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Previous Sittings
Previous Sittings

Debates of the Senate (Hansard)

1st Session, 42nd Parliament,
Volume 150, Issue 69

Wednesday, November 2, 2016
The Honourable George J. Furey, Speaker

The Senate

Wednesday, November 2, 2016

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




Sobey Art Award

Hon. Diane Bellemare (Legislative Deputy to the Government Representative in the Senate): Honourable senators, the Sobey Art Award gala was last evening and this year, for the first time, it was held at the National Gallery of Canada. This award is a prestigious contemporary art prize for Canadian artists 40 and under.

Every year, the award celebrates some of our country's most exciting young artists and provides significant financial recognition.

This year it will present $100,000 in prize money, including a top prize of $50,000 for the winner. The finalists will receive $10,000, and the other long-listed artists will receive $500 each.

This year, the Sobey Art Award showcased works by the following five finalists for 2016:

  • Brenda Draney, Prairies and North;
  • William Robinson, Atlantic;
  • Jeremy Shaw, West Coast and Yukon;
  • Charles Stankievech, Ontario; and
  • Hajra Waheed, Quebec.

The 2016 winner is Jeremy Shaw, representing the West Coast and the Yukon. Jeremy Shaw works in a variety of media to explore altered states and the cultural and scientific practices that aspire to map transcendental experience.


Often combining and amplifying strategies from the realms of conceptual art, ethno-graphic film, music video, mystical and scientific research, Shaw proposes a post-documentary space in which disparate ideals, belief systems and narration are put into crisis.


He has had solo exhibitions at MoMA PS1, in New York, Schinkel Pavillon, in Berlin, and MOCCA, in Toronto, and been featured in various group exhibitions in Amsterdam and Berlin and at Palais de Tokyo, in Paris.

In closing, esteemed colleagues, let us remember Annie Pootoogook, who passed away in September. In 2006, Ms. Pootoogook won the prestigious Sobey Art Award. Here is how Le Devoir described her work:

Her drawings captured a culture undergoing profound transformation, a culture deeply rooted in tradition but assailed by the consumer goods, technology, and lifestyles of the south.

Her work inspired a generation of young artists from remote communities across Canada.

Thank you.

Some Hon. senators: Hear, hear!


Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Dr. the Honourable Christopher Tufton, Minister of Health from Jamaica; the High Commissioner of Jamaica, Janice Miller; as well as Mrs. Michelle Meredith and Mr. Vivion Scully.

They are the guests of the Honourable Senator Meredith.

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

Hon. Senators: Hear, hear!

Library Month

Hon. Michael Duffy: Honourable senators, I rise today to congratulate Canada's librarians on another successful Canadian Library Month. As senators know, we mark International Literacy Day in September and follow up every October with Canadian Library Month.

Literacy is the key to a successful future. As a prosperous nation, we have sadly far too many people who are without the reading skills needed to achieve a successful and happy life.

In my own province of Prince Edward Island, the International Adult Literacy Survey found the reading skills of 30 per cent of P.E.I. adults are so limited that they can't deal with most printed material. An additional 35 per cent of P.E.I. adults need materials written clearly in plain language.

Colleagues, the literacy problem isn't confined to P.E.I, not by a long shot. Nationally, 80 per cent of Canadian seniors cannot read well enough to deal with everyday literacy tasks.

I am pleased to report that Canada's librarians are working hard to promote literacy and the joys of reading. asked a cross-section of Canadians in politics, the arts, sports, and librarianship to share books that had impacted their lives, their current reads, and their recommendations for other Canadians.

The result is a compendium called "Introducing Canada's Favourites: Book Recommendations from Coast to Coast." It even includes reading recommendations from several honourable senators, and you can find it at

Congratulations to the project coordinator Zoe Dickinson and Canada's librarians for their continuing work to promote reading.

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Her Excellency Petronila P. Garcia, Ambassador of the Philippines to Canada; the Honourable Peter Angelo Tiu Laviña, Deputy Cabinet Secretary, Office of the President of the Philippines; accompanied by Mr. Francisco Noel Fernandez, Deputy Chief of Mission; and Mr. Eric Gerardo Tamayo, Consul General of the Philippine Embassy.

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!

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of the participants of the Take Our Kids to Work Program which is a part of the Learning Partnership, a national charitable organization dedicated to supporting, promoting and advancing public education in Canada.

On this day across Canada over 250,000 children take part in a day of career exploration aimed at learning about the skills required in the world of work. On behalf of the Senate of Canada, I would like to acknowledge the presence of and welcome the 14 students from our Senate family participating in today's program.

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

Hon. Senators: Hear, hear!


The Senate

Notice of Motion to Affect Question Period of November 15, 2016

Hon. Diane Bellemare (Legislative Deputy to the Government Representative in the Senate): Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That, in order to allow the Senate to receive a Minister of the Crown during Question Period as authorized by the Senate on December 10, 2015, and notwithstanding rule 4-7, when the Senate sits on Tuesday, November 15, 2016, Question Period shall begin at 3:30 p.m., with any proceedings then before the Senate being interrupted until the end of Question Period, which shall last a maximum of 40 minutes;

That, if a standing vote would conflict with the holding of Question Period at 3:30 p.m. on that day, the vote be postponed until immediately after the conclusion of Question Period;

That, if the bells are ringing for a vote at 3:30 p.m. on that day, they be interrupted for Question Period at that time, and resume thereafter for the balance of any time remaining; and

That, if the Senate concludes its business before 3:30 p.m. on that day, the sitting be suspended until that time for the purpose of holding Question Period.



Notice of Motion

Hon. Diane Bellemare (Legislative Deputy to the Government Representative in the Senate): Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That, when the Senate next adjourns after the adoption of this motion, it do stand adjourned until Tuesday, November 15, 2016 at 2 p.m.




Fall Economic Statement

Hon. Claude Carignan (Leader of the Opposition): Honourable senators, my question is for the Leader of the Government in the Senate. Leader, my questions are about the economic statement given by the Minister of Finance yesterday.

My first question concerns the additional financing for infrastructure announced by Minister Morneau. On Monday, Bloomberg reported that of the 860 infrastructure projects approved since budget implementation bill No. 1 was passed on June 13, just one project is under construction according to Infrastructure Canada data. It is a disaster mitigation project in Whitecourt, Alberta.


One project out of 860 — only one.


If the government cannot get projects started with funds already earmarked, why would it think its new infrastructure plan will fare any better?


Hon. Peter Harder (Government Representative in the Senate): I thank the honourable senator for his question. I don't have the Bloomberg story in front of me, but I would be happy to speak on the specifics of the issue. I would re-emphasize to the Senate that matters of infrastructure require a broad level of cooperation at various levels of government to get the right projects done accordingly. The preoccupation of the government has been to invest in infrastructure, recognizing that the best projects require a broad level of cooperation across various jurisdictions.


Senator Carignan: Thank you, leader. Last week, the Parliamentary Budget Officer's report on the labour market indicated that over the course of the past year, job creation in Canada corresponded to:

. . . half the average rate of job creation of the previous five years.

The Parliamentary Budget Officer indicated that the jobs created were all part-time jobs. There were no new full-time jobs created by the current government. Not a single one.

What the government has done, however, is to increase spending and the national debt with no results. It has not created any jobs. In order to really increase employment and opportunities in Canada, will the government keep its promise to reduce the tax rate for small businesses so they can better play their important role of creating jobs across the country?


Senator Harder: I thank the honourable senator for his question. The view of the Government of Canada with respect to economic growth is to use the tools available to it, specifically infrastructure programs, to stimulate long-term investment in job creation that benefits for Canada's middle class, as infrastructure investment and development lead to a more efficient economy. Economists judge that this infrastructure investment will lead to a year-over-year 0.5 per cent growth in GDP, and it is that growth that will provide sustainable long-term jobs for Canadians.


Senator Carignan: The Prime Minister has said before that the budget will balance itself. At the time, we thought that was just a slip of the tongue. However, today, we know that he actually thinks that way. The economic statement shows a $31.8-billion increase in the deficit over five years and does not include a plan to balance the budget.

My question is relatively simple: how does the Liberal government intend to finance all of this spending? Does it intend to increase taxes or the GST?


Senator Harder: I think it's important for Canadians to understand, as the government has made clear, that the objective of this update, as in the previous budget, was to provide two things. One is a sustainable fiscal framework that sees Canada's debt-to-GDP ratio decline over the long term; the other is that this update is expected to see the debt-to-GDP ratio projected to decline to 31 per cent by 2021. That long-term decline of debt-to-GDP ratio is good for Canada, particularly at a time when the government is able to make investments in infrastructure and to use deficit financing prudently to stimulate economic growth, as so many economists have advised the government to do.


