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2nd Session, 41st Parliament,
Volume 149, Issue 137

Tuesday, May 5, 2015
The Honourable Leo Housakos, Speaker


Tuesday, May 5, 2015

The Senate met at 2 p.m.

Speaker of the Senate

Reading of Commission Appointing Honourable Leo Housakos

The Honourable Leo Housakos, having taken the Clerk's chair, rose and informed the Senate that a Commission had been issued under the Great Seal of Canada, appointing him Speaker of the Senate.

The said Commission was then read by the Clerk.

The Hon. the Speaker then took the Chair at the foot of the Throne, to which he was conducted by the Honourable Claude Carignan, P.C., and the Honourable James S. Cowan, the Usher of the Black Rod preceding.


The Hon. the Speaker: Honourable senators, if you will oblige me, I would like to take this moment to offer a few words. First, some expressions of gratitude: I would like to thank the Prime Minister for his confidence in appointing me Speaker of this vital parliamentary institution. I would also like to thank the Governor General for his commission, which I unreservedly accept.

Thank you to the Leader of the Government in the Senate, Senator Claude Carignan, and the Leader of the Opposition in the Senate, the Honourable Senator Jim Cowan, for your firm escort into this chamber and for your steadfast support.


I believe it is essential to carry on the work of our late Speaker, the Honourable Pierre Claude Nolin, and that of his predecessor, the Honourable Noël Kinsella, on modernizing this institution.

By working in concert, Senator Carignan and Senator Cowan embody the culture of collaboration and compromise that I wish to support in my new role as Speaker. To me, the Speaker of the Senate acts as a barometer of consensus. I will take my cue from Speaker Nolin and undertake to work with each of you in order to modernize the Senate, where openness and transparency are essential to carrying out our parliamentary duties for the good of all Canadians.


We should treat each other with dignity and respect, no matter the political colour or the outstanding issues. We should strive to find common ground and to build from there. Our great institution is facing great challenges, but also great opportunities. I am certain that I speak collectively for all senators when I say that our institution can serve as an instrument that empowers the citizens of our country and Canada so that democracy can better serve their interests from coast to coast to coast.

I truly believe that this is what will allow us to fulfill our constitutional mandate in a manner that restores our standing in the eyes of the Canadian public. That is my pledge to you, honourable senators. Thank you.

Hon. Senators: Hear, hear!



The Honourable Leo Housakos

Congratulations on Appointment as Speaker

Hon. Claude Carignan (Leader of the Government): Honourable senators, it gives me immense pleasure to welcome our colleague and friend, Senator Leo Housakos, to the position of Speaker of the Senate.

Senator Housakos was appointed to the Senate by the Right Honourable Prime Minister Stephen Harper in December 2008, and quickly took on his role as senator with commitment, diligence and professionalism.


During the past year, Senator Housakos worked twice as hard, given our common and collective desire to modernize our institution, which is undergoing significant change.


With some of our colleagues, he was a driving force on the Standing Senate Committee on Transport and Communications, and we are already seeing tangible and significant changes as a result of that work, and also the impetus that the late Senator Nolin gave to our work during his short, but intense, time as Speaker of our institution.


As Speaker pro tempore, Senator Housakos seconded Speaker Nolin in the restructuring of our administration. In this respect, his appointment as Speaker will ensure that our efforts continue seamlessly and that the gains we have realized so far are preserved.


Honourable colleagues, as we know, the coming months will be challenging, and I invite you all to support our new Speaker in his duties, which are critical to this institution that we so cherish. We need to work together in difficult times, and I therefore pledge, Mr. Speaker, to do everything I can to help you carry out your duties effectively. I have known you for a long time, and I know that you are the right man for the job. I have full confidence in you, as do the members of our caucus and the members of this chamber.

Thank you.


Hon. James S. Cowan (Leader of the Opposition): Mr. Speaker, congratulations on your appointment. As you noted, you take the chair in interesting times, and it is a critical time in the life of this institution.

You have big shoes to fill in more ways than one, and I am sure no one is more conscious of that than you are. We lost a man last week who had the potential to be a great Speaker. You have stepped into his shoes as you have worked with him so closely in the past few months as Speaker pro tempore, and I know that you will work to fulfill his vision and work with all of us to ensure that that is done.

I want to repeat publicly what I've said to you privately. You will have my and our full support as we work together to restore and improve the performance and the reputation of this institution, which has played and must continue to play such a critical, vital and central role in our parliamentary democracy.

Mr. Speaker, on behalf of all of us on this side, I wish you well as you assume your new responsibilities.


Distinguished Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I draw your attention to the presence in the gallery of our former colleague, the Honourable Dr. Asha Seth, former senator and member of the CNIB Board of Directors with her husband Dr. Arun Seth.

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

Hon. Senators: Hear, hear!

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I draw your attention to the presence in the gallery of a delegation from the CNIB, led by President and CEO John M. Rafferty; and Diane Bergeron National Director, Government Relations and Advocacy. They are the guests of the Honourable Senator Enverga.

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

Hon. Senators: Hear, hear!

National Vision Health Month

Hon. Tobias C. Enverga, Jr.: Honourable senators, I rise today to remind colleagues that May is National Vision Health Month, so decreed by the Senate in a motion by our former colleague, the Honourable Asha Seth. As 75 per cent of vision loss can be prevented or treated, we dedicate this month to a public education campaign on vision health and the elimination of preventable vision loss across the country.

Honourable senators, in two days' time the CNIB will launch the first national vision health report, which reveals an unhealthy gap between Canadians' belief in the importance of vision health and their actual knowledge and behaviours around it. Findings of this report will help to raise awareness of prevalent concerns surrounding vision health in Canada, which will be useful in starting initiatives to address key issues on vision health.

This year, honourable senators, the focus of our National Vision Health Month will move beyond a simple eye health message and will explore blindness issues and social inclusion. Also, we will highlight the coming together of eye care and vision health professionals in their commitment to the creation of a seamless quality vision health care system in the country.

Honourable senators, it is vital that we continue to support the public education campaign to help eliminate avoidable vision loss in Canada. By encouraging Canadians to learn about the importance of preventive eye care and treatment, we will not only improve the well-being of our citizens but will also help to reduce the cost of vision loss, which was estimated to be a staggering $15.8 billion, or nearly 2 per cent of Canada's GDP.

Honourable senators, promoting vision health and eliminating preventable vision loss is an initiative that is very close to my heart. Over 30 years ago, it was the first charitable cause that I volunteered for in Canada. Today, I encourage you to take up the cause and show your support for National Vision Health Month. The Honourable Asha Seth and I, together with our friends from the CNIB, will host a reception this evening to mark the celebration of vision health in Canada. We hope to see you in Room 256-S between 5:30 p.m. and 7:30 p.m.

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I draw your attention to the presence in the gallery of Khaleed Mawji, a House of Commons Page from British Columbia, and Shameen and Hanif Mawji, who are Ismaili leaders from British Columbia. They are the guests of the Honourable Senator Jaffer.

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

Hon. Senators: Hear, hear!

Abraham Pineo Gesner

Hon. Wilfred P. Moore: Honourable senators, this past Saturday, May 2, marked the 218th anniversary of the birth of Dr. Abraham Gesner, late of Halifax, the forgotten father of the modern petroleum industry. Abraham Gesner was born in 1797 at Cornwallis, Nova Scotia, where his parents, who were loyal to the Crown, settled after the Revolutionary War in the United States.

Gesner's first endeavour in life was to ship horses from Nova Scotia to the West Indies but after surviving two shipwrecks, he decided a change was needed and began experimental farming. This too proved unsuccessful and in return for paying his debts, his father-in-law asked him to become a doctor.

Thus Gesner attended St. Bartholomew's Hospital and Guy's Hospital in London, England, where he became a doctor and a surgeon. It was there that his interest in mineralogy was born, which would lead to his greatest contribution to modern society. According to his biographer, Loris S. Russell, Gesner settled in Parrsboro, Nova Scotia. While visiting patients, he began to study the geological features of the area. Soon he would publish his first book entitled Remarks on the Geology and Mineralogy of Nova Scotia. Based on this study, Gesner was employed by the government of New Brunswick to conduct a geological survey of that province, making him the first government geologist of a British colony.

In 1843, Gesner returned to Nova Scotia to farm and practice medicine, while maintaining his curiosity of mineralogy. It was at this time that Gesner first managed to distill bitumen to produce light oil that could be used for illumination. Gesner called it kerosene. Indeed, in Charlottetown in 1846, he gave a public demonstration of his new lamp oil, the significance of which was missed by many. The key to his work was the process he invented. He distilled and refined bitumen to remove the impurities that made it smoke and smell.

He moved to New York in 1853, intent upon making a go of his new product. By 1854 he gained three U.S. patents and founded the North American Kerosene Gas Light Company on Long Island, New York. By 1857, his company was a success but trouble lay ahead. A combination of competition and a loss of patent to rival companies pushed him to the sidelines. His kerosene company was eventually bought by J. D. Rockefeller's Standard Oil, which later took over Canada's Imperial Oil. He received little recognition and even less compensation for his contributions to the petroleum industry. In 1863, he sold his patents and returned to Halifax, where he was appointed Professor of Natural History at Dalhousie University, a post he held at the time of his death on April 29, 1864.

Loris Russell summed up his life best when he wrote:

Abraham Gesner was a man who believed that science was good, and that through technology it could make a better world in which to live. If he could come back now and see the great aircraft now propelled over continents and oceans by his kerosene he would be delighted but not surprised.

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I draw your attention to the presence in the gallery of representatives of the Canadian Association of Midwives, Tonia Occhionero, Executive director; and Emmanuelle Hebert, President. They are the guests of the Honourable Senator Unger.

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

Hon. Senators: Hear, hear!

Iran Accountability Week

Hon. A. Raynell Andreychuk: Honourable senators, this year's Iran Accountability Week comes in the wake of the recent negotiations on Iran's nuclear program. Many are cautiously optimistic about this agreement, but human rights activists are concerned.

As the prominent Iranian human rights lawyer, Nasrin Sotoudeh, recently stated:

To think that reaching an international consensus will by itself lead to an opening in the domestic scene and that the doors of human rights will open miraculously to the people is a mistake . . .

. . . dissidents and the opposition perhaps must prepare themselves for worse days, because extremist groups in the government may decide to deliver a message that nothing has changed in the country by imposing more pressure and restrictions on them.

We must continue to insist that Iran act in good faith, not only in its international diplomacy but also towards its own citizens. That is why I continue to advocate for human rights in Iran, in conjunction with many parliamentarians on the Hill and through my association with the Iranian Political Prisoner Global Advocacy Project. This project pairs parliamentarians around the world with Iranian political prisoners to raise awareness about their plight.

This year, I am deeply concerned to be speaking out again on behalf of Bahareh Hedayat for the second consecutive year. Ms. Hedayat was among many arrested for supporting the Green Movement after Iran's 2009 presidential elections.


A respected student and women's rights activist, her charges include: "interviews with foreign media," "insulting the leader," "insulting the president," and "disrupting public order through participating in illegal gatherings."

At 33 years old, Ms. Hedayat has already served more than half of her nine-and-a-half-year sentence in Tehran's Evin Prison. This makes her eligible for parole under Iranian law. Instead, she languishes in prison as the very principles for which she fought are under threat. New measures to address Iran's population decline stand to encourage early marriage and repeated child bearing, allow discrimination against female job applicants and threaten women's right to sexual and reproductive health.

Iranian society today needs its women's rights advocates, women like Ms. Hedayat, who, in 2005, founded the Women's Commission to promote female student engagement, who helped to launch the Campaign of One Million Signatures against discriminatory laws against women and who, as the secretary for the Women's Commission in the students' union in 2006, organized demonstrations against gender discrimination.

I am proud to be using my freedoms and privileges to speak on behalf of such a remarkable woman, and I ask you to join with me.


L'École Rose-des-Vents

Hon. Claudette Tardif: Honourable senators, on April 24, 2015, in the case of the parents of students at École Rose-des-Vents versus the Government of British Columbia, the Supreme Court of Canada ruled in favour of francophone parents in Vancouver who are calling for a French-language school that can accommodate a growing number of students.

The ruling was unanimous. The judges found that francophone students have the right to the same quality of services as their English counterparts. It took five years for the parents of students at École Rose-des-Vents to win this battle.

What is important to note about this ruling, honourable senators, is that the judges set a standard of substantive equivalence when it comes to educational services. The president of the Fédération des communautés francophones et acadienne du Canada stressed the importance of this principle. She said, and I quote:

The Supreme Court confirmed that when it comes to educational facilities for the minority, the focus should be on substantive equivalence, not on per capita costs and other markers of formal equivalence. This is a major step forward in the interpretation and application of education rights . . . If this principle of substantive equivalence was not clear before, it is now.

Section 23 of the Canadian Charter of Rights and Freedoms is at the heart of this debate. It guarantees linguistic minorities the right to instruction in their language. Section 23 is premised on the fact that "substantive equality" requires that official language minorities be treated differently, if necessary, in order to provide them with a standard of education equivalent to that of the official language majority. The Supreme Court recognized the relevance of the principle of equivalence.

What is more, the court also reaffirmed and clarified the scope of the constitutional protection afforded to official language minorities. The judges noted that schools are a primary instrument of linguistic and cultural transmission.

Honourable senators, we know that parents will send their kids to majority language schools if they don't have access to adequate French-language education services. That's a painful choice for francophone parents.

As Justice Andromache Karakatsanis pointed out:

. . . the disparity between the minority and majority language schools was such as to limit enrolment and contribute to assimilation.

British Columbia's 71,000 francophones are inevitably exposed to this phenomenon.

In response to the ruling, I hope that the parties will take swift action to fix the problem. The situation is urgent, and governments have no choice but to carry out the obligations that this decisive Supreme Court of Canada ruling imposes on them.


Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I draw your attention to the presence in the gallery of a delegation led by the Honourable Mr. Peter Phillips, Minister of Finance and Planning of Jamaica. He is accompanied by Her Excellency Janice Miller, High Commissioner of Jamaica to Canada; Mr. Brian Wynter, Governor, Bank of Jamaica; Mr. Bruce Bowen, Senior Vice President, Caribbean Region, Bank of Nova Scotia; Mr. Devon Rowe, Financial Secretary; and Ms. Helen McIntosh, Ministry of Finance and Planning.

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

Hon. Senators: Hear, hear!

Battle of the Atlantic

Seventieth Anniversary

Hon. Daniel Lang: Honourable senators, this past Sunday, Canadians gathered in Halifax and Ottawa to commemorate the seventieth anniversary of the Battle of the Atlantic, the longest single campaign of the Second World War.

In recognition of over 4,000 members of the Royal Canadian Navy, the Merchant Navy and the Royal Canadian Air Force who perished, wreath-laying ceremonies were held at the naval monument at Point Pleasant Park, Nova Scotia, and at the National War Memorial.

The Battle of the Atlantic is an integral part of Canada's history. This battle established Canada's reputation as a strategic military player among its allies. Under the command of Rear- Admiral Leonard Murray, the only Canadian to hold an Allied theatre command during the war, Canada ensured safe passage of troops and supplies to the United Kingdom. This link, which the Royal Canadian Navy, the Royal Canadian Air Force and the Merchant Navy helped to build and maintain, was the foundation upon which the fortress of Europe relied. Without victory in the Atlantic, there never would have been victory in Europe.

