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Debates of the Senate (Hansard)

2nd Session, 41st Parliament,
Volume 149, Issue 31

Tuesday, February 4, 2014
The Honourable Noël A. Kinsella, Speaker


Tuesday, February 4, 2014

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



Allister MacGillivray, C.M.

Congratulations on Investiture in Order of Canada

Hon. Terry M. Mercer: Honourable senators, in December, one of Canada's best-known and loved singer-songwriters and authors was invested in the Order of Canada. Cape Bretoner Allister MacGillivray has written many songs and books about the way of life in rural Nova Scotia, especially Cape Breton coal-mining and fisher communities.

He started at a very young age and has since travelled the world with notable names like Ryan's Fancy and John Allan Cameron, with whom he appeared at the Grand Ole Opry in Nashville in 1970. You may recognize many of his popular songs, like the "Coal Town Road," "Sea People" and "Kitty Bawn O'Brien." These songs have been covered by Anne Murray, Foster & Allen, Denny Doherty and the coal-miner chorus, Men of the Deeps.

However, honourable senators, the one song you will definitely know is "Song for the Mira," which has been translated into several languages and is available on more than 250 recordings. If Senator Buchanan was only here to help me with this next part of my statement as he was known to sing "Song for the Mira" on many occasions — indeed he dragged me onto a stage or two over the years to accompany him — so here goes:

Out on the Mira one warm afternoon,
Old men go fishing with black line and spoon
And if they catch nothing, they'll never complain,
I wish I was with them again.
Can you imagine a piece of the universe more fit for princes and kings?
I'll give you ten of your cities
For Marion Bridge and the pleasure it brings.

Honourable senators, congratulations to Allister McGillivray on the well-earned honour of being invested in the Order of Canada. Artists like Allister MacGillivray continue to tell the stories of our Maritime way of life. Our history and culture have been so blessed, and we can only hope that future artists will look to people like Allister MacGillivray for inspiration.

Winter Olympics 2014

Hon. Nancy Greene Raine: Honourable senators, later this week the Sochi Olympics get under way and the world will once again watch what I consider to be the greatest reality show on earth. While some media may focus on the non-sport aspects of the Olympics, I prefer to speak today about what is being done to field Canada's best-ever Olympic team.

I am sure you all remember the anticipation we felt on the eve of the Vancouver Olympics, nervously watching as our country was about to show what we could do in two distinct efforts. We wanted to host the best-ever Olympic Winter Games, and we really wanted our athletes to win medals at home. I remember how thrilling it was to watch Alexandre Bilodeau win that elusive first gold medal on Canadian soil. It was great that he did it so early in the games as it inspired other Canadian athletes, who rose to the occasion and gave Canada a record number of gold medals, more than any other nation.

Winning all those medals in 2010 was not a fluke. It was the result of a serious, well-designed program called Own the Podium, which had been set in motion some eight years earlier. The publicly funded, high-performance sports program was augmented by record-breaking corporate support — and the results speak for themselves.

Now, four years later, what should Canadians expect at Sochi? First, I can tell you that our athletes are committed and more convinced than ever that Canada can and should be a major player in winter sports. We are a winter country, and at Vancouver we proved that we can be the best in the world. I know that our athletes are hungry to do even better than in 2010 and that the preparation for the Vancouver Games will have a residual effect. In following World Cup results this season, I've seen podium performances on a regular basis in most Olympic sports. But the competition is tougher than ever.

Honorable Senators, I am very pleased that our government continues to support Own the Podium, recognizing the significant and worthwhile value of our Olympians as both role models and ambassadors.

I'm always an optimist, and I am confident that Canadian athletes who are medal contenders will do us proud again at Sochi. You should know, however, that it has not been easy for them. Most sports governing bodies have seen a significant post-Olympic decline in corporate sponsorships, and many national team athletes must pay part of their training costs. Very few Olympians have lucrative personal sponsorships. Many of them have personal fundraising campaigns going on or rely on the bank of mom and dad.


So, as we watch our Canadian athletes compete at Sochi, let us appreciate what sacrifices they have made and how difficult their job is as they put it all on the line. When we bask in their glory, let us all look for ways to support the next generation, the junior athletes all across the country, so that they too can find a way to make their dreams come true.


Le Conseil communauté en santé du Manitoba

Hon. Maria Chaput: Honourable senators, on January 8, 2014, I had the pleasure of meeting with representatives of the Conseil communauté en santé du Manitoba, the CCS, which was created in 2002.

They presented the provincial vision for 2020 for organizing French-language health and social services in Manitoba.

Their vision statement reads as follows:

Care without borders, an integrated network of ongoing quality primary health care and social services in French to better serve all French-speaking Manitobans.

The focus is on wellness, health promotion and primary health care through collaboration, partnership and networking.

An "Accès Santé" model will be developed as a point of entry to French-language services in Winnipeg. The CCS also plans to develop an access model for its French-language services in rural Manitoba.

The work is done cooperatively and brings the partners together around the same table in order to identify problems and come up with the most practical and realistic solutions.

I marvel at the extraordinary work that has been done by the Conseil communauté en santé du Manitoba since 2002. This agency has succeeded in bringing together health partners to work on priority issues in Manitoba that affect French-language health and social services in the province.

I want to extend my heartfelt thanks to all those who have contributed to the success of the CCS since 2002.

I especially want to congratulate and thank the president, Émile Huberdeau, and the executive director, Annie Bédard, who are currently heading up the CCS.

What a great success. Manitoba's francophone community is indebted to you.

Notre-Dame-de-Québec Basilica

Three Hundred and Fiftieth Anniversary

Hon. Suzanne Fortin-Duplessis: Honourable senators, today I rise to mark a very special event that took place on December 8 at the Notre-Dame-de-Québec Basilica. I had the great privilege of attending the ceremony marking the opening of the holy door by Archbishop Gérald Cyprien Lacroix and the start of the Notre-Dame-de-Québec parish's 350th anniversary celebrations.

Founded on September 15, 1664, by Monsignor François de Laval, the Notre-Dame-de-Québec parish is the oldest Catholic parish in the Americas. The celebration of the parish's jubilee can be an inspiration to all, believers and non-believers alike, and an invitation to greater social justice.

Throughout 2014, many events will take place at the basilica to commemorate the parish's jubilee, and everyone is invited. Over 200,000 participants are expected, six concerts have been scheduled, and nearly 400 artists will perform thanks to the work of some 60 volunteers.

The importance of the holy door in Quebec City cannot be overstated. This, the first and only holy door in the Americas, was cut into the wall of the church itself and is the seventh of its kind in the world. There are four holy doors in Rome, one in Ars and one in Compostela, so we are really lucky to have one of these deeply symbolic doors here in Canada. Passing through the holy door is an act of indulgence and humility. Christians and non-Christians alike may pass through the door.

After the ceremony, on January 12, Monsignor Lacroix, Archbishop of Quebec, was elevated to the rank of cardinal by His Holiness Pope Francis. Monsignor Lacroix will enter the College of Cardinals on February 22.

Honourable senators, join me in congratulating him, because this appointment recognizes Archbishop Lacroix's great contribution to the Canadian ecclesiastical community. As the third-youngest Roman Catholic cardinal, Archbishop Lacroix will be a breath of fresh air, and I am certain that he will serve in this capacity with all the dedication for which he is known. A humble and charitable man, Archbishop Lacroix is recognized by his peers for his kindness and his immense generosity towards the less fortunate.

Honourable senators, I invite you to attend the celebrations marking the 350th anniversary of Notre-Dame-de-Québec parish, which will be held throughout 2014, and also to go and see the marvellous holy door.


Mental Health Strategy

Hon. Catherine S. Callbeck: Honourable senators, in May 2012, the Mental Health Commission of Canada released the country's very first national mental health strategy. The report was called Changing Directions, Changing Lives. It made more than 100 recommendations for stakeholders at all levels to improve the mental health system in this country. It is a blueprint for people to work together — governments, organizations, individuals, service providers, researchers — to improve the mental health care system in this country.

The former federal health minister put out a news release on the day of the launch and praised the Mental Health Commission for its work in developing this country's first-ever mental health strategy. Nearly two years later, very little has happened. While there has been some limited investment, such as an extension of funding for the At Home project and the allocation of funds to improve data collection and reporting, there has been no concerted effort by the federal government to take a leadership role in implementing the Mental Health Commission's recommendations as a whole.

Sadly, every day we can see how necessary this national strategy is. The Mental Health Commission tells us that 43 per cent of people in Canada will experience a mental health problem or illness over the course of their lifetime. Right now, about 1 million children and adolescents in Canada are living with mental health problems or illnesses. We have seniors in nursing homes and long-term facilities with very high rates of mental disorders. We have Aboriginal people, homeless people and inmates who are affected by mental disorders at a much higher rate than in the general population. We lose about 4,000 people every year to suicide in this country.

This crisis requires hard work and genuine collaboration at every level. All stakeholders will need to work together to implement the recommendations put forward by the Mental Health Commission. As former Health Minister Aglukkaq said in a letter to me:

Addressing the complex issue of mental illness requires the combined efforts of all levels of government, health professionals, communities and individuals.

I urge the federal government to take an active role in leading such collaboration. I believe it's the only way to make a real difference in the fight for good mental health for all Canadians.




Statutes Repeal Act—2014 Annual Report Tabled

Hon. Yonah Martin (Deputy Leader of the Government): Honourable senators, I have the honour to table, in both official languages, the 2014 annual report pursuant to the Statutes Repeal Act.

Citizenship and Immigration

Operation of the Canadian Multiculturalism Act—2012-13 Annual Report Tabled

Hon. Yonah Martin (Deputy Leader of the Government): Honourable senators, I have the honour to table, in both official languages, the 2012-13 annual report on the operation of the Canadian Multiculturalism Act.



Business of the Senate

Notice of Motion to Change Commencement Time on Wednesdays and Thursdays and to Effect Wednesday Adjournments

Hon. Yonah Martin (Deputy Leader of the Government): Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That, during the remainder of the current session,

(a) when the Senate sits on a Wednesday or a Thursday, it shall sit at 1:30 p.m. notwithstanding rule 3-1(1);

(b) when the Senate sits on a Wednesday, it stand adjourned at the later of 4 p.m. or the end of Government Business, but no later than the time otherwise provided in the Rules, unless it has been suspended for the purpose of taking a deferred vote or has earlier adjourned;

(c) when the Senate sits past 4 p.m. on a Wednesday, committees scheduled to meet be authorized to do so, even if the Senate is then sitting, with the application of rule 12-18(1) being suspended in relation thereto; and

(d) when a vote is deferred until 5:30 p.m. on a Wednesday, the Speaker shall interrupt the proceedings, if required, immediately prior to any adjournment but no later than the time provided in paragraph (b), to suspend the sitting until 5:30 p.m. for the taking of the deferred vote, and that committees be authorized to meet during the period that the sitting is suspended.


National Defence

Communications Security Establishment Canada—Canadian Security Intelligence Service—Oversight

Hon. Wilfred P. Moore: Colleagues, my question is for the Leader of the Government in the Senate.

Yesterday we heard testimony from officials from CSEC and CSIS about their activities and adherence to their mandates and the laws of Canada. As a part of this testimony, we heard that CSEC had a spying operation at a Canadian airport in 2012 in which metadata from those in the terminal was swept and picked up by CSEC.

If CSEC is prohibited from spying on Canadian citizens, why did they choose to carry out this spying operation on Canadian soil, at a Canadian airport, which is against their mandate?


Hon. Claude Carignan (Leader of the Government): Thank you for your question, senator.

As you know, CSIS's mandate is to protect Canadians, and these organizations' activities are regularly reviewed by what are known as "independent watchdogs," who have always found them to be operating in accordance with the law.

I would also like to read a statement from the centre's commissioner, the Honourable Jean-Pierre Plouffe, who said last week,

As Commissioner, I am independent of the government and of CSEC, and as such do not take direction from any minister of the crown or from CSEC.