Senator Carignan: I have one last question about the creation of a Canada infrastructure bank. The government announced the creation of a fund or an infrastructure bank. It intends to put a certain amount of money into that bank in order to generate investments from private companies or funds, mainly pension funds, which will expect a return on their investment.

If the fund or bank invests in infrastructure and pension fund representatives expect a return on public infrastructure, does that mean that the government intends to impose tolls on the use of public infrastructure in order to ensure that institutional investors get a return on their investment?


Senator Harder: I thank the honourable senator for his question and would remind senators that certain infrastructure investments in Canada already have user-pay attached to them, particularly municipal transit, for example. I think it's important to recognize that this is not the only instrument available to the government for infrastructure expenditure or for investment of this kind, but it is a way of harnessing private sector resources for the broader infrastructure needs of Canada.

As the minister has made clear, the infrastructure bank itself will be led by a board of directors operating at arm's length from the government, but will remain accountable to Parliament, as many instruments of governance allow.

The minister will remain responsible for setting the overall policy direction and the high-level investment priorities for the bank in their portfolios, consistent with the government's commitments. The primary objective is to increase investment in infrastructure — not the selling of assets, but to align broad instruments of investment available to the government through a bank structure that allows the assurance of the private sector investors that this investment is both prudent and in their long-term interest. In this regard, I would simply point out that Canadian investment organizations, particularly our pension funds, are actively engaging in the investment of public sector infrastructure elsewhere. Why would we not want to give them the opportunity to do this in Canada?

Hon. Senators: Hear, hear!

Public Safety and Emergency Preparedness


Hon. Art Eggleton: My question is for the Government Representative in the Senate. It's a question that I had intended to ask Minister Goodale when he was in the chamber, but I didn't get that opportunity.

Two weeks ago today, Senate Liberals held an open caucus meeting on the subject of the state of cybersecurity in Canada. Hearing from four expert witnesses, we learned that Canada's cybersecurity strategy is ill-prepared to address the increasing connectivity in the everyday lives of Canadians.

Beyond our computers and phones, everyday household items like refrigerators, thermostats and washing machines are all being connected to the Internet. This is known as the "Internet of things." This increasing connectivity makes our lives better and makes them easier, but it also leaves us more vulnerable to cyberattack.

Lo and behold, two days after that, on October 18, we saw first-hand what our witnesses meant as hackers used the Internet of things as a launching point for a major cyberattack that caused Internet outages across swaths of North America and Europe.


Canada's last comprehensive cybersecurity strategy was released in 2010, six years ago. It's outdated, considering the rapid technological advances since then.

Outside of public consultations, what steps are being taken to update our cybersecurity strategy, and when can we expect it to come into effect?

Hon. Peter Harder (Government Representative in the Senate): Thank you for your question. Like you, I wish you had asked this of the minister.

The government is of the view that those consultations with respect to cyber security were informative. The government is actively looking at the recommendations that came forward as part of that consultative process, and the minister is looking for an early opportunity to update the strategy accordingly.

I would like to reinforce with all senators that this issue is uppermost in the minds of not just the ministry but also a number of organizations that have direct accountability for critical infrastructure and security-related matters. The level of cooperation and alignment across these organizational entities — and at the federal, provincial and municipal level, because often the infrastructure that is critical to your well-being is not just in the hands of one level of government — is reviewed so that it can better respond to the new technologies of disruption.

As you correctly point out, this is an evolving concern, and it needs to move with the pace of technological development that can disable and otherwise disrupt our well-being.

Senator Eggleton: That's the exact point. Thank you for that answer, but the exact point is that we have a strategy that's six years old. It's way out of date when you consider the technology.

My question was when. I sense there is a sense of urgency in all of this, but when? Are we talking about it being in three months or six months that we'll have this strategy updated to better protect Canadians and our systems?

Senator Harder: I want to assure the honourable senator that the strategy will be forthcoming. I will relay his concern on timing with the appropriate minister.

Privy Council Office

Meeting with Prime Minister—Appointments to Senate

Hon. Leo Housakos: My question is for to Leader of the Government in the Senate. We all know that you were sworn in as a member of the Privy Council upon your appointment. Could you share with this chamber the frequency of your being invited to cabinet committee meetings — and to confirm that it is, indeed, the case? Maybe you can also confirm for this chamber the frequency of opportunities to meet with the Prime Minister.

Hon. Peter Harder (Government Representative in the Senate): As appropriate.

Senator Housakos: I would like to thank the government leader for that answer. I want to elaborate upon the premise of my question. In times past in this chamber, we've had former government leaders who had the opportunity, at least on a couple of occasions a week, to have face time with the Prime Minister. With previous governments, we had senators here who had the opportunity on a weekly basis to articulate their points of view at national caucus; both Conservative members in the chamber and our friends the independent Liberals had the opportunity to articulate points of view to Her Majesty's Loyal Opposition.

Can the representative of the government confirm for us the view of the current government? Do they feel that non-aligned senators being brought to this parliamentary chamber can adequately represent the interests of their regions when they are discouraged, actually, by the Prime Minister — imagine, he's actually discouraging parliamentarians — from exercising a fundamental right that we have in the Charter, which is freedom of association, and he is discouraging senators from participating in national political parties?

Don't you think it handcuffs newly appointed senators from articulating interests on behalf of the regions to the executive branch of the government?

Senator Harder: I thank the honourable senator for his intriguing question. I do not share the view that it is only through partisan association that any individual senator is able to advance the interests of their region or appointment.

Some Hon. Senators: Hear, hear!

Senator Harder: I notice the broad applause on that.

It's fair to say that the Prime Minister, in putting into place an arm's -length process to provide independent advice on the nomination and the desire of those who are appointed to sit as independents are reflections of that. It is now up to us as an institution to find ways of ensuring the equality of representation and the proportionality of our role in this chamber are reflected in our rules, procedures and the culture of this place.

Senator Housakos: There has been a long tradition in this institution of senators having the opportunity to articulate to the cabinet ministers and the Prime Minister himself. With all due respect, Senator Harder, there is no better mechanism in place than on a weekly basis to have the opportunity to sit in front of the Prime Minister and the government of the day to be able to articulate the concerns of your region.

If you believe there is a better mechanism more effective than that — It's great to name outstanding senators such as Senator Petitclerc and Senator Pratte to represent the interests of Quebec, but tell me, how can they articulate those interests and be heard by the executive branch of this government if they don't have a bridge to do so?

Some Hon. Senators: Hear, hear.

Senator Harder: The applause was a little different this time.

It will be up to the senators themselves to find ways of expressing their views and interests —

An Hon. Senator: You're the only one?

Senator Harder: — and I notice they are quite adequate at doing so.

The Senate

Committee Membership

Hon. Donald Neil Plett: My question is for the Leader of the Government in the Senate.

Leader, last week you appeared on "Power & Politics" with Terry Milewski, discussing the perceived unfairness of the non-aligned senators not being given additional slots on Senate committees. Leader, as you well know, we have made unprecedented changes and guaranteed senators who are non-aligned — they are beholden to no caucus or whip — a minimum of two seats on each and every committee.

Leader, do you happen to know how many committee spots reserved for the non-aligned senators have been left unfilled?

Hon. Peter Harder (Government Representative in the Senate): I would like to speak to the principle that I spoke of on "Power & Politics," and about which I have spoken in other fora, in the chamber and outside.

The principle that I hope we can all agree on is that all of us — all 105, as we soon will be — ought to be equal in our voice and in our effort to represent the regions and provinces from which we are appointed and that, in doing so, the role of senators, particularly those on committees and elsewhere, can be proportional to the representation that finds itself in this chamber.

It is true that with the announcement of appointments this morning, for the first time in Canada's history, the plurality of senators as they identify themselves in this chamber will be independents. I trust that all of us will find ways of making that reality a respectful and an ongoing expression of how this Senate can work best in the interest of Canadians.

Senator Plett: I'm assuming that was a fairly long-winded "no" to my question, leader.

Let me then enlighten you. There are five vacancies — five spots reserved for non-aligned senators who have been standing here telling us that they want proportionality and equal rights. Five spots have been left unfilled.

Leader, can you tell me why these spots are not being filled and when they will be filled?

Senator Harder: I would like to respond by reminding the honourable senator that I do not lead a caucus and that the independents have, within their own structures, found ways of responding to the ability to appoint at least some independent senators to committees. The ways in which committee assignments are apportioned and the ability to have replacements on committees that is easy to manage are aspects of our procedures that need to be dealt with on an urgent basis.

I would hope, particularly in your role as whip, that you will find ways of working with all of the appropriate individuals in this Senate to ensure both proportionality and equal treatment.


Senator Plett: Mr. Leader, you did negotiate on behalf of the non-aligned senators. You were on "Power & Politics." You were suggesting it was unfair that they have not been given the spots. You were suggesting that they were being given more spots. Why are you one day intervening on their behalf and then here in the chamber you tell us that you aren't responsible for that?