To bring a personal perspective to this victory and the courage displayed by these Canadians who fought in the Battle of the Atlantic, my father would often share stories from his experience at sea as a sailor with the Royal Canadian Navy during the war. I recall him telling me about the many voyages of the convoys that he was involved with, having to fight their way through 9- to 12- storey seas and the fear of not knowing or being unable to see at night if a U-boat attack was imminent.

Canada's commitment to ensure an Allied victory was demonstrated in the expansion of our naval fleet. From its early strength of six oceangoing ships and some 3,500 personnel, the Royal Canadian Navy grew to over 400 warships and nearly 95,000 men and women in uniform, and, by the end of the war, Canada had the fourth-largest navy in the world.

The Royal Canadian Navy continues to uphold the legacy of the Battle of the Atlantic by pledging themselves "Ready, Aye, Ready" to face today's security challenges with pride and courage.



Auditor General

Spring 2015 Report Tabled

The Hon. the Speaker: Honourable senators, I have the honour to table, in both official languages, the 2015 Spring Report of the Auditor General of Canada, pursuant to subsection 7(1) of the Auditor General Act.


Fisheries and Oceans

Budget—Study on the Regulation of Aquaculture, Current Challenges and Future Prospects for the Industry—Ninth Report of Committee Presented

Hon. Fabian Manning, Chair of the Standing Senate Committee on Fisheries and Oceans, presented the following report:

Tuesday, May 5, 2015

The Standing Senate Committee on Fisheries and Oceans has the honour to present its


Your committee, which was authorized by the Senate on Monday, December 9, 2013, to examine and report on the regulation of aquaculture, current challenges and future prospects for the industry in Canada, respectfully requests funds for the fiscal year ending March 31, 2016.

Pursuant to Chapter 3:06, section 2(1)(c) of the Senate Administrative Rules, the budget submitted to the Standing Committee on Internal Economy, Budgets and Administration and the report thereon of that committee are appended to this report.

Respectfully submitted,


(For text of budget, see today's Journals of the Senate, Appendix A, p. 1796.)

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

Senator Manning: Honourable senators, with leave of the Senate and notwithstanding rule 5-5(f), I move that the report be placed on Orders of the Day for consideration later this day.

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

Hon. Joan Fraser (Deputy Leader of the Opposition): Might I inquire why leave is sought for this accelerated treatment?


Senator Manning: The committee has been conducting a comprehensive study on the regulation of aquaculture, its current challenges and future prospects for the industry in Canada, pursuant to an order of reference adopted by the Senate on December 9, 2013.

The committee is seeking funds to hire a firm that would provide graphic design services for its report on aquaculture, as well as funds for printing a limited number of coloured copies of the report. Given that it intends to report to the Senate no later than the June 30, 2015, the committee would appreciate being able to retain the services of the firm at the earliest possible occasion.

Senator Fraser: I fail to see the urgency, so leave is not granted.

(On motion of Senator Manning, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)

Conflict of Interest for Senators

Budget—Seventh Report of Committee Presented

Hon. A. Raynell Andreychuk, Chair of the Standing Committee on the Conflict of Interest for Senators, presented the following report:

Tuesday, May 5, 2015

The Standing Committee on Conflict of Interest for Senators has the honour to present its


Your committee, which is authorized on its own initiative, pursuant to rule 12-7(16) to exercise general direction over the Senate Ethics Officer, and to be responsible for all matters relating to the Conflict of Interest Code for Senators, including all forms involving senators that are used in its administration, subject to the general jurisdiction of the Senate, respectfully requests funds for the fiscal year ending March 31, 2016.

Pursuant to Chapter 3:06, section 2(1)(c) of the Senate Administrative Rules, the budget submitted to the Standing Committee on Internal Economy, Budgets and Administration and the report thereon of that committee are appended to this report.

Respectfully submitted,


(For text of budget, see today's Journals of the Senate, Appendix B, p. 1802.)

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

(On motion of Senator Andreychuk, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)


The Senate

Motion to Express Most Sincere Appreciation to Services and Employees who Contributed to the Lying in Repose and Funeral of Our Late Speaker, the Honourable Pierre Claude Nolin, Adopted

Hon. Claude Carignan (Leader of the Government): Honourable senators, with leave of the Senate and notwithstanding rule 5-5(j), I move:

That the Senate express its most sincere appreciation to the services and employees that contributed to the lying in repose and funeral of our late Speaker, the Honourable Senator Nolin, including the Executive Committee of the Senate Administration, the Office of the Usher of the Black Rod, the Senate Protective Services, the Protocol Office of the International and Interparliamentary Affairs Directorate and the Senate Pages.

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

Hon. Senators: Agreed.

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

Hon. Senators: Agreed.

(Motion agreed to.)


National Sickle Cell Awareness Day Bill

First Reading

Hon. Jane Cordy introduced Bill S-227, An Act respecting National Sickle Cell Awareness Day.

(Bill read first time.)

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

(On motion of Senator Cordy, bill placed on the Orders of the Day for second reading two days hence.)

Inter-Parliamentary Union

Session of the United Nations Commission on the Status of Women, March 11, 2015—Report Tabled

Hon. Salma Ataullahjan: Honourable senators, I have the honour to table, in both official languages, the report of the Canadian parliamentary delegation of the Inter-Parliamentary Union respecting its participation at the Fifty-Ninth Session of the United Nations Commission on the Status of Women, held in New York, New York, United States of America on March 11, 2015.

Canada-United States Inter-Parliamentary Group

Annual Conference of the Southeastern United States-Canadian Provinces Alliance, May 4-6, 2014—Report Tabled

Hon. David M. Wells: Honourable senators, I have the honour to table, in both official languages, the report of the Canadian parliamentary delegation of the Canada-United States Inter- Parliamentary Group respecting its participation at the Seventh Annual Conference of the Southeastern United States-Canadian Provinces Alliance, held in Raleigh, North Carolina, United States of America, from May 4 to 6, 2014.

Annual Summit of the Pacific NorthWest Economic Region, July 20-24, 2014—Report Tabled

Hon. David M. Wells: Honourable senators, I have the honour to table, in both official languages, the report of the Canadian parliamentary delegation of the Canada-United States Inter- Parliamentary Group respecting its participation at the Twenty- Fourth Annual Summit of the Pacific NorthWest Economic Region, held in Whistler, British Columbia, Canada, from July 20 to 24, 2014.

Annual Legislative Summit of the National Conference of State Legislatures, August 18-22, 2014—Report Tabled

Hon. David M. Wells: Honourable senators, I have the honour to table, in both official languages, the report of the Canadian parliamentary delegation of the Canada-United States Inter- Parliamentary Group respecting its participation at the Annual Legislative Summit of the National Conference of State Legislatures, held in Minneapolis, Minnesota, United States of America, from August 18 to 22, 2014.

Canadian/American Border Trade Alliance Conference, September 28-30, 2014—Report Tabled

Hon. David M. Wells: Honourable senators, I have the honour to table, in both official languages, the report of the Canadian parliamentary delegation of the Canada-United States Inter- Parliamentary Group respecting its participation at the Canadian/American Border Trade Alliance Conference, held in Washington, D.C., United States of America, from September 28 to 30, 2014.

Commonwealth Parliamentary Association

Mid-Year EXCO Meeting, April 28-May 1, 2014—Report Tabled

Hon. Elizabeth Hubley: Honourable senators, I have the honour to table, in both official languages, the report of the Canadian parliamentary delegation of the Commonwealth Parliamentary Association to the Mid-Year EXCO Meeting, held in London, United Kingdom, from April 28 to May 1, 2014.

Commonwealth Parliamentary Conference, October 2-10, 2014—Report Tabled

Hon. Elizabeth Hubley: Honourable senators, I have the honour to table, in both official languages, the report of the Canadian parliamentary delegation of the Commonwealth Parliamentary Association to the Sixtieth Commonwealth Parliamentary Conference, held in Yaoundé, Cameroon, from October 2 to 10, 2014.


Public Safety

Auditor General Report—Early Release Provisions

Hon. Joan Fraser (Deputy Leader of the Opposition): Honourable senators, I have a question for the Leader of the Government in the Senate.

Last week the Auditor General of Canada reported — and I believe this was one of the reports that has just been tabled in the Senate though the report was made public last week — that Correctional Service Canada officials made fewer recommendations for early release to the Parole Board of Canada in the 2013-14 fiscal year than in the 2011-12 fiscal year. This was the case, the Auditor General said, even for offenders who had been assessed as a low risk to reoffend.

My question is: Why has the number of those recommendations been declining even for low-risk offenders?


Hon. Claude Carignan (Leader of the Government): As you know, the Auditor General's report was tabled earlier today, and the Minister of Public Safety has looked at it. The government is studying the report and will act on the recommendations to improve the penitentiary system.


In fact, the Auditor General found that our truth in sentencing measures have been effective, because more prisoners are staying behind bars for longer portions of their sentences. The Correctional Service of Canada has accepted the Auditor General's recommendations and will address the issues that he raised, while ensuring that public safety remains a priority.


Senator Fraser: A number of the recommendations were for further study and guidelines and whatnot, so it's reassuring that there will be study and guidelines and whatnot, but I am concerned about actual action. The Auditor General said that as a result of this lower rate of recommendations for early release:

. . . lower-risk offenders were released later in their sentence and had less time supervised in the community before their sentence ended.

This is important because the more time offenders have to gradually reintegrate into the community under CSC supervision before the end of their sentence, the more likely they are to reintegrate successfully. Furthermore, CSC data consistently shows that low-risk offenders who serve longer portions of their sentence in the community have more positive reintegration results. As such, the supervised release of offenders who have demonstrated responsibility to change contributes to public safety . . .

So what is the government doing to reverse the trend, which has been evident for some time now, to keep people behind bars for longer rather than more reasonable periods of time?


Senator Carignan: Our government is committed to protecting the safety of Canadians. We are very pleased that the Auditor General found that our truth in sentencing measures are effective. Thanks to those measures, more prisoners will remain behind bars for longer periods. As for the other recommendations, the Correctional Service of Canada will take the necessary steps to address the concerns that have been raised.

Senator Fraser: I imagine we don't all have the same definition of the word "effective."


The Auditor General said that keeping offenders in prison longer, rather than reintegrating them gradually through the parole system into the community, does not contribute to public safety; quite the reverse. So I would not call that "efficace" myself. The Auditor General finally said:

We found that the slowing rate of offender releases had been contributing to capacity pressures across institutions and increasing custody costs. Although the crime rate has decreased, and new admissions into federal custody have not increased, the total male offender population grew by 6 per cent.

As a result, CSC costs of custody have increased by $91 million because of increased numbers of offenders in custody. The Correctional Investigator, Mr. Sapers, has been warning for years of the negative effects of locking people up, and in particular locking them up without proper access to rehabilitation programs. The government, in its wisdom, has chosen to ignore his advice. But this is from the Auditor General — advice to a government that misses no opportunity to proclaim its sound financial management. The Auditor General says basically that we have spent $91 million in counterproductive ways. What is the government going to do about it?

Some Hon. Senators: Hear, hear.


Senator Carignan: If you read the Auditor General's report with your glasses on, you should reach the same conclusion that we did: The Auditor General found that our truth in sentencing measures are effective. As for the other issues that could have an impact, the transition period, in particular, is one aspect mentioned in the report. The Correctional Service of Canada has accepted the Auditor General's recommendations and will make every effort to improve those areas while making the safety and protection of Canadians its top priority.

Employment and Social Development

Official Languages—Literacy and Skills Development

Hon. Maria Chaput: Honourable senators, my question is for the Leader of the Government in the Senate. This question comes from Normand Lévesque of the Réseau pour le développement de l'alphabétisme et des compétences and has to do with the 2013- 2018 roadmap.

In March 2013, the roadmap provided for $1.5 million in funding annually for the Literacy and Essential Skills Initiative. Despite a commitment from Employment and Social Development Canada, in the spring of 2013, the communities were not consulted for their input into developing the strategy for that initiative. Their needs were not taken into consideration in the decision-making process.

My questions are as follows: Why did Employment and Social Development Canada not establish real mechanisms for consulting francophone minority communities on the issue of literacy? Why is that department lending its support — with funding allocated to the roadmap — to projects intended for those communities that are often managed by organizations with no expertise, experience or knowledge of our communities?

Hon. Claude Carignan (Leader of the Government): We are fully aware of the important contribution made by francophone and anglophone communities to the cultural, social and economic vitality of our society. We have allocated $1.1 billion to our government's roadmap for official languages. That is the most comprehensive investment in official languages in Canada's history. I am sure you will agree with me on that point. There is no question about that. The Roadmap for Canada's Official Languages 2013-2018 involves 14 federal institutions, which are implementing 28 initiatives in different sectors. Our commitment to the official languages is unwavering. You can rest assured that Minister Shelly Glover will continue her efforts to implement the Official Languages Act.

Senator Chaput: Leader, with all due respect, I'm not disputing the funding associated with the roadmap, but rather how that funding is being spent and the fact that the affected communities are not being consulted regarding their needs.

The second question I received has to do with the Adult Learning, Literacy and Essential Skills Program. This program falls under Employment and Social Development Canada.

Year after year, this program fails to spend all of the money at its disposal. In 2013-14, it spent just $14.9 million of a $23.5 million budget, which means that $8.609 million was returned to the public treasury. In 2014-15, a little over $13 million was spent out of a total budget of about $23.5 million. Every year, this department continues to ask Parliament for around the same budget, yet every year it does not spend the monies voted by Parliament.

This policy has led to the closing of a number of important provincial, territorial and national organizations working in this area. This is a devastating outcome for the entire country, all because Employment and Social Development Canada deliberately decided to do without the expertise and skills of a strong network across Canada that works with provincial and territorial governments, socio-economic players, various linguistic and cultural groups, and the most vulnerable populations.


The other question that Mr. Lévesque sent to me was this: How can you justify such an approach? When this department should be focusing on helping communities, reacting to changes and developing job skills, it is focusing on destroying what the communities have taken years to build. I repeat the question: How can you justify such an approach?

Senator Carignan: Thank you, senator, for passing on the gentleman's question. For several years, funding paid out through the federal Office of Literacy and Essential Skills went to the same organizations to cover administrative costs, rather than fund projects that would help Canadians improve their literacy skills.

As I have said previously, these organizations were informed four years ago, and we gave them enough time to prepare for the changes to the structure of funding through the Office of Literacy and Essential Skills, which will make it more effective. Canadian taxpayers will no longer cover the organizations' administrative costs, but will instead invest in useful literacy programs that will improve Canadians' situation.

Under the current program, any organization in Canada, including those that received funding for administration under the old structure, can apply for funding. As Canadian taxpayers expect, the projects are evaluated and funded based on merit. Our government is determined to ensure that federal literacy funding is used for projects that truly allow people to improve their skills so that they can ultimately get a job.

