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Previous Sittings

Debates of the Senate (Hansard)

1st Session, 42nd Parliament,
Volume 150, Issue 126

Thursday, June 1, 2017
The Honourable George J. Furey, Speaker


Thursday, June 1, 2017

The Senate met at 1:30 p.m., the Speaker in the chair.



Royal Assent

The Hon. the Speaker informed the Senate that the following communication had been received:


June 1st, 2017

Mr. Speaker,

I have the honour to inform you that Ms. Patricia Jaton, Deputy Secretary to the Governor General, in her capacity as Deputy of the Governor General, signified royal assent by written declaration to the bill listed in the Schedule to this letter on the 1st day of June, 2017, at 11:00 a.m.

Yours sincerely,

Stephen Wallace

Secretary to the Governor General

The Honourable
    The Speaker of the Senate

Bill Assented to Thursday, June 1, 2017:

An Act to implement the Free Trade Agreement between Canada and Ukraine (Bill C-31, Chapter 8, 2017)



Phoenix Pay System

Hon. Dennis Glen Patterson: Honourable senators, I rise before you today to speak about a heartbreaking story from one Nunavut resident. It is particularly distressing to me as this is a situation I would have hoped could have been easily avoided.

A young Inuk man from Iqaluit I'll call "Mike" reached out to my office in early April to tell me of his problems with the Phoenix pay system. In three recent months, Mike received 10 payments in the amount of $400, and the rest of the paycheques were for zero dollars. That is because all his paycheques, if he got one that pay period, were missing the Isolated Post Allowance that makes up half or more of federal employees' net pay in northern and remote locations.

Like many Canadians affected by Phoenix problems, Mike applied for emergency pay. However, pay officers in southern Canada, ignorant of the importance of the Isolated Post Allowance in the calculation of base wages, denied emergency pay to Mike, stating that the Isolated Post Allowance is not eligible for emergency pay.

Thankfully, Mike has a supportive family, and his mother was able to help support him and his young family financially. But her support was not enough. Mike borrowed against his mortgage and opened a $10,000 line of credit. He sold his truck and snowmobile in the prime hunting season. Despite his best efforts, his credit rating has been decimated and his savings depleted.

Still, he is not being paid properly, and he cannot pay his bills. Two weeks ago, after receiving yet another paycheque for $400, Mike told his superiors that his pay needed to be fixed or he would otherwise, in desperation, have to take stress leave until the pay issue was rectified. This week the problem was not rectified, so Mike is currently on stress leave.

Colleagues, this is just one of the many reports I have received from federal workers in Nunavut. Something needs to be done. We've seen the government spend millions of dollars trying to fix this problem. They set up a special ministerial task force and we heard recently that their solution is to spend even more. Meanwhile, hundreds of Nunavut's federal employees are suffering just like Mike.

What happens to employees who lack a family safety net? What happens to the employees who don't have a truck or snowmobile to sell? What if they don't have a mortgage to borrow against?

Everything today is more expensive, and many middle—class families are living paycheque to paycheque. In the North, where food and commodities are at least two times more expensive than in southern Canada, $400 is a pittance.

I would add, honourable senators, that every story I have heard has affected Inuit. This is of particular concern as it serves as a disincentive for Inuit to join the federal service. Ensuring Inuit employment is one of the duties of the federal government under the land claims agreement in Nunavut. I have also heard of people unwilling to take a promotion because they're afraid of not getting paid and of reprisals if they complain.

Colleagues, something must be done to ensure that stories like Mike's are not repeated.

Distinguished Visitor in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of the Honourable Leona Aglukkaq, former Minister of the Environment and MP for Nunavut. She is the guest of the Honourable Senator Patterson.

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

Hon. Senators: Hear, hear!

Truth and Reconciliation Commission

Second Anniversary of Interim Report

Hon. Murray Sinclair: Colleagues, I rise today to mark the event tomorrow of the second anniversary of the release of the interim report of the Truth and Reconciliation Commission on Indian residential schools, reflecting upon the progress that has been made in the short period of time since the report was released and the hard work that still needs to be done to achieve reconciliation between Canada and its indigenous peoples.


Since the release of the TRC's 94 calls to action, funding has been provided to create the National Centre for Truth and Reconciliation, housed at the University of Manitoba, focused upon the collection of documents and other resources related to Indian residential schools.

The government has also committed to create the national council on reconciliation, which will ensure that accountability for reconciling the relationship between Aboriginal peoples and the Crown is maintained in the coming years, as well as to develop and implement a multi-year national action plan for reconciliation.

The Government of Canada, through the Minister of Heritage, has officially committed to implement an Aboriginal languages act, and the National Inquiry into Missing and Murdered Indigenous Women and Girls, despite its challenges, is finally getting started and will play a critical role in examining the deeply prejudiced position many indigenous women find themselves in.

As positive as these actions and commitments are, however, there is still much work to be done in order to get to true reconciliation. The government is falling behind the need to address the issue of child welfare, for example. There has been unclear reporting on tangible change within indigenous child welfare agencies. There are still significant gaps in funding for indigenous child welfare as well as indigenous education.

While there are actions under way to dramatically increase the level of understanding of indigenous peoples within the public service broadly across the country, including within the federal public service, led by the Canada School of Public Service, we do not have evidence of this occurring in a structured and systematic way across all governments in this country.

Unfortunately, the vast majority of Canadians still do not fully understand the TRC's calls to action and the broad ongoing requirements that remain for Canadians of all walks of life to better understand the past damage and mass human rights violations inflicted on indigenous peoples. I therefore call upon you, my colleagues, in the one hundred and fiftieth year of Canada's Confederation, to commit to help to bring about true reconciliation and understanding for this great nation.

Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of His Worship David Dunphy, Mayor of the Town of Stratford, Prince Edward Island, accompanied by the town council for Stratford. They are the guests of the Honourable Senator Griffin.

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

Hon. Senators: Hear, hear!

The Late David Morrison

Hon. Diane Griffin: Honourable senators, today I rise to pay tribute to the late Reverend Dr. David Morrison of Charlottetown, who is recently deceased. He had many careers and a long history in community involvement. I enjoyed David's friendship as we were in the same Rotary Club of Charlottetown Royalty. He received awards for his work in Rotary International. He was an internationally recognized expert in human dignity and human rights, psychosocial oncology and spirituality. He was short-listed for consideration for the Nobel Peace Prize.

Dr. Morrison served as an Anglican priest at Christ Church in Cherry Valley, a small rural community, and had been the rector of St. Paul's Anglican Church in Charlottetown. Sometimes he filled in while visiting other countries. He jokingly referred to himself as the "Vicar of Twickenham" when he served at that church in England for a few Sundays while in London on business.

He gave leadership to the Ecumenical Centre of the World Council of Churches. Dr. Morrison was the first Protestant invited to address the Pax Romana in Rome, and was awarded a Medal of Reconciliation at the Pontiff's residence.

David was an academic for 30 years at the University of Prince Edward Island and was the first president of the faculty association when the new university was created in 1969. Dr. Morrison worked in supportive care and psychosocial oncology at the P.E.I. Cancer Treatment Centre as a member of the multi-disciplinary team. He continued his work in the international dimension of cancer care and non-communicable diseases. He was part of the group which successfully brought these diseases — heart, lung, diabetes and cancer — to the United Nations level.

Dr. Morrison was a delegate to the World Health Assembly, which sets the targets and programs for the World Health Organization. His group was successful in having accepted, as a goal, a 21 per cent reduction of all non-communicable diseases by 2025 for all the 191 nations that voted in favour of that resolution.

His wife, Mary Lou, is of the same ilk, and their daughters are carrying on in the family tradition. Michelle is a social worker and Dr. Heather Morrison is the Chief Health Officer for P.E.I. after a brilliant academic career as a Rhodes Scholar.

An individual such as David Morrison who contributed so much is always greatly missed by the community.

Visitor in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Melissa De Genova, City Councillor for Vancouver. She is the guest of the Honourable Senator Campbell.

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

Hon. Senators: Hear, hear!

Cod Moratorium

Hon. Fabian Manning: Honourable senators, today I am pleased to present chapter 21 of "Telling Our Story."

I have always considered it a privilege to grow up in the small fishing community of St. Bride's in Placentia Bay, Newfoundland. One of the fondest memories I have of my childhood was the many trips my friends and I would make down over the kelp path hill to the local wharf.

It was there that you would witness the hustle and bustle of fishermen, plant workers, the lads cutting out cod tongues and all the other workers as they reaped the benefits of the bounty of the sea. It was a proud way of life for our people and indeed it was the heart and soul of Newfoundland and Labrador for almost 500 years. The fishery was and still is a part of our DNA and so much of our history and culture is derived from it.

Well, 25 years ago, that way of life changed forever. On July 2, 1992, the then Minister of Fisheries and Oceans, Newfoundland and Labrador's own, the Honourable John Crosbie, announced that the Canadian government was imposing a moratorium on the northern cod fishery due to overfishing and depleting stocks. The federal government hoped that the moratorium would last for about two years.

At the present time in our province, there is a very limited cod fishery, but for all intents and purposes, the moratorium still exists today. The announcement of the closure of our fishery was both heartbreaking and devastating. The shock of over 30,000 people — the largest mass layoff in Canadian history — finding themselves thrust out of the only lifestyle and way of living they and their descendants had known for almost 500 years was compared to the province of Ontario waking up one morning to learn that 660,000 of its residents had lost their jobs overnight.

As usual, the federal government stepped up offering a variety of financial aid, retirement packages and retraining programs. The shellfish industry absorbed some unemployed workers while others found work in the oil industry in our own province and in Alberta.

While I remember everything about that day, including John Crosbie having to be escorted from the building by dozens of police officers, the memories that just won't go away are the grim faces and tears of the people. It was real and it was an extremely sad day. I or no one else in our province realized then just how much things were going to change.

Some social scientists say that more than 70,000 people have left the bays, coves and outports of the province since 1992. Personally, after almost 25 years, I believe that this is our greatest loss. It is not only the people who are gone; it is also the way of life that has drastically changed and it is that distinct history and culture that is gradually disappearing. The songs, the stories, the wealth of knowledge and the memories are not being passed on as I feel they should.

As another proud Newfoundlander, Rex Murphy, once said, "Oil and gas is not the theme of continuity in this place. Money cannot replace what the fishery means to Newfoundland and Labrador culture."

While we must accept the things we cannot change and change the things we can, I want to conclude on a positive note and thank all our musicians, storytellers, artists, historians and everyone else who are doing their part to tell the stories of who we are, where we came from and why we are so deeply and profoundly proud to say we are from the rock.

God guard thee Newfoundland!


Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of His Worship Richard Stewart, Mayor of Coquitlam, accompanied by Councillors Dennis Marsden, Teri Towner and City Clerk Jay Gilbert. They are the guests of the Honourable Senator Martin.

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

Hon. Senators: Hear, hear!


Study on Recent Political and Economic Developments in Argentina in the Context of their Potential Impact on Regional and Global Dynamics

Thirteenth Report of Foreign Affairs and International Trade Committee Tabled

Hon. A. Raynell Andreychuk: Honourable senators, I have the honour to table, in both official languages, the thirteenth report of the Standing Senate Committee on Foreign Affairs and International Trade entitled A turning point in Canada-Argentina Relations.

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

Budget Implementation Bill, 2017, No. 1

Fourteenth Report of Foreign Affairs and International Trade Committee on Subject Matter Tabled

Hon. A. Raynell Andreychuk: Honourable senators, I have the honour to table, in both official languages, the fourteenth report of the Standing Senate Committee on Foreign Affairs and International Trade, which deals with the subject matter of those elements contained in Division 1 of Part 4, of Bill C-44, An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017 and other measures.

The Hon. the Speaker: Honourable senators, pursuant to the order of the Senate of May 8, 2017, the report will be placed on the Orders of the Day for consideration at the next sitting of the Senate, and the Standing Senate Committee on National Finance is simultaneously authorized to consider the report during its study of the subject matter of all of Bill C-44.

National Strategy for Alzheimer's Disease and Other Dementias Bill

Thirteenth Report of Social Affairs, Science and Technology Committee Presented

Hon. Kelvin Kenneth Ogilvie, Chair of the Standing Senate Committee on Social Affairs, Science and Technology, presented the following report:

Thursday, June 1, 2017

The Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its


Your committee, to which was referred Bill C-233, An Act respecting a national strategy for Alzheimer's disease and other dementias, has, in obedience to the order of reference of March 28, 2017, examined the said bill and now reports the same without amendment.

Respectfully submitted,



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

(On motion of Senator Stewart Olsen, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.)


Commissioner of Official Languages

Notice of Motion to Approve Appointment

Hon. Peter Harder (Government Representative in the Senate): Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That, in accordance with Section 49 of the Official Languages Act, R.S.C., 1985, Chapter 31 (4th Supp.), the Senate approve the appointment of Madeleine Meilleur as Commissioner of Official Languages.


Canada-United States Inter-Parliamentary Group

Annual Winter Meeting of the National Governors Association, February 24-27, 2017—Report Tabled

Hon. Michael L. MacDonald: Honourable senators, I have the honour to table, in both official languages, the report of the Canadian parliamentary delegation of the Canada-United States Inter-Parliamentary Group respecting its participation at the Annual Winter Meeting of the National Governors Association, held in Washington, D.C., United States of America, from February 24 to 27, 2017.

National Finance

Notice of Motion to Authorize Committee to Deposit Report on Study of the Financial Implications and Regional Considerations of the Aging Population with Clerk during Adjournment of the Senate

Hon. Anne C. Cools: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That the Standing Senate Committee on National Finance be permitted, notwithstanding usual practices, to deposit with the Clerk of the Senate, between June 12, 2017 and July 7, 2017, if the Senate is not then sitting, a first interim report relating to its study on the financial implications of Canada's aging population, and that the report be deemed to have been tabled in the Chamber.

Notice of Motion to Authorize Committee to Deposit Report on Study of the Design and Delivery of the Federal Government's Multi-Billion Dollar Infrastructure Funding Program with Clerk during Adjournment of the Senate

Hon. Anne C. Cools: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That the Standing Senate Committee on National Finance be permitted, notwithstanding usual practices, to deposit with the Clerk of the Senate, between June 12, 2017 and July 7, 2017, if the Senate is not then sitting, a second interim report relating to its study on the federal government infrastructure program, and that the report be deemed to have been tabled in the Chamber.



Indexed Tax on Beer, Wine and Spirits

Hon. Larry W. Smith (Leader of the Opposition): Honourable senators, my question today is for the Leader of the Government in the Senate, and it concerns the indexed tax on beer, wine and spirits proposed by the Minister of Finance in Bill C-44.

As all honourable senators may be aware, the federal budget increases excise taxes on alcohol immediately by 2 per cent, with further annual increases automatically indexed to the Consumer Price Index. This escalator is unusual, as the last time something similar was imposed federally was under the previous Trudeau government in the 1970s.

Senator Harder, could you please explain the government's rationale for this annual automatic tax increase on alcohol? And if this escalator tax is imposed now, how can all honourable senators be sure the government will not make similar changes to other taxes in the future, allowing them to increase year after year without proper parliamentary scrutiny and without proper ministerial accountability?

Hon. Peter Harder (Government Representative in the Senate): I thank the honourable senator for his question. As he knows, this item in the budget is part of the pre-study in this chamber and part of the debate and study in the other chamber. If the measure receives Royal Assent and comes into force, it will obviously reflect itself in law.

Governments have budgets, and those budgets are designed to meet, obviously at the right time, parliamentary approval. That would be the case if this was extended to other areas. For the present, the government's view is that this is an appropriate mechanism to provide predictability in future years.


Senator Smith: I have a supplementary question. Last month, the Standing Senate Committee on National Finance heard from witnesses representing the beer, wine and spirits industry. They expressed their concerns about the indexation of excise tax rates under Bill C-44 and its potential repercussions, for example, on vineyards and agriculture, the tourism and hotel industries, and the consumer, who already pays high taxes.