Senator Harder: That gives me an opportunity, senator, to remind you and all senators that I sit as an independent, but I also sit as the Government Representative in the Senate. I'm happy to perform that role.

There is not a government caucus. It is consequential to the change that independent senators bring to this institution, and I, like my predecessors, have sought to work with all of the leadership in the Senate. There happens to be a new form that is taking place in the Senate, and I look forward to continue working with the all senators as we evolve in structure and form.

Hon. Frances Lankin: I have a supplementary question for the Government Representative in the Senate.

I am an aligned independent senator. I am aligned with the independent senators' group. I was wondering if you were aware that in the rules that govern the independent senators, when we replace other senators that are going to be absent from a committee that we are not allowed to vote, whereas members of political caucuses who replace their members on committee are in fact allowed to vote. So beyond the proportionality, there is an inequity in terms of our ability to manage affairs, to have people substitute in and take part and have full voting rights in a committee.

Senator Harder: I thank the honourable senator for her question. I do think that the issue that you bring to the chamber is worthy of immediate action so that we can have equal treatment for replacements and for the ability of independent senators to function as effectively as the party caucused senators do.

This is a matter which we are going to have to deal with, or frankly it will bring the institution itself into disrepute as we welcome more senators. I would simply refer to Senator Eggleton's excellent speech the other day where he talked about the issue of fairness in respect of Motion Nos. 7, 8 and 21 of the Modernization Committee report, where he said, "Let's deal with it."

Disclosure of Political Involvement

Hon. Denise Batters: My question is to the Leader of the Government in the Senate. Senator Harder, according to media reports, one of the Trudeau government's new so-called non-partisan senators donated $1,400 to the Liberal Party of Canada last year. That is the Laurier Club level. This year, she has already donated another $825.

Another newly named senator is a widow of a former Liberal MP. These attributes are similar to my own, prior to my Senate appointment, except that my donations and my husband's political affiliation was Conservative. The stark contrast here is that my partisanship is open and transparent.

Senator Harder, in the interests of openness and transparency, I want to know just how non-partisan and independent these new Trudeau appointments really are. Will you release the portion of each new senator's application form that details their political involvement?

Hon. Peter Harder (Government Representative in the Senate): Let me respond by reminding honourable senators that the independent, arm's length appointment process is completely separate from my role and indeed the role of the Prime Minister's Office. The announcement of this stellar group of 21 appointments reflects the broad range of experience and richness of diversity that this country represents at its best, and I hope that we can all welcome these 21 senators and recognize and respect their decision to sit as independents.

Senator Batters: Senator Harder, yes or no? Will you release the new senators' application form portion that details their political involvement?

Senator Harder: I cannot release that which I do not have.

Senator Plett: Then you get it when you meet with the Prime Minister next.

Fisheries and Oceans

Inuit Fishing Enterprises

Hon. Dennis Glen Patterson: Mr. Government Leader, I had hoped to ask this question of the Minister of Fisheries and Oceans yesterday, and to begin by thanking him for his recent decision on the 2016-17 shrimp increase in Davis Straits West, allocating 90 per cent to Nunavut and 10 per cent to Nunavik.

The minister's decision clearly respects the adjacency principles set out in the Nunavut and Nunavik land claims agreements, and I give the minister credit for that. I also thank you for intervening with the minister in that respect.

But my question is about the federal government's Aboriginal fisheries strategy established in 1992, in response to the Supreme Court R. v. Sparrow decision. The Government of Nunavut, Nunavik Tunngavik Incorporated and the Nunavut Wildlife Management Board recently looked at options available to help support the development of our important and growing fishery in Nunavut. The study noted that from that fund $671 million has been utilized by First Nations Aboriginal groups on the Atlantic and Pacific coasts to buy fishing licences and fishing enterprises, just the kind of support we need in Nunavut.

However, Nunavut, which I don't need to remind you has the longest coastline in Canada, has no access to this fund. Nunavut fishing enterprises desperately need access to quotas in the south to operate year round and therefore make their enterprises more economically viable.

I realize you may not be prepared to answer this, but can you tell me if, as requested by Nunavut stakeholders, a program is being developed for the Inuit of Nunavut to allow them to also grow their fishing enterprises?

Hon. Peter Harder (Government Representative in the Senate): Let me begin by thanking the honourable senator for his ongoing interest in Nunavut. Given the nature of his question, I would be more than pleased to seek an answer from the minister. I regret that you didn't have time to ask it yesterday.

Senator Patterson: Thank you.


Special Strategies

Hon. Elizabeth (Beth) Marshall: My question is for the Leader of the Government in the Senate. Yesterday, the Minister of Finance provided his fiscal update and gave us some insight into what we can expect in the future. However, there are other initiatives ongoing such as funding under the health accord.

On June 20, I asked for a complete list of all government strategies ongoing, their timelines and their terms of reference. At the time that I asked the question, I had identified 12. I'm now aware of 18 that are ongoing. I would expect that many of these initiatives will also require significant major funding, and I'd like to know when I can expect an answer to my question.

Hon. Peter Harder (Government Representative in the Senate): I thank the honourable senator for her interest in the consultations that are under way and the strategies that are being developed.

The question poses some challenge in answering, frankly, because a strategy in one department might be a consultation in another.

It's sufficient to say, as the question suggests, that there are a very broad number of consultations under way with the view of leading to strategic engagement on a wide range of issues. I want to assure the honourable senator that not all of those require additional funding. Some require no funding and some require reallocation of funding, and I will inquire as to where the response on this is. But I do want to give you that update.

Senator Marshall: Would you be aware of any that have been completed? I am aware of one. That would be the violence against women strategy that was conducted probably over the last six months. The minister actually provided an update to us earlier in October. So we're aware that one has been completed. With the 18 that I have, I'm not aware of any others. Are you able to provide me with any information as to whether any others have been completed?

Senator Harder: I'd be happy to provide that in this review.

The Senate

Committee Membership

Hon. Elaine McCoy: I had wanted to ask a question of the Chair of the Selection Committee but he has left the chamber. So let me address this question instead to the Government Representative in the Senate, and I'm sure he has the answer too.


My point is in terms of five vacancies on committees at the moment that were occupied by members of the independent senators' group. I'm sure you could confirm that they are caused by the medical leave of absence of Senator Demers and the recent resignation of Senator Rivard.

I'm sure you can confirm that we have no authority to spot in on them, because the Rules prevent it, and that the Selection Committee, chaired by Senator Plett, the majority of which is occupied by Conservatives, has made no move to correct the error.

Hon. Peter Harder (Government Representative in the Senate): I thank the honourable senator for her question.

The question itself reflects greater detail to the point raised by the Honourable Senator Lankin that we have to adjust our procedures so that the replacement of senators who are independent can take place with the same degree of ease and quickness that the replacement of party-identified senators does.

This is all about making this place work better and equally. It's not about one group having an advantage over another. It's about fairness and equality.


Canada Prompt Payment Bill

Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Plett, seconded by the Honourable Senator Martin, for the second reading of Bill S-224, An Act respecting payments made under construction contracts.

Hon. Wilfred P. Moore: Honourable senators, I rise today to speak to Bill S-224, An Act respecting payments made under construction contracts, or the Canada Prompt Payment Bill.

This bill would provide for the timely payment to contractors under construction contracts with government institutions and to subcontractors under related subcontracts.

As the sponsor of this bill mentioned, this is a problem which is not political in nature and which has been a major problem in the construction industry for years. Timeliness of payment and the provision of a dispute mechanism in case of late payment are two of the major concerns expressed by industry stakeholders and are addressed in Bill S-224.

According to the Reynolds-Vogel report prepared for the Government of Ontario, these delays seem to be getting worse rather than better. In fact, although 30 days might be the usual norm for payment contractually, 120 days has been reported in some cases. The report noted that the documented collection of payment had increased from 60 to 70 days over the past decade.

Prompt Payment Ontario maintains that according to Statistics Canada data, the average collection period in the construction industry has risen from 57.3 days to 71 days between 2002 and 2013. These delays lead to major negative implications for the construction industry and the economy as well. An Ipsos-Reid poll conducted for Prompt Payment Canada indicated that:

. . . the economic damage resulting from late payments affects trade contractors on many levels, both directly and indirectly. Participants indicate they are forced to lay off workers . . . decline to take on additional work they cannot finance . . . delay investing in machinery and equipment . . . .

Further, apprenticeships become unaffordable, something which directly affects one of the major issues we are facing in Canada today, which is youth unemployment. Any help in getting our young people working and contributing to the economy and to their professional development is most welcome.

The problem of prompt payment in the construction industry has been addressed by many countries internationally. The United States has federal legislation which, though similar to this bill, does not provide a dispute mechanism. The United Kingdom, as well, undertook to address this prompt payment problem through similar changes to the U.K. Construction Act.