For example, senator, last year, we announced over $1.2 million for Frontier College to integrate literacy and essential skills into apprenticeship programs. These are real projects and actions to improve literacy as an essential skill for job searching. That is what we are going to continue to do to improve the lives of Canadians.

Senator Chaput: I have a supplementary question. Let me get this straight. Did the department make changes to this process with respect to the literacy support programs without consulting the official language minority communities, or after consulting them?

Senator Carignan: We informed the organizations four years ago in order to give them enough time to prepare for the changes to the funding structure. That gave them ample time to share their comments with us.

Senator Chaput: The organizations were informed four years ago so that they could adjust to the new criteria. They were not consulted previously. Is that correct?

Senator Carignan: The organizations were informed four years ago, which gave them enough time to prepare for the changes and share their comments with us.

International Trade

Expo Milano 2015—Trade Promotion

Hon. Céline Hervieux-Payette: On May 1, Le Journal de Montréal, the largest weekly newspaper in Quebec, with over a million readers, ran an article headlined "Le Canada n'existe pas," Canada does not exist. The article criticized Canada's absence from World Expo 2015, which just opened in Italy. Keep in mind that Quebec has an extremely large Italian community. Skipping World Expo is not good electioneering.

The reasons for this absence must be related to balancing the budget. What other reasons could there be? It seems to me that spending related to a world expo that we have attended in the past, around the world, could be an investment for the future, to raise our profile and create a showcase to attract tourists from all around the world and entice future buyers. For some time now the focus has been on a single target date — the election — and that makes it hard to think about the long term. If we attend this expo in Italy, sales will not necessarily happen right away. However, our exports are stagnating and our trade balance posts two bad years for one good year. Why not focus on the international market?

When your government made that decision, did it calculate the loss of potential revenue due to our absence in Italy?

Hon. Claude Carignan (Leader of the Government): Senator, sometimes your questions surprise me. You're criticizing us for not going to an expo, but in other questions, you criticize us for signing the biggest free trade agreements in history and opening up markets worth hundreds of millions of dollars.

We will pursue our export plan, which is the most ambitious ever in Canadian history. In 2014, Canada recorded a $5.2 billion trade surplus, a reversal of the previous $12 billion deficit. Exports were up 10 per cent over the previous year. We have signed trade agreements with 38 countries since 2007. Compare that to the Liberal record: three trade agreements in 13 long years of government. In 2013, we launched the Global Markets Action Plan, which mobilizes all of our diplomatic resources abroad to promote our economic priorities in the markets.

I think it's odd that first you criticize us for signing free trade agreements worth hundreds of millions of dollars and tens of thousands of jobs, and then a week later you ask questions about our absence from an expo. That's pretty strange.

Senator Hervieux-Payette: May I remind you that the theme of the expo is "Feeding the Planet, Energy for Life." I find it strange that when we talk about feeding the planet, Canada is the world's fourth-largest exporter of crops, the third-largest exporter of cattle and the second-largest exporter of pigs. I think that spending $50 million to go to Europe and boost sales in that area would not have been a bad investment or a pointless expense.

Canada is also the world's fifth-largest exporter of agricultural products in general. The agri-food industry generates eight per cent of our GDP. Some 2.1 million Canadians work in this industry. We can help them by supporting initiatives that promote exports. Milan, a major European city, is expecting to host 20 million visitors. Does your government think that Canada's 35 million inhabitants can absorb all of the country's agri-food production or that other markets should be developed and that the Italian expo would have been a great opportunity for that?

Senator Carignan: Senator, you're asking questions to which you already have the answers.


You gave a good introduction on Canada's international trade standing. It's clear that what this government is doing is successful and that Canada is among the export leaders, especially in agriculture. This is the proof that our international trade and export program is working.

Thank you for highlighting the outstanding performance by Canada and our government.

Senator Hervieux-Payette: I'd like to remind you that agriculture is as much a provincial jurisdiction as a federal one and that there were other governments before yours. We didn't just start producing grains yesterday.

However, I also want to remind you that we just signed the famous agreement you mentioned ironically. Don't assume that I'm against free trade agreements. I'm against free trade agreements that are not in Canadians' best interests.

You've heard enough about my thoughts about arbitration. In this case you haven't given me an answer. The real reason we aren't in Italy is to save a measly $50 million. The government is making cuts here, just as it has made cuts across the board. The Government of Canada is focused on the here and now, but it is forgetting that it needs to plan for the future. That future meant participating in this expo.

I'd like to know the real reason why we didn't participate in Expo Milano 2015.

Senator Carignan: Now you're criticizing us for balancing the budget, senator. We are certainly proud of this budget. We have no intention of bringing in surtaxes like the ones proposed by your friend Mr. Trudeau.



Tougher Penalties for Child Predators Bill

Bill to Amend—Second Reading—Debate Adjourned

Hon. Donald Neil Plett moved second reading of Bill C-26, An Act to amend the Criminal Code, the Canada Evidence Act and the Sex Offender Information Registration Act, to enact the High Risk Child Sex Offender Database Act and to make consequential amendments to other Acts.

He said: Honourable senators, I am pleased to rise today to introduce Bill C-26, the tougher penalties for child predators act.

In 2013 Speech from the Throne, our government committed to re-establish Canada as a country where those who break the law are punished for their actions, where prison time matches the severity of crimes committed and where the most vulnerable victims, children, are better protected. This legislation reflects that commitment.

The trend of inadequate and unjust sentencing for those who commit sexual offences against children in Canada has been a major frustration of mine and of most Canadians. Bill C-26 is an important step in the right direction. I am pleased to sponsor this legislation in the Senate. We will continue to hear cases of child predators sexually assaulting victims and coming away with a measly one- or two-year sentence. This is an area where judges have repeatedly missed the mark when it comes to sentencing.

With such an incredibly high recidivism rate, and the fact that not keeping these predators off the streets can absolutely destroy a person's life, we are failing our youth and failing our communities.

Last week, I attended the thirtieth anniversary celebration of the Canadian Centre for Child Protection in Winnipeg. I have had the pleasure of working with this organization in the past and have been blown away by their tireless efforts to protect children and support Canadian families. This celebration came days after the budget speech in which our government announced that through the Victims Fund, we will ensure significant additional financial support over the next four years to child advocacy centres like this one.

At the event, both the executive director, Lianna McDonald, and Prime Minister Stephen Harper highlighted the significant legislation that our government has brought forward to keep our neighbourhoods and families safe, legislation that is consistent with the government's four priorities in protecting Canadians: keeping dangerous criminals behind bars and out of neighbourhoods; protecting our children; making the justice system centre on the welfare of victims rather than on criminals; and keeping illegal guns, gangs and drugs out of our communities.

Prime Minister Harper stated emphatically that in any society anywhere in the world, nothing is more precious than the life of a child. Our government has already produced the most comprehensive legislation to combat sex crimes against children ever enacted in this country.

First, we increased the age of consent to sexual activity from the age of 14 to 16. Our Safe Streets and Communities Act ensured penalties imposed for sexual offences against children are consistent and better reflect the heinous nature of these crimes.

Our Protecting Victims From Sex Offenders Act enacted such fundamental reforms as automatic inclusion of convicted sex offenders in the National Sex Offender Registry, mandatory DNA sampling for convicted sex offenders, proactive use of the registry by police, registration of sex offenders committed abroad, and notification of other jurisdictions when high-risk registered offenders travel.

Through the zero tolerance for barbaric cultural practices act, we have protected our youth by putting an end to early forced marriages. We ensured that women and children are respected and protected from twisted, barbaric cultural practices.

Through the Protecting Canadians from Online Crime Act, better known as the cyberbullying bill, we have legally prohibited the non-consensual distribution of intimate images. We have also legislated the mandatory reporting of child pornography by Internet service providers.

We have acted to end automatic release of repeat dangerous offenders after serving only two thirds of their sentences. We changed the law regarding those found not criminally responsible for violent acts to prioritize the safety of society. We got rid of the faint-hope clause, which allowed killers to apply for early parole. And most importantly, when a predator kills more than one person, judges can now impose consecutive sentences to ensure that every lost life counts.

For the most dangerous and violent offenders, this government's most recent legislation ensures that when a court imposes a life sentence, a life sentence means that it is a sentence for life.

Just a couple of weeks ago, the historical Victims Bill of Rights received Royal Assent in Canada, enshrining statutory rights for victims at the federal level for the first time in the history of our country.

I agree with Prime Minister Harper when he said:

. . . I think I can safely venture to say, that in the almost 150 years since Confederation, no other federal government has taken more legislative and other action to address the safety of Canadians . . .

None has cared as much about the protection of our children or about victims of crime.

Mr. and Mrs. Harper, as well as the Conservative government, received praise from the centre, which could not have been more appreciative of all that our government has done to protect children, both by means of contribution and through our comprehensive crime legislation, making our communities safer.

Bill C-26, the tougher penalties for child predators act, substantially adds to these initiatives in several ways. First, maximum and minimum penalties for certain Criminal Code sexual offences against a child would be increased, building upon reforms enacted by the Safe Streets and Communities Act in 2012. This includes ensuring that the maximum penalty for all hybrid child sexual offences is increased to two years less a day on summary conviction and 14 years on indictment.


Furthermore, the bill would make the most serious child pornography offences, making and distributed child pornography, strictly indictable with a maximum penalty of 14 years. The existing mandatory minimum penalty of one year would continue to apply. This reform appropriately reflects the increased harm in making child pornography and distributing it, particularly over the Internet. In fact, the Supreme Court of Canada has commented on the insidious effects of this conduct, noting that once child pornography is posted on the Internet, it can be accessed indefinitely from anywhere in the world.

Penalties for breaches of supervision orders, which are prohibition orders, probation orders and peace bonds, would also be increased to ensure that those who violate conditions imposed by the courts in order to protect children are held to account.

Bill C-26 would also ensure that evidence that an offence committed while the offender was subject to a conditional sentence order, on parole or on statutory release would be considered an aggravating factor for sentencing purposes.

In my opinion, the most significant provision in this piece of legislation deals with the existing law allowing judges to rule that a sex offender charged with sexual offences against multiple children can serve the sentences concurrently. In reality, that means the offender is serving one sentence.

The new provisions mandate that the courts impose consecutive sentences in two situations. The first is where the offenders are sentenced at the same time for child pornography offences and contact sexual offences. This provision recognizes the additional harm caused when child pornography is involved in the commission of a contact child sexual offence. Even where the child pornography is unrelated to the victim of a contact sexual offence, this offensive material normalizes child sexual abuse and causes ongoing harm, especially when made available on the Internet. Although courts generally do impose consecutive sentences in those types of cases, this bill would ensure that consecutive sentences are imposed in every case.

The second situation where courts would be required to impose consecutive sentences is when an offender is sentenced for contact sexual offences against multiple children at the same time. This would finally ensure that child sexual offenders do not get sentencing discounts for offences against multiple victims. The criminal justice system must ensure that each and every victim counts and is accounted for in sentencing.

Canada's worst sentencing outrages have been as a result of concurrent sentencing. Sentencing courts are imposing concurrent sentences for offences committed against multiple victims due to the totality principle, which holds that the total length of sentences ordered to be served consecutively should not be unduly long or harsh.

Last week at the Canadian Centre for Child Protection celebration, we heard from a man named Lyle Miller. The Millers have a son named Zach, and in 2006, when Zach was 10 years old, a man identifying himself as Mr. Summers came to the Millers' farm in Saskatchewan, initially as a customer. He introduced Zach to his own son, who was around the same age, and he suggested to the Millers that their sons should play together, as Mr. Summers and his son were new in town.

The boys went on a bike ride, and later that evening, there was no sign of Zach, and the boys' bikes were neatly stored in a garage. The Millers immediately knew something was wrong because, as they said at the meeting we were at, Zach would never have stored his bike away neatly in a garage.

They contacted the authorities and eventually local police came to their door with a photo of Mr. Summers and asked if that was the man whom they believed to be with Zach. Mr. Miller said that it was.

The next night, there was still no sign of Zach. The Millers turned on the television to see the news showing two missing boys believed to have been abducted by this man. The news identified the man the Millers believed to be Mr. Summers as Peter Whitmore, a convicted pedophile with seven known victims. The boy Peter Whitmore claimed to be his son was, in fact, another abducted child, and all the Millers knew was that this convicted pedophile had their son.

Finally, the next day, the Millers received a call from the police saying they had Zach. Their worst fears were, in fact, true: He suffered serious personal trauma and injury as a result of being restricted by chains, forced to watch child pornography and repeatedly sexually assaulted by Peter Whitmore.

Mr. Miller told us about his emotional reunion with his son and his rage toward Mr. Whitmore. He noted his disgust that the individual had assaulted seven known prior victims and that he was free to commit these unthinkable acts against two more boys.

In a previous case, the Parole Board had indicated that Whitmore was 100 per cent likely to re-offend. Yet after his short sentence was up, he was once again a free man — free to destroy more lives. Now, as Mr. Miller pointed out, he is eligible for parole next year.

In 2013, David James Leblanc violently sexually assaulted a 16- year-old boy whom he had chained up in his home in Nova Scotia. The boy was assaulted three times a day for eight days by Leblanc and another man. A third man sexually assaulted the boy one of the days after paying Leblanc. Leblanc also committed sexual offences against two young boys in his care, sexually assaulting a 5-year-old and posting images of himself and a 5- year-old and a 2-year-old to a child porn website.

The current maximum sentence for kidnapping is life in prison, and the maximum sentence for confining someone against his or her will is 10 years. Add that to the sexual assault against three children, and what sentence did Leblanc receive? Eleven years.

Leblanc was shielded from an adequate sentence by the totality principle, which, again, does not permit judges to stack one sentence for each offence on top of another. Leblanc will be eligible for parole in a little over a year. With this new provision, Leblanc would have to serve a separate sentence for each of the child pornography charges and the assault of each victim.

One more high-profile case that highlights the injustice of what is sometimes described as a "sentencing discount" in sexual offences against children is the case of Gordon Stuckless. He was charged with committing hundreds of rapes against 24 boys after one victim, Martin Kruze, had the courage to speak out and was successful in encouraging others to do the same.

At the sentencing, Stuckless was considered to be a first-time offender and given a sentence of two years. Two years, colleagues. Shortly afterward, Martin Kruze, the victim, committed suicide. As Charles Adler contended, Martin Kruze survived being raped countless times by Gordon Stuckless, but he did not survive being raped by the criminal justice system.

Under this new provision, Gordon Stuckless would have had to have served at least the mandatory sentence of one year for each of the known 24 victims, totalling a bare minimum of 24 years.


I would like to stress the important sentencing principles that apply in child sexual abuse cases. Primary consideration must be given to the objectives of denunciation and deterrence when courts are sentencing child sexual offenders. Both mandatory consecutive sentences and mandatory minimum penalties serve this objective well. They ensure that the totality principle does not operate to reduce sentences in these types of heinous cases. And, importantly, courts have taken note of recent reforms in this regard: Recent case law reflects increased judicial consideration of denunciation and deterrence, as well as the imposition of lengthier sentences in child sexual offence cases following recent penalty increases. In particular, the British Columbia Court of Appeal noted that Parliament has made it very clear that the protection of children is a basic value of Canadian society, which the courts must defend.