Could the Leader of the Government in the Senate make inquiries and tell us whether the Minister of Finance or any other department has studied the repercussions on the beer, wine and spirits industry of the government's decision to increase excise tax rates on alcoholic beverages? If not, why not? If such a study has been done already, could the Leader of the Government in the Senate table it in the Senate?


Senator Harder: I thank the honourable senator for his question, and I will inquire of the Minister of Finance with respect to the consultations involved. As senators would know in advance of the budget preparation, there are appropriate consultations with regard to some items, and some items aren't appropriate for consultations. I will inquire.

Phoenix Pay System

Hon. Dennis Glen Patterson: Honourable senators, my question is to the Government Representative in the Senate.


Senator Harder, as you heard in my statement today, Inuit are suffering in Nunavut because the government, it seems, has yet to rectify the Phoenix fiasco.

After more than a year of waiting, employees are finding their Isolated Post Allowance is missing, and southern pay officers have no idea what that even is. They don't understand why northern employees are getting rent deducted. These are the people who are supposed to be helping Nunavummiut rectify their pay issues.

I would like to be able to tell Mike and many other federal employees in Nunavut who have approached me that the government is listening, cares and will do something to help them. I had suggested this to the ministerial task force. Will the government establish a unit that is trained and sensitized to deal with the pay issues of the North at their call centre and ensure that Nunavummiut are being properly helped?

Hon. Peter Harder (Government Representative in the Senate): I want to thank the honourable senator for his question as well as for his statement earlier. It is entirely appropriate for senators to advocate for their constituents. The case of Mike that you raise is one that would be of concern to any senator, particularly one in the circumstances that you describe.

I have, knowing that you were going to raise this case, made inquiries of the department. I want to ensure you that they are following up with your office with respect to this case, but also I would like to discuss with you how we might find a mechanism that can urgently respond to the cases that you are aware of. In the interim, I do know that you have written the minister. I can assure you and all senators that that letter will be responded to forthwith.

Senator Patterson: Wonderful. Thank you.


Hon. Claude Carignan: Honourable senators, my question is for the Leader of the Government in the Senate, and it also has to do with the Phoenix payroll system.

October 31, 2016 was the deadline that the government gave itself for clearing up the backlog of tens of thousands of cases of federal public servants affected by the problems caused by the flawed Phoenix payroll system. On April 27, 2017, nearly six months after the deadline, the Prime Minister announced the creation of the working group of ministers on achieving steady state for the pay system.

Leader, if it took six months just to set up a simple working group, how long will it take for the government to actually fix the problems with the Phoenix pay system?


Senator Harder: I want to thank the honourable senator for his question. This is, as senators will know, a situation this government inherited and has worked sincerely and with resolve to fix. It is a highly complex one.

I want to reaffirm that it is the view of the government that it is completely sympathetic to the concerns of employees who have not been able to receive either their pay or emergency salary advances. The following steps have been put in place. I would like to enumerate them so honourable senators are aware.

At the present time, employees can request and receive emergency salary advances by speaking to their managers and escalating the request at a higher level if the emergency pay is not administered at that first call. In the past year, senators will know that the Government of Canada has made investments of over $50 million, opening five temporary offices, recruiting more than 230 additional compensation advisers — who were reduced before this system was tested — and leaving $70 million of projected savings with departments to enable them to take action to address Phoenix issues.

In addition, last week the working group of ministers mandated to achieve a steady state for the pay system announced a further $142 million investment in both people and technology as part of a step-by-step approach to help address the problem.

In addition to the investments in capacity, Public Services and Procurement Canada will implement a new case management tool that will allow compensation advisers to better track transactions and respond to employees' inquiries with current and accurate information. Over time this will allow the pay service centre to better communicate with employees when they want further information on their file.

I want to assure all honourable senators that the Department of Public Services and Procurement will take every step necessary to respond to concerns raised by senators and that the process under way is receiving a high level of ministerial attention.


Senator Carignan: I have a supplementary question. It is interesting. The government has been in office for two years and it is having trouble paying its employees.

Could the Leader of the Government in the Senate tell us why the government has stopped disclosing the number of public servants who are still waiting for their pay problems to be fixed? Is that number still growing?


Senator Harder: The government pay system is responding to all of the requests that are forthcoming. I don't have the latest figures as to what the growth rate is, but the objective is to have the increased capacity to respond to all concerns of employees so that their rightful paycheques are delivered at the appropriate time and circumstance.


Senator Carignan: Leader, when Minister Foote appeared in the Senate, I asked her that specific question. She answered me by saying this, and I quote:

We're not into paying people for incompetence . . .

She was referring to the senior departmental officials who were involved in the Phoenix pay system disaster. Despite the minister's assurances at the time, it seems that exactly the opposite occurred. Last year, Public Services and Procurement Canada executives were given bonuses totalling over $4.8 million, and the Deputy Minister confirmed that some executives who worked on the Phoenix pay system did in fact receive bonuses in 2016.

How can the government justify performance bonuses for public servants who worked on the Phoenix pay system, which has all the hallmarks of a technological disaster?


Senator Harder: I thank the honourable senator for his question. I will undertake to find out the facts.

National Defence

Aircraft Procurement

Hon. Daniel Lang: I would like to turn the attention of my colleagues to the question of the military and a question for the government leader.

As we know, our Standing Senate Committee on National Security and Defence recommended that the government cancel the planned, sole-sourced purchase of the Boeing Super Hornets and to hold an open and fair competition as soon as possible.

In view of the debate that has been going on over the last week between Boeing, the government and, indirectly, Bombardier, it appears the government is looking at options for how to deal with Boeing as a trusted partner.

In view of that public dispute and the Minister of Defence's statement at the CANSEC conference yesterday, would the government leader agree it's in Canada's best interests to cancel the $5 billion to $7 billion sole-source contract with Boeing for the proposed fighter jets and move immediately to an open and fair competition so we can make a decision on behalf of the Royal Canadian Air Force by June of 2018?

Hon. Peter Harder (Government Representative in the Senate): I thank the honourable senator for his question. As he referenced, the Minister of Defence and the Minister of Foreign Affairs have made public comments with respect to the concerns of the Government of Canada regarding the trusting relationship that's necessary in procurement in respect of Boeing. When and if the government has a further announcement to make, it will do so.

Cost of Surface Combatants

Hon. Daniel Lang: I want to move to another area that's of grave importance to Canadians, and that's the question of the news today about the navy and the proposed 15 Canada surface combatants that have been agreed to and were proposed a number of years ago.


The Parliamentary Budget Officer reported that the current plans for the 15 Canada surface combatants are at risk because of the price escalations that have taken place since 2013. That has increased from $26.2 billion to an estimate of $62 billion.

Last year the government made the commitment that it would look to select a proven design that would save costs and shave two years off the time it would take for the new vessels to be constructed and ready for service.

Can the government leader tell us why there has been a change from last year and why the government has gone out and tendered for an unproven design for these ships that will obviously have escalated some of the costs that have been reported by the Parliamentary Budget Officer?

Hon. Peter Harder (Government Representative in the Senate): I thank the honourable senator for his question. I, too, saw that report and will make inquiries with respect to the views of the department and the government on the implications.

Canadian Heritage

Funding for Giant Rubber Duck

Hon. Tobias C. Enverga, Jr.: My question is for the Government Representative in the Senate.

Earlier this week it was revealed that Ontario taxpayers have provided $120,000 to help pay for a giant rubber duck to celebrate the one hundred fiftieth anniversary of Ontario and Canada. I do not understand why a duck would be chosen to celebrate Canada's one hundred fiftieth anniversary. A giant beaver, a giant loon, a bust of the Queen or a replica of the Parliament Buildings might be more appropriate.

The giant rubber duck will arrive at the Toronto waterfront later this month and then travel to other Ontario destinations.

Media reports have claimed that the giant rubber duck received support from the Canada 150 Fund. On Tuesday, the Minister of Canadian Heritage told the other place that her department did not fund this duck. Could the government leader please make inquiries and let us know if any other federal departments or agencies, whether directly or indirectly, provided financial assistance for or related to this giant rubber duck?

Hon. Peter Harder (Government Representative in the Senate): I thank the honourable senator for his most important question. I will endeavour to find out if it walks like a duck, talks like a duck and squawks like a duck. It probably is a duck, and I will report back in squeaking time.

Senator Enverga: Could the government leader please help us explain how a giant rubber duck helps to celebrate Canada's one hundred fiftieth anniversary?

Senator Harder: That's a good one. I like that one: It's not what it's quacked up to be.

I, of course, don't have an imagination that could respond to that question extemporaneously, and I will inquire.


Small Business Tax

Hon. Yonah Martin (Deputy Leader of the Opposition): Changing topics, I have a question for the Government Representative in the Senate.

Senator Harder, the budget implementation act is undergoing pre-study in the Senate and a major Liberal promise from the last election is still missing.

Prime Minister Trudeau proposed to lower the small business tax rate from 10.5 per cent to 9 per cent. This tax reduction is still on hold and may never actually happen under this Liberal government.

This is another broken promise from the Liberals that is estimated to cost small businesses more than $900 million per year by 2019. Small businesses are the engine of our economy and we should be helping them invest in Canada and create jobs.

When will the government honour its promise to lower the small business tax rate to 9 per cent?

Hon. Peter Harder (Government Representative in the Senate): I thank the honourable senator for her question. The budget before us is the budget of 2017. There are other budgets that one could envisage in this Parliament, and we will see.

Senator Martin: Senator, I have spoken on the issues related to small business many times, be it in committee or in this chamber. The small businesses that I know, that I'm referring to, that are awaiting this tax cut, are those operated by families, the parent or a single parent and children. We are talking about small, small family businesses. To them, 1 per cent, half a per cent is the difference between staying open or closing their doors.

It has been nearly two years. It is a broken promise. If not lowering the tax, would you articulate what the Liberal government has done for small businesses across our country that are doing their very best to survive?

Senator Harder: I thank the honourable senator for her question. I want to review that this government has in two budgets now, one soon to be before us, taken a number of measures to strengthen the Canadian economy, to start with a significant tax cut for all Canadians, and to make strategic investments to benefit the middle class. Those are the priorities of the government. They include very significant investments that have been before us in the previous budget and are before us in the present budget, and I would be happy to elaborate more fully on all of the measures with respect to small businesses when we have the budget debate in front of us, hopefully soon.



Business of the Senate

Hon. Diane Bellemare (Legislative Deputy to the Government Representative in the Senate): Honourable senators, pursuant to rule 4-13(3), I would like to inform the Senate that, as we proceed with Government Business, the Senate will address the items in the following order: third reading of Bill S3, followed by all remaining items in the order in which they appear on the Order Paper.


Indian Act

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Lankin, P.C., seconded by the Honourable Senator Ringuette, for the third reading of Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration), as amended.

Hon. Murray Sinclair: I was caught mid-sentence yesterday, but let me merely move, if I can, directly to the amendment.

Yesterday I indicated that I was introducing an amendment of a technical nature after consultation with Senator Patterson and other members of the standing committee in order to clarify the wording of one of the elements of the report from the Aboriginal Peoples Committee. With your approval, I will read the proposed amendment.

Let me point out, incidentally, that overnight, with consultation with the law clerk, we have improved the wording of the amendment, because there were two words missing that made it clearer.

For your edification, I'll read the amendment to you and explain the addition.

Motion in Amendment

Hon. Murray Sinclair: Therefore, honourable senators, I move:

That Bill S-3, as amended, be not now read a third time, but that it be further amended, in clause 1, on page 1, in line 4 (as replaced by decision of the Senate on May 30, 2017), by adding the following after subsection (6):

"(7) For greater certainty, if the identity of a parent, grandparent or other ancestor of an applicant is unknown or unstated on a birth certificate, there is no presumption that this parent, grandparent or other ancestor is not, was not or would not have been entitled to be registered.".

Again, just to remind you, the amendment was necessitated by virtue of an Ontario Court of Appeal decision that occurred after the bill had been introduced, which clarified that the Indian registrar was incorrect in simply applying a policy that the onus was on an applicant to prove the identity of an unstated ancestor in order to obtain registration.

This corrects the bill to bring it into compliance with the court decision.

The Hon. the Speaker: In amendment, it was moved by the Honourable Senator Sinclair, seconded by the Honourable Senator Pratt, that Bill S-3, as amended, be not now read a third time, but that it be further amended, in clause 1 — may I dispense?

Hon. Senators: Dispense.

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

Hon. Senators: Question.

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

Hon. Senators: Agreed.

(Motion in amendment agreed to.)

The Hon. the Speaker: Resuming debate on the bill, as amended.


Hon. Lillian Eva Dyck: Honourable senators, I rise today to speak to Bill S-3, An Act to amend the Indian Act (elimination of sex based inequities in registration).

As long ago as 1869, legislation was enacted to cause Indian women to lose their status if they married non-Indian men. However, Indian men who married non-Indian women kept their status and the non-Indian wives were granted status. In other words, sex discrimination has existed in determining Indian status for a long time.

The patrilineal line has been favoured and the matrilineal line has been continually disadvantaged. Without status, these women and their children had to and continue to have to leave their communities. They essentially become homeless for marrying the wrong guy, a non-status man.

The bill before us today, Bill S-3, is the third bill since 1985 that is meant to remove the sex-based discrimination in the Indian Act. In all three circumstances, the government has only acted to remedy sex-based discrimination when forced to do so by the courts. In turn, Parliament was forced to consider amendments under tight deadlines with the threat of shutting down all registration if Parliament failed to act in time.

The first attempt at removing sex-based discrimination of Indian status was in 1985 with Bill C-31. This was a result of a successful challenge at the UN by our colleague Senator Sandra Lovelace Nicholas, and this was aided by the coming into force of the Charter of Rights and Freedoms.

At the time the government knew that Bill C-31 didn't fix all sex-based discrimination. The government knew that many who should have been granted status would be left out, but officials promised this would be fixed in future. That didn't happen. Under Bill C-31 amendments, roughly 130,000 descendants were registered, including me.

The second attempt to remove sex-based discrimination in the Indian Act was in 2010 with Bill C-3. The Government of Canada again knew that Bill C-3 was flawed and did not capture all sex-based discrimination. Once again, assurances were made that an exploratory process would fix this. While this process was funded, launched and completed, no legislative amendments or significant policy changes were made. Under Bill C-3, another 38,500 descendants were registered. Now in 2016-17, as a result of the Superior Court of Quebec decision in Descheneaux, we have Bill S-3 before us.

During the initial study of this bill, the Standing Senate Committee on Aboriginal Peoples heard overwhelming testimony from witnesses that consultation on this bill was very rushed and did not satisfy any duty to consult. The government even conceded this point and only called these "engagement sessions."

More importantly, witnesses expressed that Bill S-3 did not eliminate all sex-based discrimination and asked the committee either to amend the bill to ensure all sex-based discrimination was removed or force the government to seek a court extension in order to remedy fully situations of sex-based discrimination in Indian registration. As such, the committee voted to hold the bill in abeyance and wrote to Minister Bennett to seek a court extension.

In our letter we wrote:

We urge you, as Minister, to not only consult with indigenous organizations but to include in this consultation process individuals who have been affected by gender-based discrimination.

Accordingly if an extension is granted, we urge the government to make every effort to ensure that all scenarios of gender based discrimination are resolved, presenting the Senate with amendments to S-3 or a new bill that achieves the stated goal of eliminating all gender based inequities.

The government was granted an extension with a new deadline of July 3, 2017. That is the deadline we have hovering over our heads now.

Honourable senators, the committee passed a resolution to resume the study of Bill S-3 on May 9. The government proposed six amendments to Bill S-3. Broadly speaking, those amendments incorporated two additional scenarios where sex-based inequities could be found as a result of changes to address the siblings and cousins issues included in Bill S-3. Additionally, the government amendments provided more requirements on the content and reporting mechanisms outlined in phase 2 consultations of the bill.

In the government's attempt to remedy sex-based discrimination in Bill S-3, it has decided to focus on eliminating known sex-based discrimination in the Indian Act. While the title of the bill purports to achieve the elimination of the sex-based inequities in registration, we should be clear from the outset that Bill S-3 with only the government amendments does not achieve that.