In light of the most recent unauthorized disclosure of classified information of the Communications Security Establishment Canada (CSEC), I can state that I am aware of the metadata activities referred to. CSEC is only allowed to use metadata to understand the global information infrastructure, for the purpose of providing intelligence on foreign entities located outside Canada and to protect computer systems of importance to the government of Canada.

Past commissioners have reviewed CSEC metadata activities and have found them to be in compliance with the law and to be subject to comprehensive and satisfactory measures to protect the privacy of Canadians. CSEC is providing full cooperation to my office in the conduct of another ongoing in-depth review of these activities, which was formally approved in the fall of 2012. If I believe activities of CSEC may be unlawful, I am obliged to report that to the Minister of National Defence and to the Attorney General of Canada.

Therefore, Mr. Speaker, it is quite clear that the independent organization is doing its job and ensuring that CSEC's activities are in accordance with the law. There has been no violation of the law, and no Canadians have been targeted, contrary to the allegations.


Senator Moore: The Privacy Commissioner of Canada released a report on January 28, last month, which makes 10 recommendations that would strengthen privacy laws in Canada. Among these is a call to reform existing legislation to curb the "over-collection of personal data" by our federal security intelligence services.

Would you not agree that, in light of CSEC's Canadian airport operation, it's time to make some serious changes to Canada's privacy legislation to prevent abuse and to reassure Canadians that this government is willing to protect their privacy?


Senator Carignan: Mr. Speaker, independent organizations already oversee the activities of our country's security agency, and they regularly report that the agency complies with Canadian laws, that everything is done within the law and that all the mechanisms are in place to ensure that there is respect for the law and for the privacy of Canadians.


Senator Moore: Leader, the Ontario Privacy Commissioner, Ms. Ann Cavoukian, said last week that Canada needs an independent watchdog reporting to Parliament to prevent breaches of law by CSEC. I thought her statement was very profound. She said: "Without privacy, you cannot have freedom."

She believes that we cannot know if our security agencies are operating within the law without proper parliamentary oversight. Would you agree that it's now time to have an agency that reviews the activities of these intelligence forces within Canada and reports to Parliament?


Senator Carignan: Senator Moore, as I already explained, there is an independent watchdog that ensures that the agency is complying with the law. I would like to share a quote from the 2012-13 report, in which the commissioner praised the heads of CSEC, saying that they:

...have spared no effort to instill within CSEC a culture of respect for the law and for the privacy of Canadians.

As you can see, everything is in place to ensure that there is respect for the law and for the privacy of Canadians.


Hon. Hugh Segal: I wonder if I could refer the Leader of the Government in the Senate to the testimony which took place yesterday before a committee of this chamber in which, I think it's fair to say, the director general of CSEC indicated that the nature of the activity that was being pursued by his agency with respect to the monitoring of Wi-Fi at Canadian airports was dealt with through a secret directive by the minister. He made it clear that secret directives have been issued by previous ministers of previous governments, and I think we all understand that national security does require a measure of secrecy in some of these matters.


I have no difficulty, and neither do you, with the testimony that was given yesterday. I have no difficulty, in terms of trust, relative to either the head of CSIS, the head of CSEC or the senior adviser to the Prime Minister of Canada. I think they are all distinguished citizens doing great work to keep Canadians safe. But Ronald Reagan, after the negotiations in Reykjavik with Gorbachev, when he came under criticism for negotiating a nuclear disarmament process with the Soviets, said, "Trust, but verify." President Obama said the same thing with respect to the Iranians in the most recent negotiations: "Trust, but verify."

CSEC is overseen by SIRC: complaint driven, retroactive and part time. The CSEC commissioner you made reference to, Mr. Justice Plouffe, a distinguished judge who has served well, has to deal with the fact that Robert Décary, his predecessor, said he was in no position to judge the lawfulness of what went on in CSEC.

We are unlike every other NATO country — the United States, the United Kingdom, France, Germany, Belgium, Italy, the Netherlands, and even our Australian and Israeli friends — who have independent, statutory, legislative oversight. Canada is an outlier. We do not have that.

Does it cause him any concern, as an officer and a leader in this place, that alone amongst the democracies of NATO, Canada has no legislative, statutory oversight?


Senator Carignan: Honourable senators, as I explained earlier, we have an independent commissioner to do that work. Are you questioning his independence?

The commissioner's statement is clear. He said:

In light of the most recent unauthorized disclosure of classified information of the Communications Security Establishment Canada (CSEC), I can state that I am aware of the metadata activities referred to.

The law prohibits CSEC from directing its activities at Canadians. In accordance with its mandate, CSEC is only allowed to use metadata to understand the global information infrastructure, for the purpose of providing intelligence on foreign entities located outside Canada and to protect computer systems of importance to the government of Canada. If I believe activities of CSEC may be unlawful, I am obliged to report that to the Minister of National Defence and to the Attorney General of Canada.

He went on to say that past commissioners have also reviewed the activities and have found that they are in compliance with the law and that the privacy of Canadians is protected. Everything is done within the law.


Senator Moore: Leader, we also learned that CSEC received almost 300 requests from Canada's domestic security agencies between 2009 and 2012. The officials play down their activities domestically; however, this domestic spying appears to be happening as a matter of course. The Privacy Commissioner of Canada recommended in her report that CSEC disclose annually the amount of cooperation that exists between Canada's security agencies.

It is clear, leader, that the CSEC operation is being used by other agencies to obtain information that they cannot obtain on their own and under their own mandates. It is highly improper. They are going through the back door.

Again, would you not agree that it's time for a parliamentary body to oversee the work of these agencies?


Senator Carignan: As I explained, the current CSEC commissioner, a former judge of the Court Martial Appeal Court of Canada, the Honourable Jean-Pierre Plouffe, provides independent oversight, which includes conducting independent audits, to ensure that CSEC's activities comply with the law.

I would like to again quote from the 2012-13 report, which, as I said earlier, clearly states that CSEC has

spared no effort to instill...a culture of respect for the law and for the privacy of Canadians.


Senator Moore: You mentioned, leader, that the spying work of CSEC is monitored by an independent body and that the report of the commissioner in 2012 said there is no violation of Canadian law, and you quoted that. Let me quote something to you. It's called the Constitution Act, 1982:

Fundamental Freedoms:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

Let me suggest to you, leader, that these fundamental freedoms of Canadians are being violated left, right and centre. It is one thing for an agency to spy on its citizens and say, "We don't know what they said; we just have their phone numbers; we just have the metadata," which means that they know the parties to whom they are communicating.

Their right of association is being violated. It's not just the privacy of what is going on. There is more to this than that. The right of freedom of association is being violated. If the commissioner, in 2012, really believed what he said, we should be seriously taking a look at him and what he is doing, because he is condoning the violation of our Charter of Rights and Freedoms. Surely now you must agree that there should be parliamentary oversight of these agencies and what they are doing and how they are subverting the rights of Canadians.


Senator Carignan: Honourable senators, CSEC's goal is to protect Canadians and, as I explained, the organization's activities are regularly reviewed by independent watchdogs that have always found that CSEC operates in accordance with the law.

Once again, I would like to quote from the 2012-13 report, in which the commissioner sings the praises of the CSEC chiefs, who:

...have spared no effort to instill within CSEC a culture of respect for the law and for the privacy of Canadians.

Honourable senators, as a Canadian, I find it very reassuring that there are organizations whose mission is to protect my life and my security and that there is an organization—independent watchdogs—to maintain the balance between my rights and protection of my privacy.


Hon. Grant Mitchell: Yesterday in committee, one of the witnesses, the chief of CSIS, Mr. Coulombe, made a powerful point. He said — referring to himself, and I paraphrase — "We can't do our job without the trust of Canadians." That was in the context of the Wi-Fi surveillance issue that has arisen recently, which clearly has undermined the trust of Canadians in the intelligence community in Canada.

Trust is, in part, based upon some sense that there is oversight and some objectivity in that oversight. As Senators Segal, Moore and other colleagues have pointed out, that's at least questionable. All the processes that are in place now are actually within the government structure. The cabinet is the only director of policy. There is no outside director of policy. In fact, the head of CSEC reports directly to the minister, giving the minister huge power behind closed doors, top secret, with no real sunlight on that process whatsoever.

Would it not be reasonable to expect and to assume that trust on the part of Canadians in the intelligence community in Canada would be greatly, vastly enhanced by the establishment of a parliamentary oversight body that would at least be all-party and that would report directly to Parliament?



Senator Carignan: Parliament has already passed a bill to govern Communications Security Establishment Canada and legislative measures to protect Canadians' privacy. CSEC's activities are reviewed by an independent commissioner. As he noted in his 2011-12 report, CSEC focuses on foreign intelligence. In that report, the commissioner emphasized the fact that all of CSEC's activities were authorized and conducted in accordance with the law, which is important to reassure Canadians and maintain their trust in the agency.

International Trade

Canada-European Union Comprehensive Economic and Trade Agreement

Hon. Pierrette Ringuette: My question is for the Leader of the Government in the Senate. Last October, when we were occupied with rather difficult matters, the government announced that it had concluded a free trade agreement with the European Union. That was almost four months ago.

When will the government and you table the official agreement in this chamber?

Hon. Claude Carignan (Leader of the Government): Thank you, senator, for your question. I am pleased that you acknowledged the importance of that agreement, which is an historic agreement that will create thousands of jobs for Canadians and give Canadian companies access to half a billion new clients. The agreement will also open up new markets to Canadian exporters throughout Europe, which will translate into significant spinoffs, jobs and all sorts of opportunities for Canadians. The benefits of this agreement are equivalent to the creation of some 80,000 new jobs and a $1,000 increase in annual income per Canadian household. What is more, 98 per cent of all EU tariffs will be eliminated the day the agreement comes into effect.

I understand you are in a rush to have the legal texts tabled. We are waiting for the final texts to be completed. If memory serves, I believe they have to be translated into 28 languages. As soon as the final texts are available, they will be tabled and made public as soon as possible.

Senator Ringuette: Senator, I understand that the European Union needs to translate documents into 28 languages. However, in Canada, we would be happy to have them in two languages, our two official languages. It has been three months since the announcement was made, and I was hoping to have the documents earlier.

However, even if you cannot give us a date, let me point out the significant impact this will have on cheese imports, especially in Canada's rural areas. You know that our dairy and cheese producers will be seriously affected by this agreement.

By comparison, with both the proposed free trade agreement with the European Union and the current agreement between Canada and Mexico, Canada is allowing over 9 per cent of dairy products, including cheese, into our market, whereas the European Union is allowing only 1 per cent and the United States, 2.5 per cent.

The fundamental question is this: If the agreement is not finalized, given the considerable impact on our dairy production, is it possible to include a transition period of at least 10 years to allow our industry to make adjustments and perhaps look for other markets?

In the European Union, people in the know are aware that the subsidies Switzerland provides to its dairy and cheese producers are substantial. However, based on our understanding of the agreement, nothing has been required from Switzerland or even Finland in order to have fair trade in the dairy sector.

I have a couple of questions, and I hope you will be able to answer at least one of them. If a final agreement is not signed—it has not yet been tabled in either chamber—could there be a transition period of at least 10 years for the sectors that are most affected, that is, dairy and cheese producers?

My second question is this: Why was Switzerland, a member of the European Union, not required to comply with the same dairy production and export conditions and the same limits on government subsidies that Canadian producers are required to comply with?

Senator Carignan: We reached the agreement in principle with the European Union and released the details of the agreement. On October 29, the Prime Minister tabled in the House of Commons the summary of the final negotiated outcomes of the Canada-European Union trade agreement. As I just explained, the lawyers are still working on the technical details and linguistic aspects.

As for supply management, here is at least one answer. You spoke about supply management, which is an important aspect. As the son of a farmer and milk producer, this is a matter to which I have paid close attention.

Our government has always defended the Canadian supply management system, and we will continue to defend it in this agreement.

There has been no change in the three pillars of the national supply management system. We will monitor the effects of this historic agreement on the revenues of dairy producers and, if production levels are negatively affected, producers will receive financial assistance, as the minister has already announced. This agreement confirms once again that our government will continue to defend and promote the Canadian supply management system.