Bill C-26 also proposes important reforms that would assist in tracking child sex offenders, including when they go abroad to commit offences against children in other countries whose legal systems are less robust than ours. For example, proposed amendments to the Sex Offender Information Registration Act would require registered child sex offenders to report absences from the country, including the location and address at which they expect to stay.

Proposed amendments to this act would also allow information sharing between the National Sex Offender Registry, officials and the Canada Border Services Agency. Registered sex offenders would be required to report passport and licence numbers to the registry, and registry officials would be authorized to disclose certain information on registered child sex offenders.

CBSA would also be authorized to collect travel information from registered sex offenders at a port of entry, if they had been flagged by registry officials, and share that information with registry officials.

These are much needed reforms that would go a long way toward both preventing Canadian sex offenders from seeking out vulnerable children in other countries and holding them to account when they do so.

Bill C-26 also proposes a new, publicly accessible database of high-risk child sex offenders through the enactment of the high risk child sex offender database. This act would authorize the RCMP to establish and administer a national, publicly accessible database of high-risk child sex offenders who would have been the subject of a public notification in a province or territories.

Canadians have the right to an accessible and effective way to determine whether their children are at risk in their communities. I think we can all agree that community safety is paramount.

While putting legislation in place to ensure just sentences for child predators, we need to keep in mind that legislation alone cannot address the complexities of the harm caused by child sex offenders. That is why government support for agencies like the Canadian Centre for Child Protection that provide assistance to young victims and witnesses in coping with trauma that they have experienced, as well as navigating the complex criminal justice system, is so vitally important.

Those dedicated to protecting children and supporting victims' families, combined with our important tough-on-crime legislation, are fundamental to keeping our communities safe. The provisions in Bill C-26, specifically ensuring that every victim is accounted for through mandatory consecutive sentencing and ensuring the establishment of a national, publicly accessible database of high-risk child sex offenders, are major improvements to our justice system. The serious psychological damage and long- term effects that sexual abuse has on abused children are immeasurable.

As one perpetrator spending life in prison in the United States for sexually abusing his young cousin later admitted: "I killed who she could have been . . ."

As the 14-year-old boy Peter Whitmore abducted and repeatedly assaulted said in victim impact statement to the court: "I wish none of this would ever have happened, then I would still be me."

Colleagues, there is nothing more offensive or severe than the sexual assault of the most precious members of our society — our children. It is time that our sentences began to reflect that severity so that Canadian families can rest assured that their children are better protected from those who would so cruelly prey on their vulnerability. We know recidivism rates are incredibly high for child sexual assault, and we need to keep these dangerous offenders out of our communities.

Honourable senators, I am happy to report that bill C-26 received unanimous support in the other place, and I encourage my honourable colleagues to support this important legislation. It is my sincere hope that this bill will receive unanimous support in this chamber as well. Thank you.

(On motion of Senator Fraser, for Senator Campbell, debate adjourned.)

Genetic Non-Discrimination Bill

Eleventh Report of Human Rights Committee—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Frum, seconded by the Honourable Senator Demers, for the adoption of the eleventh report of the Standing Senate Committee on Human Rights (Bill S-201, An Act to prohibit and prevent genetic discrimination, with amendments), presented in the Senate on February 19, 2015.

Hon. James S. Cowan (Leader of the Opposition): Honourable senators, I rise to speak to the report of our Human Rights Committee on my private member's bill, Bill S-201, An Act to prohibit and prevent genetic discrimination.

Let me be very up front with you. I'm going to ask you to defeat this report — a highly unusual step, I know, but one I believe is the only appropriate course of action in this case.

I introduced Bill S-201 to address what I believe is a gap in our legislative regime as it applies to the health of Canadians, namely that right now in Canada, unlike in most other Western democratic countries, if a person has a genetic test, there is no specific legal protection against someone, such as an employer or an insurance company, gaining access to that information and using it against him or her, which is so-called "genetic discrimination." The result is that many Canadians are deciding against having genetic testing that their doctors believe could help them to lead healthier, longer lives.

I will return to the substance of the bill shortly, but, colleagues, many Canadians have been watching the course of this bill, waiting eagerly for it to pass. But what they have witnessed has not been an example of the best that this chamber can be for Canadians.

I first tabled this bill on April 17, 2013, more than two years ago. I spoke to it a few days later. Senator Carignan, then Deputy Leader of the Government, took the adjournment — and that was it. He reset the clock on June 11, and I should explain for those who are following the debate that under the Senate rules, an item will fall off the Order Paper, unless someone speaks to it, after a certain number of sitting days. To avoid that, Senator Carignan rose, after almost two months, to say that he was not ready to speak, and he simply adjourned the debate again. Then, of course, Prime Minister Harper prorogued Parliament in September and Senator Carignan never did speak.


I was, however, delighted to see that when Parliament returned in October 2013, the Speech from the Throne included a commitment that the government would "Prevent employers and insurance companies from discriminating against Canadians on the basis of genetic testing;". I publicly welcomed the government's acknowledgment of this important issue and the clear agreement that federal action could, should and would be taken to prevent this discrimination.

I re-tabled my bill that October. Indeed, it was the first private member's bill tabled here after prorogation, hence its number, S- 201. I spoke a second time. Then, colleagues, the games began. In hockey, it is called "ragging the puck."

Once again, the bill just sat here. It took almost six months, until April 1, 2014, for us to finally hear from the other side about the bill; and that was in a speech by Senator Frum. The bill received second reading that day and was referred to our Legal and Constitutional Affairs Committee for study. Perhaps I should have been tipped off by the fact that it was April 1, April Fool's Day. It became clear that Legal and Constitutional Affairs was not going to get to my bill anytime soon. Negotiations ensued with the other side, and it was agreed that since our Human Rights Committee did not have any legislation before it to examine, it could deal with my bill expeditiously. But in the end, nothing happened to re-refer the bill to Human Rights until June 16, a few days before the Senate rose for the summer recess.

Two hearings were held by the committee at the end of September and then, once again, nothing — no action, for months. Finally, two more hearings were held, on December 10 and 11, immediately before the Senate was scheduled to rise for the Christmas break. At the end of the December 11 hearing, I asked if we could proceed to clause-by-clause. I was told that this would be considered over the holidays with clause-by-clause to take place in the new year.

Meanwhile, colleagues, private members' bills tabled by Conservative senators received extraordinarily expeditious treatment. You will recall the Black April Day Act, renamed Journey to Freedom Day Act, put forward by our colleague, Senator Ngo. That bill received second reading on October 29, 2014, and had its first hearing before the Human Rights Committee the next morning, a mere 18 hours later. Of course, that bill has since passed both this chamber and the other place and is now law. The first Journey to Freedom Day was marked last week.

I understand the importance of marking historical events, but colleagues, is a bill to name a day really more urgent than a bill that could help Canadians access medical treatment? There are very sick young children whose doctors need genetic testing in order to make a proper diagnosis, whose families need the protections in this bill before they can give the go-ahead to proceed with the testing.

Clause-by-clause consideration of Bill S-201 was finally allowed to proceed on February 19, more than two months after the last witness had been heard. When that meeting began, there was a motion to — yes — further delay clause-by-clause consideration. Senator Andreychuk decided that two years after my bill was tabled was the appropriate time to suggest writing to the provinces to see what they thought of the bill. Fortunately, that motion was defeated.

The results of that vote, however, seemed to come as a surprise to most of the Conservative senators on the committee, who immediately thereafter requested that the committee suspend proceedings, in the words of Senator Frum, "to regroup."

After regrouping, the majority then proceeded to vote what can only be described as very peculiar amendments to the bill. Notwithstanding that this chamber had passed the bill at second reading, which, as we all know, means the Senate gave approval to the principle of the bill, the majority on the committee proceeded to gut it. By the time they were finished, only three clauses were left. The majority on the committee agreed to create the new bill that I proposed, the genetic non-discrimination act. They also decided that this new act would have only one section, namely a definition section to define the terms "disclose" and "genetic test." Every other clause was eliminated.

In this report, the committee is recommending that the chamber agree to a new proposed law, the genetic non-discrimination act, which would have a title and a definition section but nothing else. What kind of statute would that be, honourable senators? The words in the definition clause would appear nowhere else in the new statute because all the clauses that actually did what the title promises, prohibit genetic discrimination, were eradicated.

The provision that would have prohibited requiring someone to disclose the results of a prior genetic test, gone.

The provision that would have prohibited requiring someone to take a genetic test in the first place, gone.

With respect to this provision, Senator Eaton asked a question during clause-by-clause consideration of the bill that I have to tell you, colleagues, I found rather disturbing. She asked:

Would it apply, for instance, to future immigrants? Could we compel them to have a DNA test to see if they were going to be a charge on our health system, or would it protect future immigrants?

I hoped at the time that she was asking in order to elicit the answer I gave her, namely that the bill would protect everyone. You could not compel a person to take a genetic test or to disclose the results of the testing, period. The bill I proposed would apply to everyone, whether they were new immigrants or could trace their lineage to the United Empire Loyalists or earlier. I was concerned when Senator Eaton and all but one of her caucus colleagues on the committee then voted against those clauses of the bill. I would not want to think that anyone in this chamber would advocate testing potential immigrants to see if they have so-called "good genes." There are disturbing echoes here, colleagues.

The third and final clause of Bill S-201 that was agreed to by the committee would amend the Canada Labour Code. It would provide some protection to federal employees against genetic discrimination by the federal government and other federal employers. That is important, but Canadians would be forgiven for asking why we are prepared to provide protection for our own employees but for no one else in Canada. And of course, that is important but very limited protection — protection against discrimination by an employer. That is only one kind of genetic discrimination and hardly the kind of protection this chamber approved when it gave second reading to and approved the principle of Bill S-201.

Colleagues, that is what happened at clause-by-clause consideration in the Human Rights Committee on February 19. That is the report before us now — a statute that would have only a definition section, nothing else and amendments to the Canada Labour Code. Everything else was deleted. What took place in committee is incomprehensible to me, and what makes it especially troubling is the importance of the underlying issue. Genetic testing is revolutionizing health care and medical science. With a simple blood test or even a cheek swab, science is now able to run quite literally thousands of genetic tests looking for particular predispositions to a condition or disease.

Colleagues, the pace at which genetic tests are being developed is nothing short of astonishing. When I first spoke to this bill back in April 2013, I remarked how ten years earlier, in 2003, there were some 100 genetic tests in use. This had grown to some 2,000 tests when I spoke in April 2013, which I thought was pretty impressive. Today, there are more than 26,500 genetic tests available. In two years, genetic testing has expanded ten-fold.

These tests can tell if you have a gene, or more precisely a genetic mutation, that is associated with a particular disease or condition. In the very few cases of rare so-called monogenic disorders, if you have the gene then you will develop the disease or condition. But in the overwhelming majority of cases, having a particular gene does not mean that you necessarily will develop the disease or condition. It just means that you have what is called a "genetic predisposition" to develop that disease or condition. It may never develop, or it may not develop for many years. Even in the case of monogenic disorders, while having the gene means that you will develop the disease, it may not develop for many years, even into what used to be called old age.


But the real point here, colleagues, is that knowledge is power. Knowing that you have a particular genetic predisposition can open up steps that you can take to reduce the chance that you will develop the disease or condition. There may be lifestyle changes, such as diet and exercise, or prescription drugs available, or a device that could be implanted, or even surgical options, all of which could reduce or even eliminate the chance of actually developing the disease or condition.

An example that has been in the news again recently is that of the film actress and humanitarian Ms. Angelina Jolie. She learned through genetic testing that she has the so-called BRCA gene. People with that genetic mutation have an 87 per cent chance of developing breast cancer and a 50 per cent chance of developing ovarian cancer. Knowing that she had the genetic mutation opened up options for Ms. Jolie. She first had breast surgery and, most recently, ovarian surgery, and was able to reduce her likelihood of developing cancer from 87 per cent to 4 per cent.

Think of that, colleagues. A person can go from having an 87 per cent of developing cancer to a 4 per cent chance. That is why Ms. Jolie took the courageous step of going public with her story two years ago, and on March 24, 2015, wrote her second very powerful op-ed in the New York Times about her experience. This is what she said:

It's not easy to make these decisions. But it is possible to take control and tackle head-on any health issue. You can seek advice, learn about the options and make choices that are right for you. Knowledge is power.

Ms. Jolie got it exactly right. Knowledge is power. But unfortunately, here in Canada, knowledge also brings risks. Unlike in every other G7 country and many non-G7 countries, anyone contemplating having genetic testing in Canada must consider that the results can be demanded by third parties and used by them to their detriment. There is no specific legal protection in Canada anywhere at the federal or provincial level against this. As a result, many Canadians are having to take the difficult decision to not have genetic testing that their doctors recommend.

Canadian women who have read about Ms. Jolie's experience and think that they too might have one of the BRCA genes, too often, after they look into having the test, decide that they can't take the chance of being denied insurance or otherwise suffering genetic discrimination.

Colleagues, that is wrong. Canadians should be able to access the benefits of these advances in medical science. Canadian women, just as Ms. Jolie and women around the world, should be able to decide to be tested, without worrying about genetic discrimination.

That is the issue that the provisions I proposed in Bill S-201 would have addressed, and those are the provisions that were struck from the bill by the Conservative majority on our committee.

And colleagues, the problem is not only being required to disclose to others the results of genetic tests already taken. Equally important is an individual's right to choose not to have genetic tests done at all. The decision to have a genetic test is a very personal one. There are many reasons a person may decide not to have a test, and I believe that needs to be respected. That proposed protection in my bill was also removed by the majority on the committee.

The current Conservative government told Canadians that a confidential, mandatory long-form census had to be stopped because it was too invasive, but if we accept the decision of the Conservative majority on the Human Rights Committee, it will be perfectly fine for someone to require a Canadian to take a genetic test and disclose the results of their DNA if they want to enter into a contract or receive a good or service. How can that be right?

The insurance industry says that its policy is not to require someone to take a genetic test. I respect that that is their stated policy, but as our committee heard, that is not in fact what is actually happening. I will discuss that again shortly.

Angelina Jolie may be most famous spokesperson for the benefits of genetic testing, but she is far from alone. Our own colleague Senator Wells spoke eloquently here in the Senate about the benefits of genetic testing. Ironically, he spoke in this chamber on the very same day — just a few hours after — his colleagues had gutted Bill S-201, making it more difficult for Canadians to decide to take the genetic test that Senator Wells was advocating.

Honourable senators will recall that he spoke powerfully about hemochromatosis, a genetic condition that if left undiagnosed can lead to severe organ damage and indeed be fatal. He himself has that genetic condition. Senator Wells told this chamber:

The burden of undiagnosed hemochromatosis in Canada results in avoidable costs to the health care system of premature chronic diseases, the financial loss to families due to disability and the preventable loss of loved ones.

The good news, as he told us that day, is that:

. . . early testing, diagnosis and treatment for the disorder can reduce or eliminate most of the severe complications, which include arthritis, diabetes, heart failure, cirrhosis of the liver and cancer. . . . Treatment is simple: frequent and regular removal of blood. This blood is suitable for donation.