As a recognized international problem, it is time for Canada to address this issue at the federal level. With the amount of infrastructure funds about to flow, we should be making an attempt to rectify this problem. It should be mentioned that the current government indicated yesterday it will make a further investment in infrastructure of $80 billion over the next 12 years.

Bill S-224 has been endorsed by many industry stakeholders and contains several provisions designed to keep the cash flowing down the construction chain. This bill would apply to construction contracts with a department or a ministry of state of the Government of Canada and any Crown corporation or wholly owned subsidiary of a Crown corporation.

The bill will legislate a payment schedule between the federal government and the contractor, as well as between the contractor and subcontractors. These are referred to as progress payments and must be made on a monthly basis or for shorter time periods if the contract stipulates such.

Clause 11(1) of the bill deals with "milestone payments" whereby a contractor needs to achieve a certain milestone before payment would be made for achieving that milestone. The bill would allow such arrangements to continue at the federal level but also provides a payment regime between the government and the contractor, and furthermore, between the contractor and the subcontractor. Also, contractors must provide written notes to the subcontractors indicating the existence of such milestone payments in any contracts with the federal government.

Clause 16 is entitled "Deemed Approval of Payment Application" and makes all invoices submitted to the payer deemed to be approved 10 days after submission. The payer may dispute the amount in the invoice but must do so in writing within the 10 days specified. The total amount cannot be held back by the payer according to clause 16(3), which allows the payer only to withhold the amount related to disputed work.

Clause 17 allows for the contractor and subcontractors to suspend or terminate work on the contract if the government fails to make a payment when due.

There's also a dispute resolution in clause 20, with an adjudicator being appointed to hear the arguments and make a decision which is considered binding.

Lastly, a subcontractor may, by written notice, ask for the due dates for progress payments and final payment that relate to the subcontractor's contract with the payer. This information, as the sponsor has noted, is very important for contractors and subcontractors involved in a dispute process.

The so-called "pay when paid" clauses found in construction contracts are a very large reason for the creation of this bill. The effect of the "pay when paid" clause is to shift the risk from the contractor to the subcontractor when the payer decides not to pay. Some courts have taken issue with this type of clause. I quote from an article written by Meghan Ross of Manitoba, a legal expert in the construction industry:

Courts across Canada have had the opportunity to consider "pay when paid" clauses in light of the above conflict in position, with largely inconsistent results. In Ontario and Alberta, the courts have upheld the parties' right to contract by strictly interpreting construction contracts, and often enforce "pay when paid" clauses. On the other hand, the Nova Scotia Court of Appeal in the 1995 case of Arnoldin Construction & Forms Ltd. v. Alta Surety Co. . . . attempted to limit the effect of "pay when paid" clauses by ruling that subcontractors have a legal right to be paid within a reasonable time for their work, regardless of the fact that the contractor may not have been paid by the owner. Manitoba, Prince Edward Island, Saskatchewan and British Columbia have followed the lead of Nova Scotia in this regard.


Furthermore, Ontario, as mentioned, has produced the Reynolds-Vogel report, which makes recommendations aimed at change. The Tremblay Commission in Quebec has called for a solution to the prompt-payment problem. Alberta has, through Alberta Infrastructure, made some key changes to its contracts, with prompt-payment language included in new contracts going forward. I believe the sponsor of this bill to be correct; Canada should be looking at ending this problem with federal contracts. Bill S-224, in my opinion, levels the playing field for contractors dealing with the federal government, but I think its real strength lies in what it does for subcontractors.

The subcontractors, if this bill passes, will not be as exposed to the risk of non-payment as they are today. Keeping in mind that the subcontractor is often least able to withstand a long period of non-payment in the construction pyramid, Bill S-224 makes perfect sense. I believe this bill should move to the appropriate committee for further study.

Some Hon. Senators: Hear, hear!

Hon. Jane Cordy: Will the honourable senator take a question?

Senator Moore: I will.

Senator Cordy: I'd like to thank Senator Plett for bringing this bill to the chamber because it certainly helps to ensure that businesses get paid on time or in a timely way.

Senator Moore, in your speech, you said that, between 2002 and 2013, the payment delay went from an average of 57.3 to 71 days. There are large companies that may be able to absorb this delay, although it's not fair when they have a delay in payment because they've got a government contract. They still have bills to pay. How would a delay of 71 days affect small contracting companies?

Senator Moore: Thank you for the question, Senator Cordy. Well, you can just imagine a subcontractor with a handful of tradesmen working for him or her trying to do their budgeting, first of all, on materials, time, all that's involved in running a small business, and then not getting their funds in a timely way. So, all of a sudden, we don't have the funds to pay our staff. We don't have the funds to make the required remittances to Revenue Canada. We don't have the funds to pay our suppliers. So this bill is well beyond due. It deserves support, if only in that sense, to help the small businesspeople in Canada.

Hon. Donald Neil Plett: Would Senator Moore take another question?

Senator Moore: Surely.

Senator Plett: Thank you very much, Senator Moore, for your support on this much-needed legislation that has been languishing in this Senate since April, while contractors are going broke across the country. Now, of course, we're in danger of having another adjournment that will allow more contractors to go broke, but I specifically want to ask you: Senator Moore, in your speech, you say that you believe that this should be sent to committee. Thank you for suggesting it should go right away but to the appropriate committee. My question, Senator Moore, is: Would that be your belief for all bills, that they should be sent to the appropriate committee, or, in some cases, should they be sent to the committee of a senator's choice?

Senator Moore: That's one of those questions like, "Do you still beat your wife?"

First of all, Senator Plett, I know your bill was sitting on the Order Paper for some time. When you first introduced it, I thought, "That's a good bill." Nobody spoke to it, so I took the adjournment to give myself a chance to speak. I told you I would do that in a timely way, and I think I've done that.

In terms of the committee, I would think that the sponsor of a bill would have some sense of where a bill might end up for study by senators.

(On motion of Senator Ringuette, debate adjourned.)

Justice for Victims of Corrupt Foreign Officials Bill (Sergei Magnitsky Law)

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Andreychuk, seconded by the Honourable Senator Tkachuk, for the second reading of Bill S-226, An Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act.

Hon. Linda Frum: Honourable senators, I rise today to add my voice in support of Bill S-226, also known as the Magnitsky Bill, which will strengthen Canada's support for the rule of law by holding foreign nations to account for gross violations of human rights.

As colleagues in this chamber have already recounted, Sergei Magnitsky was the Moscow lawyer who uncovered a $230 million tax-fraud scheme perpetrated by Russian officials against a foreign-owned investment fund, Hermitage Capital. For the crime of exposing corruption deep within the government and law enforcement, Magnitsky was arrested and held in prison for 358 days, before dying from his injuries, the result of unspeakably cruel physical torture. Last week, it was revealed that as much as $14 million of the $230 million worth of illicit proceeds that were exposed by Magnitsky were transferred to bank accounts in Canada. There is no question, honourable senators, that, in the Magnitsky case, Canada has served as a haven for illicit, criminal, blood-soaked money, and, if left uncorrected, this state of affairs undermines our standing as a nation dedicated to honouring and upholding human rights.

The Magnitsky case highlights the urgent need for the sanctions legislation that is now before this chamber. Under the provisions of Bill S-226, the bank accounts and assets of designated human rights abusers will be frozen, and visas to Canada will be denied. I welcome the multi-partisan support that this bill has received in the Senate. I congratulate the bill's sponsor, the Chair of the Senate's Foreign Affairs Committee, Senator Andreychuk, for her commitment to this issue now and over many years. She has worked diligently with Bill Browder, the American-British businessman who has made the cause of justice for Sergei Magnitsky his life's mission. I also appreciate the strong support of the Deputy Chair of the Senate's Foreign Affairs Committee, Senator Downe.

Further, I wish to recognize the efforts of my friend and former parliamentary colleague, the Honourable Irwin Cotler. Canada owes a debt to Mr. Cotler for keeping this cause at the forefront of our national political conversation.

Allow me to quote Mr. Cotler from a recent Globe and Mail interview about the pressing need for this legislation:

We owe it to Sergei Magnitsky and those associated with him, the human-rights defenders, to hold Russia accountable and at the very least to prevent them from laundering their proceeds abroad or from entering Canada with impunity.

Mr. Cotler is not alone in his support for the passage of this legislation. The former interim leader of the Liberal Party, the Honourable Bob Rae, stated in the same Globe and Mail article:

Our government, like other governments, needs the ability to deal with acts of corruption, the amassing of huge wealth as a result and the use of Canada as a money-laundering haven, because other countries are putting up walls and barriers.

Honourable senators, I quote these two men to make the point that this legislation has support from those of all political stripes.