You need not worry about this government's desire to defend supply management. I don't know if that reassures you, but I hope so.

Senator Ringuette: No, senator, you have not reassured me, because it is one thing to defend or say you are defending the supply management system in the dairy industry, but it is quite another thing to accept the terms of a free trade agreement whereby certain parties, as in the example I gave earlier regarding Switzerland and Finland, have systems based entirely on government subsidies for their production. Why did Canada agree to that? When it comes to cheese and dairy production, why did Canada agree to allow Swiss and Finnish producers to continue to benefit from government subsidies, when our producers receive no subsidies from the Canadian government through the supply management system?


Senator Carignan: Senator Ringuette, as you yourself said, this is an historic agreement that will create thousands of jobs for Canadians, not to mention the fact that Canadian businesses will have access to half a billion new customers. It will also open European markets up to Canadian businesses and result in significant spinoffs in terms of jobs and opportunities for all Canadians. That is why our government has made a firm commitment to continue to defend our supply management system, specifically with respect to cheese producers, and if these historic agreements have a negative impact on the revenues of dairy farmers and on production levels, the farmers will be financially compensated, to help them through this transition period.

Senator Ringuette: The Dairy Farmers of Canada have said that they will lose 2.2 per cent of their current milk production and at least 4 per cent when it comes to cheese. On average, every dairy farmer will see a significant decrease in revenue.

On top of all that, there is the fundamental question of the degree of monitoring we will have at our ports of entry to identify the goods imported under this agreement.

I have an example. We have a free trade agreement with the United States. I am told that every week, trucks filled with U.S. milk come into Canada through our port of entry at Woodstock, New Brunswick. They are bringing in U.S. milk by the truckload, even though it can be imported into Canada only for personal consumption. Nevertheless, this happens every week. There is no monitoring. How can dairy farmers have faith in the agreement and in the degree of monitoring you will provide?

Senator Carignan: As I said, the three pillars of our national supply management system remain unchanged, and the government is committed to ensuring that dairy farmers will receive financial compensation if their revenues or production levels are negatively affected by this historic agreement.



Financial Administration Act

Bill to Amend—Second Reading—Order Stands

On the Order:

Resuming debate on the motion of the Honourable Senator Moore, seconded by the Honourable Senator Day, for the second reading of Bill S-204, An Act to amend the Financial Administration Act (borrowing of money).

Hon. Joseph A. Day: Honourable senators, I haven't had a chance to speak to Senator Martin with respect to Item No. 11, but I do have an interest in the subject matter and had intended to speak on it. I note it's at 14 days.

I'm wondering, first of all, if Senator Martin is intending to speak and would like to reset the clock, or may I ask that it be adjourned in my name? It's in Senator Martin's name now, and if the senator has an intention to speak, then I would encourage honourable senators to allow it to be adjourned in her name.

Hon. Yonah Martin (Deputy Leader of the Government): Yes, I'm aware that it is at day 14. Thank you for asking, Senator Day.

I will ensure that I look at this carefully and for tomorrow.

(Order stands.)

Canadian Commission on Mental Health and Justice Bill

Second Reading—Debate Adjourned

Hon. James S. Cowan (Leader of the Opposition) moved second reading of Bill S-208, An Act to establish the Canadian Commission on Mental Health and Justice.

He said: Honourable senators, I intend to speak to this matter. Other events have consumed my attention, and I'm still working on my notes. I would ask that I take the adjournment for the balance of my time.

(On motion of Senator Cowan, debate adjourned.)

Criminal Code

Bill to Amend—Second Reading—Debate Adjourned

Hon. Pierre-Hugues Boisvenu moved second reading of Bill C-452, An Act to amend the Criminal Code (exploitation and trafficking in persons).

He said: Honourable senators, it is a great honour for me to present to this chamber Bill C-452. The purpose is to help victims of human trafficking obtain justice and to ensure they are better protected.


I want to thank independent MP Maria Mourani for championing this bill in the other place, where it was passed unanimously.

There are three specific steps involved in human trafficking: the recruitment, transportation and harbouring of another person for the specific purpose of exploiting that person — including sexually — or using that person for forced labour.


Any one of those steps is considered a human trafficking offence.

Before talking about the bill, I would like to provide a brief overview of human trafficking in Canada. Unfortunately, it is a significant problem in our country and in Quebec in particular. That is why, on December 9, 2013, the Minister of Public Safety, Steven Blaney, announced that the RCMP would set up a special squad to fight human trafficking.

In Canada, it is estimated that between 80 and 90 per cent of the victims of trafficking are destined for the sex industry. Canada is also considered a tourist destination: not just conventional tourism, but also sex tourism. Our lax laws tend to attract many criminals, and their victims remain silent.

Unfortunately and contrary to what one might think this type of criminal activity does not just happen in developing countries. Criminal Intelligence Service Canada indicates in its 2001 report that, in Canada, the average age of entry into prostitution is 14.


In Canada, the majority of human trafficking victims are women between the ages of 12 and 25. These statistics are more than 10 years old. Today, victims are even younger. Here is an example.


Two years ago, I met with a group of people in Montérégie, south of Montreal, who work with young girls in difficulty. I was surprised no, that word is not quite strong enough I was astounded and stunned to hear that these professionals were monitoring nearly 200 young girls who were prostituting themselves, often in order to pay off drug debts. We are talking about 200 young girls who will likely vanish without a trace in the coming years because they will be sent to other cities to be sexually exploited.

According to the 2004 figures from the United States Department of State, every year an estimated 1,500 to 2,000 people are victims of human trafficking in Canada and are brought to the United States.


It is estimated that, every year, traffickers bring approximately 600 women and children into Canada to service the Canadian sex industry.


This odious trade is dominated by organized crime, but street gangs have become new players in recent years. The Montreal police service, the RCMP and other police forces in Canada have declared human trafficking to be one of their priorities in the fight against crime.

It is thought that since the end of the 1990s, street gang members have transitioned from small-time recruiters to high-level pimps, specializing in child prostitution of young girls, mostly between the ages of 11 and 18. A girl can bring in around $280,000 a year for her pimp. If we do the math, 20 girls could bring in around $6 million a year for a pimp. Now imagine these 200 young girls from Montreal's South Shore who have been exploited in this way. We are talking about hundreds of millions of dollars. Human trafficking is among the three most lucrative organized crime activities.


In fact, global revenues generated by this crime are estimated at some $10 billion U.S. each year.


The crimes committed by these people — whom I would describe as slavers — are very serious. Victims are always tortured, confined, raped and forced into prostitution. Sometimes they disappear and are simply murdered. It is important to take all of that into account.

This bill would ensure that sentences for human trafficking or procuring and associated crimes are served consecutively.


The other problem that police officers and prosecutors have identified is their ability to bring a victim to testify.


The problem experienced by these professionals in our justice system with this type of crime is that the victims do not want to testify. Why? Because they are afraid, because they have significant post-traumatic stress and they are afraid that they will be victimized again. A number of victim advocacy groups tell me this all the time. The victim should no longer bear the burden of proof.


Canada can no longer accept that only one woman out of ten reports their attackers and that 40 per cent of these women will drop their complaints during legal proceedings.


In order to encourage victims to report crimes, we are making another important change to the Criminal Code. With regard to procuring, subsection 212(3) of the Criminal Code currently provides for the reversal of the burden of proof. This same principle is reflected in this bill with subsection 279.01(3): the reversal of the burden of proof for the crime of human trafficking.

Thus, when the police have enough evidence to lay charges, they will not necessarily have to have the victim testify. The reversal of the burden of proof for procuring will be applied to human trafficking.


The pimp would have to prove that he is not living on the avails of the exploitation of another person, which would save the victim from having to testify.


Another important aspect of this bill deals with the forfeiture of proceeds of crime. As I was saying earlier, a lot of money is made from human trafficking. This crime pays for two reasons: a girl can bring in a lot of money for a pimp and it is not very likely that she will report him. The pimp does not have to do a lot or spend a lot of money to operate his business.

At present, section 462.37 of the Criminal Code on the forfeiture of proceeds of crime allows for any goods criminally obtained to be forfeited in the case of any criminal organization offences punishable by sentences of five years or more and any offences under section 5, 6 or 7 of the Controlled Drugs and Substances Act.

Human trafficking and procuring offences will also be part of that section from now on. The bill adds those two provisions to section 462.37.


To conclude, I would like to ask you, honourable senators, to do something meaningful for victims of human trafficking and support this bill. We need to remember that we don't need to go to Thailand to see children as young as 12, 13 and 14 years old being trafficked.


We also need to remember that adults are unfortunately the victims of this trade as well. This trade — if we can call it that — primarily exploits women, young girls and children. I think "slavery" is a better term for it.


I believe we need to rise above partisan politics on this issue. It is our duty to reinforce the human trafficking provisions of the Criminal Code.


I want to thank my colleagues, and I urge everyone to support this bill in the name of justice, but especially in the name of humanity. Thank you.

(On motion of Senator Fraser, debate adjourned.)


Canadian Human Rights Act
Criminal Code

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Mitchell, seconded by the Honourable Senator Dyck, for the second reading of Bill C-279, An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity).

Hon. Grant Mitchell: Mr. Speaker and colleagues, it is a unique situation and circumstance that I get to speak about this bill for a second time at second reading. That doesn't happen very often. It's unfortunate in some sense that it has to happen with this bill because we got it to third reading in the last session and could have had a vote on it.


Of course, I'm speaking of Bill C-279, which is a bill to amend the Human Rights Act and the Criminal Code to protect the rights and the physical and psychological well-being, to elevate and recognize the importance of the issue of discrimination against transgendered people in our society.

It is worth noting that the reason that I get to speak on this for a second time at second reading is because of a particular set of rules that apply to private members' bills from the government side, after prorogation.

This bill was developed and sponsored by Member of Parliament Randall Garrison, a member of the New Democratic Party. I congratulate him on the work he did.

I also should point out that this bill was passed with all-party support in the House of Commons. It was across the sides. Eighteen Conservative members of Parliament voted in support of this bill. Four of them were cabinet ministers and at least one of them was a former cabinet minister. It says something about the context of what has been happening in this place about the importance and the significance of a non-partisan approach to bills and issues of the day.

I get to speak to it at second reading because, under the rules of parliament, after prorogation, the private members' bills, no matter where they were in the process through the Senate — so they have advanced from the House of Commons to the Senate — get to go back to first reading, essentially, as a matter of course, under these parliamentary rules. So, this bill went back to first reading.

That's different than what would have happened to a government bill. Had a government bill worked its way through to the Senate and not been voted on at third reading by the time prorogation occurred, then it would be off the Order Paper in both houses. So, this is quite unique and it's a unique rule to the Senate.

I want to say that I'm inspired to have the chance to speak yet again about this issue, because I think it is so important, so deeply significant within the fabric of Canadian society. It addresses rights in a way that reflects generally what Canada is and what Canada is acknowledged to be around the world: a great, wonderful, accepting, warm society that understands human rights and that each of us, as individuals, are profoundly important. This bill captures that.

It's unfortunate, on the other hand, that I have to speak to it a second time. That has occurred only because it got to third reading and didn't get a vote. My experience in talking to colleagues on both sides of the house, prior to its arriving at third reading in the previous session, was that there is a good deal of support, maybe unanimous on this side, and a great deal of support among Conservatives in the Conservative caucus.

The problem was that it didn't come to a vote. I would encourage members on all sides to encourage those who control the question of whether bills like this come to a vote to ensure that it does come to a vote.

We would think very rarely of defeating a government bill. Why? Because it has been supported and passed by elected representatives. Yet, we're a little more cavalier in this house about defeating private members' bills. At the base level of democratic representation, a private members' bill passed in the House of Commons is no less significant a representation of the will of Canadians, as reflected in their elected representatives, than is a government bill.