Here's the catch, colleagues: Hemochromatosis is diagnosed with genetic testing. And without the protections that would have been provided in Bill S-201, Canadians who undergo genetic testing are vulnerable to genetic discrimination.

Our committee heard testimony from Dr. Yvonne Bombard, a scientist at St. Michael's Hospital and assistant professor at the University of Toronto, whose research has focused on the issue of genetic discrimination. She became interested in the issue after her first patient interaction at a genetic testing clinic, which was with a patient who had returned to discuss problems he was encountering at work after testing positive for a particular genetic mutation. His supervisor at work had discovered the fact that this person had tested positive, and suddenly his job responsibilities started to shift.

Dr. Bombard set about studying genetic discrimination in Canada. She told our committee details of discriminatory treatment by insurance companies, where individuals were told that they'd have to pay higher premiums or were denied insurance altogether because of genetic test results. In the employment context, she heard from individuals about being under increased surveillance at work, denied promotions and made to take early retirement because of genetic test results. And she told the committee:

Genetic discrimination, in the descriptions and the experiences of these families, actually spans beyond insurance and employment.

She spoke about individuals being denied the right to adopt children, having trouble obtaining custody and even access to children because of their genetic test results.

Colleagues, these are real stories about real people. Bill S-201, as originally proposed, would help to prevent such injustices. As amended by the committee, it would not. I'm disappointed that colleagues on the other side of the chamber would turn their backs on the plights of their neighbours, as this report asks them to do. Other countries help their families. Canada won't. How is that fair? How is that right?

Bev Heim-Myers is President and CEO of the Huntington Society of Canada. She's also chair of the Canadian Coalition for Genetic Fairness, a coalition of 17 health and other organizations whose members are deeply affected by genetic discrimination.


Here's a story she told our Human Rights Committee:

Consider a healthy male in his late twenties. He and his wife are hoping to start a family in the next few years. He applied for life insurance. He is a healthy non-smoker and has no medical conditions. His parents and siblings are healthy and are not known to have hereditary conditions. His application was fully declined because of ALS — Lou Gehrig's disease — originating in one of his grandparents. His parents are both healthy and have no signs or symptoms of ALS. He was further informed by the insurance company that the decision could be reconsidered if he should pursue genetic testing and prove to them he has a negative result. This just happened.

That's another example of Canadians in fact being required to take genetic tests.

Senator Wells's condition of hemochromatosis came up during our hearings. Clare Gibbons, a genetic counsellor at North York General Hospital in Toronto, spoke about it, telling us that in fact, of the people with the genetic mutation, only a very small number ever develop enough iron overload to develop symptoms. She described how the people who are aware that they carry the gene can make, in her words, "simple lifestyle adjustments" to minimize their chances of developing symptoms. She told our committee that hemochromatosis is considered "one of the most preventable genetic conditions." But, she continued:

I was very surprised to have a number of reports of people across Canada who were denied life insurance and, in one case, travel medical insurance because of their genetic testing for hemochromatosis. These people did not have any evidence of iron overload so this was very surprising. You may think, well, this is a rare condition, so how many people would it affect? It actually is not a rare condition as about 1 in 300 people of northern European descent would have the same genetic makeup as these patients had who were denied insurance. Most people are not aware that they carry these mutations and their status is unknown. In this case, having the genetic information made it less likely these people would develop symptoms, but it was used against them.

Think of that, colleagues: Having the genetic information made it less likely that someone would develop symptoms, and yet it was used against them. Unfortunately, these are not isolated incidents.

Ms. Heim-Myers provided the committee with another example:

The case of the two brothers in their twenties at risk for Long QT, a genetic mutation leading to a sudden fatal heart attack is illustrative. One was tested, has the mutation, will be treated and accordingly will not die of a massive heart attack. He will also not qualify for life insurance. The other brother is in the middle of a job search and refused to get genetic testing for fear of employers finding out. He will be able to access life insurance.

Who wins in this scenario when the untested, insured brother dies of a massive heart attack at the age of 40, leaving behind a wife and young children? Does it really make sense that an employer can't inquire about a person's marital status but can have access to private genetic information?

Colleagues, the human cost of not providing protection such as I proposed in Bill S-201 cannot be overstated. In Ms. Heim- Myers' example, it is a 20-year-old young man at risk of a massive heart attack that could be prevented — but he is afraid to have genetic testing because of the fear of the impact it will have on his ability to get a job.

And to be clear, this fear of genetic discrimination is, unfortunately, grounded in reality. Let me tell you about a letter I received from Mr. Mack Erno in Alberta. Some of you will have received it because he sent copies to all senators from Alberta. He wrote to tell us of his support for Bill S-201, saying "it is about time that Canada dealt with Genetic Discrimination. It is a very real problem in this country and it has impacted my family directly."

This is what he wrote:

I consider myself to be a fairly grass-roots Albertan — I was born and raised in Northern Alberta, on a farm, near a small rural community called Teepee Creek. I actually went to High School in Sexsmith, Alberta — which I noticed is also where Senator Unger was born and raised. I have a young family (daughter aged 3 and son aged 2), own my own business based in Sexsmith, Alberta, and spend a substantial amount of my free time volunteering for my community.

Now, I will give you a very brief recap of our experience with Genetic Discrimination in Canada. My wife, who is 34 years old, carries the gene for Huntington Disease (HD) — she inherited this disease from her mother and will eventually develop the disease and be diagnosed with HD. She currently does not have any clinical symptoms of the disease. Over the years, we have inquired about getting life insurance coverage for her a number of times and have been told she is uninsurable. We have never been able obtain coverage of any kind — we have never even been provided an exorbitant quote for life insurance coverage — the answer has always been no, they would not offer any coverage for any cost. Keep in mind that she DOES NOT have this disease yet —

Or, colleagues, even any symptoms of the disease —

— but she does carry the gene for it and will develop it at some point in her life. This is the exact definition of Genetic Discrimination and it is time to do something about it. If we allow this to continue happening, my question to you is where does this stop? Our genetic knowledge about ourselves is only going to continue to increase — where do we draw the line on genetic discrimination?

He contradicted statements by the insurance industry that "they will insure anyone at the right rate." He described his family's odyssey, inquiring with a large number of insurance companies and never receiving a single quote — not one. Every answer was no, the insurer would not extend coverage. He wrote:

I send this . . . to show you that this is a very real problem and it is happening.

Mr. Erno is far from alone in our country.

Dr. Ronald Cohn is a geneticist at SickKids hospital in Toronto. He is an example of Canada's "brain gain." He was recruited from Johns Hopkins Hospital in Baltimore to come to Toronto to head up the Division of Clinical Genetics at SickKids. He told us that in all his years of practice in the United States, he never had the issue of genetic discrimination come up as often as it does here in Canada.

He told us about a little girl whose father had cardiomyopathy, a genetic disease of the heart muscle. It is so severe that he is on the list to receive a heart transplant. Understandably, the family would like to avoid the same fate for their little girl. Dr. Cohn told us that if they know whether the little girl has the gene, they could manage her well enough to prevent the need for a heart transplant, likely for a very long time.

Everyone would win with that scenario — the health care system, other patients who need a heart transplant and, most of all, the little girl and her family.

However, the family called insurance companies, and they found out that if she was found to have the gene, she could be uninsurable. Needless to say, the family returned to the clinic utterly distraught. As of last October, when Dr. Cohn appeared before the committee, they still had not decided whether to authorize the testing.

Dr. Cohn also told us of a 12-year-old girl with a connective tissue disease. Her symptoms are consistent with two syndromes, both of which are life-threatening, but they are treated very differently — one with medicine, while the other would require surgery. The only way to know which disease this young girl has is through genetic testing of the young girl and also of her parents. But they have not had that test done for fear of genetic discrimination.

This is what Dr. Cohn said about his position as a clinician: "The management for me as a clinician is vastly different. I can't manage the child."

Now, as a parent and a grandparent — and, frankly, as a Canadian — these stories tear at my heart. What an impossible choice we are forcing these families to make.


One last example from Dr. Cohn's very powerful testimony, and I encourage anyone who is interested in this topic to review the testimony that was given before that committee.

Dr. Cohn told us that SickKids started a research study, offering whole genome screening for 330 patients and their families. Instead of paraphrasing, let me quote directly from Dr. Cohn's testimony:

I would like you to appreciate, please, that these are all families who have very sick children. They all have children with a lot of medical problems. Over 33 per cent declined to participate in a free research study because they were afraid of genetic discrimination. I have to tell you that I find that an alarming number. These families, in part, have tried to go through diagnostic odyssey for years and years, and here I am able to offer them something that likely will give them an answer; but they are declining because they are afraid of genetic discrimination.

These children need help, but their parents are afraid, and their fears are legitimate.

Colleagues, this is not a matter of partisan politics. This is a matter of real Canadians getting the health care they need — living healthy, productive lives, paying taxes, running businesses that provide jobs — enjoying the fundamental quality of life that all of us should have the right to expect growing up in a country as blessed as ours.

In Israel — one of the many countries around the world that provides protection against genetic discrimination — there is discussion about encouraging universal testing of women for the BRCA gene. They understand that this knowledge opens up possibilities of preventing the development of breast cancer — and that is viewed as being in the national interest of the State of Israel.

Israel isn't alone. This debate is also happening in the United States, where geneticist Mary-Claire King, who discovered the BRCA gene, recommends genetic testing of all women over the age of 30.

Colleagues, we can't even responsibly have that debate in Canada, because how can we even think of offering universal genetic testing when we know that it could lead to serious issues of genetic discrimination for these women?

President Obama recently launched a new health initiative, announced during January's State of the Union Address. It's called the Precision Medicine Initiative, and it's expected to revolutionize how Americans' health is improved and diseases are treated. It will provide treatments and medical advice not for the "average" patient, as happens now, but for the actual person standing in front of the doctor.

This kind of "patient-specific" medicine means that you focus your treatment on the right people, the ones who actually need it, and you deliver that treatment at the right time, using the right drug. It saves money, improves treatments and, in general, leads to a healthier population. But genetic testing is a fundamental starting point for that initiative.

Colleagues, the overwhelming majority of the testimony heard by the Human Rights Committee was strongly in favour of the quick passage of this bill. That didn't surprise me. But during the hearings there were two objections raised, and I'd like to take a few minutes to address those.

First, the insurance industry opposes the bill. That was disappointing, but it's not a surprise. As we have heard, this industry is probably the most active in using genetic information to discriminate against certain Canadians, and they are fighting to be able to continue to do so.

They claim that their industry does not require people to undergo genetic testing, but take the position that they are entitled to demand the results of any genetic tests that an applicant has undergone in the past.

As I have said, the committee heard that, in fact, Canadians are being required by insurance companies to undergo genetic testing. We heard stories of people being told, "Prove to us that you don't have this gene, and then we'll insure you."

The industry claims that if they are not allowed to access genetic test results, then premium rates will rise drastically for all Canadians. That claim, colleagues, is not borne out by the experience in the many countries around the world that have prohibited insurance companies from having access to genetic test results.

In the United Kingdom, for example, insurance companies have not had access to genetic test results since 2001. In the following 11 years — until the end of 2012 — term life insurance policies, and critical illness insurance prices, did not rise. In fact, they fell, by almost 25 per cent.

Other countries around the world have had this kind of prohibition against genetic discrimination for 10 to 20 years. The insurance industry has survived in those countries, and I'm confident it would survive here too.

The second objection was constitutional — an issue that I take very seriously. This was the central — and indeed the only — argument presented in this chamber by Senator Frum to justify the committee report that gutted my bill. The argument was raised during clause-by-clause consideration by Senator Andreychuk, who in turn relied on the testimony of Pierre Thibault, a law professor at the University of Ottawa. Professor Thibault argued that "the pith and substance of Bill S-201 is the regulation of insurance," something that falls within provincial jurisdiction. That, of course, was repeated by Senator Frum here in this chamber.

Colleagues, this frankly surprised me, as insurance is only mentioned in one clause of the bill — clause 6. That clause would have set out an exception to the general prohibition against requiring disclosure of genetic test results. It would have allowed insurance companies to require disclosure of genetic test results where somebody applies for a very high-value insurance policy. So that clause was designed to help insurance companies. And we said, right in the clause, that it would only apply where a province had legislated for that exemption.

That's the only place in the bill where the word "insurance" even appears. And that was the clause that Professor Thibault quoted in reaching his conclusion that the pith and substance of the bill is regulation of the insurance industry.

As I said during clause-by-clause consideration, I would not object to deleting that clause if it gives rise to constitutional concerns. Let's just remove it. The rest of the bill stands together. It doesn't need that clause in order to make sense.

My position was, and it is today, that the bill is about prohibiting and preventing genetic discrimination, wherever it arises. Certainly, the insurance industry has been a major source of genetic discrimination, so it may feel targeted, as Senator Frum has suggested — but that is not what the bill is about. It does not purport to rely on any power to regulate the insurance industry. Bill S-201 relies on the federal criminal law power, which everyone, including Professor Thibault, and I assume Senator Frum as well, acknowledges is well within federal jurisdiction. The bill would tell everyone that in Canada, as a matter of Canadian principles and values, it is not acceptable to demand that someone take a genetic test or reveal the results of a prior genetic test, before agreeing to enter into a contract with them or provide a service to them — whatever kind of contract or whatever kind of service that may be.

Senator Nancy Ruth met with our Law Clerk, Michel Patrice, to ask about the constitutionality issues being raised by Senator Andreychuk. Here is what Senator Nancy Ruth reported to the committee:

Yesterday I met with the Law Clerk of the Senate, Michel Patrice, to clarify the issues that Senator Andreychuk raised because there was some confusion for me. He was very clear that the pith and substance was not about the insurance industry but about penal powers to prohibit discriminatory policies, which is in section 91.27 of the Constitution. I said, well, the insurance companies, if they didn't like that little bit about insurance, what would they do? Would they sue the people that were discriminated against on policies? What would they do? He said they would not do that. They would go for a declaratory judgment from a superior court, probably in the province of where the head office of the insurance company was.

What was interesting to me was he reminded me of at least two other instances where the federal government makes rules for industries that are controlled by the provinces. He used the payday loan societies as one example where the federal law regulates criminal interest rates, what's usurious, but the industry itself is regulated within the province. He also used an example of advertisements to children, which is under the jurisdiction of the provinces, but the federal government uses its penal power, such as we want to in this bill, to forbid certain advertising to children.


Colleagues, that is a very clear legal opinion from our own Law Clerk and Legislative Counsel.

Of course, our Law Clerk is not the only the one to believe that we can constitutionally prohibit insurance companies and employers from engaging in genetic discrimination. The Harper government itself is clearly satisfied that it is constitutionally possible. As I noted earlier, in the 2013 Speech from the Throne the government said it would, "Prevent employers and insurance companies from discriminating against Canadians on the basis of genetic testing." So Prime Minister Harper and his government believe that the Parliament of Canada has the constitutional authority to legislate in this field.