The only place from which support is sadly lacking is the current Liberal government. Despite a pledge made by the Liberals during the last election, Canada's Global Affairs minister has been opposed to the Magnitsky legislation on the grounds that he believes it is more important to strengthen diplomatic and economic ties with Russia than to impose meaningful penalties on gross violators of human rights. I confess that I have trouble understanding the minister's position. The Magnitsky law does not contemplate blanket sanctions against the entire Russian regime. Rather, it targets specific criminally responsible individuals.

Furthermore, when negotiating trade relationships and otherwise with unsavory and undemocratic regimes, human rights must always be at the forefront of consideration.

It is my hope that, by passing this bill in the Senate that we can send a strong and urgent message to the Liberal government that, in the words of Senator Andreychuk:

. . . Canada must continue to be a voice for justice, rule of law, and human rights adherence.


I strongly urge senators to support this legislation, which, if enacted, would mirror legislation passed by both houses of the United States and which was signed into law by President Barack Obama in 2012. I hope all senators in this chamber will see fit in joining me to give their full support to Bill S-226.

(On motion of Senator Harder, debate adjourned.)


Food and Drugs Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Raine, seconded by the Honourable Senator Eggleton, P.C., for the second reading of Bill S-228, An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children).

Hon. Paul E. McIntyre: Honourable senators, I am pleased to rise to speak at second reading to support Bill S-228, An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children).


I would like to thank Senator Greene Raine for presenting Bill S-228 and congratulate her for this important and long-awaited initiative.


Her eloquent speech at second reading really put things into perspective and illustrated the need for urgent action in order to combat childhood obesity and counter the influence that commercial advertising can have on children. The key objective set out in the bill's preamble is to protect vulnerable children from the pernicious influence of marketing of food and beverages, through a federal legislative response.

Bill S-228 proposes amendments to the Food and Drugs Act, the most important of which is in section 7, which deals with food labelling, packaging and advertising directed primarily at children. Clause 2 of the bill protects children under the age of 13 specifically. Quebec has had solid legislation on the books since 1980 in the form of the Consumer Protection Act. Much like Bill S-228, that much more generous legislation prohibits advertising to children under the age of 13.

Not only was the Quebec legislation implemented, but when the provisions were challenged in court, the Supreme Court of Canada justified the legality of the ban in Irwin Toy Ltd. v. Quebec (Attorney General).

In its ruling, the court summarized the conclusion of a report by the U.S. Federal Trade Commission, the FTC, by stating the following:


The Report thus provides a sound basis on which to conclude that television advertising directed at young children is per se manipulative.


It is important to understand that advertising targeting vulnerable children threatens their health and well-being in both the short and long terms. That has been obvious for decades because childhood obesity is a national epidemic that has been getting worse over time.

We hear all the time that overweight children are more likely to develop serious health problems in adulthood that can last their whole lives. Those health problems include high cholesterol, high blood pressure, sleep apnea, joint problems, type 2 diabetes, heart disease, stroke, and some types of cancer. Obesity also affects children's self-esteem and mental health.

While this scourge has repercussions on children's health, their well-being, and their future, it also has implications for society as a whole because of rising health care costs for treating obesity-related diseases. The simple fact that the number of obese children has tripled since 1980 should be an incentive to combat this serious national problem as quickly as possible.

A third of Canadian children are overweight or obese. Among industrialized countries, ours ranks sixth in terms of percentage of obese children: 33 per cent of children between the ages of 5 and 17 are overweight or obese. This is a serious national problem of disastrous proportions.

Note that 82 per cent of Canadians want the government to intervene and draft regulations to limit commercial advertising of food and beverages to children in particular.

It goes without saying that the manipulative advertising of food and beverages targeted to children are not the main cause of childhood obesity. Of course, lack of exercise, poor diet and a sedentary lifestyle are all factors that contribute to this scourge.

However, countering the effect of commercial advertising of food and beverages to children is one of the solutions to improving the disastrous situation we are in today.

Dealing with obesity will take a lot more than clamping down on advertising to children under the age of 13. However, it is a first step toward a healthier Canadian society.

Studies have been conducted and recommendations have been made by several organizations, both nationally and internationally. In its March 2016 report, the Standing Senate Committee on Social Affairs, Science and Technology recommends banning the advertising of food and beverages to children. The same recommendation appeared in the federal-provincial report on childhood obesity, and it was also made by the World Health Organization.


Currently, there are penalties for violating the food-related provisions of the Food and Drugs Act, under which the Crown can proceed either summarily or by indictment. Bill S-228 doesn't propose any changes to penalties.

As we know, the federal Minister of Health, while announcing on October 24, 2016, a "revision of the Food Guide," also spoke of some of the issues she'll be tackling as part of having a healthy country, including "marketing to children." This initiative on the part of the minister is a step in the right direction and falls in line with Bill S-228.


For a very long time, tobacco was the big scourge; the government had to step in to regulate that industry. Today the scourge is food and beverage advertising directed at children. It is high time that we took action for the well-being of children, and that of Canadian society as a whole. Let's tackle this scourge head-on, especially since it is escalating at an alarming rate.

Honourable senators, I therefore urge you to join me in supporting Bill S-228, whose objective is extremely laudable.

(On motion of Senator Petitclerc, debate adjourned.)


Visitor in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Hersh Bronfman, a Grade 9 student at Forest Hill Collegiate Institute, Toronto, Ontario. He is the guest of the Honourable Senator Frum.

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

Hon. Senators: Hear, hear!

Underground Infrastructure Safety Enhancement Bill

Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Mitchell, seconded by the Honourable Senator Omidvar, for the second reading of Bill S-229, An Act respecting underground infrastructure safety.

Hon. Donald Neil Plett: Honourable senators, this item is adjourned in Senator Martin's name, so when I am done speaking, I would ask that it go back into her name.

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

Hon. Senators: Agreed.


Senator Plett: I rise to speak to Bill S-229, an Act respecting underground infrastructure safety, also known as "call before you dig."

Colleagues, we may find that if we dig down too far we will hit ice, as it appears that hell is most certainly freezing over: Senator Mitchell and I are agreeing once again on a bill before this chamber.

I am the critic of Bill S-229. However, I am supportive of the initiative and commend Senator Mitchell for bringing it forward.

As someone who has spent a great deal of my career digging trenches, I personally have been responsible for digging up utility lines and am therefore well aware of the impact it can have on the surrounding area, and the large geographic area that can be affected by a single incident.

Let me just explain what happened to me some 40 years ago as I was digging a trench and putting in a gas line in a community by the name of Mitchell, out in southeastern Manitoba. I was digging a trench down about three and a half feet and I hit something. I had to tug and tug and tug, thinking it was the root of a tree, and after enough tugging and pulling I pulled up a telephone line that was about an inch and a quarter thick. Knowing that I had done some severe damage, I went into the home that I was working at — they still had telephone service — and I called the Manitoba Telephone System and said, "I have hit a telephone line," and they said, "Yes, we are well aware of that. You have taken the telephones out in most of southeastern Manitoba." It hadn't hit the house I was in, though. That line was still intact. So they said they would send people down to look at the damage I had done. It would take a couple of hours for them to get some repair people out there and start splicing this cable.

Being the type of employee I was, I thought, "Well, we shouldn't waste money and time here with me sitting around so I should continue my work. I had done the damage and I should continue." So, I got back on the backhoe and I started digging and, after about 10 minutes, lo and behold, up came another line. It was a smaller one. I went back into house to phone MTS again and now that house's phone was out, as was the rest of that village.

I know well the implications of not calling, and it was explained to me by the telephone repair people when they came out that, "Even if you didn't call, that post over there and that post over there should have indicated to you that there is probably a line over here."

Even though we have these lines marked many times we should make sure that we do call before we dig.

This "call before you dig" issue captured the attention of many senators several years ago when the Standing Senate Committee on Energy, the Environment and Natural Resources undertook a study on the dangerous transportation of goods. After a few witnesses raised this issue and the need for action, the committee subsequently undertook a study on notification systems and published a report entitled Digging Safely: One-call Notification Systems and the Prevention of Damage to Canada's Buried Infrastructure.

The committee found that:

The risk of damage to buried infrastructure by uncontrolled excavation is a daily public safety concern across Canada, and is the leading cause of damage to buried infrastructure.

The report makes clear that many jurisdictions have already discovered this, and that the risks and costs associated with digging are entirely preventable if we implement a comprehensive excavation safety system.

One-call centres are already in existence. They are largely non-profit entities created by utilities that make it easier for excavators to contact owners and/or operators of underground infrastructure before digging. The idea is that instead of calling numerous utilities that could have operations under a work site, the excavator makes a single call to a one-call centre, which then facilitates the line locating services from multiple registered utilities.