In fact, if you actually add up support, considering that the government received 40 per cent of the vote in the last election, any bill without opposition support comes across here as really reflecting, to use numbers statistically, 40 per cent of the population. However, if you consider that all of the opposition on the other side, plus 18 per cent, which is over 10 per cent of the Conservative caucus, supported this, you're talking about over 60 per cent of the Canadian electorate being reflected in the vote of their respective MPs in support of this bill. This is a bill that has had powerful support, therefore, by a broad majority, as reflected in the support that was accorded opposition and government MPs who supported this bill, and in the support they received in the last election.

This is a formidable bill with formidable democratic support under our democratic system, and it should be no less important to at least come to a vote than any government bill that comes from the other house.

I should say there's another unique feature to the bill that has changed since we last saw it at third reading, and that is that it no longer has the amendment attached to it that was moved by Senator Nancy Ruth. We all know of her profound passion for equal rights and for women's rights, and I think we can all appreciate what her amendment would have done, which was to add "sex" in as an element of the Criminal Code for determining the level of severity of an act of violence, a crime against an individual on the basis of sex — that is addressing, largely, violence against women, but violence against men as well. We all understand and appreciate the passion and the depth that she brings to that issue.

Now that issue, interestingly, is no longer attached as an amendment to this bill; we're starting over. What's also interesting is that the government has actually accommodated her amendment in Bill C-13, the cyberbullying bill. In fact, that bill, now under section 12, will include, among other new definitions of identifiable groups in the Criminal Code under section 318(4), national origin, age, mental or physical disability, and it will include sex.

Therefore, the need for Senator Nancy Ruth's amendment to this bill has really been usurped, if I can say, in a good way, by the government's own Bill C-13. It's quite a breakthrough for women's rights, for recognition of those rights and for dealing with violence against women. To some extent, it will smooth the process of Bill C-279. I don't agree this amendment would have necessarily held the bill up, but there were those in the public with whom I've spoken who were concerned that that amendment did do that. Now, that's off the table, as it were, because it has been dealt with in another piece of legislation.

I've said that this is an important issue, and we all know that it's important because it addresses rights, equality rights, and it really is a reflection of what we, as Canadians, believe ourselves to be. We're not perfect when it comes to discrimination, but we go a long way past many societies and nations in this world. I think we have a great deal to be proud of.

One of the proudest moments, and perhaps one of the best things I feel I've ever done in politics — and I've said this a number of times — was one of the first major bills that I worked on when I was first appointed in 2005 and that was the gay marriage bill. I remember working on the committee with, among others, Senator Joyal, as we sat through the summer to hear some remarkable testimony. It may have been that our Speaker, himself, was on that committee.

That was a very powerful experience for me, to see both sides of the debate, and to see the quality of input and the minds of the witnesses before our committee is something I will never forget.

The moment that bill passed, for me, was one of the proudest moments I've had in politics over the many years I've been here, because I felt it captured and reflected what we are as Canadians, and it provided leadership in the world. If we weren't the first country to do it formally and officially, we were one of the first countries to do it. I think it is something that we, as Canadians, can be immensely proud of.

What is interesting about the debate about gay marriage is that so many of the elements that were argued against gay marriage — this argument that it might damage the family, that somehow it would erode society, that somehow it would weaken the concept of parenthood, and whether or not gay couples should be allowed to raise children — really and truly have all been settled.

Our society hasn't changed in a negative way because of gay marriage. In fact, I would argue quite the contrary; there are a lot more happy people in our society because they can express their love for somebody in the way they choose and they get recognition from our society in a very high and significant way — marriage — to do that. For me, it was a very powerful experience and a very proud moment.


Now we have another chance to do it, to extend rights — recognition, in one sense. I know this rights thing is a loaded idea in this kind of debate, so let me clarify it. The bill extends recognition to the extent that it will modify the Canadian human rights bill, and it extends protection to the extent that it will define transgendered people as an identifiable group under the Criminal Code, ergo increasing, enhancing and giving more power to their defence in our society.

So it's not just a question of rights, which, as I say, is loaded; it's a question of recognition, of giving these many people a sense of place in our society, to confront the alienation, the distance and the real lack of place that they feel — not only in our society, but sometimes in their own families.

It also just protects people. When I look at Bill C-13, the anti-bullying bill, at the very root of Bill C-279 is the case to be made and the mechanisms to be implemented to fight bullying. Bill C-279 is absolutely an extension, if not an enrichment, of Bill C-13, the anti-bullying bill. Many of the people who would be covered to some extent by this anti-bullying bill, who are bullied in cyberspace, are in fact transgendered people, and they won't have the recognition in the anti-cyberbullying bill that other groups will, yet they are, to some extent, and there's evidence, perhaps one of the most bullied groups of people in our society. In fact, there is evidence that when it comes to violence against groups for identifiable characteristics, they may well be the single greatest recipient of and sufferer as a group from violence, certainly psychological and probably physical violence, in Canadian society.

So we have a chance to distinguish ourselves again and to reflect what I think Canadians believe fundamentally in their hearts, that all Canadians should be treated equally, and if any Canadian is in danger, is oppressed, is bullied or is the object of violence, we should be able to stand up and help defend them. We can do that.

It's also a remarkable opportunity, once again, for the Senate to emphasize and demonstrate how it works within the parliamentary system in the defence of minority rights. There is no question that this group, people with gender identity, some would say "issues" — they wouldn't — but who fall within this category, do suffer extreme discrimination and are a minority, absolutely. The numbers would indicate that there may be upwards of 170,000 or 200,000, but statistically and in every other way they are a minority, and we are here as a Senate to defend minority rights.

I'm not going to go through everything I said last time. I'm going to add to some of that, but I will summarize. The bill will do two things. It will amend the Human Rights Act to specify gender identity as a fundamental right and basis for defining discrimination. It will say after this bill is passed that officially you can be discriminated against for your gender identity. You shouldn't be, but if you are, it will be defined as a negative officially within the Canadian Human Rights Act.

Second, the bill 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 an aggravating circumstance to be taken into consideration at sentencing under section 718.2 of the Criminal Code.

I read before in my previous speech to second reading last year that the purpose has changed essentially only by adding to the list of discriminatory practices defined in the Human Rights Act based on a number of things: race, national or ethnic origin, colour, religion, age, sex, sexual orientation and gender identity. Of course, it's straightforward how it would be included in section 318 and section 718 of the Criminal Code.

A lot of this bill hinges on the definition of gender identity. That has been a controversial feature. It was controversial on the other side, and in fact changes were negotiated in a way that allowed a number of Conservative members of Parliament who otherwise were reluctant to support this to support it. The definition of gender identity was more limited in its application and excluded gender expression, which I would argue isn't problematic but was seen by some to be problematic; but there are absolutely official definitions. This is the one in this bill is:

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

We've all received the emails. Some people are concerned about how you could ever deal in law with something that's a deeply felt internal and individual experience. Well, that's what the courts generally deal with — people's perceptions, intentions. In fact, we accept at face value people's religion and their expression of their religion, yet that religion is not somehow evident. To some extent, if people wear certain kinds of clothing or certain icons, yes, but most of us have a religion, a religious association or a commitment of faith that is respected, and that's a deeply held belief. That already has been included in both of these acts, without any concern about how you define religion. I think the parallels there are very strong.

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.

They go on to state that they oppose 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 human rights.

Some will argue — and I think it is much less prevalent — that gender identity is a choice, that somehow you can change yourself from your gender identity. But we have come to accept that in the case of homosexual gender identity, really and truly it isn't changeable. It is what you are. In fact, that's very much the case that's been made over and over again by people in the transgender community and by scientific study. Scientific studies indicate that roughly 60 per cent of all trans people are aware that their gender did not match their bodies before the age of 10 — this is not something a child would make up — and that over 80 per cent have this deeply felt awareness prior to the age of 19. It isn't something that somebody would make up, if you consider the intense discrimination, often psychological, often physical, often very violent, that they experience, if not every day, many days. Many of them will tell you that they experience this almost every day and that it pervades their life. They sense an alienation, a profound lack of acceptance, a fear of bullying, of violence, of rape, of economic discrimination, discrimination in the workforce, in housing and medical care, and they experience unprecedented levels of suicide.


It just seems to me that this kind of issue is so personal that nobody should stand in judgment of it. If someone decides that their gender identity is whatever it is, then it is their right to be who they are. In this country of Canada, if you can't be who you are under those circumstances, in what country could you possibly be who you are?

Oscar Wilde made a wonderful point and it was quoted by MP Randall Garrison. Wilde said, "Be yourself; everyone else is taken."

The bill is a step toward allowing transgender people the greater possibility of being themselves without the fear of psychological and physical bullying, and sometimes even worse.

Let me give you some specific statistics. I will highlight them.

Job statistics: In recent studies only one-third of trans Ontarians were working full-time, and upwards of 20 per cent were outright unemployed. That is over three times the current rate of unemployment in Canada today. Not only that, but if they have a job they are generally significantly underpaid. Their average income is $30,000 per year, despite the fact that as a group transgendered people are highly educated.

Twenty-six per cent of them have some post-secondary education; 38 per cent have completed post-secondary education; and 7 per cent have master's degrees or better.

Not only do they have difficulty getting work and are underpaid when they get it, but they often have a difficult time in their employment due to hostility to their orientation, particularly at a time when they decide to come out and try to change their visible public gender identity, which is a powerful moving force in their lives.

The rates of depression among transgendered Canadians are as high as two-thirds. The rate of crimes against transgendered people is extremely high. They are the most likely group to suffer hate crimes involving violence. Research specific to the Ontario case — because there has not been a wide national body of research — is that 20 per cent of trans people have been physically or sexually assaulted because they were transgender.

Suicide, I know, is a concern for all of us. It has been a public policy debate and it's increasingly elevated now because of the situations with the military and RCMP. Seventy-seven per cent of trans people in Ontario reported seriously considering suicide at some time in their life; 43 per cent reported they had attempted suicide; and of those who attempted suicide, 70 per cent first tried at age 19 or younger. Adolescent youth transgendered people are twice as likely to consider and attempt suicide as their non-transgender counterparts.

This bill is about education and elevation of the issue. As Justice La Forest of the Supreme Court of Canada said, a failure to explicitly refer to transgender identity in the Canadian Human Rights Act leaves transgendered people "invisible."

Our colleague, Member of Parliament Irwin Cotler said in the house:

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.

There is no question that transgender people are discriminated against for doing something that in no way, shape or form would hurt anybody else. If we can't defend them in these two acts, how does that reflect the fundamental values that Canadians share? It doesn't. We need to defend them by way of modifying these two acts in the way that Bill C-279 would do.

There have been many arguments against the bill. One was the definition issue, which I have dealt with. The other is the question of what was inappropriately, derisively and unfortunately coined as the "bathroom bill." The implication is so far from the truth; the idea that somehow, something inappropriate is going to happen in a bathroom has never been proven. Any experience in the United States where these kinds of rights have been extended — and four states responded to Randall Garrison's inquiry — there has never been a crime under this or a "misuse" of these rights.

Any court in Canada can distinguish between what is criminal and what is not criminal activity. That is what courts do. Our court system, which is clearly one of the most elevated in the world, would be more than capable of doing that absolutely adequately.

When I said that the experience of deliberating and reviewing the gay marriage bill was a powerful moving experience, I am reminded of my experience since undertaking to sponsor this bill. I met remarkable people in the transgender community, like the people who for 25 years in the gender mosaic have advocated, fought and struggled to come this close to getting these rights recognized.

I have been to two transgender days of remembrance ceremonies. A number of things were striking about them — the power of the presentations, the emotion, and the way that the transgender people and their parents who presented at these services and memorials were very moving. I wish every one of my colleagues in this Senate chamber had been there to see that.

What is also unique about the two I went to is that one was in Calgary and the Calgary police force had an element of their transgender rights group. That is a group of police people, constables and volunteers within the police department, who specifically work with the transgender community, so it's recognized clearly by that police department. In fact, the transgender memorial that I went to in Ottawa was at the Ottawa Police headquarters. The chief of police spoke there and underlined, as did others, the importance of this issue to them and how much a profound crime they see this discrimination and violence against transgender people to be. They get it. Those two police forces — and I expect you will find this across the country — get it. They understand that transgender people have every right to be protected. They protect them and focus on it in a special way because they understand they are treated with inordinate levels of violence and a motivation of violence that comes from a very dark place.