In taking this approach, the government continues to force indigenous women and their descendants to fight long costly battles to have status recognized. According to the Indigenous Bar Association, seven such cases alleging discrimination in the registration provisions of the Indian Act are currently before the courts.

Many witnesses who appeared at the Standing Senate Committee on Aboriginal Peoples were clear that Bill S-3, with the amendments proposed by the government, does not go far enough. The bill still does not eliminate all sex-based discrimination in the registration provisions of the Indian Act.

These witnesses stated that the government ought to include women who lost their Indian status prior to 1951. The problem with the 1951 cutoff was identified during the parliamentary study of Bill C-3 in 2010. At the time, then AFN B.C. Regional Chief Jody Wilson-Raybould wrote to the government to demand that Parliament eliminate the 1951 cutoff. The then Liberal opposition proposed an amendment to rectify this, but the amendment was ruled out of order by the Speaker of the House of Commons.

The amendment proposed now by Senator McPhedran and adopted at committee is the same type of amendment proposed in 2010 by the Liberals in the House of Commons. Senator McPhedran's amendment is commonly referred to as the "6(1) (a) all the way" solution. This amendment allows individuals born before 1985 to acquire 6(1)(a) status. This would capture those women and descendants excluded by the 1951 cutoff rule.

Honourable senators, I supported this amendment at committee. This amendment moves us substantially closer to eliminating all sex-based discrimination in registration provisions of the Indian Act. Unfortunately, the government has clearly stated that it will not support Senator McPhedran's amendment because it deems it necessary to consult further.

As I noted earlier, previous consultations have not remedied the pre-1951 cutoff issue, so why would we believe another round of consultations will produce anything different now?

The government has sweetened the consultation promise by proposing to engage in a nation-to-nation relationship with First Nations on the issue of Indian registration. This sounds enticing, but many witnesses, particularly Kim Stanton from LEAF and Dr. Pam Palmater, stated the government should not be consulting away constitutionally protected equality rights.

As Dr. Palmater stated:

There is no reason to consult on whether to abide by the law of gender equality. The laws of our traditional nations, Canada and the international community are clear on gender equality. There is no optioning out of equality, nor can it be negotiated away. The constitutionally protected aboriginal right to determine one's own citizens is conditioned on section 35(4)'s guarantee of equality for Indigenous men and women. UNDRIP also guarantees these rights equally between indigenous men and women. There is simply no legal mechanism by which to consult out of gender equality.

Another argument the government has put forward in opposition to Senator McPhedran's amendment is that the government does not know how many status Indians will be added to the registry and subsequently how much it will cost in entitled benefits, such as the non-insured health benefits and post-secondary education programs.


This reasoning is neither valid, nor ethical. Refusing to act continues to put Aboriginal women at risk. Sharon McIvor, one of our witnesses, stated:

. . . by legislatively yanking us out of our communities away from our families, away from our support and leaving us out in many instances on our own because of marriage breakdown where you have no place to go, has caused the situation where Aboriginal women and girls are vulnerable. We are prey out there.

They say when we get murdered or go missing, we live an at-risk lifestyle. I can tell you I was born into an at-risk lifestyle because I'm an Aboriginal female, and when people look at you as an Aboriginal female, they see prey. . . .

Colleagues, Ms. McIvor is absolutely correct. According to a 2016 report from Statistics Canada, simply being Aboriginal is a risk factor for violence for women, but not for men.

Colleagues, refusing to implement the "6(1)(a) all the way" amendment is not an option for us as senators, nor is it an option for members of Parliament. We are debating fundamental equality rights. We cannot continue to deny granting Indian women the same rights as Indian men. Dr. Palmater summed this entire issue up in this way:

. . . I would much rather have unintended consequences for doing the right thing — and that's gender equality — than for trying really hard to have gender inequality. And this is not only your moral obligation as Canadians, as representing the government; it's your legal obligation. This Senate simply has no choice. The Charter says absolute equality. The Constitution says absolute equality. How we could argue in 2017 that only for indigenous women it doesn't have to be equality.

Colleagues, the government takes an economic position on the issue of fundamental rights for Aboriginal women. This is clearly wrong. Cost is not a valid factor for denying Indian women equal rights to Indian men. Mary Eberts stated this clearly at committee.

The government has stated that as many as 2 million new status Indians might be created in accepting Senator McPhedran's amendment. They also say they don't know the actual numbers. I agree with Senator Sinclair's comment when he told the minister at committee:

To tell us it can range from 80,000 to 2 million is almost like fear-mongering, because you're not giving us information upon which we can make a reliable decision.

As I stated on Tuesday in a response to Senator Lang's questions, I believe this number is overinflated; it is meant to frighten us into continuing to exclude the pre-1951 descendants in this bill. This overinflated number is meant to cause us to reject Senator McPhedran's amendment based on an unrealistic fear of huge financial implications. The government officials want us to behave like Chicken Little and be afraid of the imaginary disastrous consequences.

On the other hand, Dr. Palmater made a solid argument in favour of including these descendants. According to her estimates, the number of newly entitled status Indians would be around 200,000. Remember, under Bill C-31, about 130,000 new registrants were added, and the sky didn't fall. Under Bill C-3, 45,000 were added, and the sky didn't fall. So why should we remain fearful?

Dr. Palmater also put these costs into context by comparing the numbers with newly born Canadians and with newly arrived immigrants. She said:

Adding 200,000 people to register on a one-time basis, compared to adding 750,000 new Canadians every year, what's the cost? Millions of Canadians are born every year and immigrants are welcomed to this country, but you can't afford to pay for 200,000 indigenous women and their children?

Honestly, we're talking peanuts in a territory that's ours to begin with. You want to talk about reconciliation, then basic gender equality has got to be the starting point. . . .

She further commented on the government's lack of interest to include the pre-1951 women and their descendants in legislation. She said:

I worked at INAC and I worked at Justice so I know what they're doing. This is about limiting the number of Indians to save money.

I repeat. She said, "This is about limiting the number of Indians to save money."

Lastly, in regard to Senator McPhedran's amendment, I would like to address the proposal from the government that we should depend upon phase 2 to deal with the pre-1951 cut off.

The Hon. the Speaker: Honourable senator, your time has expired. Are you asking for five more minutes?

Senator Dyck: Yes, please.

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

Hon. Senators: Agreed.

Senator Dyck: Thank you, senators.

The list enumerated by the government on topics to be dealt with in phase 2 is quite long and far-reaching. Many witnesses expressed very little faith in phase 2 producing further legislative change. While I commend the government for providing more requirements and reporting mechanisms in phase 2, I too am skeptical whether phase 2 will deliver the sweeping changes necessary to address all forms of discrimination in the registration provisions of the Indian Act. As I noted earlier, these women and their descendants have been promised more inclusive changes after further consultations in the past with Bill C-31 and Bill C-3, and no real change materialized. There is no reason to believe that doing the same thing again — consulting again — will lead to a different outcome.

Not that long ago, this chamber was seized with Bill C-6, which amended the Citizenship Act. Senator Omidvar, the eloquent and most capable sponsor of this bill, stated in her third reading speech of this bill that, "The nub of the issue is that it seeks to put an end to a law that treats different kinds of citizens differently . . ." She went on to say, "In my pedestrian language: different strokes for different folks."

Many senators spoke in this chamber about that very issue. Most of us agreed that it was unconscionable, as well as unconstitutional, to treat Canadian citizens differently on the basis of whether they held citizenship in another country as well. The majority of us agreed not to strip Canadian citizenship from dual nationals convicted of a terrorism offence.

Well, colleagues, since 1869, the Indian Act has stripped citizenship — status — from Indian women simply based on whether or not they marry another status Indian. While Bill C-31 and Bill C-3 restored citizenship to a fraction of their descendants, and Bill S-3 will add a few more, Senator McPhedran's amendment will restore status, or citizenship, to the descendants of women whose status was stripped away before 1951. The government is opposed to restoring citizenship to this group, but if we don't restore their status, we are treating their citizenship differently, based simply on the date — September 4, 1951 — when the Indian Register was created in Ottawa. It would be unconscionable and unconstitutional for the government to reject Senator McPhedran's amendment to Bill S-3.

As noted before, the government has promised to explore restoration of the status to these descendants following more extensive consultations in Phase II, during nation-to-nation discussions. However, according to Dr. Palmater:

Canada cannot have these critical Nation to Nation discussions without ensuring that Indigenous women and their descendants have an equal opportunity to be at those tables — speaking not as excluded individuals, but as true representatives of their First Nations. It would not meet legal consultations tests or gender equality tests. There is simply no choice but to remedy gender discrimination first. Gender equality in Indian registration is an absolute constitutional pre-requisite to engaging in legal consultations on constitutional matters with First Nations.

Colleagues, to conclude: For a true nation-to-nation discussion, the descendants of women whose status has been stripped away and has not been restored must be part of the nation-to-nation discussions in phase 2. We must pass Bill S-3 and urge the government not to remove Senator McPhedran's amendment to it.


Hon. Sandra Lovelace Nicholas: Honourable senators, I rise today to support the Senate committee's amendment to Bill S-3. This amendment has come to be called "the 6(1)(a) all the way amendment." It is of critical importance to me personally and to all First Nations women and their descendants in Canada. It is way past time for all sex-based discrimination in the Indian Act to be eliminated, and this amendment will remove the core of that discrimination.

You all know my story. I am a Maliseet Indian and I was a member of the Tobique First Nation. However, because of sex discrimination in the Indian Act, I lost not only my Indian status when I married a non-Indian but also my right to be a member of the band and to live on my reserve. We organized and participated in the now famous March of the Tobique Women to Ottawa. But that did not bring change.

Then I filed a petition with the United Nations Human Rights Committee, in 1977, because Canada was violating my right to equality and my right to enjoy my indigenous culture. These are rights that Canada agreed to uphold when it ratified the International Covenant on Civil and Political Rights. The committee ruled that my equal right to enjoy my culture was violated by Canada through the Indian Act.

Right now, a senior legal team from the Human Rights Centre of the University of Essex, in the United Kingdom, is engaged in research on the implementation of decisions issued by the UN treaty monitoring bodies. Canada is one of the countries that they are studying. Among other questions, they are asking: Has the UN Human Rights Committee's 1979 Lovelace decision been implemented? Clearly, the answer is no. The essence of my complaint to the United Nations, 40 years ago, was that, as an Indian, my "Indianness," my culture, did not belong to me and it had been stripped from me because of who I married.

When my status was restored to me, I got second class 6(1)(c) status. I was a lesser Indian, a re-instatee, a "Bill C-31 woman," considered to be less of a bearer and transmitter of Maliseet culture than my male counterparts.

In 2017, 38 years later, Sharon McIvor has a petition before the United Nations Human Rights Committee because she and other indigenous women are still denied equality.

That is what I am asking my fellow senators to support today: just equality for Indian women and their descendants born prior to April 17, 1985.

I want to speak more about the harms that Indian Act discrimination has caused and is still causing to indigenous women. I know the Minister of Indigenous and Northern Affairs, her officials and legislative drafters, are focused on how many more indigenous women and their descendants will be entitled to status if sex discrimination is removed. I agree that this is crucially important, and I say that Canada must stop using sex discrimination as a tool of forced assimilation, defining Indians out of existence based on their sex and the sex of their Indian ancestor.

I want to focus on harms — past and current harms. As senators, and protectors of the political and social well-being of Canada, and all of its diverse peoples, we have to take account of the harms that Indian Act sex discrimination has done and continues to do. I can attest myself, as can Sharon McIvor and Dr. Pamela Palmater, and others who came before the Standing Senate Committee on Aboriginal Peoples, to this: Thousands of indigenous women have suffered the indignity of being denied status entirely and being banished from their communities.

As "Bill C-31 women," we have been treated as though we are not truly Indian, or "not Indian enough," less entitled to benefits and housing, and obliged to continually fight for recognition by male indigenous leaders, our communities and broader society.

The hurt that has been caused and the injustice that has been suffered by the women has been neither recognized nor remedied. We have begun to recognize the terrible harms that were done by the residential school policy in the name of "taking the Indian out of the child" and by the so-called "Sixties Scoop," which took hundreds of indigenous children out of their communities and placed them in non-indigenous families. But the Indian Act sex discrimination, which has tried to define the "Indianness" out of indigenous women and our descendants through legal rules — the harms of that — are yet to be fully acknowledged, at least not by the Government of Canada.

Discrimination gives permission to violence. This is now understood globally and is well-accepted in international human rights law as a fact.

I say to you today that Canada cannot disconnect the ongoing discrimination against indigenous women in the Indian Act from the current human rights crisis of murders and disappearances. Please take seriously the fact that two human rights expert bodies from the international and regional levels have undertaken special investigations in Canada of the murders and disappearances of indigenous women and girls. Both bodies — the United Nations Committee on the Elimination of Discrimination against Women and the Inter-American Commission on Human Rights — concluded that sex discrimination in the Indian Act is a root cause of the violence.

The Indian Act sex discrimination puts First Nations women at risk of being listed as less than equal human beings by the Government of Canada in legislation and by our own communities. As a result women are seen as a "population of prey." This is why human rights experts have concluded that Indian Act sex discrimination is a root cause of the violence. They have called on Canada for change. We, as senators, need to make that change.

The discrimination and its effects will not end until the Government of Canada is willing, in legislation, to grant the same full 6(1)(a) status to Indian women and their descendants born before April 17, 1985, that they grant to comparable Indian males and their descendants.

We have been through this before. When Bill C-3 came before the Senate in 2010, it was another band-aid solution to the sex discrimination, like Bill S-3. I ask, then: Where is the equality and justice for indigenous women? I apologized to First Nations women and their descendants for the fact that the Government of Canada would pass Bill C-3 without an amendment that would eliminate the core sex discrimination from the Indian Act. Indigenous women and their issues are always at the bottom of the totem pole.


Honourable senators, I am asking you today, as colleagues, to support the "6(1)(a) all the way" amendment for indigenous women and girls of the generations to come, to stop the harmful discrimination. Let us be equal. After all, it was the government who created this problem.

Hon. Dennis Glen Patterson: I do appreciate the opportunity to speak today as critic for the official opposition on Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration).

When I stood before you last November and spoke to this bill at second reading, I told this chamber that this bill:

. . . seeks to undo the remaining gender-based inequities with regard to . . . Indian registration. In principle, of course, this is the right thing to do. Who could be against gender equity?

And so this chamber, with the assurances that this bill would eliminate gender-based discrimination in Indian registration, as the title states, referred the bill to committee.

However, during the committee's study of the bill, it became apparent that gender-based discrimination would persist. In some instances, it emerged that the bill, as worded, would actually create new instances of discrimination.

So your committee set forth to address these additional instances of gender-based discrimination, which included the issue of unstated paternity, the mistreatment of illegitimate children and the sexist sub-classifications of First Nations people whose rights and entitlements varied based on patrilineal versus matrilineal lines.

The majority of committee members believe that this broader approach is consistent with the approach recommended by Justice Masse in her decision on Descheneaux, when she said:

Parliament should not interpret this judgment as strictly as it did the [B.C. Court of Appeal's] judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes, it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other.

As a further affirmation that our committee has endorsed the right approach to ending gender-based discrimination in registration, I recently received a copy of an open letter to Prime Minister Trudeau. It says:

We know that the Indian Act is paternalistic and outdated legislation rooted in colonization and the goal of assimilating Indians. . . . However, we also recognize that for every day that the Indian Act continues, it is absolutely imperative that all remnants of gender-based discrimination be eliminated.

Prime Minister Trudeau, if you are truly a feminist Prime Minister, who sincerely means that there is no relationship more important than the one with Indigenous peoples; and you want the path forward to be based on Nation-to-Nation relations, then you must ensure that Indigenous women and our descendants are included in our Nations.

We urge you to remind your Cabinet members that the days of consulting on gender equality are over. All federal laws must be Charter compliant — and that includes Bill S-3. We urge you to support the "6(1)(a) all the way" amendment to Bill S-3.