Honourable senators, as I said earlier, this bill has been before the Senate for almost two years. In all that time, no province has come forward protesting that the bill would encroach upon their jurisdiction. To the contrary, the committee heard from Ms. Heim-Myers that she has travelled across the country meeting with the provincial governments about the need to address genetic discrimination. I asked her whether she discovered, uncovered or heard about any opposition at the provincial level to this legislation.

Her answer was:

No, absolutely not. The question always is: What are they doing at the federal level?

She also told us:

. . . the provinces are generally waiting to see what's being done or will be done at the federal level, and they will follow suit. They are waiting with positive anticipation. It's not a concern. It is not, "You're playing in my backyard and you should not be." It is something they are looking forward to.

As originally drafted, Bill S-201 would have added "genetic characteristics" as a prohibited ground of discrimination in the Canadian Human Rights Act. This proposal was fully supported by the Canadian Human Rights Commission.

They stated:

First, prohibiting discrimination based on genetic characteristics would protect Canadians from the risk that their genetic information could be used against them.

Second, adding genetic characteristics as a prohibited ground would enable Canadians to bring complaints of genetic discrimination to the commission without having to link them to other grounds, as is currently the case.

Third, by making this protection explicit in law it would be clear that everyone has the right to be treated equally regardless of their genetic characteristics.

Senator Frum raised two related concerns, one during the clause-by-clause and a different one here in the chamber. During clause-by-clause, she explained her intention to vote against these amendments as follows:

If the committee was determined to proceed, then I would say I am comfortable with the sections regarding the Canada Labour Code because that's clearly in federal jurisdiction, but not clauses 1 to 7 and not the clause affecting the Human Rights Act, which talks about prohibiting grounds of discrimination due to genetic characteristics, because we also heard testimony from the insurance companies that that applies to them.

I guess what I'm saying is that insurance is provincial jurisdiction. Those clauses deal with insurance. Perhaps the provinces will say that because of the nature of this issue they're comfortable with this intrusion on their jurisdiction, but I don't think anyone can sit here and say this is not an intrusion on their jurisdiction. That's just a fact.

Colleagues, that's very strange. Senator Frum was somehow suggesting that the Parliament of Canada lacks the constitutional authority to amend the Canadian Human Rights Act, a federal statute. I believe everyone — except perhaps Senator Frum — acknowledges and agrees that we have the constitutional authority to amend our own statute.

In terms of her assertion that the insurance company said that the act applies to them, that's simply wrong. David Langtry, the Acting Chief Commissioner of the Canadian Human Rights Commission was very clear when he appeared before our committee.

He said:

Under the current law we do not have jurisdiction over the insurance industry. It's federally regulated private sector companies, so as I say transportation, telecommunications, banking industry, but not insurance companies.

Again, colleagues, this raises questions about the validity of the concerns presented to us by representatives of the insurance industry. But I was also surprised that Senator Frum accepted the concerns of the insurance industry, even over the clear contradiction by the chief commissioner himself, and then proceeded to vote down those clauses of the bills ostensibly because of these incorrect assertions.

Once again, I believe this demonstrates very significant problems with the report before us.

Here in the chamber, Senator Frum presented a slightly different argument, but as you will see, still based on the same misinformed premise. She argued here that her concern is that the term "genetic characteristics" is not defined in the bill. The related part about her concern with the lack of a definition is that the insurance industry could find itself barred from asking about medical history.

Once again, honourable senators, the insurance industry is not covered by the Canadian Human Rights Act. Whatever term we use here will not affect them.

On the issue of definition, I'm sorry that Senator Frum was not at the hearing when the Human Rights Commission appeared so that she could have asked about that issue herself. As it was, no one asked them if the lack of a definition would pose problems. I do note that no one appearing on behalf of the commission raised a question about the lack of definition or asked that one be included.

In fact, Senator Ataullahjan had posed the question immediately before the commission's testimony during the hearing with Professor Thibault, the constitutional professor relied upon by Senator Frum.

Here is what Professor Thibault said in response to Senator Ataullahjan's question:

Senator . . . as soon as you define a term, you limit it. Since we do not know what the future will bring, I think it should be left to the discretion of the courts to interpret the rights and freedoms provided for in the Canadian Human Rights Act liberally. I think the term is fine as it appears.

To recap, honourable senators, the lack of a definition did not trouble either the Human Rights Commission, which would be tasked with applying it, nor did it trouble the legal expert who was called by members opposite specifically for his legal opinion about the bill.

Senator Frum's suggestion that the amendments to the Canadian Human Rights Act would somehow apply to the insurance industry were simply not grounded in fact, as the commission made very clear. And there is no constitutional problem with our amending our own federal statute.

Colleagues, let's be clear. What we have here is not a legitimate constitutional issue, but rather a very serious public policy issue: How do we strike the right balance? Senator Frum clearly places paramount importance on the stated concerns of the insurance industry. I certainly agree that the insurance industry is important, but frankly, in a contest between the interests of the insurance industry and the health and well-being of Canadians, I know which side of the line I want to be on. And I am comforted to see that around the world, where other nations have struck the same balance as I propose, the insurance industry is surviving and doing just fine.

This is one of the rare cases where it really is a win-win for all sides. Here is an example that I put to several witnesses. Let us say that, unknown to either of us, Senator Carignan and I have the same genetic mutation associated with a particular condition. He gets tested, discovers he has the gene and takes steps to reduce the likelihood that he actually develops the condition. However, because he has the gene, when he goes to get insurance, he's charged high rates or is denied coverage altogether.

I don't get tested, so I don't find out that I have the gene. There's no known genetic predisposition, so I pay low rates for my insurance policy. However, because I don't know I have the gene, I don't take the same preventive steps that Senator Carignan did to change his lifestyle. I don't know what I should do, and I develop the condition.


My insurance has to pay out on the policy. There are costs to the public health care system in treating my condition. And, of course, how do you measure the costs of my reduced quality of life and the effect that it would have on my family?

So I pay lower rates, but I'm actually a higher cost to the insurance company, while Senator Carignan paid higher rates, and the insurance company never had to pay out anything to him because, being the reasonable and rational person he is, he took preventive steps once he learned he carried the gene.

In effect, those who get tested are subsidizing lower insurance premiums for those who don't get tested.

How does any of this make any sense? How does it make sense for the insurance company and, most importantly, for those of us tasked, as legislators, with crafting the best public policy we can? How can this possibly be in the best interests of Canadians?

Honourable senators, none of us has perfect genes. This is an issue that could affect every Canadian. Since introducing my bill, I have been astonished by the number of people who have come forward to tell their stories. Understandably, since people are afraid of experiencing genetic discrimination, many are silent, but when people hear about the bill, they often come up quietly and share their own experience.

When I spoke at second reading, I told this chamber how, as I was speaking the first time about this bill back in April 2013, one of my staffers received an email from a staffer in another Senate office saying that it was as if I was talking about her. Most recently, I attended a reception here on the Hill and was telling colleagues from the other place about Bill S-201. One woman, a parliamentarian I've known for a number of years, revealed that she had learned from genetic testing that she has the BRCA gene. She had surgery. And so, as we know, she has been able to significantly reduce her chances of developing breast cancer. But she told me she's also a parent and a grandparent. Her family members now face the difficult decision whether to be tested, and their fear is potential genetic discrimination.

Honourable colleagues, let me summarize what has taken place and what we are now facing with the report now before us from the Human Rights Committee.

I put Bill S-201 forward to propose a solution to a real and serious problem that more and more Canadians are facing. It was well received by pretty much everyone outside of the insurance industry. I said from the beginning, more than two years ago, that I would welcome proposals of amendments to improve it. No amendments or improvements were ever put forward by the other side. Instead, after months of delay, when clause-by-clause consideration was finally held, the majority on the committee simply voted down all but three clauses in the bill.

What remains of the bill that we are now being asked to pass into law is bizarre, to say the least. It consists of a change to the Canada Labour Code, which is fine but necessarily limited, and a new stand-alone statute consisting of a title, the "Genetic Non- Discrimination Act," and a definition clause — nothing else. It is a definition clause with nothing to define. That's like creating a dictionary for a language that doesn't exist.

How did we come to this absurd result?

Well, it was clear that most committee members on the other side were not prepared for clause-by-clause consideration of the bill, even though we all had notice that this was the first item on the agenda of the hearing, and the committee had finished hearing witnesses on the bill more than two months before. As I mentioned earlier, Senator Frum asked the committee to suspend proceedings so that she and her colleagues could "regroup" before beginning clause-by-clause consideration. And the clause-by-clause consideration itself was one of the strangest I have seen in 10 years in the Senate.

As I described, Senator Frum explained that she was voting to delete the bill's amendments to the Canadian Human Rights Act because the insurance industry had said that those clauses would apply to them. But the Chief Commissioner of the Canadian Human Rights Commission had testified clearly and unambiguously that the act does not apply to the insurance industry. So those clauses were voted down, certainly by Senator Frum and very possibly by her colleagues, as well, for a reason that was clearly contradicted by the testimony.

Meanwhile, the majority of Conservatives on the committee voted down the clauses that would have prohibited anyone, including, of course, the federal government, from requiring someone to take a genetic test, after Senator Eaton was asked and was told that, if passed, those clauses would not allow the government to require potential immigrants to submit to genetic testing, including, in Senator Eaton's words, "to see if they were going to be a charge on our health system."

Colleagues, as I said at the beginning, this is a rare instance where I believe this chamber should defeat a committee report. The report does not reflect the evidence that the committee heard. It changes the bill to one that on the face of it makes no sense, and it purports to gut a bill that this chamber has already approved in principle. In my submission, it is also quite simply bad public policy.

I ask you to join with me in voting to defeat the report of the committee and restore the bill that this chamber passed at second reading. If senators have improvements to suggest, I welcome them, and we can debate them at third reading.

This is not — and I repeat — this is not, nor should it be, a partisan issue. Each of Canada's three major political parties has come out at one time or another in favour of prohibiting genetic discrimination. Indeed, the government said it would do so in October 2013. It has not tabled any legislation to date, and, given the impending election, it's unlikely that it will have time to fulfill its commitment in the Speech from the Throne.

Meanwhile, colleagues, there are Canadians whose heath and, indeed, lives are at stake.

Let us set politics aside and come together to do the right thing. Let's join the many countries around the world that also prohibit genetic discrimination and clear the way for Canadian families to access, without fear, the full range of health care that modern medicine can provide.

Hon. Ghislain Maltais (Acting Speaker): Senator Cowan, will you accept a question from Senator Baker?

Senator Cowan: Of course.

Hon. George Baker: Thank you. I listened with amazement to Senator Cowan's recounting of what happened in the committee.

As we all know, a committee must respect the principle and scope of every bill it deals with. It cannot move amendments that change the principle of the bill. If you look at any of the procedural guidelines, as I just did — it says here on page 331, ". . . an amendment moved in committee must respect the principle and scope of the bill, and must be relevant to it." Further down it says, "An amendment must respect the principle of the bill it seeks to amend, must be within its scope, and must be relevant to it."

You've outlined the principle of your bill — it's in the summary of the bill. I won't recite the entire paragraph, but it starts off:

This enactment prohibits any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into . . .

Et cetera.

You say that this bill was amended in committee to remove eight of the 11 clauses in the bill, removing the principle of the bill. Our rules state that you can't do that.

Could you relieve my frustration here? I've been around longer than you've been around, and I can't understand how the Senate as a whole can deal with amendments that remove the principle of the bill — the enactment itself. Could you answer that question?

Senator Cowan: Thank you, Senator Baker, for the question.

As you know, I share your frustration.


I did look at that issue, and it seemed to me that the best way to proceed was to ask the house to reject the report, which would mean that the bill, in its original form, as approved in principle at second reading, would be before us for debate at third reading. I felt that rather than get into a procedural wrangle about whether or not the amendments passed by the committee were within the scope of the rule, that the better way to proceed was to lay the case before my colleagues here and to ask them to reject the committee report. That would have the effect of bringing the bill before us at third reading in the form in which it had been introduced, and in the form in which it had been approved in principle at second reading by the house with the suggestion, as I said at the conclusion of my speech, if colleagues had suggestions for improvements or amendments I would certainly be open to those at third reading.

I felt a better way to proceed at this stage would be to ask the house to reject the report rather than to get into the wrangle that you've identified under the rules.

The Hon. the Acting Speaker: Senator Cowan, will you accept another question? Senator Joyal.

Hon. Serge Joyal: Mr. Speaker, I saw Senator Cordy raising her hand. Maybe she wants to ask her question, and I would ask my question after.


The Hon. the Acting Speaker: I'm sorry, Senator Joyal, but I saw you after Senator Baker. Senator Cordy, you will have the floor after Senator Joyal.


Do you accept?

Senator Joyal: I apologize. I just wanted to let Senator Cordy ask her question.

The issue you raise, Senator Cowan, and the issue raised in that bill, is a very fundamental issue. It's the issue of discrimination, essentially. In section 15 of the Canadian Charter of Rights and Freedoms, it's pretty clear that mental and physical handicap is prohibited. I read section 15 of the Charter:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age —

— and here's the point —

— or mental or physical disability.

It says "disability," not handicap, "disability."


It's even clearer in French.


It states in French:


. . . notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge . . .

And I want to emphasize:

. . . les déficiences mentales ou physiques.


It's quite clear that if you have a gene of a serious disease, this is déficience physique; it's a physical disability. It seems to me that the first reflection to have is to ask ourselves whether the court in the past has interpreted that section of the Charter, section 15, to identify when an employer, an agency — and you can think of all kinds of situations, think of the army. The army might not want to have in its ranks a person who has some deficiency that would prevent that person from serving in particular circumstances. I close the example, but it just crossed my mind.

In other words, have you looked into whether the court has interpreted that section of the Charter so that it could be applicable in the various contexts where one could be forced to go through a test to get the benefit, which would be then, in my opinion, covered by section 15 of the Charter?

Senator Cowan: I'm not aware of any decisions of any court that would deal with that, and I'm not sure that I would go so far as to say that a genetic characteristic would be considered to be a disability. As I said, it's a genetic predisposition to develop a condition which might be a disability; but the fact that you have this gene or genetic mutation, I'm not sure that in and of itself it would be considered to be a disability. I'm certainly not aware of any litigation on that particular point.

We did hear evidence to the effect that it's within the federal power to legislate to prohibit discrimination against groups of individuals — not individuals, but groups of individuals — and that's the point we are after.

Senator Joyal: When the Charter was adopted in 1982, DNA was a very une science balbutiante — it was almost nonexisting; it was just starting. Could you be discriminated against on the basis of a déficience physique? A gene could be considered a physical deficiency. If I have the genes of Lou Gehrig's disease — I don't have, I hope, but I have never been tested, and if you are carrying Lou Gehrig's disease, it is a physical disability. At one point in my life, the risk is that it will manifest itself. If you discriminate on the basis that potentially this person could be found with the disease, then, in my opinion, it could be argued on the other hand that it could be a way to rule the insurance business by prohibiting a ground of discrimination. An insurance company could say, "Well, according to our reading of the lifespan of somebody of colour in a particular context" — and I'm thinking about the Aboriginal people, and I ask my friend Senator Watt to listen to this. We all know from the Statistics Canada report that Aboriginal people don't live as long as other Canadians; so an insurance company could say that they will have to charge different rates for Aboriginal people because their lifespan is shorter and so forth.