What also came out of my experience at these services were the presentations by parents and by transgendered people. I would like to share that with you, because what we're talking about isn't some amorphous group; these are individuals. Many of us will know some or many. We will know them but not know they are transgender. They are sons, daughters, fathers, mothers, sisters and brothers and they are Canadians and they are our neighbours. I will talk about one.

I will mention some excerpts from a presentation by one transgendered woman. She was assigned male at birth, lived a life and fought this presence in her life of in fact knowing she was a woman. She married and had children, tried to fit the mould that society imposes on people in these circumstances all too often. Finally, she very eloquently made her point in this speech that she could no longer live with herself if she couldn't be herself and if she didn't have the courage to come out to the world and live the way she was and be who she is.


I will list some of the things she had said, her fears, because they were deep and she was very nervous when she presented to us.

I was afraid that I would not be able to pass, that people would spot me from a mile away and know what I was. I was afraid of being ridiculed and laughed at. I was afraid that I would never be able to get a decent job and I would have to subsist on low-paying jobs and be poor for the rest of my life. I was afraid that I would lose friends. I am a spiritual person and I was afraid I would never find a church that would accept me. I was afraid of how my family would react, afraid that I would lose those relationships most important to me, especially my children. And I was afraid of the uncertainty. After many years of working and living, my life was predictable and I could chart a fairly comfortable course into my retirement. I was afraid I would lose any certainty in my life.

It is interesting that one of her biggest fears was to come out to her family. There are a lot of indications that that can be a problem. One of the very impressive people I have worked with on this bill is a transgendered woman, like this woman I am quoting. She is a very successful lawyer and clearly extremely intelligent.

Her parents are convinced that she is transgendered because she hit her head when she was eight years old. Since coming out, her sister has not spoken to her. She has never met her nieces and nephews. She is allowed to come home but not on Sunday and not if anybody else is in the house. Imagine what that would do to you. And then to come out to a society that does not acknowledge you even under the most fundamental, basic rights and recognition, which is the Canadian Human Rights Act.

However, this particular transgendered person I am quoting was fortunate in this way:

My father is elderly, conservative and religious. I didn't know how to tell him.... I had sent a letter on ahead with my sister, so Dad could read it and have time to absorb it while I drove back to his place.... He met me at the door, hugged me, said he loved me and I would always be welcome in his home. The world would be a better place if there were more people like him.

We could reflect in this bill by passing it that there are many more people like him.

Perhaps the most powerful testimonies I heard were from parents, because parents feel pain for their children. All of us who have children know how driven that is. There was a mother who presented. She hit on a number of important features of this issue. Let me talk about the whole idea of knowing what your gender identity is, even when you're young. She said, "When he," so her son was born female but has made the transition to male.

When he was 11 he wanted to join boy scouts, I asked him why not girl guides the answer was he didn't want to learn how to sew, cubs did cooler things.

That is a pretty basic, fundamental recognition by someone who is 11 years old that they're not what their mother thought they were.

She goes on to say that when finally this young man came out, "He explained how he looked like a girl but was really a boy inside. He told me about a meeting he had gone to" — this is in his early twenties — "a transgender support group, and for the first time in his entire 21 years he fit in, completely fit in and felt safe to breathe."

"He felt safe to breathe." Imagine the stress and the pressure of that young man's life for 21 years, alone, even with a mother who understood there was something but could never bring that out.

Listen to this, if you will, the growing up process and being the parent of a young person going through this:

One day I saw cuts on his arms. I questioned him — he pushed me away and got angry. He began coming home drunk and high often or just didn't come home. I cried a lot and prayed even more. I was losing him and feared the worst. I could not imagine my life without my child and feared that I might have to.

Of course, she is referring to the high incidence of suicide among transgender people. In her case, there is evidence that with parents' support, the likelihood of suicide is much lower. You can imagine that if society supported it, the likelihood of suicide would be even lower still.

This is powerful to me when I heard it, because this mother has made the leap. She got past the idea that it doesn't matter which gender. She said that when she finally realized this child was a man and not the woman she thought he would grow into:

I did mourn the loss of my dreams for the child I met 25 years ago, and I learned that I was not losing anything of importance. The soul, spirit, and heart of this child are the same and always will be the same, there is just different packaging.

In the end, she finished by saying, again reflecting on the process of her child going through this profoundly difficult experience throughout his life:

What I did see was a miracle, a gift that was given to me to care for and love. What I now see too often is physical, mental and sexual abuse in the trans community. I have seen too much homelessness, despair, fear and death. I have seen too many people that do not have family support and have been told they are not worth the air they breathe. I have heard too many times I wish my parents would love and accept me. I have heard too many times that your son is lucky. Is he lucky to be loved by his mother? Is he lucky to be accepted as a human being? With deep sorrow I am sad to say he is lucky and he is one of the minority.

A father presented at one of these memorials as well. It is very powerful to hear a father speak in this emotional way. He said, "Gone are the many years of confusion," because his son transitioned to become a woman, so now he has a daughter. He said:

The only difference that is apparent to me is that my child is finally happy. Gone are the many years of confusion, buried feelings and having to live a lie. Finally my child is who she is meant to be! This is to my great joy also and explains some of the areas where I felt that I had been failing.

He had taken it upon himself.

He also said:

The overarching fact is that many of my close friends and family are very strong in their Christian beliefs.

He himself was born and raised a Christian.

My best friend is the finest Christian I know. Each and every one of them has said to me "but she is God's child". That is the true Christian message. My child is important. Do not let anyone tell you that your child is not equally important.

By passing this bill, we can say to every parent that their child is equally important.

I will read and quote from something that may sound odd in a way. I don't know what the average age is in the Senate.

An Hon. Senator: Sixty-two.

Senator Mitchell: Sixty-two. That's my age, so I'm perfectly average in that respect.

I don't know how many of you saw the Grammies, or the American Music Awards, with a rap artist called Macklemore, who has become extremely popular in the last year. Macklemore and Ryan Lewis wrote a song. The reason I became interested in it before the show appearance is because he appeared singing this song called "Same Love" at a rock concert in the States with two Canadian artists, Tegan and Sara from Calgary. They are hugely successful musicians. They are young women — twins — both gay. They sang with Macklemore the song "Same Love." It is an anthem for the new generation, a generation that will make this change if we do not do it first. And we do not just represent 62-year-olds; we represent every generation in this country. This is an anthem for that generation. I will quote it:

America the brave still fears what we don't know

At the basic root of discrimination is fear — fear of the unknown, often — and this primeval desire to make ourselves feel better by putting somebody else down. Macklemore captures this so well by saying, "America the brave still fears what we don't know." He is speaking for a generation. It is an anthem.

He goes on to say in this very powerful poetry:

I might not be the same, but that's not important
No freedom till we're equal

Again, this is an insight that should be at the basis of what we are thinking about when we consider this bill. This is his comment on the consequences of not accepting transgendered people, among others.

When kids are walking 'round the hallway plagued by pain in their heart
A world so hateful some would rather die than be who they are

When you get the level of suicide that you see in young adolescent transgendered people, that is exactly what they are saying. They are saying that they would rather die than be who they are because they are so frightened and there is so much social pressure against their being who they are.


In closing, I will go back to the father who said about giving advice to parents of transgendered people:

One major hurdle that you will face is societal pressure. It is incumbent on you to garner all the support you can from all politicians and parties to legislate that your child receives equal rights and protection under the law.

That is what Bill C-279 is about. It responds to that father and to that mother and to countless numbers of fathers and mothers and grandmothers and grandfathers and aunts and uncles and brothers and sisters and friends and associates across this country who work with, know and love transgendered people in their families. That's what this bill is about. We can respond to that father's request by giving him the support that he's asking for and by taking a step to change the lives of these important Canadians who have been discriminated against psychologically and brutalized violently all too often. We can stand up and do the right thing.

Hon. Donald Neil Plett: Would the senator take a question?

Senator Mitchell: I would.

Senator Plett: Senator Mitchell, you keep on intimating that anybody who does not support this bill is in some way not opposed to bullying. I entirely agree with your statement that first and foremost Christian love is always not to bully, no matter whether we agree with the individual. We have no right to bully anybody regardless of sex, religion or race; and I entirely support that.

This bill is not about religion. This bill is not about gay rights. This bill is not about same sex marriage. This bill speaks specifically to the issue of transgendered. I asked when you spoke on this the last time and I will ask this question again about a man who was in a change room or shower at a college in Chicago. He was lying there stark naked exposing himself to a six-year-old girl and her mother. Do you not believe, Senator Mitchell, that people can be traumatized by seeing something like that and that they also have rights?

I agree that this should not be labelled "the bathroom bill." I'm not disputing that these people have, as you said, deeply felt beliefs; I agree with that. I too have spoken with people from the transgendered community. In fact, two of them will visit me Thursday morning in my office. If I want to speak either for or against this bill as either the sponsor or the critic, it is my responsibility to know as much as I can about the issues and about the people. My staff and I have taken it upon ourselves to do that. However, this is also about protecting the rights of five- and six-year-old children. Whether or not it is called "the bathroom bill," it allows for pedophiles to take advantage of legislation that we have in place.

The Hon. the Speaker pro tempore: I think the honourable senator has a question. Maybe we can let Senator Mitchell answer and we will close the debate, unless you ask for more time just to answer the question.

Senator Mitchell: Yes.

Senator Plett: Could you respond to the comment I made about whether this bill would allow for tremendous abuse of legislation? I am not suggesting that the people in the transgendered community would do that. I ask whether the bill would allow for tremendous abuse and whether we don't have as much obligation to women and children as we have to these individuals. I did not assign them that male or female body, but I have an obligation as do you to also protect innocent children and women.

Senator Mitchell: Thank you for the question. I apologize if it seems that I for one minute suggested that anyone opposed to this bill is in favour of bullying because I don't mean that at all. I have no doubt, Senator Plett, about your intentions and motivations in the position that you have taken. I respect them entirely. You have been very good about the discussions we've had, and I want to make that clear. I applaud that you are meeting with transgendered people, and I am not surprised as it is the right thing to do.

I have researched the case that you refer to. There is no guarantee that the person was transgendered. It could have been a male who was perverted. There is no guarantee or indication that the person was using as a defence any kind of rights. The particular case was in the context of college rules, and I don't know whether the person was ever charged. I'm dubious about the facts and what we read about the case because it was in Fox News; and certainly they have a point of view and an angle.

However, I do know that we don't hold everyone in a category responsible for a crime that someone in that category might commit. White males commit crimes, but we don't hold all of us responsible and make all of us act in certain ways because another White male might commit a crime; nor should we hold transgendered people responsible. There is no evidence in the four states that have given them rights of this ever being used in the courts. There are jurists in Canada who have more than adequately addressed that issue and established that they could never use it to defend against some sort of criminal activity. Clearly, inappropriate and criminal behaviour can be defined and is defined all the time by the courts. If someone was doing that, then it would be criminal behaviour. That will not change with this law.

You should also know that transgendered people are terrified of being outed. They do not want to draw attention to themselves in any way, shape or form in the way that this case, you would argue, has suggested. It is not fair or right to hold them responsible for the actions of some other people who may or may not be transgendered or who may or may not ever do that. There are all kinds of laws preventing that kind of lewd behaviour; so that is not an issue, in my mind.

In a sense you are reversing my allegation against you. Of course, we all want to defend our children — absolutely we want to do that. However, I believe that this does not endanger them any more than they already are endangered in society. We always have to be vigilant. I also know how many transgendered children are brutalized because they do not have protections and recognition. You will not lose anything from your point of view on endangering kids by passing this bill; but we will make lives better for children who are brutalized all the time every day because they don't have these kinds of protections.

Senator Plett: Since you made the comments about Fox News, I will read another newspaper article written by a female Canadian journalist. It reads:

The older I get, the more particular I am about who I get naked with.

It's not that I'm a prude.

As one ages, things tend to sag and bag and, well, the bits you used to flaunt you tend to want to keep to yourself.