The statistics in this report are staggering, noting thousands upon thousands of incidents of damage to buried infrastructure in Canada that could have been preventable if the appropriate calls had been made.

Currently, not all provinces have a one-call centre available. The bigger issue is that, even in the provinces that have a one-call centre for utilities, the call is not mandatory, except in the province of Ontario. And for oil and gas pipelines, it is only mandatory in British Columbia and Alberta.

Further to that, in Ontario, utilities on federal lands are not subject to provincial law to register with the province's one-call centre.

I spoke to my son by telephone yesterday in Landmark, and I asked him about Manitoba. He said that yes, Manitoba does, in fact, have a one-call centre, but as we and Senator Mitchell have suggested, it is not mandatory.

The utilities say there is a certain amount of liability placed on you if you hit a line and you haven't made the call, but, of course, that would mean long, dragged-out court cases and the damage would be done, in any event.

To clarify, legally, there is a requirement for excavators to identify the location of buried infrastructure on work sites but there is no legal requirement to actually contact the one-call centre. This is in stark contrast to the one-call national system in the United States, which was an early adopter of this notification system. All states have at least one one-call centre, and it is required by law that excavators contact one-call centres before digging.

As honourable senators know, I also have before this chamber a different bill concerning the construction industry: Bill S-224, the Canada Prompt Payment Bill.

The multi-jurisdictional nature of construction work in Canada makes for some similarities between the two bills, both in terms of scope and limitations. Like the Prompt Payment Bill, Senator Mitchell has two major goals in bringing this federal legislation forward. First, we are able to impact the fraction of construction work done on federal land directly. Second, and as important, we are sending a strong message to the provinces that they too need to ensure there is a comprehensive system in place.

Also, like prompt payment, Canada is behind the game on this issue. Many countries, including virtually all jurisdictions in the United States, including all states and the federal government, have enacted both prompt payment and call-before-you-dig legislation. In fact, all 50 states and the federal government participate fully in a coordinated national call-before-you-dig system.

Both issues require a national strategy and a comprehensive system, and these are two major steps forward. We need to show our contractors and construction workers and, subsequently, all Canadians impacted by construction work that we are hearing their concerns and doing everything in our power to improve our current systems.

I have some initial concerns with the grant provisions or the funding agreements from the federal government to the provinces. At first glance, I'm not sure this provision is necessary, but I am certainly willing to listen to the arguments and look forward to the study of this legislation at committee.

I will be supporting this bill and I urge all honourable senators to do the same.

On that note, as I said, legislation like this and the Prompt Payment Bill are non-partisan issues that affect all Canadians. I truly hope that senators in this chamber will not do to this bill what has been done to the Prompt Payment Bill, which has been stalled here for seven months and is adjourned again, at the expense of Canadians.

I hope, instead, that we will act responsibly and move both bills forward in a timely manner.

(On motion of Senator Plett, for Senator Martin, debate adjourned.)


Latin American Heritage Month Bill

Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Enverga, seconded by the Honourable Senator Stewart Olsen, for the second reading of Bill S-218, An Act respecting Latin American Heritage Month.

Hon. Pierrette Ringuette: I wish to adjourn the debate in my name.

(On motion of Senator Ringuette, debate adjourned.)


National Anthem Act

Bill to Amend—Second Reading—Debate Continued

Resuming debate on the motion of the Honourable Senator Nancy Ruth, seconded by the Honourable Senator Tkachuk, for the second reading of Bill C-210, An Act to amend the National Anthem Act (gender).

Hon. Chantal Petitclerc: Honourable senators, I rise with pleasure today to support Bill C-210, an act to amend the National Anthem Act (gender). As you are aware, since 1984, there have been many attempts to change O Canada in order to include women. In 2002 and again in 2003, Senator Poy sought to have the Senate pass Bills S-39 and S-3. These bills were debated at length by this chamber and studied by the Social Affairs Committee, which produced a favourable report without amendment.

I would be remiss if I did not recognize the extraordinary work of the late Mauril Bélanger. We are all indebted to him for his great determination in this matter. Despite his illness, he continued his efforts to correct what he considered to be an anomaly and injustice in one of our most powerful symbols. I would also like to acknowledge the thorough presentations of Senators Nancy Ruth, Munson, Omidvar, Tardif and Cools. They each made relevant, insightful arguments. They provided me with all the necessary legal, ideological, and historical information to unreservedly support this bill in good conscience. For that I thank you, dear colleagues. Some will say that it has all been said.


Still, I wanted to add my voice to this debate because, as you may guess, Bill C-210 is deeply personal to me as a woman, of course, but also as a former athlete. This will be no surprise to you, but athletes have a very special relationship with our national anthem. I myself will never forget the very first time I won a gold medal. You have the performance of a lifetime; your heart is still going over 200 beats a minute. As you are on the highest step of the podium, they slowly raise the Canadian flag and play your anthem. With great pride and emotion, you can't help but raise your head a tiny bit and sing O Canada! Honourable senators, it doesn't get much better than that. It is truly a unique experience.

Last week, after Senator Tardif spoke so well, I was back in my office reflecting on this bill, its history and its possible future. I'm not sure why but this is what I did: Looking at the Canadian flag in my office, I visualized how it was to be on those podiums the 14 times I was privileged to be there and have O Canada! sung for me. I started singing — not too loud, lucky for my neighbours — but with the proposed version.

When I pronounced the words "in all of us command," I was covered with goosebumps, and I got really emotional. That's when I knew, not just in my head but deep in my heart, that this bill is the right thing to do.

Our national anthem has the power to unite us, inspire us and empower us. By making O Canada! gender-neutral, not only do we show no disrespect or betrayal to our history, but it is the most amazing gift, message and symbol we can offer to all Canadians — boys and girls, women and men — for generations to come. We can make that happen.


That is why I support Bill C-210, and I invite all honourable senators to do likewise. Thank you very much.

Some Hon. members: Hear, hear!

(On motion of Senator Wells, debate adjourned.)


Fisheries and Oceans

Budget—Study on Maritime Search and Rescue Activities—Fifth Report of Committee Adopted

The Senate proceeded to consideration of the fifth report of the Standing Senate Committee on Fisheries and Oceans (Budget—release of additional funds (study on Maritime Search and Rescue activities, including current challenges and opportunities)), presented in the Senate on November 1, 2016.

Hon. Elizabeth Hubley moved the adoption of the report.

She said: Honourable senators, we will be moving ahead with perhaps the second portion of our study on the Canadian Coast Guard. We will be visiting Newfoundland and Labrador, and the committee intends to conduct site visits in Goose Bay, Gander and St. John's, as well as hold public hearings in St. John's.

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

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

Hon. Senators: Agreed.

(Motion agreed to and report adopted.)

Senate Modernization

Third Report of Special Committee—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Eggleton, P.C., seconded by the Honourable Senator Day for the adoption of the third report (interim) of the Special Senate Committee on Senate Modernization, entitled Senate Modernization: Moving Forward (Committees), presented in the Senate on October 4, 2016.

Hon. André Pratte: Honourable senators, I would like to speak on Senator Eggleton's motion and ask that it return to Senator Plett's name.

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

Hon. Senators: Agreed.


Senator Pratte: Honourable senators, I rise today to support Senator Eggleton's motion as a matter of principle. Everyone should be able to come to an agreement fairly easily. Recognized caucuses or groups of senators should be represented on standing Senate committees in proportion to their standing in the Senate. It is a matter of fairness. I would like to remind honourable senators that, despite the arrangement reached by the parties last spring granting independent senators two seats on every standing committee, independent senators are still underrepresented. With the appointments announced this morning, all of the seats in this chamber will soon be filled, which will result in even greater disproportionality, with independent members holding 42 per cent of the seats in the Senate but only 17 per cent of the seats in committee.


— 42 per cent in the Senate, and 17 per cent of seats in committees.


Obviously, this situation is unacceptable. We are always saying that committee work is the pride of the Senate. If we really believe that, then we cannot allow this situation to continue. Some senators are being denied their right to participate fully in the work of Senate committees.


"Committees are the real working units of the Senate," writes Professor Paul Thomas. Our esteemed colleague Senator Joyal wrote in his seminal book: ". . . the committee work of the Senate is perhaps the best measure of the institution's utility."

That is why we say that committee work is the gem of the Senate. If we really believe that, we cannot accept that such a situation continues where some senators are deprived of their right to fully play their role on the committees of this house.


The Special Senate Committee on Senate Modernization adopted the principle of equality as one of the guiding principles on which it based its work. This principle goes hand in hand with proportionality because, without proportionality, independent senators do not enjoy the same rights as those who are members of partisan caucuses. What is more, the committee on modernization said the following, and I quote:

The expert witnesses who appeared before the committee were clear that proportional treatment was essential for a modern Senate in which independence and sober second thought are guiding principles.