I think because of the fact that we have prohibited discrimination against race, an insurance company cannot claim that you are ruining my business because you are preventing me from establishing the proper rate according to that basis of nondiscrimination. It seems to me there has to be logic in the system.

The Charter was drafted in 1982 with a view to an expanded liberal horizon. In 1982, we didn't know that DNA existed. Today, we know that it does exist. It is a very exact science, and it is open for challenge. If you compel somebody to go through testing to set him or her aside if that person shows some genetic weakness, I think it's discrimination. In my opinion, it is clear discrimination.

I feel it is very important that your bill reflects the fact that when we recognize prohibited grounds of discrimination, those prohibited grounds of discrimination could evolve through time. With the capacity of the government to legislate on those grounds, it is not ruling the business of this company or this type of activity any more than we are compelled to respect equality of gender, race, sex or national origin.

Senator Cowan: I thank you for those comments, Senator Joyal. We did try to address the issue by a proposed amendment to the Canadian Human Rights Act, which would have included the phrase "genetic characteristics," and I think that would be clear to cover the kind of thing we're talking about.) Perhaps it is not as good as having it specifically referred to in the Charter of Rights and Freedoms, but at least it would provide that broad protection for all Canadians. As I said, that's one of the clauses that was removed from the bill. I will certainly look at the points you raise, but I have nothing more to say about it now.


Hon. Jane Cordy: Thank you, Senator Cowan, for the exceptional work that you have done in bringing forward this bill so that genetic discrimination would in fact be against the law. Thank you very much for that.

As Senator Joyal said in his comments, DNA information is definitely easier to get in 2015 than it was 10 or 15 years ago, and I think that we have to make sure that the information we get is used with discretion and very prudently.

I was very pleased by the number of people in Nova Scotia who approached me and who were very much aware of the bill you brought forward, and, certainly, we've all received a lot of emails.

I have one of the emails with me, and I would like to read bits and pieces of it and ask you a question about it. I certainly was very disappointed that your bill was gutted at the committee by the Conservative majority, particularly in light of Senator Baker's comments that, in fact, this was against the rules of the Senate because it changed the principles of the bill that you brought forward.

I will read a little bit from the email I received:

The Canadian news media is occupied with stories about the protection of personal information, and indeed the House of Commons is also engaged with issues in the same realm.

Then the writer goes on to say:

However, Canadian law allows and even encourages the use of one essential and basic piece of personal information, the contents of our DNA.

Then he says:

Genetic discrimination is real. It is a well-established principle that individuals shall not be discriminated against based on their disability, yet outdated laws still enable insurance companies to discriminate based on perceived disability or the prospect of a future disability.

That's from what he said, and I think that's very important. The whole intent of your bill was the prospect of a future disability.

Will the changes made to your bill by the Conservative majority, which gutted the bill, mean that people will not get genetic testing because they will be afraid that insurance companies or employers will get the results? What will this do if people fear being diagnosed by genetic testing, since we know that it's a fact that early diagnosis and early treatment are the most beneficial things in dealing with any treatment?

I can't imagine being the parent or the grandparent of a child and being afraid to let that child have DNA testing because they may, in fact, not be able to receive insurance for the rest of their lives.

Senator Cowan: Thank you, Senator Cordy. I agree. As I've talked to folks and listened to the testimony before the committee, I think it's one thing when we're talking about adults who are deciding whether to be tested. Do you want to know, or do you not want to know? That's a big decision for a person to make. Some people want to know, and some people don't want to know. To make that decision as an adult about oneself is fine — without having to worry about being discriminated against based upon what the results might produce.

But, to me, the most gut-wrenching testimony or stories were the ones of parents talking about their sick kids and the doctor saying, "There is a test here that I can do that will enable me to better treat your sick child." Obviously, as a parent, you would say, "Let's do it," because that's what you want. Yet the doctor has to say, "But before you authorize that test to be taken, you have to know that if the child tests positive for this gene, it could affect the insurability or the employability of that child in the future." What do you do?

I cited in my speech the research study in Toronto, and over a third of the families of sick kids who were in this study refused to have the tests done that would help to narrow the range of possibilities or provide a better treatment plan, saying: "We can't take that risk." I think that adds a whole different level of complexity and a choice that I don't think any parent should have to make.

Legislation of this type is needed in this country. We're the only G7 country that doesn't have any protection at the federal or provincial level against this kind of discrimination. We know the discrimination exists, and we need to do something about it.

(On motion of Senator Martin, debate adjourned.)

National Day of the Midwife Bill

Second Reading—Debate Adjourned

Hon. Betty Unger moved second reading of Bill C-608, An Act respecting a National Day of the Midwife.

She said: Honourable colleagues, today I rise to speak about the health and well-being of pregnant women, infants and children, a topic of great importance to the Government of Canada.

As you know, the primary responsibility for the administration and delivery of health care services rests with each province or territory as directed by the Canada Health Act. The Government of Canada remains committed to a strong, publicly funded and universally accessible health care system for all Canadians. Therefore, I am pleased to support Bill C-608, an act respecting a national day of the midwife, which will raise awareness about the significant contributions made by midwives, who help to safeguard and improve the health and well-being of women, children and their families.

In the 18th and 19th centuries, women were the primary attendants during the natural life event of giving birth. Midwives, like physicians, practised without specific education, standards or regulations until the earlier part of the 20th century. As medicine gained in legitimacy and power toward the end of 19th century in North America, the experience of childbirth evolved from the natural event of giving birth into a medical procedure.

In Canada, the profession of midwifery had languished, but Canadian women increasingly expressed a desire for an alternative childbirth care. So after a long absence, midwifery began to be legally recognized in the 1990s. In 1994, Alberta and Ontario became the first provinces to implement legislation to regulate midwifery. Today, professional midwives provide high- quality care for women and families before, during and after childbirth here in Canada and abroad.


They are trained to provide physical examinations, screening and diagnostic tests, and to assess the normal progress of pregnancy and birth. They manage low-risk normal births, as well as breach and twin births.

Midwifery services also help to reduce wait times in emergency rooms because midwives are on call and directly accessible to their clients 24/7.

Midwives also work collaboratively in a team with other health professionals, such as family physicians, obstetricians and nurses, both in and out of the hospital setting. They are supported by the Canadian Nurses Association, the Society of Obstetricians and Gynaecologists of Canada, and the Perinatal and Women's Health Nurses. Should complications or risks to the mother or child be detected, which is outside the scope of the midwife, care is referred to the larger aforementioned team.

In Canada, training for midwives is thorough and rigorous. To meet the growing demands for midwives, Canada has seven educational institutions and there are currently over 1,300 practising midwives in Canada. Practising midwives must have recognized education and must be licensed before being able to practice. The educational program is a four-year direct entry, Health Sciences Baccalaureate Program. Successful candidates must then register with the provincial or territorial regulatory body to be licensed to practise. There are also three community- based midwifery education programs located in First Nations and Inuit communities that specifically address the needs of Aboriginal peoples.

It should be noted that the Canadian midwifery education model is also internationally recognized.

Additionally, the Canadian government recognizes the importance of these internationally educated professionals who wish to work in Canada. These midwives must go through steps to demonstrate competencies in language, education and experience before they are eligible for licensure in Canada.

Midwives practise in all provinces and territories except Prince Edward Island, Newfoundland and Labrador, and Yukon, where to date no legislation or regulation exists.

Statistically speaking, last year Canada had nearly 382,000 births with the majority, over 98 per cent, taking place in a hospital. Child birth is the number one reason for hospital admission in Canada.

In 2014-15 the federal government provided $32.1 billion in health transfers to the provinces and territories through the Canada Health Transfer. This unprecedented level of support will continue to grow and is expected to reach $40 billion by the end of the decade. That funding will provide stability and predictability to the Canadian health care system, while giving the provinces and territories flexibility to address their unique needs and priorities.

In addition to this record level of investment, our government also supports other domestic efforts to improve maternal health, including initiatives that support the awareness and services provided by midwives. For example, the Public Health Agency of Canada invests $27.2 million annually in the Canada Prenatal Nutrition Program, which aims to improve maternal-infant health, increase the rates of healthy birth weights. Often the Canada Prenatal Nutrition Program refers participants to midwives as key primary care providers.

Health Canada is investing additional $23.8 million in 2014-15 in the Maternal and Child Health Program to provide a coordinated approach. This includes strong links to nursing and other programs, such as the First Nations and Inuit component of the Prenatal Nutrition Program. These investments also build on support provided to the Canadian Association of Midwives for an annual Aboriginal midwifery gathering, which promotes midwifery within Aboriginal communities. It enhances the understanding of this model of care among Aboriginal leadership and communities.

Aboriginal women and their infants have a two to four times higher morbidity and mortality rate than the average Canadian. Some jurisdictions report that they do not have enough midwives to meet current demand and waiting lists for this service exist.

The National Aboriginal Council of Midwives is a diverse group from all regions of Canada which advocates for the restoration of midwifery education.

Internationally, global attention has been drawn to the issue of maternal and child health, as well as the provision of quality care by midwives, through Canada's leadership. Examples include the 2010 Muskoka Initiative on Maternal Newborn and Child Health by the G8 countries, under the leadership of Prime Minister Stephen Harper, which aims to save the lives of mothers, newborns and children.

Women and children in the world's poorest countries benefit from the $2.85 billion that Canada committed between 2010 and 2015 as part of this initiative. The United Nations and the World Health Organization both recognize midwifery services as key to saving lives and promoting the health of women and newborns.

Canada has established or been a key participant in a number of international enterprises related to midwifery.

In conclusion, I want to reiterate that Bill C-608 will serve to acknowledge the contributions of midwives to the health of Canadian women and their families and to increase public awareness of the role midwives play in providing high-quality maternal care. I ask my colleagues to also support Bill C-608, which seeks to designate May 5, every year, as the national day of the midwife.

Hon. Pierrette Ringuette: Would the honourable senator take a question?

Senator Unger: Yes.

Senator Ringuette: The term "midwife" internationally, and more and more nationally, is also used for the person who accompanies, and in some countries assists, a person in death — not only assists with birth. Are you aware of that? How do you think, then, that the national day of the midwife will be perceived?

Senator Unger: Excuse me, senator, you said related to birth as well as to death?

Senator Ringuette: Yes.

Senator Unger: In all of the reading that I've done to present this bill, I have not heard that word used with relation to midwives, who assist mothers to deliver babies.

(On motion of Senator Cordy, debate adjourned.)

Breast Density Awareness Bill

Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Martin, seconded by the Honourable Senator Marshall, for the second reading of Bill C-314, An Act respecting the awareness of screening among women with dense breast tissue.

Hon. Tobias C. Enverga, Jr.: Honourable senators, seeing as this bill is at day 15 on the Order Paper, I wish to adjourn the debate in my name.

(On motion of Senator Enverga, debate adjourned.)


Energy, the Environment and Natural Resources

Budget—Study on Non-Renewable and Renewable Energy Development in Northern Territories—Twelfth Report of Committee Adopted

The Senate proceeded to consideration of the twelfth report of the Standing Senate Committee on Energy, the Environment and Natural Resources (budget—study on northern territories energy), presented in the Senate on April 23, 2015.

Hon. Richard Neufeld: Honourable senators, I move the motion standing in the name of Senator Massicotte regarding consideration of the twelfth report of the Standing Senate Committee on Energy, the Environment and Natural Resources.

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

Hon. Senators: Agreed.

(Motion agreed to and report adopted.)

Aboriginal Peoples

Budget—Study on Challenges and Potential Solutions Relating to First Nations Infrastructure on Reserves—Ninth Report of Committee Adopted

The Senate proceeded to consideration of the ninth report of the Standing Senate Committee on Aboriginal Peoples (budget—study on challenges and potential solutions relating to First Nations infrastructure on reserves), presented in the Senate on April 23, 2015.

Hon. Lillian Eva Dyck: I move the adoption of the report.

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

Hon. Senators: Agreed.

(Motion agreed to and report adopted.)

The Senate

Motion to Take Note of the Case of Sergei Magnitsky Adopted

On the Order:

Resuming debate on the motion of the Honourable Senator Andreychuk, seconded by the Honourable Senator Greene:

That the Senate take note of the following facts:

(a) Sergei Magnitsky, a Moscow lawyer who uncovered the largest tax fraud in Russian history, was detained without trial, tortured and consequently died in a Moscow prison on November 16, 2009;

(b) No thorough, independent and objective investigation has been conducted by Russian authorities into the detention, torture and death of Sergei Magnitsky, nor have the individuals responsible been brought to justice; and

(c) The unprecedented posthumous trial and conviction of Sergei Magnitsky in Russia for the very fraud he uncovered constitute a violation of the principles of fundamental justice and the rule of law; and

That the Senate call upon the government to:

(a) Condemn any foreign nationals who were responsible for the detention, torture or death of Sergei Magnitsky, or who have been involved in covering up the crimes he exposed;

(b) Explore and encourage sanctions against any foreign nationals who were responsible for the detention, torture or death of Sergei Magnitsky, or who have been involved in covering up the crimes he exposed; and

(c) Explore sanctions as appropriate against any foreign nationals responsible for violations of internationally recognized human rights in a foreign country, when authorities in that country are unable or unwilling to conduct a thorough, independent and objective investigation of the violations.

Hon. Anne C. Cools: Honourable senators, I rise to speak to our beloved Senator Andreychuk's March 25 motion asking the Government of Canada to sanction foreign nationals, Russians, whom she said are responsible for the murder of a Russian national, an accomplished lawyer named Sergei Magnitsky. Her motion is identical to one adopted in the House of Commons that day with absolutely no debate. Neither the sponsor, Mr. Cotler, nor the Foreign Affairs Minister, Rob Nicholson, spoke to it. That same day, the Senate Deputy Government Leader Yonah Martin tried to have it adopted urgently and without debate. Learning of my concern about this improper haste on this grievous matter, she permitted me some time to prepare. I thank Senator Martin very much for that.

Colleagues, accusations of murderous actions are grave, the more when the accused country supported the Allies in World War II and has diplomatic relations with us. I note that our government has no extraterritorial powers to reach into Russia to examine their nationals residing there. This Senate ought not to call upon or even whisper to the government on this motion, which is, in my view, an affront on the Russian nation and sovereign. Diplomacy is far better and more helpful to communicate with foreign countries and should be pursued with vigour.

Honourable senators, this motion's content is deeply disturbing. It touches large, serious and complex foreign affairs questions. It is of some legal and constitutional magnitude and invades our Sovereign Queen's exclusive jurisdiction in foreign affairs, exercised in the person of the Foreign Affairs Minister, Rob Nicholson, vested by Her Majesty and so credentialed by her. It asks the Senate, absent study and examination by a Senate committee, to take a position on a foreign affairs judicial question, riddled with difficulties and presently unknown to our Constitution. It is one on which the Foreign Affairs Minister has not spoken, and he should lead on these issues. Presently, our government has no power to act against non-Canadian citizens, foreign nationals, resident in their own countries, for deeds done there.