Apparently, I'm not alone.

A recent letter to an ethics columnist in the Toronto Star from an older woman complained she had to share a gym changeroom recently with a man who claimed to be transgendered and was therefore entitled to use the women's changeroom.


I know this is going to be on record, but I will read it anyway:

The "woman" had a penis. The penis had an erection and the person it was attached to asked her if she "came here often."

Now, this particular writer says that, if they want to undress in a men's change room, then that gym should set aside — and I support this — a private place where they can change without embarrassment.

Going away from the children, I will ask this question —

The Hon. the Speaker pro tempore: Honourable senators, before we move on, do we agree to give Senator Plett time to finish his question and Senator Mitchell time to answer that question?

Hon. Senators: Agreed.

Senator Plett: Thank you, Your Honour. It's a short question.

It begs the question, if a transgendered woman with a penis bursts into a female Islamic swim class in downtown Toronto, whose human rights take precedence?

Senator Mitchell: First of all, this occurred without this bill, so I'm not sure what the relevance of your case is. This occurred in Canada without the benefit of this bill, so it still begs the question as to whether or not that person could use this bill, which is really the implication of your argument, to defend what he or she did. I don't know that she was transgendered. I don't know that that's the case, but your example absolutely doesn't apply here because the bill hasn't applied.

The question is: Will that be used by people to think, "I'm going to go in there and do this, and I will to be able to defend myself if I'm caught because I have this bill."

I would recommend to the woman who saw that that she should call the police and, under our Criminal Code right now, that would probably be an offence that person could be charged for. That's separate from what this bill is talking about. This bill would not make any difference to this situation. How do I know for sure? Because it occurred without this bill ever being in place.

The Hon. the Speaker pro tempore: On debate.

Senator Plett: I will just make one comment, and then I will ask for adjournment for the balance of my time.

You say this happened without this bill being in place. You are correct; it did.

However, for more than 15 years, transgendered people in Ontario have had the legal right to use the washroom or changeroom according to their lived gender identity. The fact of the matter is that the Province of Ontario has already gone one step. That doesn't mean that the federal government has to go any further.

With that, Your Honour, I will ask for adjournment for the balance of my time.

(On motion of Senator Plett, debate adjourned.)


Criminal Code

Bill to Amend—Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Runciman, seconded by the Honourable Senator Mockler, for the second reading of Bill C-217, An Act to amend the Criminal Code (mischief relating to war memorials).

Hon. Roméo Antonius Dallaire: Honourable senators, thank you for giving me the opportunity at this late hour to participate in the debate on Bill C-217, An Act to amend the Criminal Code (mischief relating to war memorials).


I stood on guard in front of the Vimy monument and commanded a guard there in freezing rain and cold on two occasions in the 1970s. I was part of the reconstruction of the Vimy Memorial a few years back, when the government approved $32 million to do that, and they have done a magnificent job.

I'm currently involved with getting a statute to Lieutenant Colonel McRae who, if you remember, wrote that extraordinary poem, In Flanders Fields, of which we will be recognizing the one hundredth anniversary.

There is no doubt in my military mind that these sites are of enormous significance, not only to our culture and our heritage, but also out of respect for those who made the sacrifices to permit us to continue to serve our nation in the freedom of our system of governance, to feel free within our territory, and to be recognized as great citizens of the world.

That being said, I don't think you need a sledgehammer to kill a fly. I'm concerned with this bill in that sense, but I'm also concerned that the bill is going to educate nobody. What I mean by that is that it's going to throw people in jail by the deliberate imposition of sanctions that take away from the judges the opportunity to use their judgment. It's something that they're supposed to do as part of our society. Imposing the specific sanctions — a first offence, $1,000; and a second offence, up to 14 days in jail — is not insignificant, of course, but it is a concern when we look at the nature of the act.

There have been specific acts of vandalism on a number of monuments and in certain cemeteries that have the connotation of a military background. In fact, I have colleagues in the U.S. Marine Corps who used to tell me horrific stories about their military cemeteries during the Vietnam War and the post-Vietnam War era, where actions that are indescribable actually took place, including pulling bodies out of the ground and throwing them into the cemetery of soldiers who were killed overseas.

The process of desecrating a monument — be it through painting; using a sledgehammer on it; stealing the copper on it, which a number of people are doing now because of the price of copper; or simply throwing the thing on the ground and, for all intents and purposes, destroying it — is a deliberate act. I agree that deliberate acts of vandalism of that nature should be prosecuted.

The Criminal Code has this capability. The Criminal Code actually articulates clearly that, if people do such things to buildings or sites that are deemed to be sacred, respected or reflective of our cultural references and the sacrifice of our nation, then it will sort them out. They will be taken to court and tried for criminal acts. That's fine. It's already in there. It's well expressed and quite well explained.

However, the bulk of the acts that have happened have been indiscriminate acts of a certain vandalism or a certain disrespect for authority, or simply symptomatic of a poorly educated individual, not respectful of the social structures where that person lives and, more often than not, under the influence of alcohol or of drugs and finding somewhere to relieve themselves.

I'm not going to raise here the fact that the monument at Vimy Ridge is also on Canadian territory. It's interesting that the bill doesn't touch on what we do about our monuments in foreign lands that are recognized as Canadian territory. Have we worked out a deal with the local constabulary or the judicial system there to take care of those? They're not insignificant. Right now we've got close to 114,000 Canadians buried overseas, in cemeteries from South Africa right through into Europe and the Far East. Certainly Korea is a perfect example of that. What about them? Who's handling that side of the house? The bill doesn't touch that.


As a bit of an anecdote in this respect, the Vimy Ridge monument is a favourite place where French people like to make out. It's got a great view. It's extraordinary. It's well laid out. It has lines on it that are sort of comfortable. They do it regularly. The police go in and try to clean up the place and so on. It's used, and they do it as a favour, not as a deliberate action that we call upon, but as a favour out of the respect the French have for us.

Let's get back to these vandals. They're often young people, doing a very spontaneous act often, and often as a group, not just as an individual. What do we do about them?

The bill says first we charge them under the Criminal Code. Bingo, we give them a criminal record. Second, if by any chance they don't understand, we'll throw them in jail. What is the value of that? What did that youth learn about respecting our monuments, about respecting why we have the monument, about respecting what is behind a society that wants to create such places of recognition and require us to demonstrate respect for those places of recognition? What is there as a learning experience? What is the lesson learned by that youth?

By the by, what is the lesson learned by his buddies or her friends who watched or who heard about it and chuckled back at school or wherever they were? What did they learn about this?

I am in support of the bill in the context that it should be raised, and in that context it's not a pejorative piece of legislation, but I'm not convinced that it's absolutely essential. Remember, there's essential, there's necessary and there's nice to have. I would consider this one as not essential as a piece of legislation, because the Criminal Code covers the real bad characters, and the others we're leaving to the judges to take some action on.

For example, you bring this kid and you parade him in front of a few veterans from Afghanistan or any other mission. You have him sit down and let those veterans talk to him. I guarantee you that a couple hours with those veterans is worse than paying a fine of a thousand bucks. It will be an experience that will stay for a lifetime.

Let the individual then be imposed upon to go to schools and tell of that experience and propagate to others why it's important that they don't be as stupid as he or she was. Why not give the judge that opportunity and help our youth reinforce our respect for such institutions?

Colleagues, I just don't see how we are going to change the nature of our society, enhance its cultural framework and bring more respect to those who merit it. This bill is not going to do this. It's going to, again, threaten that the cops are going to catch you and you better not do it. By the by, in order to not get caught, they think "I'll do it in the middle of the night and I'll defy the authorities." Compare that to an instrument that says, "If you are so stupid, so uneducated, so disrespectful of this society, we have to give you a little slam between the eyeballs to wake you up"; then let's give the instruments of justice the ability to do that. Let's give the judges the ability to educate, to enhance the respect, to in fact advance the requirement that our youth recognize the sacrifices of the past, very often made by their peers.

One of the last points I wish to raise is that so many of those monuments are monuments to their peers. Young kids are committing these acts of vandalism — I say young kids because they're often under the age of 25 or 30. The bulk of those who were killed overseas, the bulk of those who are still killing themselves by suicide in this country and are buried in these institutions, the bulk of them are their peers. The bulk are well under the age of 25 and a lot — too many — are under the age of 18. So they're committing acts against their peers, and I think we can make them realize that without slamming them in jail, without giving them a criminal record and without our thinking that's actually going to make them better.

Colleagues, this bill is going to worsen the situation. And what they're going to do with this, the real jerks, they're simply going to defy it. Potentially, that could create far more scenarios than it actually rectifies.

So move this to committee, but amend it. Bring it forward; it is worthy of attention and reminding society of what it is, reminding us why youth must respect history and how they are able to be free in this community and how they should participate in the advancement of that respect for their peers who have sacrificed their lives. Let's do that. Amend it. Don't kill it because it's a good awakening, particularly now that we're stumbling into the one hundredth anniversaries of many of those battles, many of those monuments, where we will want people to recognize the incredible numbers of our youth that we sent overseas to fight and die for our freedom.

It's time to tweak that recognition, but it is not time to bring a hammer down on them and, in so doing, create a criminal exercise for something that is fundamentally really stupid. Thank you.

The Hon. the Speaker pro tempore: Do I understand that honourable senators are ready for the question?

Hon. Senators: Question.

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

Hon. Senators: Agreed.

(Bill read second time.)

Referred to Committee

The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the third time?

Hon. Yonah Martin (Deputy Leader of the Government): I move that the bill be referred to the Standing Senate Committee on Legal and Constitutional Affairs.

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

Some Hon. Senators: Agreed.

Hon. Roméo Antonius Dallaire: I don't know if I can say "on division" on this, because this bill should go to Defence, not to Legal. That's where the real argument will be held, and that's where we will get to the bottom of this.

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


Study on Prescription Pharmaceuticals

Fifth Report of Social Affairs, Science and Technology Committee and Request for Government Response Adopted

The Senate proceeded to consideration of the fifth report (interim) of the Standing Senate Committee on Social Affairs, Science and Technology, entitled: Prescription Pharmaceuticals in Canada: Off-Label Use, tabled in the Senate on January 30, 2014.

Hon. Kelvin Kenneth Ogilvie: Honourable colleagues, I am very pleased to move:

That the report be adopted and that, pursuant to rule 12-24(1), the Senate request a complete and detailed response from the government, with the Minister of Health being identified as the minister responsible for responding to the report.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to — do you wish to speak, Senator Ogilvie?

Senator Ogilvie: Thank you.

Honourable senators, it is my pleasure to speak to the motion to approve the report of the Standing Senate Committee on Social Affairs, Science and Technology on off-label use of prescription pharmaceuticals.

First, however, I want to acknowledge Senator Eggleton, deputy chair of the committee, and Senator Seidman, both members of the steering committee, for the role they played in developing the report. I want to thank all members of the committee whose questions and analyses contributed greatly to the success of the study.

I further want to acknowledge our superb analyst, Sonya Norris, and the clerk of the committee, Jessica Richardson, whose contributions were invaluable in completing the study.

Honourable senators, this is the third report in a four-phase study on prescription pharmaceuticals in Canada. The first two reports dealt successively with the clinical trial process and the post-approval monitoring of prescription pharmaceuticals.

As we have previously noted, approval by Health Canada is required before a pharmaceutical can be marketed in Canada. The approval authorization defines the parameters for drug use, including the population groups eligible, the condition being treated, the dosage levels and so on.

Even though a new pharmaceutical will have passed through a lengthy clinical trial process, the real evaluation of the impact of the drug occurs once it enters use by the general population. Here the drug will be used by subsets of the population not likely covered in the clinical trial. Frequently, approved drugs are used in a broader population, for different indications or at different dosages than have been approved by Health Canada. This is referred to as off-label use, and it is widespread.

Off-label drug use is associated with both advantages and disadvantages. Off-label use is the most prevalent in prescriptions for the elderly, children and pregnant women. These groups are rarely included in clinical trials. Also, off-label use is often the only source of drugs in rare diseases and in treating cancers.