In their recently released report, former senators Michael Kirby and Hugh Segal stated that it is important for independent senators to participate fully and proportionately based on their numbers in Senate and committee activities.


Proportionality is, of course, the main demand of the independent senators' group formed by 15 of the 23 independent senators currently sitting in this chamber. Considering the numbers I mentioned earlier, everyone will agree that this demand is not a whim but a simple matter of fairness. Independent senators only want to do the work for which they were appointed.

In short, the principle of proportionality is widely supported. What remains to be seen is how we will implement it.

Senator Plett: Five vacancies.

Senator Pratte: I'd like to know where these vacancies are. Now that the numbers have changed so much, I expect that the leaders of the partisan caucuses will meet and offer the independents a new arrangement of some kind, maybe three seats on each committee, something better than the current situation but way below what proportional representation would warrant, and we will be expected to say how grateful we are. Some have suggested waiting for prorogation and letting the problem take care of itself. A new Committee of Selection would then be elected and have no choice but to face the new reality in terms of committee composition, but that scenario is obviously not satisfactory since the new Committee of Selection would still be dominated by senators of the recognized political parties. We would, therefore, end up with the same situation that we have today, where the independent senators' representation on committees would depend entirely on the goodwill of partisan caucuses.

While I do not doubt the good faith of the recognized political parties, I am new here, but I am not naïve. The Rules must be changed before prorogation happens.

When he appeared in front of the Modernization Committee, Honourable Senator Carignan suggested that the proportional principle was relative, that certain parliamentary groups should have a right to more seats on committees than their share of seats in the chamber. However, it seems to me that either you agree with proportionality or you don't. There is no half measure here.

In any event, Senator Carignan did say he spoke only in his name. The Modernization Committee, where Conservatives, Liberals and independents sit, agrees with the principle of proportionality. I quote:

It is clear that the Rules and practices in the Senate do not adequately address the needs of independent senators and do not provide for fair and proportionate distribution of committee assignments.

The Special Senate Committee on Senate Modernization recommends changes to the Rules of the Senate, a complete and permanent solution to the problem of the representation of new parliamentary groups in committees. Everything is planned, from the composition of the Selection Committee, each group being represented in proportion to its standing in the Senate, to the election of a chair and deputy chair of each standing committee. It includes a very important provision that the Committee of Selection continue to meet as necessary during the session to recommend changes to committee membership as warranted by the evolution of the chamber's composition.

That is why I say it's a complete solution, and it is a permanent solution because it will be enshrined in the Rules of the Senate.

Senator Eggleton's motion proposes to refer the question to the Rules Committee so that amendments to the Rules of the Senate can be properly drafted. The honourable senator has suggested that the Rules Committee be given a deadline to ensure that the matter is given quick attention. November 30 has been proposed as the date, and, in my opinion, such a deadline is reasonable and would allow us to accommodate the 21 new senators who have just been appointed.

Honourable senators, I see no valid reason to justify refusing to implement the principle of proportionality in Senate committees, where a very significant part of our work is done. Nor do I see a valid reason to wait or postpone implementation. Blocking Senator Eggleton's motion or procrastinating will be either selfish or partisan, and I am confident that such motives will not come into play in this debate.

Moreover, within the Special Senate Committee on Senate Modernization, senators from both political parties represented in this chamber have defended the principle of proportionality, thus putting the interests of the Senate above that of their party. I would like to commend their exemplary work on the committee, especially that of Senator Eggleton.

Honourable senators, the motion moved by Senator Eggleton offers a comprehensive and permanent solution to the problem of under-representation of independent senators' groups on Senate standing committees. That is why I urge you to vote in favour of the motion.


Hon. Claude Carignan (Leader of the Opposition): Would Senator Pratte take a question?

Senator Pratte: Yes.

Senator Carignan: According to Senate tradition, after every Speech from the Throne, the leaders of each group have a discussion and negotiate the composition of each committee and various roles. A recommendation is made to the Committee of Selection. The Committee of Selection meets and produces a report that basically reiterates the consensus reached among the parties on the composition and on the percentage of chair, vice chair, and steering committee representation. That report is tabled here in the Senate and adopted by the Senate.

You seem to have done some research on the Senate. Have you come across any motion to adopt committee composition or a Committee of Selection report that was not unanimous?

Senator Pratte: No, I haven't researched that. I will say that I don't think waiting is the solution, and I have two reasons for that. The first is the scale of the disproportionality. The second is that, in my opinion, the reform that is taking place now should happen in cooperation with all senators in the spirit you described.

In my view, the longer we wait, the more likely this spirit of co-operation is to fade, because the many senators affected will grow impatient. Co-operation right now will make it easier to make these reforms in a spirit of collaboration among the independent senators, whether or not they belong to a group, and senators who belong to a political party.

Senator Carignan: Considering these exceptional circumstances, it looks to me as though you're tilting at windmills, as my father used to say. Have you heard any leader say they are not willing to review the composition of committees for the current session?

Senator Pratte: First of all, I'm basing this on the mood during Question Period, which happened just moments ago. Second, I'm also basing this on what happened last spring, when the two political parties came to an arrangement that failed to uphold the principle of proportionality.

I find the precedents and the mood during Question Period very worrisome. I hope I am wrong about this.


Hon. Donald Neil Plett: Would Senator Pratte take another question?

Senator Pratte: Of course.

Senator Plett: Thank you. I asked the Leader of the Government this question earlier, so let me pose this question to you. There are five vacancies for non-affiliated senators. And these are vacancies; these aren't people not showing up for a committee meeting. These are vacancies, vacancies that you haven't filled.

Could you tell me, Senator Pratte, why these vacancies have not been filled if you're concerned? You're standing here and saying we are suggesting you should be happy with what you get. Well, let me tell you, I'm not always happy with what I get on this side, either. That's not my largest concern.


Why are those positions not filled? If you get another 10, 15 or 20 positions, can you stand in this chamber and guarantee us that those places will be filled if you can't fill the five that you have now?

Senator Pratte: Well, first of all, I'd like to know what the five are, because I counted three. You may be right, there may be five, but I know of three. I know there are circumstances for each of the three.

In fact, there was a question that was supposed to be asked of you, but at that time you were not in the chamber. I'm sorry, but I would have liked the answer. I know of three, and there are circumstances to each of the three.

To your second question, the answer is yes.

Senator Plett: Well, we have a Leader of the Government in the Senate, and I was of the impression that during Question Period, he was the one getting questioned and not the whip of the Conservative Party.

An Hon. Senator: Oh, oh!

Senator Plett: I apologize for not being here and not answering the question, Senator Lankin.

Senator Lankin: As chair, not as whip.

Senator Plett: Why are these vacancies not being filled? You say there are special circumstances. The Selection Committee can meet, and they can fill those positions if your leader gives us the names.

The circumstances can be corrected. There may well be circumstances. There are five, but again, we can talk about that later. Those vacancies that you have, whether there is one, two, three, four or five can be filled. Why aren't they being filled?

Senator Pratte: They will be when it's possible to fill them. All of the seats we have proportionally will be filled when the numbers are there.

Hon. George Baker: Thank you to the senator for his excellent presentation. That something has got to be done immediately, he's absolutely correct. The Senate stands out for its contribution by its committees in our courts and quasi-judicial bodies on a daily basis.

The Senate committees determine what the intent of legislation is in passing a bill, not the House of Commons. The Senate committees perform valuable work. In the last three months, Senate committees have been referenced 14 times in our courts, and the House of Commons only once. That's where the action lies, not in this chamber. It's in the committees. You're absolutely correct.

Would you agree that if one third of the chamber is made up of independent senators, then one third of the chairs of committees should be made up of independent senators? Would the honourable senator agree? One third of the deputy chairs of the committees should be made up of independent senators. Given that there are about 200 places — I don't know the exact number — but at least enough for one, if not two, members on a committee, looking at the composition of committees and having independent members sitting in this chamber, not being allowed to go on a committee, a reasonable person would say, "What a waste of taxpayers' money, to have somebody appointed to this chamber and not be permitted to pursue what their real job is in the committees of the Senate."


The Hon. the Speaker: Senator Pratte, your time is up. Are you asking for five more minutes?

Senator Pratte: Yes, I would like to answer this question at least.

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

Some Hon. Senators: Agreed.


Senator Pratte: Yes, to repeat, the majority of the work in the Senate is done in committees. Each time a member of the Senate is not permitted to do his work in committee, he is not doing the job he was appointed for.

The beauty of the Modernization Committee's recommendations is that the steering committee, the chairman and the deputy chairman of each committee is planned.

It's fair for everyone and nothing would be arbitrary. Everything will be fair for political parties and independent groups, and I think that's the beauty of it. It would be permanently enshrined in the Rules. There would be no debate.

Some Hon. Senators: Hear, hear!