That was signed by the Nova Scotia Native Women's Association, the Newfoundland Native Women's Association, the Indigenous Women's Association of the Maliseet and Mi'kmaq Territories, the Eastern Door Indigenous Women's Association, and the Aboriginal Women's Association of P.E.I.

Senator McPhedran put forward an amendment during committee, as we heard yesterday, that seeks to simplify the way the government registers First Nations people. No more endless sub-classifications; everyone would now be registered as a 6(1)(a) Indian. They would have equal rights and status, regardless of gender or parentage.

After much consideration, I decided to support this amendment, along with many of my colleagues on committee, because not only do I believe that it is not the role of government to determine who is an Indian, but I do not believe that we should make registration a complicated process.

Here, I want to bring my experience from my home region to your attention. In all Inuit regions, not just Nunavut, due mainly to comprehensive land claim agreements negotiated with the Crown, Inuit beneficiaries are determined and registered by Inuit organizations. The rule is simple: All you need is one Inuk parent to qualify as a beneficiary. That's why my four children and my four grandchildren are all beneficiaries. So I say if that's good enough for the federal government to recognize status for Inuit, why is it not enough for First Nations? That's why I support the simplification of a process whose complication has been compounded by endless tinkering and piecemeal approaches and, I should say, endless litigation.

While I am pleased that the committee, in a vote of 11 to 3, decided to proceed with a more inclusive approach to registration, embracing the so-called "6(1)(a) all the way" approach, I still have some reservations about this bill.

First, colleagues, the complete lack of consultation is worrisome to me. The duty to consult and accommodate is embedded in section 35 of the Constitution Act 1982 and the judicature of the Supreme Court interpreting that section and is required to be fulfilled whenever the Crown contemplates actions or decisions that affect Aboriginal and treaty rights.

Because the government went beyond the specific issues of inequalities between siblings and cousins, as described in the Descheneaux decision, and included other forms of sex-based discrimination in registration, the duty to consult cannot be questioned.

The government has stated, though, that due to time constraints they chose not to consult but to "engage" with First Nations through "information sessions."

The committee has, unfortunately, heard that these sessions were not well received by Aboriginal organizations. They didn't provide adequate time for participants to provide thoughtful feedback and did not discuss the proposed amendments.

In December, your committee wrote a letter to the minister, encouraging her and her department to seek a court extension. They did ask the court, and an extension was granted, which gave the government the opportunity to properly engage with key stakeholders, including the litigants and their counsel, who had not been consulted in the drafting of the first version of Bill S-3, as well as to formulate amendments that would ensure that the bill would eliminate all residual gender-based discrimination. So it was disappointing, when the bill was again considered in committee, to hear many witnesses, including Perry Bellegarde, National Chief of the Assembly of First Nations, state clearly that they did not feel that the government had satisfied its duty to consult on this bill.

I must also admit, colleagues, that I remain somewhat skeptical about the proposed phase 2. INAC has stated that they intend to consult First Nations and Metis on broader, more complex issues, such as citizenship and the so-called second-generation cutoff, over a period of 18 months. While there have been amendments introduced and accepted at committee that would commit the government to discussing certain topics with stakeholders and publicly reporting back to Parliament on their progress, there is no clear consequence for the government not following through on their consultations, nor are there any consequences for the government failing to complete consultations within the timeframe given.

Furthermore, I find the timeline to be a lofty aspiration, seeing as, by the time the current July 3, 2017 court deadline comes around, the government will have had a total of 23 months to address gender-based discrimination. No one has told us that they feel they were properly consulted, nor have we heard that it has been a straightforward and transparent process. So I am concerned about whether the government will be able to construct a process to adequately consult indigenous peoples on these very complex and broader questions, such as nationhood and citizenship.

Yet, despite my reservations, honourable senators, I believe that this bill should and must go forward as amended. I wish to commend Senator Harder for his commitment in this chamber yesterday to support sending this bill, as amended, back to the other place forthwith. It responds to the many concerns brought forward to the committee and would successfully eliminate all residual gender-based discrimination in Indian registration, as the title of the bill requires. So I commend it to your support.


Hon. Frances Lankin: I want to say what an honour it is to have participated in the discussion and debate on this bill, to have played the role of sponsor and be present for the debate that is taking place at third reading, which I believe has been powerful and compelling around issues of sex-based discrimination and reconciliation and a moment in time where we push further our understanding and commitment to address these kinds of issues.

I believe all members of the committee support the passage of this bill today and for it to be sent back to the House of Commons, to the other place, as Senator Harder has committed, in a forthwith manner. I believe that virtually all senators feel the same way about this bill.

I think my colleagues have done an amazing job in presenting the background and historical record of attempts through piecemeal legislation to deal with the issue of sex-based discrimination, so I am taking that out of my speech. I will not repeat that.

Before I address the key issue before us, which is the amendment that other senators have spoken to, I want to pay tribute once again to the women who have led the way on this. I think it is important in this chamber to pay tribute and recognize, first and foremost, Senator Lovelace Nicholas.

Senator Lovelace Nicholas, I want to applaud you for the bravery that you have shown, the leadership that you have given and the legacy that you have left. As you continue this fight alongside many other incredible women, it will lead to the future not only of indigenous women and their descendants but all of us. I appreciate that.

Hon. Senators: Hear, hear!

Senator Lankin: At second reading, I had the opportunity to also pay tribute to Mary Two-Axe Earley, a heroin of mine and someone who I learned much from during the discussions and debates leading up to the embedding of equality rights in the Charter. We should mention once again the role that has been played by another senator with respect to equality rights for women.

Mary Two-Axe Earley was the woman who taught me that while we achieved provisions in the Charter that were important for all Canadian women, the stakes were higher for indigenous women. She brought that understanding to me, so it was an honour to say yes to sponsoring the bill.

I have to say that the complexity of the bill and the regime of registration was something that I knew little about. I knew a little about it because I face it within my own family, the restrictions that you have heard many people talk about.

My great-granddaughter is an unregistered Indian at this point in time and our family is seeking to have that status regained for her. As these provisions are addressed and as sex-based discrimination is completely removed at some point in time, it will be something that I look forward to for her and for all of the hundreds of thousands people who this will affect, and our communities as we live side by side with each other.

The bill, before Senator McPhedran's amendment had warranted the support of this chamber, dealt with a lot of outstanding issues, and certainly what was ruled on in the Descheneaux case. In addition to that, there were other issues, like the differential treatment of cousins within a family, depending on patrilineal or matrilineal linage; the issues of siblings, children born out of wedlock, as Senator Patterson referred to; the removal of minor children, depending on the marital status of their mothers. Even if they were born in a marital status that gave them registration, that registration was removed from them if that marital status changed. Siblings of cousins is another issue. There are a cascading number of issues.

One of the things that was very frustrating for the committee and all of the witnesses who appeared is that as issues were brought before us and there was an attempt to negotiate with Justice to deal with them in this bill — I want to commend the minister's offices. They were very open in doing that. Every time a new issue was identified that cascaded from an amendment that was made, they responded and dealt with it, right up to yesterday, as we were dealing with the amendment concerning unstated and unknown parenthood and getting the language right in response to a plea from Dr. Gehl, who has fought this for years and was finally successful in the Ontario Court of Appeal. She felt that the language we put into the bill due to some tremendous work by Senator Sinclair needed to go one step further. Senator Sinclair, the minister's office, the Justice Department and I worked on this. The consultations were backed by Aboriginal Legal Services and Mary Eberts and Emilie Lahaie, counsel who worked on Dr. Gehl's case, to bring forward the legislation that we passed within the past hour in this house.

It is important to say that if I was not pressed for time and had the chance to ask Senator Patterson a question, I think he would probably admit that even with Senator McPhedran's amendment there are still going to be issues with respect to gender or sex-based discrimination.

In fact, one of the amendments that the government did accept from Senator McPhedran is a three-year review that would compel the government to review the legislation again to determine whether or not we have achieved the elimination of all sex-based discrimination and to file reports to that effect before both houses of Parliament.

We have heard some of the compelling reasons to support the "6(1)(a) all the way" amendment, as it has been called. I support the goal of what we are trying to do in the elimination of "6(1)(a) all the way."

I spent significant time speaking with the government about their objections at this point in time. Where does that come from? Why they are not prepared to proceed at this time. How did the whole concept of phase 1, being this bill, and phase 2, being full consultation as opposed to engagement, arise?

Part of it, I think, comes from a perspective of government in the legal parsing of words. You will hear the government refer to all known cases of sex-based discrimination. By that, they don't mean only the ones that have been discovered through the arduous process of complainants bringing cases forward and ruled on case by case and issue by issue. That is certainly a large part of it, but they have looked at other issues of that kind and understood and determined that they would in fact not hold up in terms of a Charter examination.

I am not speaking from a personal opinion. It's from trying to seek an understanding of what is different about "6(1)(a) all the way," which is attempting to deal with the pre-1951 discrimination that certainly exists. I hope that no one would argue within the government or anywhere that that is not discrimination; it is.

They argue from a legal perspective. They harken back to the McIvor decision from 1985 and the judge's ruling in the appeal court of B.C. The judge referred to the trial judge and basically said, on the facts before them, they find the same but on a narrower judgment with respect to section 15 and section 1 of the Charter.


I think this was referred to in Senator's Dyck's speech today. In effect, that judgment says that prior to the 1951 period of time, when there was not an Indian registration nor was there a register, that can't be included to be considered to be Charter discrimination because of the enhancement of rights under what is called the "double mother rule" at that point in time.

Many people disagree with that interpretation by that appeal judge, and I think our understanding of the application of these provisions has grown. We believe that case law has contributed to that. Sometimes it's a very painful process to watch people have to fight to secure rights in that way and not have the full spirit of what has intended to be embraced.

The government relies on that and they used the word, although they didn't include it in the title, and that certainly has been a subject of conversation at committee and outside. They used those words "known sex-based discrimination" to somehow narrow the field of application and from the beginning have said the pre-1951 period would not be something that would be responded to in phase one — the bill — but rather in phase 2, the broader consultation.

Now, why do they say that? I think that there is an element in government and from finance that will always look toward the issues of what the cost is. I think that is, first, a fact of life of government and, second, an untenable argument to put forward to continue to discriminate.

You will not hear the government say that. That has not been put forward. But I think everybody has a sense that that is part of what led to this, but there is more than that. This particular minister, if I may say, is a minister who has a deep investment in the appropriate nation-to-nation relations. She has a deep investment in sex-based equality and has a record of being a comrade and a fellow traveller with many of us on that road.

To listen to her, I did so with the ears of someone who knows where her heart is and what she wants to achieve. That does no one any good in terms of their actual rights today and what happens with this particular bill, but it does give me cause to pause to listen and to question her.

One of the key things she talks about is the duty to consult and Senator Patterson just spoke about that. While there is a history on this Descheneaux bill, and you might remember that the ruling first came down during the period of an election, and the government, while there was an election, was still in power from a judicial point of view, appealed the decision. It took some time for the new government to take its place, for a cabinet to be formed and for ministers, both from Justice and INAC, to deal with this issue and the current government withdrew the appeal.

The government then began a process of looking at the issue and looking at the Descheneaux decision and indicating to the public, the indigenous communities and others what their response would be. As you can well imagine, getting the government up and going did take some time. So Senator Patterson is right that there was a period of time there, but I think it is reasonably accounted for in terms of the historical record.

When they came forward and talked about what they were going to do, they had had some engagement discussions, and that word is important because they have never claimed there was time for that, nor that they have consulted, because the consultation process cannot be accomplished in a matter of few months at that point in time.

When they came forward, they said, "Here is our response to the Descheneaux ruling," and the response to the Descheneaux ruling was that, "The actual things within the judge's order we will do immediately, plus a couple of other things that are of the same nature that we know would certainly be ruled in violation of the Charter." With respect to other kinds of discrimination that we heard referred to yesterday, and was referred to in obiter by the judge in Descheneaux, we will wrap into phase two and address that.

You have heard the kind of criticism there is of that lack of faith, let me say, and the skepticism that there is about a phase 2 process. I think that all should certainly be sensitive to that and understanding of that, because that has been the entire history, not just on this issue, but with virtually all issues to deal with indigenous rights, so there is much power in the argument of, "Why should we trust you now?"

The minister's reading, as she has explained to me personally the many times I have asked her about the Descheneaux decision — and Senator Patterson referred to this — is something I want to read again and do it in a manner that the minister interprets it, as she explained to me.

In the conclusions, as opposed to in the actual declaration and order, the judge says that Parliament should not interpret this judgment as strictly as it did in the British Columbia Court of Appeal. That, of course, is the McIvor case, the case I referred to, in which the government strictly reads that the pre-1951 is not a Charter violation. It's where they strive. This judge says that issue was not before her, she was not able to make ruling on that but she certainly gives a sense of her likely understanding of that issue, in which she implores that:

Parliament should not interpret this judgment as strictly as it did the BCCA's judgment in McIvor. If it wishes to fully play its role instead of giving free reign to legal disputes . . .

Earlier on in the in obiter, she does talk about the danger of parliaments leaving to courts to make all the decisions; that you stop to have a parliamentary and democratically led development of public policy and of an approach to deal with difficult issues such as reconciliation and the many issues of discrimination that still remain with respect to indigenous people, and you leave it to a series of legal decisions. Those legal decisions, when necessary, should aid us in our interpretation, should rein government in and correct courses with respect to the rights of Canadians and of all of us. But it shouldn't be left, and it shouldn't be the first response to leave it to the courts to decide piece by piece by piece.

The judge continued, and said in regard to Parliament:

. . . it must act differently this time, while also quickly making sufficiently significant corrections to remedy the discrimination identified in this case. One approach does not exclude the other.

She goes on into the declaration next and the actual order, which was the narrow part of what you find written in Descheneaux, Bill S-3 and a couple of other issues.

The minister's interpretation, in looking at that, is that all of these other discriminations — and you will see in that ruling it is not just sex-based discrimination she is talking about, because there is a lot of discrimination. The sex-based discrimination is the most onerous, along with what happened to children and families in terms of residential schools, but it certainly stems back the furthest, sex-based discrimination, in terms of our history.

The minister looks at this and says, "We cannot continue to do with piecemeal." Therefore, the response to this is not a piecemeal response. We are going to do Descheneaux in phase 1 and we are going to do the full nation-to-nation duty to consult process in phase 2 and it will include all these issues.

You have heard the reason that is seen as so unjust to the communities, to indigenous women and their descendants is because they have waited so long and it has never happened. From the minister's perspective, the duty to consult is a critical part of the relations and a government that is trying to breathe new life into government-to-government relations, and that, given the manner in which this is implemented will have tremendous impact on communities, there is a need to involve them in this decision.

Now, many of the people came forward, and I would say, perhaps, the majority of the people who came forward as witnesses on this spoke against that interpretation and felt that was wrong. I do have to say, though, that there were some voices that have not been reported on now, and I just put them forward to show the sort of complexity that all parties are dealing with in this.


The Indigenous Bar Association, in their first appearance before us last fall before we asked the minister to seek a further delay, argued that Bill S-3 should go forward and that these other issues should be dealt with, keeping in mind the duty to consult.

This time, the Indigenous Bar Association came before us one more time, and in addition to expressing their frustration about how each amendment leads to further amendments, changed their position and really talked about the balance that is needed — absolutely reinforced the duty to consult — but the balance that's needed between the issues of rights of communities and of individuals, and as you have heard many people put forward, the argument that we should be starting phase 2 on a better basis of having eliminated more sex-based discrimination. It is a different position they took but one that I think people can understand the rationale for, even if this amendment doesn't take all sex-based discrimination out and even if we find there might be some others, which has been alluded to by the Indigenous Bar Association and other parties and in our discussions. I think the argument is let's get more of a level playing field, and let's not put off one more time something that has been put off so many times, dealing with women's equality rights within indigenous communities.

The two other references I want to make in terms of voices that have not been heard here is that the National Chief of the Assembly of First Nations came forward and made the case in the first round of appearances that in fact we shouldn't even be doing Bill S-3, even though there was a court deadline on this, and that all of this should go out to consultation. I think that position has been mitigated over time, but that was the first argument we heard on that.