This report makes 18 recommendations that address several key issues. Perhaps the most important area of recommendations builds on our earlier recommendations dealing with the electronic collection and dissemination of information related to the real-world use of a given drug. The very best and most detailed clinical trial of any drug is its use in the general population once it's approved. It is absolutely essential that the experience of patients in general be collected and used in real time to provide enhanced awareness of the benefits and risks of any drug. Currently, this is not done. The committee strongly believes that Health Canada must collect, organize and disseminate this information. Our report urges the minister and Health Canada to ensure that patients receive the latest, best information on the use of the drug and that patients can easily and electronically submit reports of the impact of the drug in their own experience.

The committee recommends that physicians and patients be informed of a prescription that involves the off-label use of a drug. This is especially true of certain classes of drugs, such as antipsychotics, especially in youth.

The committee urges that Health Canada deliberately monitor the results of off-label drug use, especially in vulnerable subsets of the population. As previously mentioned, most prescriptions for children, the elderly and pregnant women represent an off-label use, since these groups are not routinely included in clinical trials. It is essential that their experience with approved drugs be monitored. This should be done electronically, and such groups should be clearly informed when they are prescribed drugs off-label and informed of the real-world experience to date of the use of the drug.

The committee has reiterated recommendations from its earlier reports that Health Canada be authorized to require further studies on drugs post-approval where indications warrant.

The committee recognized that off-label use of drugs has the potential for very real benefit to patients with rare diseases or serious diseases such as cancers for which no drugs have been systematically identified. Indeed, the committee heard that the oncology network is very dynamic in sharing results of off-label use and the effectiveness of drugs.

While the committee acknowledges the clear benefits of some off-label prescription drug use, it cautions that in other instances a lack of evidence of effectiveness can mean that patients are consuming drugs that either are not helping or that can produce harm.

The committee recommends that the Drug Safety and Effectiveness Network at the Canadian Institutes of Health Research take an active role in assessing the effectiveness of off-label drug uses.

Further, it recommends an expanded role for the Canadian Agency for Drugs and Technologies in Health to conduct and communicate findings, wherever possible, on the safety and effectiveness of off-label use.

The committee is pleased that Health Canada intends to implement an orphan drug regulatory framework. The new framework will be designed to encourage research, development and approval of new drugs for rare disorders. Health Canada officials stated that the framework will create an official orphan drug designation.

The committee feels very strongly that Health Canada must have the authority, and use it, to require labelling changes in approved drugs. The committee repeats its recommendations in this area from earlier reports. In this regard, the committee is pleased to note that since the completion of this report, the minister has announced changes through Bill C-17 that will be important in this regard.

The committee is concerned about the manner in which physicians generally become aware of an off-label use of an existing drug. While pharmaceutical representatives are prohibited from promoting off-label use, the committee heard that such representatives may be a major source of information on the broad use of drugs. This can obviously be problematic with regard to monitoring the reliability of information made available to physicians. The committee urges the Minister of Health to raise these issues with her provincial counterparts.

In summary, this report extends our concerns and recommendations with regard to vulnerable subgroups of the population, including children, the elderly, and pregnant and nursing women. The report reiterates recommendations previously made regarding the need for more drug research in order to evaluate safety and effectiveness in these groups.

The report further reiterates recommendations made in the post-approval monitoring report about, for example, the need to implement electronic medical records, electronic health records and the electronic system of dispensed prescription drugs; improved access for patients to the adverse drug reaction form; and the need for additional legislative authorities.

Other recommendations in this report relate to expanding Health Canada's recently announced orphan drug framework to include older drugs; providing both negative and positive Summary Basis of Decision documents, including those for new indications for older drugs; and addressing enforcement of the prohibition on off-label drug promotion by drug manufacturers.

The off-label use of pharmaceuticals brings benefits to Canadians. This is not without risk. Risk can be considerably mitigated by Health Canada through a systematic and deliberate monitoring of the effects of all drugs in use in the general population and by informing physicians and patients of the latest risks and benefits of the use of pharmaceuticals, especially those used off-label.

Honourable senators, I urge you to support this motion and approve this report.


Hon. Joseph A. Day: Thank you, Senator Ogilvie, for your report and, through you, to all of your committee for this work. You gave a good explanation of what off-label drug usage is, but it's still not entirely clear to me how someone suffering from some malady would be able to get this off-label drug to be used. Can you explain that process?

Senator Ogilvie: Yes, I would be pleased to give you an example or two.

There are diseases afflicting Canadians that range from affecting sometimes only 10 patients to up 200 or 300. All of these are called rare or orphan diseases for which there are no known treatments. They come to the attention of a physician. The physician may recognize certain characteristics of the way in which the patient is being affected by the disease or responding to the effects. It may trigger a thought in the physician's mind that they had seen the use of an approved drug in a patient that does not have this disease, but had some symptoms that related. Unexpectedly, a side benefit of the drug was to bring benefit to that other situation and they would say "Well, you know, maybe this drug would bring some benefit here."

The physician is allowed to try that drug because the drug is approved, not for this condition but for another. It has gone through a clinical trial and it's found to be safe in general use in the population, but it has been approved for a completely different indication. The physician thinks it will help this patient for whom there is absolutely no approved treatment available. They try it, a benefit arises and just trying the drug in that patient constitutes an off-label use.

If a benefit accrues, the word gets out quickly in a limited set of the population that has this particular affliction. Other physicians who have such an individual coming to their practice would hopefully be aware of that off-label use and be able to give some benefit to the patient.

So, an off-label use is the use of an approved drug either for a condition that was not included in the approval or in a subset of the population that was not tested in the original clinical trial. Does that help?

Senator Day: Thank you, it does.

Presumably if the result is not favourable that would get around fairly quickly, too, but maybe not as quickly as the favourable result for these orphan diseases.

On your point that the doctor is authorized, does that mean that the doctor is going to be immune from liability for prescribing a drug that has had no clinical trials of being used for a particular sickness and that he or she is guessing might work for this particular patient?

Let's suppose there is an adverse reaction. What would the liability situation be for the physician in that particular instance or for the pharmacist who issues this?

Senator Ogilvie: Thank you for the question. You are into a very important area.

First, let me go back and remind you that the physician is using a drug that has gone through a full clinical trial for a completely different and approved condition. It's not like the physician is pulling up something that they just thought of, which had never gone through a clinical trial. We're dealing —

The Hon. the Speaker pro tempore: If you want to continue discussion, I know Senator Moore also wants to ask you a question.

Senator Ogilvie: May I have another five minutes?

The Hon. the Speaker pro tempore: Is it agreed honourable senators?

Hon. Senators: Agreed.

Senator Ogilvie: Getting back to the answer to your question, the drug has gone through a clinical trial for some other condition, has been approved, and is a legal drug. The physician is simply applying it based on observations of patients over time and thinking it might bring some benefit to a patient suffering from a new affliction. The physician has the right to do that but with the following caution, which is something we emphasize and I reported on in my presentation to you: We believe the physician has an absolute responsibility to inform the patient, and in the case of youth, parents and so on, that they are using a drug off-label, that it has not been tried for that disease specifically, and give the reasons that the physician is trying to do that. That's one thing.

Frankly, from what we have heard and from my own experience in those types of cases, physicians generally do that in these rare conditions. It is in the larger population where drugs are used off-label for the elderly or children that we had testimony that patients are not often informed of an off-label drug use.

We believe, and it is one of our strongest recommendations, that this should occur. There should be an electronic way of informing physicians when they start to prescribe the prescription — on a drop-down menu — that the symptom and the drug they have recommended represents an off-label use and that they should have to inform the patient or their guardians in that case.

Second, with regard to any adverse reaction that occurs, it hits another key area of recommendations in this report and our two previous reports. We think it is inexcusable that in this day and age adverse drug reactions are not easily reportable by the patient back to Health Canada, and presumably to their pharmacist and prescribing physician. We believe it is absolutely essential that we do a far better job of collecting adverse reactions in real time once a drug is out there in the population. That goes for all drugs, not just the off-label use. Does that help you, senator?

Senator Day: Thank you. It does and I look forward to reading your report.

Just a final clarification: Is off-label usage for both prescribed drugs that the doctor has to write out a prescription for as well as for non-prescribed drugs where the doctor recommends you should go pick this up and it should help you out?

Senator Ogilvie: I'm not sure where a physician would tell a person to go and get a drug that is not prescribed. They would have to be approved to be in a pharmacy. Perhaps you mean that the physician is dealing with a rare disease, perhaps they are a researcher and are familiar with a compound that is used in research and has never appeared as a pharmaceutical.

In order to do that, they would need to have research approval to try such drugs. It would actually be a small clinical trial they would be carrying out and would have had to have gone through an ethics review board to approve using a drug that has never been used before. At that point, it is not a drug at all; it's just a chemical.

No, physicians don't have the right, authority or permission legally to use just any chemical, but for any approved prescription drug, they have a right to use their knowledge in applying it to new circumstances.

Hon. Wilfred P. Moore: If the honourable senator would take a question.

Senator Ogilvie: yes.


Senator Moore: This is a very good and interesting report. I just want to clarify. Senator Day heard that any off-label use is a use that has not gone through a clinical test for that given use. Is that what it means: That there has been no clinical trial for that particular medication for the use to which it is being put?

Senator Ogilvie: Yes, Senator Moore, that is a very good clarification. I will repeat: An off-label use means that you are dealing with a drug that has gone through a clinical trial for some clearly defined application, but now the doctor wants to use it for something that was not included in Health Canada's label of the drug when they approved it.

Senator Moore: Thank you. Supplementary —

The Hon. the Speaker pro tempore: Before we continue, if we have agreement of the chamber, we need more time. Senator Ogilvie, are you asking for more time?

Senator Ogilvie: I have already been given time. If the rules permit me to have more, then I'm prepared to ask for more.

The Hon. the Speaker pro tempore: Let's go for five more minutes. Senator Moore.

Senator Moore: I was thinking as you were speaking, Senator Ogilvie, about the liability issue, and I think you responded to that from Senator Day's question. At the end, you made an interesting comment, that there is not a system for a patient to be able to report an adverse effect of an off-label medication or otherwise. How would you see that happening? What kind of system do you think we should have to give patients the opportunity so that the sector can accumulate good information to give direction?

Senator Ogilvie: Thank you, Senator Moore. As I mentioned, our committee has been dealing with this issue through our previous two reports and this one, and I think we will probably extend it, most likely, in our fourth and final phase. We consider being able to get a real-time response on the use of approved drugs in the general population a critical aspect of dealing with the health of Canadians. Once drugs are approved and are being prescribed, we believe there must be a very easy mechanism and awareness. There must be awareness and a very easy mechanism for pharmacists, physicians and patients, most importantly the patients, to be able to know how they can quickly and electronically convey their personal experience with the drug back to their pharmacist, physician and Health Canada. That doesn't exist now. We think it's way beyond time that it should exist. The electronic mechanisms and knowledge exist to allow that to occur, and, indeed, it should be that when the prescription is filled by the local pharmacist, there is in the material given to the patient an electronic address that the patient can respond to quickly.

If you read our reports, we have quite a bit on this matter. We believe a number of things can be done. I will give an example of a test that has been done in another jurisdiction in which a research team decided to get permission from patients to follow up with them after they had received a prescription. Much like when you take your car to a dealer, they will call you the next day or the next week and ask you for your experience and whether you were satisfied. This group did that. They deliberately followed up with patients who had given permission to be contacted, and they followed up the next day, within a week and then roughly a month later. You can't do that with every drug. However, it did clearly demonstrate that patients are very good at conveying their real experience with the drug once they have tried it. I would point out that it is important not just for getting the adverse drug reaction itself, but quite often patients who have an adverse reaction, for example, if they have an upset stomach in the middle of the night after a drug and are pretty darn sure it was due to using the drug, they will just throw out the rest of prescription and not take it, and their physician won't even know that they haven't been taking the medication. There are all kinds of implications of our not following up well with the actual, real-world experience of patients and their use of the pharmaceutical.