(On motion of Senator Pratte, for Senator Plett, debate adjourned.)

Sixth Report of Special Committee—Debate Adjourned

The Senate proceeded to consideration of the sixth report (interim) of the Special Senate Committee on Senate Modernization, entitled: Senate Modernization: Moving Forward (Speakership), presented in the Senate on October 5, 2016.

Hon. Scott Tannas moved the adoption of the report.

He said: Honourable senators, I'm here to talk about the recommendations within the Special Senate Committee on Senate Modernization's report regarding the Speakership.

There are three recommendations. First:

That the Senate direct the Committee on Rules, Procedures and the Rights of Parliament to develop a process within the Rules of the Senate by which senators may express their preference for a Speaker by nominating up to five senators as nominees for consideration by the Prime Minister to recommend to the Governor General for appointment; and

That this process takes place at the beginning of each Parliament.

The second recommendation is:

That the Senate directs the Committee on Rules, Procedures and the Rights of Parliament to recommend changes to the Rules of the Senate to permit the Speaker pro tempore to be elected by senators by secret ballot.

The third recommendation is:

That the Speaker pro tempore be selected from a caucus or group that differs from that of the Speaker.

Those are the three recommendations that the committee came up with.

With respect to the selection of the Speaker, our committee heard testimony on this issue, and virtually everyone is unanimous that it would make sense for us, at the very least, to have a hand in selecting the Speaker of the Senate.

Many studies that were focused on Senate modernization have pointed to this idea. For example, in 2015 the working sessions led by Senators Massicotte and Greene included this question in their survey of all senators. There was a very large group of senators who participated in that survey, and they were unanimous in their agreement that the Speaker should be elected.

Senator Joyal held a symposium in January 2015 at the University of Ottawa, among the scholars at that symposium, of which they came up with 12 proposals for Senate reform. One was to allow the Senate to elect its own Speaker, and ideally by secret ballot. The scholars in that symposium believed that this proposed change could be implemented by agreement with the Prime Minister.

Even our former senators Michael Kirby and Hugh Segal have written in their recent public policy forum report that they recommend the Speaker of the Senate be chosen by senators themselves by secret ballot, as members of Parliament in the House of Commons do. Of course, our colleague Senator Mercer has a bill on the Order Paper that would do that.

In our committee we discussed the mechanics of getting to where we so obviously want to be. I have to say there were competing views about whether Parliament can change the method of the selection of the Speaker constitutionally.

Senator Mercer and former Senators Kirby and Segal say it would not be difficult to take the approach of amending the Constitution to achieve changing the selection of the Speaker.

On the other hand, a former Speaker, Senator Housakos, stated in this chamber his belief there's a strong possibility a lawyer in the country will challenge a change in the Supreme Court by saying it is unconstitutional.

I think I'm safe to say that Senator Joyal holds the title of "leading constitutional expert" in our Senate at present, and Senator Joyal clearly does not believe that Parliament has the power to amend the Constitution to change the selection of the Speaker in the Senate.


So, we saw that there was no clear path. If it were clear, then I think our committee would have simply recommended that we pass Senator Mercer's bill and get on with things. But with no clear consensus on the matter, we chose to take a bit of a different step. At this point in time we think it makes more sense to not engage in a detailed discussion of constitutional considerations and competing viewpoints on this issue. Frankly, there is no point in starting a constitutional fight when we are not sure we can win.

This is why the committee is proposing an approach that would not involve a constitutional amendment. We are, instead, borrowing somewhat from the methodology the Prime Minister initiated around the appointment of independent senators, whereby we would select up to five senators as nominees the Prime Minister can choose from to recommend to the Governor General for appointment. This does not suggest we believe the Prime Minister should give up his right of who he believes should be on the list. He may select from off the list.

The step that we're proposing is, perhaps, more appropriate than simply outright electing a Speaker because of the added symbolic importance that we learned about in committee about the Speaker of the Senate, and the symbolic importance more than the Speaker of the House of Commons. For instance, the Senate Speaker has an important diplomatic role as the fourth person in the Canadian order of precedence. We were regaled by Senator Cools on the significance of that and the difference between the Speaker in the House of Commons, who is a representative of all members of the House of Commons, and the Speaker in the Senate, who is not that. The Speaker in the Senate is, as Senator Cools said, the mouth of the Crown. There is a difference. So, a number of us were persuaded that there's enough of a difference that the idea should be that we have a little bit of a different view and approach as to how we make this modernization change.

Our approach is one of the ways, possibly more symbolic than others, in which we can show that we are exercising our independence. It reinforces what the Supreme Court of Canada expressed as one of the fundamental characteristics of the Senate.

Point number two is on the Speaker pro tempore. Our recommendation that the Speaker pro tempore be selected from a caucus or group that differs from that of the Speaker is a way in which we can absolutely assert our independence as senators. The Speaker pro tempore has an important role and can potentially take on more important duties, particularly if that person has been elected by all of us here in the chamber.

These more democratic approaches to the selection of the Speaker and the Speaker pro tempore make this an important set of recommendations. Right now, the report says that the Speaker pro tempore is selected as follows:

The position of Speaker pro tempore . . . is not provided for in the Constitution of Canada, nor is it created by statute. Instead the Senate selects the deputy speaker in accordance with the Rules. The Rules provide that the Committee of Selection shall prepare a report to the Senate within the first five sitting days of each session on its nomination of the Speaker pro tempore.

I've been here for three and a half years, and we've seen a number of Speakers pro tempore, all who have been exceptional, including our current one, but I don't have a first hot clue how that job got assigned.

I think it would be better if it was transparent and clear and all those who wanted the job and were capable of the job stepped forward and were elected by senators.

Recommendations 5 and 6 around the selection of the Speaker pro tempore would change the exclusivity of the selection of the Speaker. This is an area where we senators would be taking this on ourselves, and the Deputy Speaker would then have the significant influence that would come from the fact that they were elected by senators.

We talked also about the idea — it seemed to make sense to all of us — that the Speaker pro tempore be from a different party or group than the Speaker. I think everybody agrees with that, as well.

This concludes my comments, colleagues, on the sixth report of the Modernization Committee, and I'm happy to take any questions.

Hon. George Baker: This is an excellent report and a way around the constitutional problem that we have on the appointment of the Speaker. I'm glad that your committee dealt with the questionnaire that was sent to every single senator here. Senators Greene and Massicotte were the originators of that particular document — a very detailed document and many pages long. Each senator in this place was asked to sign on the dotted line. It was quite memorable that half the senators in this place also not only recommended what you mentioned but also that we eradicate Question Period in the Senate. It hasn't happened, and I don't see it. I notice I have some agreement.

It was amazing that over half the senators just said, "No, don't change it, get rid of it. It has no place here." So, I rise to congratulate you for paying attention to that most excellent questionnaire and signature document that should form the basis of every consideration we give to changes made in the procedures in this place, and that we had our senators respond confidentially, in writing, signing on the dotted line, sometimes contrary to the wishes of their leaders in the political parties.

This is just a comment. I congratulate you on your remarks here today.

Hon. Pierrette Ringuette: Honourable senators, I find the report interesting. Because there will probably be more than three groups — it will maybe go to five or six groups — in the future of the Senate, and it is within your mandate to look at the future of the Senate, you have said that only five would be recommended to the Prime Minister as nominees. But on the flip side of that, you recommend that the Speaker pro tempore be from another group.

Have you given any thought to the fact that, maybe, each group would, within their own group, supply a name of a nominee to be Speaker so that there would be no one group that would have — I don't want to say "majority" — control of the nominations?

Senator Tannas: I believe that that actually was discussed. It was simply determined that ideally what we'd love to be able to do is elect a list of one, send it off by majority vote in here, by secret ballot, and let the chips fall where they may. I think that makes sense. There are plenty of places that do this, including down the hall, and that's what we'd like to do.

In keeping with having a list of five, we didn't revisit that, nor do I think it's logical to then say, "Well, let's fracture that all out into groups." I don't think the two follow. The idea would still be we elect five names that would go on there.

If it were up to me, I would be quite unsubtle about it. We would have an election, the first name would be the first name on the list, et cetera, but we'll have to consult our constitutional experts to make sure we we're not offending people by actually tipping who the number one person was. Maybe we can, maybe we can't. But I think it's logical to say that we would want everyone voting on all five.



Hon. Claude Carignan (Leader of the Opposition): I heard Senator Ringuette's question. If more than five or six groups included more than five or six people—


The Hon. the Speaker: Excuse me, Senator Carignan. It's four o'clock. Senator Tannas has some time left but not a whole lot. Regardless, the matter will be adjourned in Senator Tannas' name, as we must now adjourn this sitting of the Senate.

(On motion of Senator Tannas, debate adjourned.)

(The Senate adjourned until Thursday, November 3, 2016, at 1:30 p.m.)

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