If I may also, from the Native Women's Association of Canada, yesterday we heard from some of the voices of the suborganizations of that group, who made it clear that they believe in 6(1)(a) all the way and dealing with the pre-51 is important to do now. When NWAC was before us in the fall and again two weeks ago, they put forward a different perspective. When they were asked by Senator Patterson about proceeding with Bill S-3 and leaving the bigger issue of pre-51 and 6(1)(a) all the way to phase 2, their response was:

From our perspective, we can't say that 6(1)(a) all the way is the response they . . . .

— meaning indigenous women they want to consult with —

. . . would give at the grassroots level, at our level. We haven't asked them the question, "Do you want us to take that mandate, that position?" Or is it no more sixes at all and we need the government to get out of the business of registration period?

All I'm pointing out is that there are voices other than the voices that we have heard in the chamber thus far, that the committee heard and that have been presented to us in written submissions. I will say there are many more voices that support Senator McPhedran's amendment that have written and haven't even been read into the record here that many of us have received. I think many senators will have received those letters in their emails.

These are issues that remain obviously fiercely fought for, with a tremendous desire to get today. The government has thus far been very clear that with respect to this particular amendment, they feel they are unable to support it, that it falls outside of the definition of the legal approach they take on reading the court decisions and on known sex-based discrimination and that it will prejudice their duty to consult and their nation-to-nation relationship.

I asked NWAC about the amendment we were working on that would compel the minister to come back and report, particularly in phase 2, to consider a number of issues, to consult on a number of issues, including the pre-51 cutoff that is there. This was language that Senator Sinclair developed, which we wrote into an amendment and passed at committee: Through a lens of the Charter and of human rights. So these issues will be looked at through that lens, not just pre-51; there are other issues that still grow from this that have elements of human rights considerations.

So I put that forward for you to have some sense of understanding of how the government is viewing this and, as I said, to this date, how they have continued to insist that they will not accept this particular amendment and it's likely to come back to us. We'll see. The House of Commons will have to receive this and will have to determine what they do with it.

Although the point has been made by others, I want to remind people that we are dealing with a court decision that has a timeline. I think in these areas, this is one of the more difficult things to do. It was impossible for the government to do consultation under their duty to consult in the timeline that was given, the five-month extension, and there are mitigating reasons before that in terms of an election, an appeal and the whole process about why it didn't happen then. They did engagement but, appropriately, no one will call that consultation.

The impact of not meeting the court deadline to ensure that everyone has that information is that certain registration provisions of the Indian Act will be struck down as of July 3 if this bill hasn't passed, and it will be implemented by the registrar on a pan-Canadian basis. There are 25,000 to 35,000 indigenous people on average per year who are registered, and that will no longer continue.

There are also about 35,000 people who will gain rights from the amendments that deal directly with Descheneaux, which arise from the court order on that, and those are young people, some of them who are awaiting their education support to go on with education, others who are looking for non-insured health benefits or a range of things, as well as belonging in a sense of being part of community.

I think, again, we are in an untenable situation where we have one group of people waiting for rights that have already been ruled on by the court and another group of people who have been waiting nearly a century for rights to be afforded that have been put off by government after government. It is, again I'll say, an untenable situation that those people find themselves in, with the impact on their lives and their descendants' lives, and the certainly untenable situation from I think a parliamentary perspective to be asked to look at and weigh those kinds of differences that pit one group of people's rights against another.

I said at the beginning that I believe the majority of senators in this chamber support this legislation and the committee supports this legislation — irrespective of how we voted on one amendment and/or the reasons for it — being passed and being sent back to the house so they can process it, make determinations and either pass the bill or send it back to us with their views, at which time we will have to have another conversation and we will see where that takes us.

I began by saying it has been an honour to be part of this. I pay tribute to the people who have long fought this issue. My heart and my mind are with them in terms of the end outcome of what they want to achieve, and I believe that is an important achievement for all of us in Canada. Thank you very much.

Hon. Senators: Hear, hear!

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

Hon. Senators: Agreed.

(Motion agreed to and bill, as amended, read third time and passed).


Bill to Amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and Other Acts and to Provide for Certain Other Measures

Message from Commons—Motion for Concurrence in Commons Amendments and Non-Insistence Upon Senate Amendments—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Harder, P.C., seconded by the Honourable Senator Bellemare:

That the Senate concur in the amendments made by the House of Commons to its amendments 1, 4(b), 4(c) and 4(d) to Bill C-7, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures;

That the Senate do not insist on its amendments 2, 3, 4(a), 4(e), 5, 6, 7, 8, 9 and 10 to which the House of Commons has disagreed; and

That a message be sent to the House of Commons to acquaint that house accordingly.

Hon. Larry W. Campbell: Honourable senators, I rise to speak to Bill C-7, as amended by the other place. Today, we are giving thoughtful consideration to the response to the amendments proposed here in this place. I am reminded that we are the chamber of sober second thought, not the chamber of sober second decision.

In accepting the amendment to remove the restrictions on what may be included in collective agreements and arbitral awards that are specific to the RCMP, the other place demonstrated its support for the dedicated and proud members of Canada's national police force. It addresses the concerns of over 18,000 RCMP members and reservists who work in 680 detachments across Canada.

This amendment ensures that the employer or any future RCMP member bargaining agent can engage in meaningful discussions in good faith on topics of importance to RCMP members and reservists, and it increases the scope of the issues that can be discussed at the bargaining table. Issues now include transfers and appraisals, and matters commonly associated with harassment and general aspects of workplace wellness, such as the promotion of a respectful workplace and early conflict resolution.

Additionally, the other place also accepted with some modifications the amendment to include a management rights clause as part of the new labour relations regime for RCMP members and reservists. The bill respects the commissioner's authority to manage the RCMP and to ensure the operational integrity of the police force. Consistent with the courts' interpretation, management rights clauses aim to protect the public interest.

With these two measures alone I am confident that the motion before us today addresses the key concerns expressed by senators and, by extension, expressed to senators by members of the Royal Canadian Mounted Police across Canada.

The other place respectfully disagreed with the amendment requiring a secret ballot vote to certify a bargaining agent to represent RCMP members and reservists. The requirement for a secret ballot vote, rather than a specified number of union membership cards duly signed by employees, would make it more difficult for RCMP members and reservists to organize and bargain collectively, should they choose to do so. Instead there is a need to ensure that these members can organize freely and bargain collectively in good faith.

The requirement of a secret ballot vote would also conflict with the provisions of Bill C-4.

Honourable senators, it would be more appropriate that an organization wanting to represent RCMP members should be subject to the same certification processes as other organizations under federal labour relations legislation.

The other place also cannot assent to the expansion of the Public Service Labour Relations and Employment Board's mandate. Expanding this mandate to include all matters pertaining to terms and conditions of employment would result in two different grievance processes that might lead to conflicting decisions.

The RCMP Act already establishes processes to deal with a number of workplace grievances. Allowing the Public Service Labour Relations and Employment Board to hear similar matters would be duplicitous and confusing. I want to state publicly that I do not believe that the Royal Canadian Mounted Police should be under the Public Service Labour Relations Act, but that will be up to them to address.

Honourable senators, the RCMP asks us for respect, and through the hard work of the Defence Committee, Senator Lang and Senator White, I believe their issues were heard.

I won't quote again that "you can't always get what you want," but this is another instance of it.

Members of the Royal Canadian Mounted Police have helped shape this nation, and many have given their lives in service to it. The response to the amendments to Bill C-7 respects that. The response continues to respect the 2015 Supreme Court decision by providing Royal Canadian Mounted Police members and reservists with the ability to pursue their interests through collective bargaining, if they so choose. That case made it clear that RCMP members should also enjoy collective bargaining rights. The response also strengthens Bill C-7 and enshrines these rights in law.

Honourable senators, members of the Royal Canadian Mounted Police work with the goal of serving Canada and protecting Canadians. These are the people who protect the Governor General, the Prime Minister and other ministers of the Crown, visiting royalty, dignitaries and diplomatic missions. These are the people who participate in international policing efforts, who safeguard the integrity of our borders and provide counterterrorism and domestic security. They are the people who enforce our federal laws against commercial crime, counterfeiting, drug trafficking and organized crime.

This bill is to benefit those who protect us.

Honourable senators, I urge you to support this bill and allow Bill C-7 to go forward for Royal Assent.

(On motion of Senator Martin, debate adjourned.)

Tobacco Act
Non-smokers' Health Act

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Petitclerc, seconded by the Honourable Senator Bellemare, for the third reading of Bill S-5, An Act to amend the Tobacco Act and the Non-smokers' Health Act and to make consequential amendments to other Acts, as amended.

Hon. Judith Seidman: Honourable senators, some weeks ago when I concluded my second reading speech, I did so with the hope that expert witness testimony at our committee stage would clarify some of the largest issues around Bill S-5 and help us, as legislators about to amend the Tobacco Act, get it right. Here, today, at third reading of Bill S-5, An Act to amend the Tobacco Act and the Non-smokers' Health Act and to make consequential amendments to other Acts, as opposition critic for this bill, I shall try to report back to you the essence of what we learned during our committee hearings, as well as the rationale for the amendment I made that was accepted unanimously by committee members. This amendment to the Bill S-5 is now a part of our committee report.

The Standing Senate Committee on Social Affairs, Science and Technology held five meetings, heard from 21 witnesses, and received more than 35 formal briefs and countless other submissions. You have already heard from the bill's sponsor, Senator Petitclerc, about some of the issues our committee struggled with during our hearings. I shall try not to be too repetitive. However, I want to remind you that Bill S-5 amends the Tobacco Act to add a new and separate class of products, vaping products, and proposes to regulate their manufacture, sale, labelling and promotion.

What has been emphasized by both the Minister of Health and the officials at Health Canada during their own testimony is that this legislation is an attempt to balance the government's objectives of protecting youth from the dangers of nicotine addiction, while allowing adult smokers to access vaping products. As committee members heard, this balance is a precarious one, said by some to be overly restrictive and by others to be not restrictive enough.

As we now know, vaping is a new societal phenomenon, perhaps a decade old. Witness testimony confirmed that it will take two or three decades more before we fully understand the science and safety issues associated with vaping and the devices used, such as e-cigarettes.

I would like to begin with a brief summary of some of the evidence committee members heard around the largest public health questions today, because it provides a flavour of how incomplete our best understanding really is.

There are four big unknowns in the public health discussion of vaping and e-cigarettes: Are e-cigarettes effective in smoking cessation; will e-cigarettes lead youth to tobacco use, often termed the gateway effect; how toxic are the emissions of the inhaled vapours for e-cigarette users; and are there risks from second-hand exposure to vapour?

First, then, how effective are e-cigarettes as an aid in smoking cessation?


The Canadian Vaping Association testified before our committee and explained that:

The number of vape product shops has grown throughout Canada, with a current estimate of retail outlets and manufacturing facilities numbering over 800, representing well over 5,000 employees, serving hundreds of thousands of customers and generating over $350 million in revenue. . . . It has been a direct result of a substantial demand for these products by millions of smokers in Canada seeking an alternative to cigarettes.

Dr. Hammond, professor in the School of Public Health at the University of Waterloo, told us that we need more evidence to understand whether e-cigarettes are equally effective as other forms of nicotine replacement therapy. He also cautioned that one of the dominant forms of use in Canada is:

. . . dual use, where you smoke and use a vaporized product. The best science we have to date suggests that there may not be any health benefit from doing that — that you have to get off the smoke. Some people may be using it to cut back and plan to quit over the long term, and that will be a positive outcome.

Dr. Britton, professor of epidemiology at the University of Nottingham and Director of the U.K. Centre for Tobacco and Alcohol Studies also emphasized our lack of understanding where e-cigarette use sits relative to established licensed nicotine replacement therapies.

In fact, he suggested we should consider e-cigarettes as an alternative to smoking, not a therapy, first and foremost, and so "it is inevitable that there will be substantial dual use."

He said:

The evidence is good that smokers who start using an alternative nicotine product alongside smoking are much more likely — twice as likely — to progress to quit than those who do not. . . . [so] the benefit to health is negligible while they're dual-using, but those who then make the step completely to an alternative source will get huge benefit. The key thing is . . . We shouldn't think of these as cessation aids but as tobacco substitutes.

Did we hear sufficient evidence at committee to suggest e-cigarette use will make it more likely youth will go on to use tobacco, the so-called gateway effect?

When asked about this particular issue in committee, Dr. Hammond explained:

We will actually have a study coming out in a medical journal very soon showing that. We followed people up over time. We followed 20,000 kids over 12 months. Everyone was a non-smoker at the start. The kids among those who were non-smokers who tried a vaping product were much more likely to go on to become a smoker. But here's the thing with that: We call it the gateway effect. It's true for tobacco, alcohol and marijuana. Most of that is that the kids who are likely to smoke are also likely to try a vaping product.

This is, again, in the fog of all these findings. Is there association? Yes. Is it causal? It's probably just the common factor of the kids who like to do those things do those things.

Dr. Britton echoed Dr. Hammond's comments:

. . . children who are more likely to try vaping products are also much more likely to be trying cigarettes anyway. . . It is causal? Probably not.

Both of these witnesses who are engaged in serious research in this field agreed that it is:

. . . more crucial than ever to be monitoring smoking and nicotine use behaviours in young people and in adults. . . . we don't entirely know what's going to happen as these products evolve.

Dr. Peter Selby of the Canadian Centre for Addiction and Mental Health also concurred:

Whether these youths will then transition to cigarettes, it's an open question, but one would have to wonder why you would move from a cleaner, more functional product to a more dangerous product.

The third big public health issue is how toxic are the emissions of the inhaled vapours for e-cigarette users, and the general agreement was harmful but less harmful than smoking. Dr. Britton told us:

We don't know what the long-term effects are of the other components of vapour. In fact, we don't know what the long-term effects of inhaling pure nicotine would be. We don't know the long-term effects of exposure of the lung to . . . those vapour solutions . . . and then the toxins that are produced in the vaping process from the constituents of the fluid . . . Those things I expect to cause lung damage in the long term. . . . We would expect the spectrum of damage to include a similar spectrum of lung disease to existing smoking, but at a much, much lower level of risk. So there will, in my opinion, over the next 50 years, be a handful of cases of lung cancer caused by vaping, but that has to be set aside the likelihood of tens of thousands of cases of lung cancer caused by smoking.

Witness testimony indicated that this debate has been one of the more difficult ones for the public health community because of what appears to be contradictory evidence about the long-term health effects of vaping. Dr. Britton and Dr. Hammond concurred, stating that "electronic cigarettes are not safe, or it is very unlikely they are safe. We won't know how safe they are until two or three decades have gone by. But we can predict, from the levels of toxins in the vapour, that that risk will be very low relative to cigarette smoking. . . very unlikely to exceed 5 per cent of the risks of smoking."

As for second-hand exposure to e-cigarette vapour, there was agreement that based on inferences from what we believe to be the case with direct health effects, there would be fewer chemicals in the air and evidence for harm from vapours to others is tenuous at best. However it should be noted that reference was made by Melodie Tilson of the Non-Smokers' Rights Association to faulty methodologies and lack of current understanding about how to measure these chemicals and particles likely released into the air.

Honourable senators, what were some of the most challenging, even contentious issues for committee members? There was intense discussion during our committee hearings about the concepts of harm reduction and comparison of risks as they relate to e-cigarettes and vaping and how to convey that type of information to consumers.

Dr. Britton, Professor of Epidemiology at the University of Nottingham and Director of the UK Centre for Tobacco and Alcohol Studies, underlined that this was precisely the reason he asked to testify before our committee. Permit me to quote his exact words:

The reason that I asked to give evidence today on the Canadian bill is simply the clause about making comparisons with the safety of smoking, because I think it is absolutely vital that health professionals can say to smokers, "We don't know the long-term risk of these products. It would be much better if you quit all smoking and nicotine use forever, but if you can't do that, then it is a no-brainer to switch to a less hazardous product." I don't think there can be any question that electronic cigarettes are less hazardous than smoking.

