has enriched many families and the lives of many people.

I remember speaking to an MP recently who voted against gay marriage, and he said to me: You know, of all the things I have done in politics, the one I really regret is that I did not vote for gay marriage. That is just short years after having voted against it.

It is instructive to note that 100 years ago a woman wearing pants would have been highly scandalous and how that has changed. Anything that makes for a safer, more accepting society inevitably makes for a better place to raise a family and build a marriage, create a strong community and create a healthier society. We took decades to accord the vote to women and Aboriginal peoples, to get to gay marriage and so many other steps we have taken along, confronting the frontiers of the equality of rights issues, but we always, in the end, get to the right thing. Why do we not just fast-forward past the arguments now, past the barriers, past the obstacles, avoid at least some of the pain and anguish otherwise to be suffered by trans people in the future if this is not passed and give this recognition and protection to these Canadians who are asking us for our help?

At the core of this issue, in many respects, is bullying, and a defence against bullying, elevating once again that it is wrong, needs to be dealt with and understood. We are all suffering the tragedy with the Parsons family, whose daughter committed suicide recently because of bullying. She suffered untold, unacceptable, horrible bullying and worse, and, not to diminish her experience, but trans people experience very much the same thing frequently, often on a daily basis. It is bullying, and it results in the kind of event that has happened to the Parsons family and that young woman.

What we know is that societies have to confront issues of discrimination all the time, that they are richer, safer, more understanding, more loving and compassionate societies if they do that. Every time we have to confront an equality issue, there is a question of whether it is as important or significant or whether there are irrefutable arguments against it, but that is simply a condition of these issues. There is disagreement about these based on prejudices, biases and misunderstandings, but I reiterate that we have the chance to fix this, and that in the House of Commons they crossed party lines to do that, and 16 members of Parliament on the Conservative side voted with the opposition. Two of them, at least, were cabinet ministers. As I have been polling members of the Senate, I have had a tremendous response, and, to this point, I have spoken to or had email conversations exchanged with 13. I have had 10 say, yes, they will support the bill; I have had 2 say they want to consider it further; and I have had 1 say he is concerned that gender expression is not in the bill, and it is not.


I think the prospect is for us to work together on both sides, all parties in the Senate, to do something that is immeasurably important that will elevate our society once again, that will provide leadership on rights, equality, justice and fairness in Canada and in the world. It will be something we can simply give to friends, neighbours and colleagues who are transgendered people who are asking us for our help. I am asking honourable senators to vote for Bill C-279 and give them that help.

Hon. Mobina S. B. Jaffer: I would like to ask Senator Mitchell a question, if he will accept it.

Senator Mitchell: Yes.

Senator Jaffer: When I came to the Senate, I understood we had two mandates; one was to allow national unity and the second was to protect minority rights. The bill before us today is really a natural evolution of the rights of minorities. The honourable senator was speaking about women and Aboriginal rights. Sometimes we take those for granted now because it has been a few years, but there are many people in our society who are still suffering discrimination.

I would like the honourable senator's opinion. Is it not the role of the Senate, and the responsibility of every senator, to protect the rights of all Canadians?

Senator Mitchell: I thank the honourable senator for pointing that out and emphasizing it. At one point, in developing my speech, I was contemplating beginning to name great senators, many of whom are here today and have fought, defended and been leaders in the fight for equality rights. Then I realized it would just take too long to do it. We have accepted that role historically. The Senate was established for those two reasons.

Now, as they say, the crunch has come, and we have the chance to exercise and fulfill that responsibility in a significant way that will once again enhance, augment and elevate our society. It is a wonderful opportunity, one of the opportunities you get to do the right thing and a wonderful thing when you are a senator.

(On motion of Senator Carignan, debate adjourned.)

(The Senate adjourned until Wednesday, April 17, 2013, at 1:30 p.m.)

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