Finally, I would say that our committee is fairly convinced by the witness testimony that suggests that under 3 per cent, and perhaps well under 3 per cent, of adverse drug reactions are actually reported. We think that's inexcusable.

Hon. Art Eggleton: I want to support the adoption of the report. This is the third report in the series. We did one on clinical trials, we did one on post approval, and this one is on off-label use. There is another one to come that we are working on now on unintended consequences. I think the recommendations are helping to set a pace for some reform and some changes that are very much needed in the system to make sure that these pharmaceuticals are safe for people and effective in dealing with the various reasons that people take them.

I thank Senator Ogilvie for his work as chair of the committee. Our committee was unanimous in this report, as it has been in the other reports.

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

Hon. Senators: Agreed.

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

(Motion agreed to and report adopted.)


The Senate

Legislative Role—Inquiry—Debate Adjourned

Hon. Pierre Claude Nolin rose pursuant to notice of January 28, 2014:

That he will call the attention of the Senate to its legislative role.

He said: Honourable senators, this inquiry into the legislative role of the Senate is one of a series of debates designed to foster a better understanding of the nature of the Senate's work, the principles underpinning the Senate, and the scope of the roles it plays.

I once again drew inspiration from the book entitled: Protecting Canadian Democracy: The Senate You Never Knew, which was published in 2003 under the leadership of our colleague, the Honourable Serge Joyal. My wife says that the book has been my bedtime reading for months now.



More specifically, I drew liberally from Chapter 6, entitled "The Canadian Senate in Modern Times," written by C.E.S. Franks, emeritus professor of political science at Queen's University and author of The Parliament of Canada.


The Senate and the House of Commons are both autonomous legislative bodies of Parliament, and they have different but complementary functions.

In his introduction, Senator Joyal states:

The Senate is designed to review government legislation and scrutinize the activities of the Executive, with an emphasis on the interests of underrepresented groups and regions.

The best if not the only way to begin any examination of the legislative role of the Senate would be to examine the federal legislative process as a whole.

We therefore thought it would be inconceivable to undertake this examination without giving an update on the status of the legislative role of the House of Commons.

Unlike their colleagues in the American Congress, the primary function of MPs is not to legislate.


Professor Franks writes in 2003 that:

The primary function of the elected House of Commons, unlike the American Congress, does not lie in its legislative role, nor does the Commons perform this function well. The key functions of the Commons lie in the making and unmaking of governments, that is, in supporting a government that retains its confidence, and providing an opportunity for an institutionally entrenched opposition to criticize the government and propose itself to the electorate as a viable alternative, with the hope that it will defeat and replace the government in the next general election. The notion of "confidence" (which has no counterpart in the American system of separation of powers) is the key to Westminster style parliamentary democracy, and in its ramifications lie many of the complexities and strengths of the parliamentary-Cabinet system of government.


This "fusion" of legislative and executive power in the hands of the Prime Minister and his cabinet makes the House of Commons the centre of the ongoing battle between political parties.

The parliamentary government that would turn out to be the cornerstone of our system would also, with the historical evolution of the exercise of executive power, unfortunately become one of its problems.

Looking at the steady decline in voter turnout for federal elections for the past few decades, especially among the youngest voters, one might hypothesize that some people have lost hope, if they ever had any, of ever obtaining the performance they are entitled to expect from their Parliament.


When the government is always trying to highlight its accomplishments and the opposition is always working to uncover the government's mistakes, this conflict becomes institutionalized. One is always right, and it's the government; the other is always wrong, and it's the other side of the chamber. This Manichaean relationship has come to symbolize Canadian parliamentary democracy.

Let us return to Professor Franks:

The vigour of adversarial partisanship (and its appeal to the media) all too often leads to a situation where the House risks letting the partisan struggles dominate its other functions to the point where they become neglected and badly performed.


A little less partisanship would no doubt go a long way, and Canadians are already pretty sure of that.

Together, the political parties and the individual members should accept that they have a responsibility for functions, and that to perform these functions well, they must often be bipartisan or even non-partisan.

The inescapable party line must be neither exclusive nor "annihilating."

Some debates require more respect for each person's opinion and therefore more collegiality.

Many of the criticisms of the House of Commons derive from the all too frequent failure of parties and members to accept that a non-partisan approach can be a good thing.

That criticism is not new. Consider the decades-old traditions of a cursory examination of estimates for expenditure, the opposition's legitimate criticisms of the governing party's administration and behaviour, and the fact that committees cannot make an effective inquiry into matters of policy and administration.


Again in 2003, Professor Franks adds judiciously that:

The House degenerates into a battleground of simplistic warfare between the parties; it fails to examine and review legislation and policy issues, and it fails to hold the government to account in any effective way.

Let me highlight what he says about the media in this environment and the consequences:

The media have become more than willing accomplices in this process, encouraging the concentration on scandal-hunting and superficial rather than on the serious questions facing the country.... The media's obsession with blood on the floor, partisan battles and insistence that any deviation from party lines or dissent by backbenchers is a sign of weakness contribute to the already overwhelming forces making party discipline all-powerful and partisanship virtually the sole determinant of how members of the Commons behave on the floor of the House and its committee alike.


Unfortunately for the people, the good that the House of Commons can do plays second fiddle to the trivial.

Members of the opposition in Parliament, and their parties and leaders, naturally overemphasize the trivial and scandalous while they neglect the serious, important, and nonsensational.

Add to this the fact that many new members have little parliamentary experience.

It is important to note that the legislative process is so dominated by the executive, and in particular the central agencies of government, that the government denies the House of Commons the opportunity to perform its legitimate role.

I would like to add that, though well-intentioned, the power of each party leader to acknowledge and approve the nomination of each member for every federal election can have a deleterious effect on members.

Party lines are rigid in the House of Commons. The government dominates proceedings, rigidly and, unfortunately, summarily limiting the time spent debating legislation, even in committee. The government accepts few amendments even when many members, even some of its own, harbour grave doubts.

I should clarify that this situation has been the norm for a long time and is certainly not the exclusive province of the current government.

Nevertheless, the House of Commons must remain master of its own destiny. It alone can change the way it does things. It is certainly not our role, nor is it our responsibility to make those changes in its place.


That said, and keeping in mind the importance of respecting the independence of each of the legislative chambers, the Senate may wish to use its powers to carry out further legislative review.

Now, let us consider why and how the Senate takes part in the legislative process.

First, remember that, constitutionally, our founders "expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland with a Constitution similar in Principle to that of the United Kingdom." Such a union "would conduce to the Welfare of the provinces." Legislative power would be vested in a Parliament consisting of the Queen, the Senate and the House of Commons. The Senate and the House of Commons, and their respective members, would enjoy the privileges, immunities and powers defined by act of the Parliament of the Canada. "It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order and good Government of Canada." "Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.


Given the shortcomings of the legislative process that I detailed earlier, defenders of the Senate, including Professor Franks, emphasize that our institution is useful because it compensates for several of these shortcomings.


Since senators are appointed to sit until the age of 75, they can act much more independently over the long term, thus ensuring a healthy continuity. Senators generally have much more political and professional experience. Senators are more representative of the demographics of their regions. In the Senate you will find a higher proportion of women; a significant Aboriginal presence; a number of senators from ethnic and racial minority communities; several senators from francophone and anglophone minority communities in their respective regions; relative stability, which allows senators to acquire longer experience in Parliament; a less partisan environment, which enables some members of the party in power to vote against a government measure; and amendments to bills that the government opposed in the House of Commons.

In short, there is less partisanship and less stringent party discipline, which often means less conflict in debates and an approach in committee that enables senators to conduct more productive investigations into the real fundamental issues.

Some colleagues have raised the importance of partisanship in the Senate. I want to be clear: senators are associated with parties, and that is fine. Being partisan or completely independent is not what is causing a problem. The problem is that we are starting to lose sight of our responsibilities.

I described the problems caused in the House of Commons by strong partisanship and too much party discipline. I think it is much easier for senators to carry out their duties if they manage to reduce the influence of partisanship on their decisions. Each individual's free will is often a much better guide.


Maybe it would be valuable to examine during this inquiry how the Senate exercises its legislative role in the appropriation of public funds and the creation of taxes. Note that the Senate has historically taken the position that it has the constitutional right to amend, but not to increase, money bills sent up from the House of Commons. I think it would be worthwhile to review the conclusions of the Ross report entitled, Report of the Special Committee appointed to determine the rights of the Senate in matters of financial legislation, tabled in the Senate on May 9, 1918, to see how they remain relevant.


It would be especially worthwhile given that there was a break with the tradition of the "imperial" chambers with regard to this specific aspect of the Senate's power. Conceding that power was an essential element of the Confederation agreement.

It would be interesting if someone from the Standing Senate Committee on National Finance and I am looking at the chair, Senator Day were to review that report and update it, if need be.


Still, a critical question remains: Does the Senate have the legitimacy required to adequately perform its legislative role? The answer to this question is crucial. This legitimacy is at the heart of the debate over the future of our upper house. Many claim that the Senate, as constituted, does not have this legitimacy. And when I say "many," I include even colleagues in our own chamber. I strongly disagree with that. For me, it is very clear.


The constitution acts bestow on the Senate all the powers necessary to perform its legislative role in a reasoned and productive manner. It is the law, and constitutional law at that. We cannot lose sight of the fact that the Constitution Act, 1982, states the following:

Canada is founded upon principles that recognize...the rule of law.

Until those with political authority decide otherwise, by using the appropriate amending formula, it is our duty to perform our legislative role as it was conferred on us. Those who question our legitimacy are mistaken and are not adding anything meaningful to the debate. They mainly have a problem with the credibility of the Senate. The Senate is the product of an historic covenant. It is up to the Senate and the senators to use their power and carry out the work envisioned by that founding covenant.

I would like to ask for five more minutes.

Hon. Ghislain Maltais (The Hon. the Acting Speaker): Honourable senators, shall Senator Nolin be granted five more minutes?

Hon. Senators: Agreed.

Senator Nolin: In my humble opinion, the credibility of the Senate, which is fundamental, is based on three things: first, each senator's acknowledgement of his or her responsibility within the parliamentary structure; second, the decisions made individually and collectively to discharge that responsibility; and third, our ability to minimize undue partisan influence.

Before I conclude, allow me to read three quotes. The first two are from the Parliamentary debates on Confederation in 1865, and the third is from a 1980 Supreme Court ruling.

The first quote is from Sir John A. Macdonald. In 1865, he said:


There would be no use of our Upper House if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatever were it the mere chamber for registering the decrees of the Lower House. It must be an independent house, having a free action of its own, for it is only valuable as being a regulating body, calmly considering the legislation initiated by the popular branch and preventing hasty and ill-considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people.

The second quote is from George Brown, also in 1865:

The desire was to render the upper house a thoroughly independent body — one that would be in the best position to canvass dispassionately the measures of this house...

The legislative assembly:

... and stand up for the public interest in opposition to hasty or partisan legislation.


The third quote comes from the Supreme Court of Canada, in Re: Authority of Parliament in relation to the Upper House, 1980, paragraph 48:

In creating the Senate in the manner provided in the Act (the British North America Act, 1867), it is clear that the intention was to make the Senate a thoroughly independent body which could canvass dispassionately the measures of the House of Commons.

In conclusion, honourable senators, it is with some emotion that I submit to you the following statement.

In the exercise of its legislative role, the Senate calmly and independently proceeds to considering legislative proposals by using its effective and credible process for passing laws that are respectful of the "deliberate and understood wishes of the people" on one hand, and the constitutional law — and the rule of law that it underpins — on the other hand.

In specific circumstances and with sufficient reasons, exercising this power necessarily requires accepting, amending, delaying or even opposing the wishes of cabinet and the House of Commons, if the Senate deems so appropriate.

Honourable senators, I cannot claim to have covered everything, but I hope that a number of you will agree to take part in the debate on this inquiry in order to further develop our thoughts on the fundamental legislative role of the Senate. Thank you for your attention. I am now prepared to answer your questions.

(On motion of Senator Cowan, debate adjourned.)

(The Senate adjourned until tomorrow at 2 p.m.)

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