Dr. Britton did say that the UK has taken a "harm reduction" position in nicotine addiction, that focuses on cessation, even if it is only to switch to an alternative source of nicotine and give up the smoke, the source of the toxins that kill.

Pippa Beck of the Non-Smokers Rights Association made reference to the spirited debate around what she called, "the degree of less harm." Is it really 95 per cent less harmful, as we often hear or more like in the 60-80 per cent realm as WHO often states?

In Minister Philpott's testimony before our committee, she did indicate that Bill S-5 does not prohibit the publication of legitimate scientific work in regard to vaping products nor does it prohibit people from explaining the relative risks of vaping products as long as it does not promote a particular product or brand.

In other words, the Minister said we are trying to prevent the promotion of a product using health claims for commercial purposes. But it does not proscribe or limit how people talk about vaping products. A vaping shop could have information, including peer review scientific journals, can speak about a class of products, share information, but all part of a discussion to understand a body of literature so people understand. However this is not permitted to be part of an advertising campaign for commercial purposes.

This is clearly intended as a response to the tobacco industry who have asked for the right to advertise all their products on a continuum of health risk.

Perhaps one of the most provocative and conflicted discussions we had at committee hearings was around promotion and advertising. Witnesses from the non-smokers rights groups, the Canadian Lung Association and the Canadian Cancer Society presented very strong argumentation to ban all lifestyle advertising for vaping and e-cigarettes. They stated that lifestyle advertising would influence young people, as they would still be exposed to it, however indirectly.


When asked why the restrictions on vaping advertising are not as tight as for tobacco, the Minister of Health responded that the Charter only permits such tight restrictions such as those around tobacco when evidence is absolutely abundant that the public health risks associated with these products outweigh the rights of the industry to promote themselves. "In the case of vaping products," she said, "we are not dealing with the same type of balance in terms of firm evidence of harm and that being outweighed by the ability of an industry to be able to promote itself."

But Dr. Hammond, Professor in the School of Public Health at the University of Waterloo, expressed serious concerns about the level of advertising permitted under the bill. To quote him:

It would be naive for us to assume that adult-oriented advertising will not increase the appeal of vaping products among youth, and bans on youth-oriented advertising are very difficult to enforce.

The question is whether it will increase the types of use that benefit public health.

E-cigarettes are used for many reasons. Only one of them results in public health benefit, and that is if used by smokers who are trying to quit. In my opinion, smokers do not require lifestyle advertisements to encourage them to switch. Most smokers switch not because vaping is glamorous, sexy or fun, but because they are addicted to nicotine and they don't want to die from smoking.

In conclusion, it's my opinion that vaping products should not be promoted at all through lifestyle advertising, and advertising should not appear on TV, radio or other major channels.

In fact, as Senator Petitclerc pointed out in her speech, our committee did amend the bill to provide for a possible tightening up of the advertising regulations after Bill S-5 comes into effect.

Health Canada did recognize that there was a need to ensure that the government has the flexibility to respond to future advertising tactics and to make new regulations that would, for example, specify where and at what time advertisements of vaping products could be communicated.

This legislation is complex. Evidence we heard in committee is inconclusive, and the regulations are still to be written and designed to be ever-evolving based on a changing landscape. The rationale for this flexibility has been that vaping can offer vast potential health benefits compared with smoking, but maximizing those benefits requires careful monitoring, surveillance and risk management. Also, the field is evolving rapidly as for the science, and it will be necessary to respond to new study results through additional restrictions or even a broadening of the regulations. And we cannot doubt that the technology will keep changing, that devices will become more efficient in delivering nicotine, and that big multinational tobacco companies will introduce their own e-cigarettes and other devices with all the clear commercial interests that this entails. So along with the benefits inevitably will come unintended consequences.

In response to my questions to the Minister of Health and Health Canada officials about the issues of public health safety and oversight, we were assured by Hilary Geller, Assistant Deputy Minister from Health Canada, Healthy Environments and Consumer Safety Branch, that they are funded to implement the bill and will have an active program of market surveillance and intelligence.

Ms. Geller did say that changes can be made through the regulations and will not require reopening of the legislation. We were assured that initial regulations would be monitored closely and that there is a budget of $7 million to enhance public awareness of the risks, yet also the potential harm reduction of vaping products.

As for the big question of ongoing monitoring and surveillance in order to feed into the purposeful flexibility of these regulations, we were assured that there are several opportunities in existence: one, the Canadian Tobacco, Alcohol and Drugs Survey is conducted every two years along with the student survey; two, the Canadian Institutes of Health Research and the Canadian Institute for Health Information already have a close relationship with Health Canada in the area of substance use and will have a role of research and informing regulations so that they are up-to-date with emerging evidence; three, the Canada Consumer Product Safety Act is very robust, and any vaping product that has been shown to be unsafe can be rapidly recalled by Health Canada; four, there are public opinion research vapers panels to understand how youth respond to the products; and, five, there is a reporting regulations plan for regular vaping data collection to be required similar to what is currently in effect under tobacco reporting regulation for industry.

Honourable senators, what are we to conclude? There are many players who will be involved in the oversight of this piece of legislation.

The question arises as to how best to ensure that the planned oversight and monitoring will result in a coordinated translation to regulations that are regularly updated to protect the health and safety of Canadians, especially those most vulnerable: youth. And my amendment, which I will discuss a little later, will offer this assurance.

There is, of course, another component to this piece of legislation which I must address. It provides authorities for Health Canada to implement regulatory measures to standardize the appearance, size and shape of tobacco packaging and products. We heard from a number of stakeholders on this issue and, as one would expect, the testimony was contradictory.

Gary Grant, a retired veteran of the Toronto Police Service and spokesperson for the National Coalition Against Contraband Tobacco, warned us:

About one in three cigarettes purchased in Ontario is illegal. In northern Ontario, it's more than two in three. Quebec has identified a contraband incidence of about 15 per cent. . . .

Plain packaging regulations will literally give the blueprint for replicating the packaging of the legal product, including graphic warning labels, colours, fonts and other necessary materials. . . .

It would be nearly impossible for consumers to distinguish what is legal versus illegal, and only police with the proper investigative tools could do so. If anything, creating counterfeit products will now become viable, allowing organized crime to strong-arm legitimate retailers into selling illegal product. The current complex packaging prevents this.

The coalitions' argument was pressed further by the tobacco industry. Rather than debating measures which standardize the appearance, size and shape of tobacco products, they argued that the federal government should be tackling the active contraband tobacco market in Canada and implement more anti-contraband tobacco measures into the Tobacco Act.

With specific regard to the important model of the Australian experience, according to Eric Gagnon, Director, Government and Regulatory Affairs at Imperial Tobacco:

. . . plain packaging . . . doesn't work . . . . Despite what some groups will tell you, the truth is that according to data from the Australian government . . . there has been no acceleration in the smoking rate decline . . . . Australia, like in Canada, was already declining year on year and that trend did not accelerate after plain packaging.

This statement, as you can imagine, created some dissension in committee. The Canadian Cancer Society, the Heart and Stroke Foundation, the Non-Smokers' Rights Association and the Canadian Lung Association refuted all argumentation presented by industry members.

Speaking specifically to the industry arguments on the lack of evidence to support standardized measures of tobacco products, Rob Cunningham, Senior Policy Analyst at the Canadian Cancer Society, stated at committee:

. . . the evidence is overwhelming. . . . abundant studies [conducted] worldwide . . . provide compelling evidence that plain packaging would be effective. . . . . more than 140 studies . . . specifically on package promotion and plain packaging [exist] . . . .

. . . industry claims should be disregarded as being completely without merit . . . .

And with reference to the Australian experience, Mr. Cunningham stated that the Tobacco industry is spreading misinformation.

Dr. Hammond, Professor in the School of Public Health at the University of Waterloo, had this to say to committee members:

I admit to being somewhat alarmed about some of the misinformation on plain packaging, in particular the impact of plain packaging in Australia. It is a fact that Australia experienced the largest ever decline in smoking prevalence after plain packaging was implemented. The most extensive analysis to date determined that after adjusting for tax increases and other measures that were implemented over the same time, plain packaging resulted in more than 100,000 fewer Australian smokers. If plain packaging were to have the same impact in Canada, that would translate to 190,000 fewer smokers. The scientific evidence on plain packaging includes close to 100 published scientific studies, which are consistent with the Australian data.


Honourable senators, Australia was the first country to standardize the appearance, size and shape of tobacco packaging and products. Most recently, France, the U.K. and Ireland have also moved forward with standard tobacco packaging legislation, but it is too soon to understand the effects. We have received information from both sides of this question and controversies exist.

Bill S-5 leaves the specifics of plain packaging unclear, such as the exact shape of the boxes and whether the actual cigarette tubes will have any brand marks. The plans are to write these particular regulations following full analysis of the department consultation.

We were told in committee that the deputy minister received a report from the Australian government describing their experience with plain packaging, and mentioned was made that the Department of Immigration and Border Protection found no evidence to say that plain packaging has had an impact on the illicit tobacco market since its introduction in 2011.

The committee requested to see that letter, and we have not received it to date to my knowledge. However, the Health Canada assistant deputy minister did state that they would take every means possible to monitor the situation in Canada.

It must be underlined that consultations on the forms such regulations should take have been completed by the ministry and must be addressed in the tobacco control strategy consultations.

Now, honourable senators, shall we consider my opening statement? My hope was that committee hearings would result in a more conclusive understanding of the largest public health and safety issues that we might address with Bill S-5. As you can surmise, this is a young and rapidly changing field with many uncertainties because of the unformed science, as well as legislation that leaves a great many details to be worked out in the regulations.

There are many departments, agencies and stakeholders involved with working this through. The question that was begging itself to be considered was: How could we as legislators assure ourselves that we have done the right thing, that the legislation had succeeded in the fine balancing act to protect youth while permitting smokers to make the choices for less harmful alternatives?

Based on all of the uncertainties, I concluded there was reason to make a serious amendment.

My amendment, which passed unanimously in committee, will oblige a review of provisions and operations of the act three years after it comes into force and every two years after that. It reads:

The minister must, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.

We discussed the timeline in committee, and it was unanimously agreed that three years would be an adequate length of time for regulations to be written and integrated into this legislation, fully operationalized and evaluated at the outset.

Remember that we did hear that there are at least three existing permanent data collection and research sources to feed the ongoing monitoring surveillance necessary around Bill S-5. I listed them earlier for you. Thus, it should not be too onerous or burdensome for Health Canada and the minister to table a report in both Houses of Parliament within one year of the report being undertaken, and that is in the fourth year following the enactment of Bill S-5.

Honourable senators, I support this legislation, Bill S-5, only with the assurance that the amendment for a full review and report within three years offers.

Thank you.


Hon. Chantal Petitclerc: Would the senator accept a question?

Senator Seidman: Of course.

Senator Petitclerc: My question has to do with the amendment you are proposing, but first I would like to thank you for the extraordinary, professional and science-based work you have done on Bill S-5. You obviously really care about this.

As you know, certain provisions will come into force as soon as the bill receives Royal Assent. For instance, since Bill S-5 does not set out any licensing regime for the vaping industry, Canadians aged 18 and over will have legal access to vaping products. Of course, the provinces and territories retain the ability to regulate where they can be sold and to raise the legal age, as is currently the case with tobacco.

As you pointed out in this chamber today and in committee, many other regulations and provisions under this bill will come into effect at a later date. You said that your amendment, which was unanimously passed and which I support, requires the minister to report back in three years' time and every two years thereafter. Some people are wondering why the time frame isn't five years, as is often the norm.

For the benefit of our fellow senators and the members of the House of Commons, why do you believe that this period of three years, followed by every two years, is the appropriate, if not required, time frame?


Senator Seidman: Thank you, senator, for your question.

Yes, you are right, there was some discussion about this at committee, however if you recall, my original amendment was two years as opposed to three years. The committee discussed this at length. We considered that it would be appropriate, given all the regulation that needs to be written and operationalized, that three years would be a better, more realistic proposal for Health Canada.

The argument for the amendment, I think, has been omnipresent in a way in my speech to you today. This is a rapidly changing field. There are 14 clinical trials under way right now. There are new reports every day, in fact you probably just read one about a young girl in New Brunswick who became ill from vaping liquid that she found that didn't have that nice child-resistant cap on it, which as you know will be part of the regulations.

This is a rapidly unfolding field. Five years leaves a large grey area for us as legislators. We are offering a leap of faith here. We don't know a lot. We've heard from experts that there are issues here that could take two to three decades to iron out as far as the science is concerned. But things are happening rapidly, and we are not sure of the unintended consequences, for example, on the behaviours of young people.

As a result, I think if you look at the big public health issues that I've discussed, if you look at the fact that there are so many regulations to be written that are not yet clear, and the way the regulations will build in flexibility to broaden or restrict, it seemed to all of us at committee that three years was ample and fair. It would assure us as legislators.

In the fourth year, because they have a full year to write that report, when we receive the report and are able to review it, it may give us some assurance that there has been an updating and a response to the data that has been collected and the new science, and we will feel confident that we are doing the right thing, that the health of Canadians and especially those most vulnerable, children, are being protected with this legislation.


I would also remind you in my presentation today I did put out there the whole question of the burden that this report, review and reporting could put on the agency and the minister. The fact is that there are already ongoing data collection and monitoring in several departments, so that this information would be fairly readily producible in order to provide us that report.

I would also, in addition, and finally, like to add that today in the Social Affairs Committee, as you know, we did clause by clause on Bill C-233 and the sponsors of that bill said to us that they really thought the teeth of this bill are in the fifth clause. I'll tell you and all colleagues here what the fifth clause is about. Within two years of the coming into force of this act and every year after that, the minister must prepare a report on the effectiveness of the national strategy.

Three years is a pretty darn good deal for them because this bill, the national dementia strategy, calls for two years and every one year after that. In our case, we have been generous. We say every three years and every two years after that.

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

Hon. Senators: Question.

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

Some Hon. Senators: Agreed.

Senator Martin: On division.

(Motion agreed to and bill, as amended, read third time and passed, on division.)

Rouge National Urban Park Act
Parks Canada Agency Act
Canada National Parks Act

Bill to Amend—Third Reading—Debate Adjourned

Hon. Art Eggleton moved third reading of Bill C-18, An Act to amend the Rouge National Urban Park Act, the Parks Canada Agency Act and the Canada National Parks Act.

He said: Honourable senators, I rise at third reading as the sponsor of Bill C-18, an Act to amend the Rouge National Urban Park Act, the Parks Canada Agency Act and the Canada National Parks Act.

Colleagues, I think of this as a happy bill. I congratulate the previous government — are you listening over there — for giving the Rouge a national focus, and the current government for filling in a few missing pieces.

The Rouge is the first of its kind in Canada: a national urban park. Don't let that designation fool you. The Rouge boasts an incredible array of natural riches, an estimated 1,700 species of plants and animals, including 27 at-risk species. There are large swaths of rare Carolinian forest habitat to be found in the park and it also features some of the largest marshes and wetlands in the Greater Toronto Area.

Rouge National Urban Park is also rich in human history. The Rouge River was a major travel route for thousands of years. Indigenous people lived, farmed and traded on these lands. The agricultural history of the Rouge is a significant feature of the park. Some parts of the Rouge National Urban Park have been farmed continuously for centuries and feature large tracts of Class 1 farmland, the richest, rarest and most fertile in Canada.

On a recent tour I was able to see the great work Parks Canada is doing in conjunction with those who live and work in the park. Since 2015, they have completed 31 conservation and agricultural enhancement projects. It is my understanding that about 10 more projects will have begun by the end of this year.

It is for these reasons that I refer to Bill C-18 as a "happy bill." Through this passage, this bill will facilitate the growth of the Rouge by the transfer of provincial lands that nearly double the size of the 79.1 square kilometres. That's 19 times larger than Stanley Park in Vancouver, 22 times larger than Central Park in New York and 50 times larger than High Park in Toronto. It is across this huge area that Parks Canada will be able to showcase Canada's rich cultural and natural heritage: all this within one hour's drive of 20 per cent of the Canadian population and within one hour's drive of the busy streets of downtown Toronto.