Senator Andreychuk's motion reads, in part:

. . . That the Senate call upon the government to:

(a) Condemn any foreign nationals who were responsible for the detention, torture or death of Sergei Magnitsky, or who have been involved in covering up the crimes he exposed;

(b) Explore and encourage sanctions against any foreign nationals who were responsible for the detention, torture or death of Sergei Magnitsky, or who have been involved in covering up the crimes he exposed; and

(c) Explore sanctions as appropriate against any foreign nationals responsible for violations of internationally recognized human rights in a foreign country, when authorities in that country are unable or unwilling to conduct a thorough, independent and objective investigation of the violations.

Honourable senators, our colleague's motion seeks an extraterritorial, punitive, judicial power, simply a universal, international curial jurisdiction over a foreign country's nationals, which Canada does not now possess, however terrible and sad is the case of Sergei Magnitsky. Our good senator's motion will "condemn" and "sanction" persons who are unidentified and unavailable for our examination and investigation. The "international judicial intervention" that our good Senator seeks may possibly be outside the United Nations Charter. Her motion appears to be contrary to the charter's Article 2.7 of Chapter 1: Purposes and Principles, which states:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; . . . .

Honourable senators, clearly this international organization of nations, named the United Nations, distinguishes interventions "in matters which are essentially within the domestic jurisdiction of any state" from those that are not. The Government of Canada, the Senate and the House of Commons also uphold that distinction. It seems that the terrible events of which our dear Senator Andreychuk speaks are "matters which are essentially within the domestic jurisdiction" of Russia. If so, surely the remedies and goals sought by her motion cannot be "essentially within the domestic jurisdiction" of Canada.

Honourable senators, our good senator began her speech on March 25 and finished it the next day. Senate Deputy Opposition Leader Joan Fraser then asked her:

It's not that I think it would be a bad thing to sanction those acts, but how are we supposed to know who did those acts? Are we not, in other words, engaging here in a bit of empty rhetoric?

Senator Andreychuk replied:

No, because I think what we are still appealing for is some internal ability to find out who did what. If you look at the number of investigations that were done within Russia, the people who were responsible in the prisons, one of them was removed but no full action or proper investigation was made. The people are known; they've been identified in Russia.

The point is that it's very much like the International Criminal Court.

Our colleague seeks for Canada an "internal ability to find out who did what" in Russia. She seeks a local option, a domestic Canadian international jurisdiction, a homegrown extraterritorial power over Russian nationals. She said, ". . . it's is very much like the International Criminal Court." The International Criminal Court was established by the Statute of Rome not too many years ago. But she herself admits the absence of jurisdiction here in Canada. I want senators to listen to a very honest statement, she said:

. . . This is really exploring it.

Granted, we haven't got the measures, but no one has really stopped to assess it. So we're calling on the Canadian government to start that process of investigation to see if it leads somewhere where we can, in fact, impose sanctions against those people.

I admire Senator Andreychuk deeply, and she knows that. She herself articulates the problem.

Honourable senators, Canada has no international jurisdiction to empower the Senate, Parliament or our government to punish or sanction foreign nationals for deeds done in their own countries, people who have not hurt Canada or Canadians. We do not know the full scope of the powers that our good senator seeks and how they would be created or executed. She has presented no evidence to the Senate for the terrible evils of which she spoke. Neither do senators nor the Senate know the nature or limits of the sanctions which she seeks or why. Her sincere motion is not evidence. Sincerity is not hard evidence. Her motion is merely a strongly worded hortatory condemnation. Last year in April, Government Deputy Leader Martin asked the Senate to immediately adopt a similar motion, also against the same foreign nation, Russia. Both motions stand out for their strident tone against Russia. Both presented no evidence to the Senate on which to form an opinion. Both waded into the international arena without the express support of the minister on the floor of the House of Commons. Yet both of these Russian motions were most urgent for reasons that no one would tell us.

Honourable senators, our foreign and international affairs are really relations between sovereigns, that is, between foreign sovereigns and our sovereign, Her Majesty.


Foreign sanctions, and their enforcement, are the ken of the foreign minister, so vested by Her Majesty. Our Constitution grants our two houses no role in these decisions, other than the Parliament's control and power of the public purse. If we do not like their war, we cut off the supply of money.

Joseph Chitty, the great authority on Royal Prerogative law, wrote on the Crown's pre-eminence in foreign affairs. In his 1820 Treatise on the Law of the Prerogatives of the Crown, he wrote, at page 6:

With respect to foreign states and affairs, the whole majesty and power of his dominions are placed in the hands of the King, who as representative of his subjects possesses discretionary and unlimited powers. In this capacity his Majesty has the sole right to send ambassadors and other foreign ministers and officers abroad, to dictate their instructions, and prescribe rules of conduct and negotiation. (a) His Majesty alone can legally make treaties, leagues and alliances with foreign states; grant letters of marque and reprisals, and safe conduct; declare war or make peace. As depository of the strength of his subjects, and as manager of their wars, the King is generalissimo of all land and naval forces: his Majesty alone can levy troops, equip fleets, and build fortresses.

Honourable senators, that is the nature of those prerogative powers, and they are very great powers. Thank God our Sovereign does not invoke them too often in terms of war.

Honourable senators, foreign relations decisions are the sole purview of the foreign minister, who did not speak to this motion, nor to the one last year, in the Commons. Without doubt, his opinion matters and is exquisitely important. We have long thought that in both houses, motions or decisive matters on foreign affairs questions should be moved only by responsible Crown ministers — and I will say it again — of whom we have none in this chamber. We have no ministers in this chamber. I say again to Senator Carignan and everybody here that we must insist to the Prime Minister that Senator Carignan be made a minister. I have said that before, and I say it again.

Honourable senators, this unusual sanctions motion would give the Canadian government a punitive role against foreign nationals in their own countries. It is a very unusual thing, as I said. Black's Law Dictionary, fourth edition, defines two types of sanctions, the positive supportive and the negative coercive. On the former, Black's Law Dictionary says, at page 1507:

To assent, concur, confirm, or ratify.

That use of the term has almost fallen into disuse.

On the latter, Black's adds:

In jurisprudence, a law is said to have a sanction when there is a state which will intervene if it is disobeyed or disregarded. Therefore international law has no legal sanction. . . .

In a more general sense, a conditional evil annexed to a law to produce obedience to that law. . . .

The vindicatory part of a law, or that part which ordains or denounces a penalty for its violation.

Affirming Black's, Webster's Unabridged Dictionary, 1989, defines "sanction," at page 1265, as an:

. . . action by one or more states toward another state calculated to force it to comply with legal obligations.

Likewise, Jowitt's Dictionary of English Law, the most famous of all of those dictionaries, defines "sanction," at page 1584, as:

. . . a penalty or punishment provided as a means of enforcing obedience to a law.

Honourable senators, I do not understand Senator Andreychuk's quest to expand Canada's jurisdiction over extraterritorial Russian nationals. I am unclear about the nature of the sanctions her motion seeks against these people, whom she confidently alleges have committed these terrible crimes.

In the 2013 article, "Sanctions," in the Max Planck Encyclopedia of Public International Law, Alain Pellet and Alina Miron explain the current use of the word "sanctions," at paragraph 5:

. . . sanctions, . . . rest upon the persuasive force of coercion to bring the targeted State . . . back to legality. Indeed, the legal discourse has gradually come to reserve the use of the term "sanctions" to the measures of constraint taken either by States or by international organizations in order to restore the international legality, broken by the illicit act of an international legal subject.

I repeat that these matters are the ken of the Minister of Foreign Affairs, yet he is silent. I would love to hear what he has to say.

Honourable senators, I question this motion both substantively and procedurally as it attempts to add a new weapon, a judicial one, to our international political arsenal. It seeks to do that which is alien to our Constitution. It seeks to acquire some universal jurisdiction. It asks Canada to administer international justice in foreign lands from here in our homegrown domestic courts.

Kenneth Roth, well-known as the executive director of Human Rights Watch, quotes the former U.S. Secretary of State Henry Kissinger on the then novel concept of extraterritorial jurisdiction. This is some years back. In the September/October 2011 Foreign Affairs journal, in his article, "The Case for Universal Jurisdiction," Roth said, at page 151:

Kissinger says that the drafters of the Helsinki Accords — the basic human rights principles adopted by the Conference on Security and Cooperation in Europe in 1975 — and the U.N.'s 1948 Universal Declaration on Human Rights never intended to authorize universal jurisdiction.

These famous assemblies never intended a universal jurisdiction in judicial form. The jurisdiction for the International Criminal Court is still disputed by those who disagree that courts and judges should be deployed, that judicial processes should be deployed, for political purposes. You remember that, two years back, there was much talk of that, that once they could get their hands on Gadhafi, they would deliver him to the court.

Could I have a few more minutes?

The Hon. the Speaker: Is the chamber granting Senator Cools five more minutes?

Hon. Senators: Agreed.

Senator Cools: Honourable senators, the matters before us are serious, and I thank Senator Andreychuk for bringing them before us. But they demand deep examination and deep debate. They ought to be given the study they deserve.

Honourable senators, in closing, I state that procedurally, a motion of this type, which touches Her Majesty's prerogative in international affairs, should have been in the parliamentary form known as an address to the Governor General. Address is the manner in which the houses communicate with our sovereign, Her Majesty, or her representative. About this, Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 22nd edition, informs at page 607:

Addresses have comprised every matter of foreign or domestic policy; the administration of justice; the expression of congratulation or condolence . . . and, in short, representations upon all points connected with the government and welfare of the country. . . .

Honourable senators, I thank Senator Andreychuk for her good work. She is known all over the world. Understandably, I know that she feels strongly about these issues, but, sadly, there are numerous instances in the world of tragic murders left unpunished, and I will cite two that deeply affected me as a child. One was the 1944 cold-blooded assassination in Cairo of Lord Moyne, the British Minister Resident in the Middle East, by the Stern Gang, a group headed by a man who later became Prime Minister of Israel, Yitzhak Shamir. The other was the 1948 assassination of the UN Mediator in Palestine, named Count Folke Bernadotte. He was of the Swedish royal family, head of their Red Cross and a great humanitarian. He rescued many Jews during World War II. He was murdered by the infamous Stern Gang, known as Lehi, which means “fighters for the freedom of Israel.” Interestingly, Yitzhak Shamir wrote in his 1994 book Summing Up: An Autobiography, about Count Bernadotte, at page75:

. . . Lehi believed that it was imperative for the plan to be shelved and Bernadotte removed from the arena. At first, he was warned: Lehi leaflets demanded that he leave his post, that he leave the country and that his Plan be publicly repudiated.

But Bernadotte was sure that with his Plan he was entering history and he paid no heed. On 17 September 1948, he was shot and killed in Jerusalem, the city he was ready to give away.


Shamir also wrote of his meeting with Shaul Avigur, the then deputy minister of defence, not long after the Bernadotte assassination. He wrote the following:

He listened, without comment, then asked me to give him the names of Count Bernadotte's assailants. Nothing would happen to them, he said, but Ben-Gurion cut through the tangle to proclaim a "general amnesty" and the Provisional Government passed a special law so that all Lehi and Irgun members be released, including those already sentenced.

Honourable senators, I have much sympathy for Senator Andreychuk's fine work with the Senate Foreign Affairs Committee. But the world is filled with sad, terrible events and murders of some very fine people that remain unpunished. There were not two human beings as great as Lord Moyne and Count Bernadotte. Lord Moyne stands out in my mind as a mighty man because he had conducted a royal commission in the West Indies, the Moyne Report. The entire Caribbean was looking to his report as the way forward for our islands. So the name Moyne echoed in my mind for years and years, as did the Moyne Report, which set the stage for independence in the region.

Senator Andreychuk, I thank you for your work. I thank you for your sensitivity. I thank you for your great contributions. But I feel quite strongly that we are having difficulty in Canada managing our own internal wrongdoings. I do not see that we can manage wrongdoings in other countries.

I would like to close by praising the nature of diplomacy. It is a wonderful tool. I would invite Senator Andreychuk and the Minister of Foreign Affairs and all interested in those issues to invest much time in diplomacy, especially our relationship with Russia. I thank you very much.

Hon. David M. Wells: Honourable colleagues, you have heard from our colleague Senator Andreychuk that in 2008 a Russian lawyer named Sergei Magnitsky uncovered a massive fraud committed by Russian government officials that involved the theft of $230 million of state taxes. His story is one of inconceivable injustice.

After testifying against the officials involved, Sergei Magnitsky was arrested and imprisoned without trial by those very same government officials. He was tortured in an attempt to force him to retract his testimony and to falsely incriminate himself and his client in the crimes. He was denied visits from his family and was detained in the most horrifying detention conditions.

This torture and holding in subhuman conditions led to a drastic deterioration of his health. When he requested medical attention he was denied, despite more than 20 requests for assistance.

In November 2009, at the age of 37, Sergei Magnitsky died in custody. He left behind a wife and two children. Sergei Magnitsky's death generated international media attention. This attention intensified and led to the adoption of the Magnitsky Act by the Government of the United States in 2012, an act which imposes visa sanctions against those Russian officials believed to be involved in Sergei Magnitsky's death.

Honourable colleagues, we cannot interfere in the making of laws in other countries. We cannot interfere in the process of how compliance with laws is dealt with in other countries. Canada, however, is a country of laws. We are a country of respect for the law, and we can serve notice to countries that willfully condone the violation of laws that result in the theft of assets. We can serve notice to countries that violate the basic tenets of human rights. Finally, colleagues, we can serve notice to those that cause suffering and death under the cloak of cover-up and sponsored crimes, including — and I won't couch my words — death in custody.

Sergei Magnitsky's death was the catalyst for the legislation that bears his name enacted in the United States, and his name is invoked in this motion. But Sergei Magnitsky is merely a symbol for the many who have met a similar fate before him and since, not just in Russia but around the world.

Colleagues, to do nothing is to accept this injustice. That is not the way Canada is. Canada stands for the rule of law. We stand for due process and we stand for common justice. It is the foundation of the responsible international citizen that Canada is, and we share those values with many other responsible nations around the world.

Honourable colleagues, I support the motion put forth by Senator Andreychuk, and inspired by Sergei Magnitsky and immortalized by author and humanitarian Bill Browder. I applaud the efforts of those who have brought this situation to light, for bringing it into the light is the best next step in moving toward an ideal where this deed is seen for what it is: a reprehensible act that should not go unnoticed and cannot go unpublished. Thank you, honourable colleagues.

The Hon. the Speaker: If there are no further senators who wish to participate in this debate, I call for the question on the motion.

Hon. Senators: Question.

The Hon. the Speaker: It has been moved by the Honourable Senator Andreychuk, seconded by the Honourable Senator Greene, that the Senate take note of the following facts — should I dispense?

Hon. Senators: Dispense.

The Hon. the Speaker: All those in favour of the motion, please say "yea."

Some Hon. Senators: Yea.

The Hon. the Speaker: All those against the motion, please say "nay."

An Hon. Senator: Nay.

The Hon. the Speaker: In my opinion the "yeas" have it. The motion passes on division.

(Motion agreed to, on division.)

(The Senate adjourned until Wednesday, May 6, 2015, at 1:30 p.m.)