Honourable senators, before I continue with the Rouge, there are two amendments in the bill that deal with other areas, and neither one of them through the committee hearings proved to be contentious. One amendment involves the Parks Canada Agency Act and the funding mechanism known as the New Parks and Historic Sites Account.

The Parks Canada Agency uses money from the account to purchase land or real property needed to establish, enlarge or designate a protected heritage area. Under the current rules, funds can only be used for areas that are not yet fully operational. This amendment would change this. It would allow the agency to use the account for protected heritage areas that are already operating, allowing Parks Canada to respond quickly when opportunities rise to buy additional properties to expand existing protected heritage areas. It's worth noting the proposed changes would also enable individual Canadians to contribute, if they so wish, to projects to complete or expand existing protected heritage areas.

The other amendment proposes to remove a small parcel of land, roughly 37 square kilometres, from the boundaries of Wood Buffalo National Park in northern Alberta. Several years ago, the Government of Canada made a commitment to establish a new reserve for the Little Red River Cree Nation. The removal of this land from Wood Buffalo — it's only 1 per cent of a park that, believe it or not, is roughly the size of Switzerland — would support the establishment a Garden River Indian Reserve. This would also represent another small but important step in the journey toward reconciliation with indigenous people.

The rest of this bill concerns the Rouge. The key amendment in this bill concerns the inclusion — and it got some discussion at committee — of ecological integrity in the Rouge National Urban Park Act and would prioritize ecological integrity in the management of the Rouge.

That phrase "ecological integrity" is defined as follows in the act:

. . . a condition that is determined to be characteristic of its natural region and likely to persist, including abiotic components and the composition and abundance of native species and biological communities, rates of change and supporting processes.

In plain language, this means managing the Rouge in a way that preserves all its native components, from rocks and waterways to flora and fauna. In essence, the legislation will require that Parks Canada follow a comprehensive approach to management, one that carefully considers the past, present and future of Rouge National Urban Park and ensures that the agency strives to make the Rouge accessible to all Canadians while preserving both its ecological integrity and its vibrant farming community.

In previous legislation, Bill C-40, the term "ecological integrity" was not used. It instead stated that the minister must "take into consideration" the "ecological health" of the area.

This change of wording is an important distinction. Although Parks Canada is already doing great work in the parts of the Rouge that have been established, there is no guarantee in the existing act that subsequent governments will adhere to this standard. This uncertainty is what led the Government of Ontario to withhold transferring its land — about 40 square kilometres of land, I might add — and it is the heart of the public areas in this national park.

The Ontario government, though, is now satisfied with the language of this bill, specifically the inclusion of ecological integrity. With this change, the Ontario government is set to transfer the remaining land to Parks Canada.

Honourable senators, I have heard concerns that ecological integrity will not work in an urban park like the Rouge. There were suggestions at committee that respecting ecological integrity would mean that disasters such as forest fires would be allowed to run their course, endangering the lives and property of those who live in and around the Rouge. When questioned by the committee, Daniel Watson, CEO of Parks Canada, assured us that this would not be the case.


Using the example of Point Pelee National Park next to Lake Erie, he said:

For example, in Point Pelee, we had a fire very recently. Almost the same if not identical language applies there, and we were out fighting it the moment that we found it, as we do with the vast majority of fires, certainly all of them that would cause danger to any significant property or to people. So in those conditions, if they arose, we'd fight the fire.

During the committee proceedings, I also heard some concerns over how ecological integrity would affect the tradition of farming in the Rouge. It must be noted that Bill C-18 takes these farms into account for the first time. This is stated in 6(2) of the bill which says:

For greater certainty, subsection (1) does not prevent the carrying out of agricultural activities as provided for in this Act.

The government will also offer farm leases for up to 30 years to provide long-term stability to the park, farmers and their families. They have only been getting very short leases up to this point. With these 30-year leases, farmers will have the confidence to make long-term infrastructure investments on their land moving forward, and the farmer representatives who spoke at committee were quite supportive.

In addition to these safeguards, we also heard from witnesses that respecting ecological integrity actually benefits those who work and live in the Rouge. I noted earlier that 31 conservation and agricultural enhancement projects have been completed in the Rouge since 2015. One such project involved the replacement of old culverts, which are the large pipes you see under roads or other crossings that cut through streams or a river. Undersized farm-crossing culverts in the headwaters of the Little Rouge River have been replaced by much longer and wider culverts to allow for the safe movement of modern farm equipment while also reducing damage and erosion of the stream bank. These changes have improved water quality and connectivity of aquatic habitat while also improving the functioning of farmland.

The Energy and Environment Committee did an excellent job in getting a diverse range of witnesses to respond to these issues, and I trust that senators on the committee were satisfied with the responses they heard, and I believe that's why this bill was passed by the committee without any amendment or dissent.

Honourable senators, this bill is before us at an opportune time. This year's celebrations of the one hundred fiftieth anniversary of Confederation present numerous opportunities to examine Canada's past and to contemplate our future. Bill C-18 would build on this country's proud and defining tradition of protecting and celebrating our natural and cultural heritage. This proposed legislation would enable Parks Canada to make the most of the Rouge National Urban Park in strengthening Canada's ability to expand and protect one of our treasured places.

I encourage all honourable senators to join me in supporting Bill C-18 and coming out some time this summer to see the Rouge.

Some Hon. Senators: Hear, hear!

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



Motion Adopted

Hon. Diane Bellemare (Legislative Deputy to the Government Representative in the Senate), pursuant to notice of May 31, 2017, moved:

That when the Senate next adjourns after the adoption of this motion, it do stand adjourned until Monday, June 5, 2017, at 6:30 p.m.;

That committees of the Senate scheduled to meet on that day be authorized to sit even though the Senate may then be sitting and that rule 12-18(1) be suspended in relation thereto; and

That rule 3-3(1) be suspended on that day.

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

Hon. Senators: Agreed.

(Motion agreed to.)


The Senate

Motion to Resolve into Committee of the Whole to Receive Madeleine Meilleur, Commissioner of Official Languages and that the Committee Report to the Senate No Later than Ninety Minutes After it Begins Adopted

Hon. Peter Harder (Government Representative in the Senate), pursuant to notice of May 31, 2017, moved:

That, at the end of Question Period on Monday, June 5, 2017, the Senate resolve itself into a Committee of the Whole in order to receive Ms. Madeleine Meilleur respecting her appointment as Commissioner of Official Languages; and

That the Committee of the Whole report to the Senate no later than one hour after it begins.

He said: There have been discussions via the usual channels. Pursuant to rule 5-10(1), I ask leave of the Senate to modify the motion by replacing the word "one hour" with the words "90 minutes."

Motion in Modification

Hon. Peter Harder (Government Representative in the Senate): Therefore, honourable senators, in modification, I move:

That, at the end of Question Period on Monday, June 5, 2017, the Senate resolve itself into a Committee of the Whole in order to receive Ms. Madeleine Meilleur respecting her appointment as Commissioner of Official Languages; and

That the Committee of the Whole report to the Senate no later than 90 minutes after it begins.

The Hon. the Speaker pro tempore: Is leave granted honourable senators.

Hon. Senators: Agreed.

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

(Motion agreed to, as modified.)

Constitution Act, 1867
Parliament of Canada Act

Bill to Amend—Third Reading—Order Stands

On Other Business, Senate Public Bills, Third Reading, Order No. 1:

Third reading of Bill S-213, An Act to amend the Constitution Act, 1867 and the Parliament of Canada Act (Speakership of the Senate).

Hon. Terry M. Mercer: Honourable senators, I don't plan to speak on this today. With a busy schedule, I will be speaking shortly, and I want to reset the clock on this. Thank you, honourable senators.

(Order stands.)

National Anthem Act

Bill to Amend—Third Reading—Motion in Amendment—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Lankin, P.C., seconded by the Honourable Senator Petitclerc, for the third reading of Bill C-210, An Act to amend the National Anthem Act (gender).

And on the motion in amendment of the Honourable Senator Plett, seconded by the Honourable Senator Wells:

That Bill C-210 be not now read a third time, but that it be amended in the schedule, on page 2, by replacing the words "in all of" with the words "thou dost in".

Hon. David M. Wells: Honourable senators, I'm pleased to rise today to speak in support of the amendment proposed by Senator Plett. As many are aware, I have consistently opposed the original change proposed by Bill C-210. That has not changed. I do not believe we should tamper with our national anthem in any artificial manner as was suggested by changing "in all thy sons command" to "in all of us command." Not only is this change not grammatically correct, as Senator MacDonald so accurately and thoroughly described in a speech to this chamber, but it has no reference to any or past versions of our national anthem in French, English or Gaelic. You cannot simply pick words out of the air randomly and plunk them down in the middle of a long-held tradition like "O Canada." They must mean something more than an urge to political correctness or the passing fashion of our modern society. That is why the original legislation is unacceptable to so many in this chamber and so many more across this country. It has no resonance beyond its narrow political ambitions. It does not call us to greatness by remembering the past, nor does it shine any new light for the future.

But I can support this amendment from Senator Plett because it preserves the historic integrity of "O Canada" while restoring it closer to its original intent. It is like restoring an old house versus renovating it. Restoration has the intention of preserving the past while equipping the house for the future. Renovation could mean putting on cheap vinyl siding instead of restoring and repairing the original old clapboard that made a house an historic home. That's why I encourage all honourable senators to support this amendment as a way, even if you do not support the original legislation, as I certainly do not, to consider voting in favour of it. It might be the only way to preserve our national anthem as not simply a relic or a reminder of our past but as a way forward together into the future.

I would also like to ask those who have previously supported this legislation to consider this amendment as well. I'm not an historical scholar but trust the research expertise of my esteemed colleagues in this regard. That's why I'm pleased to bring to your attention the comments by Senator Munson at second reading of this bill. He noted some of the iterations of "O Canada" over the years, including the fact that the line we are debating today was originally not "in all thy sons command" but "thou dost in us command," exactly the wording that Senator Plett is asking us to consider today.

Senator Munson suggested that changing the lyrics of "O Canada" to "in all of us command" would leave intact the core themes of the anthem. On that I beg to differ. Changing the words of our national anthem back to "thou dost in us command" would, however, be an excellent way to achieve those collective goals.

I want to quote another passage from Senator Munson's speech on this important issue. He also said that:


The purpose of this bill is to advance and ensure that our national anthem conveys the progress Canada has achieved in realizing gender equality for all Canadians.

That indeed is a lofty purpose, one that I would hope every honourable senator would fully support. I know that, as a feminist and supporter of women's rights, equal rights and human rights, I do support gender equality and all the steps we have taken and will continue to take this in this country in that regard. I would suggest that the amendment I am supporting today does exactly that, and it does it in a way that does not take away anything from our past. In fact, it reaches back into our past to collect a long-ago-used passage that can strengthen our national anthem today and long into the future for the benefit of all Canadians.

If we are to make changes to our customs and traditions, then let us do it in a way that respects and honours what we have. Many Canadians, from coast to coast to coast, have reached out to me to ask to preserve "O Canada" in its existing format and phrasing. They do this not because they want to slow progress or to prevent the future from arriving but to walk hand in hand with their fellow Canadians on common ground towards that future and to respect our past.

We have listened to those concerns and, as a result, Senator Plett has crafted and presented his suggestions, which I support in this chamber for consideration. It is a way to respect the wishes of those Canadians who do not want to change the wording of our national anthem, as well as acknowledging the desire for change that some have called for. If you want a gender-neutral anthem, this amendment delivers on that promise. Think of it as keeping the integrity of our original recipe without adding artificial ingredients.

As I near the end of my time on this amendment, let me once again thank Senator Plett for his thoughtful and well-intentioned amendment to a poorly worded and poorly considered private member's bill. This amendment allows us to actually have change for the better rather than change for the sake of change, or for political correctness.

Honourable senators, I ask you, in the role that has been ascribed to us by Senator McCoy, to take up our role as "council of elders." In that role, I believe we are asked to protect and preserve our customs and traditions as we change, not with the times, but in accordance with our conscience.

(On motion of Senator Mercer, debate adjourned.)

Canada Elections Act

Bill to Amend—Second Reading—Debate Adjourned

Hon. Linda Frum moved second reading of Bill S-239, An Act to amend the Canada Elections Act (eliminating foreign funding).

She said: Honourable senators, it is a fundamental tenet of Canadian democracy that Canada's electoral process belongs to the Canadian people and only to the Canadian people. Nothing is more central to preserving the integrity and legitimacy of Canadian elections than ensuring that no outside influence is involved — especially when not disclosed.

A nation that permits foreign meddling in its politics cannot claim to be truly sovereign. Clandestine foreign meddling is the most dangerous of all, because it subverts sovereignty in a way that denies citizens even the knowledge of what is being done, which is why I introduced Bill S-239, the eliminating foreign funding in elections act.

I suspect that if you asked most Canadians, including those of us in this chamber, whether or not foreign interference is legal in Canadian elections, the answer would be: obviously not. And yet, alarmingly, that answer is wrong.

Foreign entities and interest groups not only can, but they have poured millions of dollars into Canada for the purpose of attempting to influence the outcome of our elections. Foreign contributors are able to impose their foreign agendas on Canadian elections because of lax rules surrounding third-party election activity in Canada, and also, frankly, because of what appears to be indifference on the part of Elections Canada.

Honourable senators, with Bill S-239, I am proposing that the loopholes in the Canada Elections Act that have allowed foreign interests to pour unlimited funding into Canada be closed, and closed definitively.

Now, it is true that if you look at section 331 of the Canada Elections Act, it appears as though a ban on foreign influence in Canadian elections has already been safely codified by Parliament.

Section 331 reads:

No person who does not reside in Canada shall, during an election period, in any way induce electors to vote or refrain from voting or vote or refrain from voting for a particular candidate unless the person is

(a) a Canadian citizen; or

(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.

That seems clear enough — except for a canyon-sized loophole found in section 358. Section 358 of the Canada Elections Act declares that no third party shall use a contribution from a foreign source for election advertising purposes.

Honourable senators, as is so often the case, the loophole is created not by what the act says but by what the act does not say. By prohibiting the foreign funding of third-party election advertising — and only election advertising — all other third-party election-related activity is left unguarded from foreign influence.

That is not my opinion. That is the way the act is interpreted by the Commissioner of Elections Canada, Yves Côté, who, in his 2014-15 annual report, stated that third parties:

. . . can use foreign contributions to fund activities that do not include the transmission of election advertising messages. This includes carrying out election surveys, setting up election-related websites and using calling services to communicate with electors.

To make matters worse, Elections Canada's interpretation of what does and does not qualify as the "transmission of an election advertising message" may surprise you in its 19th century scope.

Take, for example, the costs associated with creating content for a professionally designed website that explicitly endorses a political candidate and/or a political party. Is that an advertising cost? According to Elections Canada, it is not.

How about robocalls, or phone banks operated by paid employees for the purposes of inducing voters to vote one way or another? Are the costs of promoting a message via robocalls or paid phone banks considered advertising costs? According to Elections Canada, no, they are not.

What about the costs of conducting polling to create content to put in promotional flyers? Is this considered an advertising cost? According to Elections Canada, no, it is not.

What about the costs associated with producing and promoting a cross-country concert tour with remunerated, internationally recognized talent; staffing those concerts with paid staff; and using those concerts, which have been promoted via social media, to transmit a political message or endorse a political candidate or party? Is that advertising? According to Elections Canada, no, it is not.

I could continue with more examples, but I think you get the point. Virtually nothing, short of a full-page print ad in The Globe and Mail, is considered by Elections Canada to be an advertising cost.

All of those activities that I mentioned above fall outside the prohibition contained in clause 358, which restricts only the foreign funding of election advertising or, more precisely, that which Elections Canada deems to be advertising. Therefore, all of the activities that I mentioned above can be funded, in part or in whole, by foreign entities and in the 2015 election, they were.

How do I know that? Well, this part gets tricky. For compliance purposes, Elections Canada requires third parties to produce a report on all "contributions made for the purposes of advertising" within four months after an election. But this report need only include contributions received by that third party six months prior to an election. If a contribution of money from a foreign source is received greater than six months before an election, it is considered Canadian money. I know that sounds nonsensical, so I will repeat it: If a foreign contributor donates money to a third party more than six months before an election, that money is not considered foreign money.


As former Chief Electoral Officer of Elections Canada, Marc Mayrand, testified during his appearance at the Standing Senate Committee on Legal and Constitutional Affairs testimony in November:

Once the [foreign] funds are mingled with the organization in Canada, it's the Canadian organization's funds. That's how the act is structured right now. And they can use those funds, between or during elections.

In other words, this means that there's no way to know for sure how much foreign money was spent in Election 2015.

However, we do know this much: Almost $700,000 in contributions from the American foundation Tides was donated to eight Canadian registered third parties in the 2015 election year; Dogwood, one of those registered third parties, received nearly $1.1 million from Tides between 2011 and 2015; and LeadNow, one of the most active third parties in the last election itself, claims that 17 per cent of its funding came from foreign sources.

Were any of these funds spent on election advertising in either their 19th or 21st century forms?, We can only make a logical guess. There's absolutely no way to know for certain because Elections Canada does not independently audit third parties unless a private citizen makes an evidence-based complaint — based on banking records no private citizen can ever have access to.

Honourable senators, what is absolutely certain is that Canada's foreign funding prohibitions are entirely inadequate. And if they continue to be left unchecked, foreign influence in our politics will only grow. The political parties which benefited from foreign funding in the past election may not be the same ones to benefit in the future. Today it may be private actors that are funding these interventions. Tomorrow it could be state actors, including hostile state actors. We've already seen democratic processes corrupted in other countries by clandestine foreign interests. We must ensure this does not happen in Canada.

With the introduction of Bill S-239, I'm hoping to close the door firmly on allowable foreign influence in Canada. It is time for Canadians to take back control of our electoral system.

It's gratifying to know that the testimony heard by the Standing Senate Committee on Legal and Constitutional Affairs has hit a chord with Canadians who are calling for an end to foreign financing.

Jean-Pierre Kingsley, who served as Canada's Chief Electoral Officer from 1990 until 2007, said to the media last week:

We simply cannot allow any kind of money that is not Canadian to find its way into the Canadian electoral system.

He went on to say:

A general election is a national event, it's not an international event and foreign interests have no place and for them to have found a back door like this, that is not acceptable to Canadians. I think the overwhelming majority of Canadians care about foreign money playing a role in our elections, regardless of what party they favour. This issue is about the overall fairness in our elections, about keeping a level playing field.

The following day, The Globe and Mail published an editorial calling for limiting or banning foreign donations to groups that want to be registered as third parties during elections. "Close the loophole for foreign money in Canadian elections," they wrote.

Honourable senators, the remedy to the foreign funding loophole is now tabled in this measure. My bill, Bill S-239, will amend section 331 of the Canada Elections Act to provide clarity that foreigners may not contribute to election-related activities at any time. It defines the list of foreign entities that are not permitted to contribute to Canadian third parties. It clarifies that foreign entities are not permitted to provide loans to third parties.

Finally, Bill S-239 will add a sanctioning clause to the Canada Elections Act to hold third parties to account. Any breach of the act will be liable to a fine equal to the amount of the illegal contribution received.

Honourable senators, I hope you will agree that nothing less than the legitimacy of the outcome of our elections is at stake. It is imperative that we put a stop to the foreign financing of election activity in Canada.

Bill S-239 is not a partisan bill. It is a patriotic bill. Let our chamber be united on this issue in the name of Canadian sovereignty and in the service of the democracy we all have the honour and duty to protect.

(On motion of Senator Omidvar, debate adjourned.).

Study on the Design and Delivery of the Federal Government's Multi-Billion Dollar Infrastructure Funding Program

Twelfth Report of National Finance Committee and Request for Government Response—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Smith, seconded by the Honourable Senator Ataullahjan:

That the twelfth report of the Standing Senate Committee on National Finance entitled Smarter Planning, Smarter Spending: Achieving infrastructure success, tabled with the Clerk of the Senate on February 28, 2017 be adopted and that, pursuant to rule 12-24(1), the Senate request a complete and detailed response from the government, with the Minister of Infrastructure and Communities being identified as minister responsible for responding to the report.

Hon. Diane Bellemare (Legislative Deputy to the Government Representative in the Senate): Honourable colleagues I'm not ready yet, so I would like to reset the clock for the remainder of my time.

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

Hon. Senators: Agreed.

(On motion of Senator Bellemare, debate adjourned.).

Study on the Effects of Transitioning to a Low Carbon Economy

Fifth Report of Energy, the Environment and Natural Resources Committee—Debate Adjourned

The Senate proceeded to consideration of the fifth report (interim) of the Standing Senate Committee on Energy, the Environment and Natural Resources, entitled Positioning Canada's Electricity Sector in a Carbon Constrained Future, deposited with the Clerk of the Senate on March 7, 2017.

Hon. Yonah Martin (Deputy Leader of the Opposition): This item is at day 14 and I would therefore, move the adjournment of the debate.

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

Rules, Procedures and the Rights of Parliament

Eighth Report of Committee Adopted

The Senate proceeded to consideration of the eighth report of the Standing Committee on Rules, Procedures and the Rights of Parliament, entitled Membership of Committee of Selection, presented in the Senate on May 31, 2017.

Hon. Joan Fraser moved the adoption of the report.

She said: Colleagues, as you can see by this report, which was distributed to everyone in paper form yesterday, the Rules Committee is continuing its work to propose changes to our rules, the Rules of the Senate, that reflect the concerns addressed in various reports of the Modernization Committee and more generally by senators at large, in light of the changing realities in this chamber.

Some of the four reports that the Senate has already adopted in this connection have been initiated by the Rules Committee itself. This report, however, is in response to an order of reference from the Senate, relating to the Modernization Committee's report on the composition of committees. That order of reference contained long and specific suggestions from the Modernization Committee about how the Selection Committee and other committees should be constituted. The suggestions are extremely detailed and — I know this to be true — are based on an enormous amount of work in the Modernization Committee.


They go down to having the Selection Committee decide which parties should chair which committees and really very detailed matters. The order of reference for the Rules Committee, however, did say that we should use this very detailed set of recommendations from Modernization as an initial basis for our work on committees, but that we should also take into account any other relevant factors that we, on the Rules Committee, think should be taken into account.

As you will see when you look at this report, it is very short. It is silent on many of the matters addressed in the Modernization Committee's report . I want to stress that this does not mean that the Rules Committee has rejected or recommended rejection of those recommendations. What the Rules Committee has done, after considerable reflection and discussion, is decide that, at this time, collectively our best course is to focus on one element of the Modernization Committee's report.

We decided this for a number of reasons. One, frankly, is that we want to be very sure that we have buy-in from everyone. It's important that, when the Rules of the Senate are being changed, everybody has a sense that this is an appropriate course to take, and we are still in a state of debate about many of the changes that we may indeed end up making.

Secondarily, I think it's important to realize that we on the Rules Committee have been trying very hard not to pre-empt or get ahead of work that the Modernization Committee is doing because that would not be productive. It would be, indeed, counterproductive.

The Modernization Committee has a subcommittee look at committees. Probably much more importantly, the Modernization Committee is, as we all know, engaged in a major consideration of the Westminster system and how the Senate, in its new shape, should reflect, adjust, conform or not conform to the Westminster system as we have known it for a century and a half. Committees in this place are a truly vital part of the way we have implemented our version of the Westminster system, and I think it is not foolish to suggest that for the Rules Committee to come forward now with a bunch of suggestions might in fact end up being counterproductive in light of the work that the Modernization Committee is, I think, going to report on fairly soon. That is certainly, I think, the hope of many people, and it will be fascinating when we get there.

I would also note that the Rules Committee has, in its work on matters related to modernization, operated on the principle that until we have a further understanding of the broader context of the Westminster system, we should, in the Rules Committee, not make any recommendations that would have any impact on the status, rights, powers, privileges of either the government or the opposition. There are quite a number of elements in our rules that will need adjustment, but for the time being, we on the Rules Committee have not wanted to pre-empt that broader discussion.

So what did we do for this report? We addressed ourselves to the fundamental matter of the Committee of Selection. In so doing, we adopted the principle urged by the Modernization Committee and, both in committee and in discussions that one has, upheld — with great conviction by the new members of the Senate, the Independent Senators Group — the principle of proportionality and the idea that the proportions of recognized parties or groups in the chamber should be reflected in the composition of the Committee of Selection. That is what this report is about. That is all that it is about.

Our existing rules, for example, do not say anything at all about the way in which individual parties or groups are going to select their members, their representatives on the Selection Committee. That will remain, as it has always been, a matter for those groups or parties to determine for themselves. But what we do say is that we preserve the existing rule, which states:

12-1. At the beginning of each session, the Senate shall appoint a Committee of Selection composed of nine senators.

We don't say how they are chosen, either by the senators or by the groups, but we do say — and this is what becomes new — that, "The initial membership of the committee, as well as any subsequent change to the membership of the committee" — and both of those have to be adopted by motions of the full Senate — "shall, as nearly as practicable, be proportionate to the membership of the recognized parties and recognized parliamentary groups."

This is, in many ways, an extension of what we have always done. We have always paid attention in the composition of our committees, including the Selection Committee, to the rough balance of numbers in the Senate. But what we are doing now is making that explicit because it seems an appropriate step to take when we are no longer talking about a Senate composed almost entirely of two parties. We're now talking about a Senate composed of three groups — lowercase G — two recognized parties and one recognized parliamentary group. Those numbers may change as time goes on.

We also suggest that senators who are not members of any recognized party or recognized parliamentary group — that is, the complete independents, the ones who are not affiliated with anybody — collectively should for this purpose, and this purpose only, membership of the Selection Committee, be treated as if they were a separate and recognized group.

Gazing at the composition of the Senate as it now stands, that last requirement is purely academic because those senators constitute less than 1 per cent of our membership, and I don't know how you could put less than 1 per cent of a senator onto a committee. It might require drastic surgery, so we didn't recommend that.

For greater certainty, I would note that in almost all committees — Conflict of Interest, for example, is an exception — including the Selection Committee, the leaders of the government and of the opposition are ex officio members, they or their deputies. Those ex officio members would not be counted, therefore, as ordinary members of the Selection Committee. Therefore, they would not be taken into account when proportionality was being determined.

For those who are interested, my arithmetic, which may be very shaky, suggests that if we were to appoint a Selection Committee today on the basis of the current membership of the Senate, it would include four Conservatives, plus the Leader of the Opposition, three members of the ISG and two Liberals. That gets us to nine, plus, of course, ex officio, the Leader of the Government or his deputy.

So I think it's very simple, colleagues. Often the hardest work a committee does is to get to a simple result, and there was a great deal of work done on this report in order to get to a clear and simple result. Everybody put a little bit of water in their wine. There were things that we all wanted that we set aside for now in the interests of achieving a report that we could all support, and I commend it to your attention and I hope you will support it.


Some Hon. Senators: Hear, hear.

Hon. George Baker: Will the honourable senator accept a question?

Senator Fraser: Yes.

Senator Baker: Reading the actual report with the heading "Appointment of Committee of Selection," the chair of the committee made note of the fact that recognized parliamentary groups would form a part of the selection. Then she said that those who are not members of a political party or group shall be treated as if they were members of a separate group. But when the chair was giving her speech, she included the word "recognized." In other words, a separate recognized group.

Does this mean that the word "recognized" should be inserted or assumed between the words "separate group"? The way this reads is that you have your recognized groups, parties and parliamentary groups, and then you have people who do not belong to those who will be treated as members of a separate group. Is the intention to have that as a separate recognized group?

Senator Fraser: Senator Baker is always so acute. Clearly, when I said "recognized," it was for clarity of understanding. But we don't have the word "recognized" formally in this proposal. That goes back to the quite intense discussions in the last Rules Committee report that the Senate adopted, which had to do with precisely recognition. You will find that we have used the word "recognized" in conjunction with "party" or "parliamentary group," and only in that case.

I think it is clear from the context of this proposal that all the others, everybody who doesn't belong to anything, that we would be putting them together as if they constituted a recognized group. I think that we might be creating more confusion than clarity if we inserted the word "recognized" here, when you start to look at the other areas in which we have used the word "recognized." I hope that's acceptable and recognized.

Some Hon. Senators: Question.

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

Some Hon. Senators: Question.

The Hon. the Speaker pro tempore:

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

Hon. Senators: Agreed.

(Motion agreed to and report adopted.)

The Senate

Motion to Amend the Rules of the Senate to Ensure Legislative Reports of Senate Committees Follow a Transparent, Comprehensible and Non-Partisan Methodology—Motion in Amendment—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Bellemare, seconded by the Honourable Senator Harder, P.C.:

That, in order to ensure that legislative reports of Senate committees follow a transparent, comprehensible and non-partisan methodology, the Rules of the Senate be amended by replacing rule 12-23(1) by the following:

"Obligation to report bill

12-23. (1) The committee to which a bill has been referred shall report the bill to the Senate. The report shall set out any amendments that the committee is recommending. In addition, the report shall have appended to it the committee's observations on:

(a) whether the bill generally conforms with the Constitution of Canada, including:

(i) the Canadian Charter of Rights and Freedoms, and

(ii) the division of legislative powers between Parliament and the provincial and territorial legislatures;

(b) whether the bill conforms with treaties and international agreements that Canada has signed or ratified;

(c) whether the bill unduly impinges on any minority or economically disadvantaged groups;

(d) whether the bill has any impact on one or more provinces or territories;

(e) whether the appropriate consultations have been conducted;

(f) whether the bill contains any obvious drafting errors;

(g) all amendments moved but not adopted in the committee, including the text of these amendments; and

(h) any other matter that, in the committee's opinion, should be brought to the attention of the Senate."

And on the motion in amendment of the Honourable Senator Nancy Ruth, seconded by the Honourable Senator Tkachuk:

That the motion be not now adopted, but that it be amended by:

1. adding the following new subsection after proposed subsection (c):

"(d) whether the bill has received substantive gender-based analysis;"; and

2. by changing the designation for current proposed subsections (d) to (h) to (e) to (i).

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, this is at day 14. May I adjourn for the balance of my time?

(On motion of Senator Martin, debate adjourned.)

Motion to Urge Government to Establish a National Portrait Gallery—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator Eggleton, P.C.:

That with Canada celebrating 150 years as a nation and acknowledging the lasting contribution of the First Nations, early settlers, and the continuing immigration of peoples from around the world who have made and continue to make Canada the great nation that it is, the Senate urge the Government to commit to establishing a National Portrait Gallery using the former US Embassy across from Parliament Hill as a lasting legacy to mark this important milestone in Canada's history and in recognition of the people who contributed to its success.

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, this item is at day 14. I move take the adjournment for the balance of my time.

(On motion of Senator Martin, debate adjourned.)

Motion to Strike a Special Committee on the Arctic—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Watt, seconded by the Honourable Senator Cordy:

That a Special Committee on the Arctic be appointed to consider the significant and rapid changes to the Arctic, and impacts on original inhabitants;

That the committee be composed of ten members, to be nominated by the Committee of Selection, and that five members constitute a quorum;

That the committee have the power to send for persons, papers and records; to examine witnesses; and to publish such papers and evidence from day to day as may be ordered by the committee;

That the committee be authorized to hire outside experts;

That, notwithstanding rule 12-18(2)(b)(i), the committee have the power to sit from Monday to Friday, even though the Senate may then be adjourned for a period exceeding one week; and

That the committee be empowered to report from time to time and to submit its final report no later than December 10, 2018, and retain all powers necessary to publicize its findings until 60 days after the tabling of the final report.

Hon. Peter Harder (Government Representative in the Senate): Honourable senators, even though the hour is late, I wish to speak to this motion briefly.

As senators will be aware, over the years, the Senate of Canada has done some of its best work when taking on tough issues in need of in-depth study. Senate reports on mental health, urban issues, rural poverty, foreign affairs and national defence have provided policy options for governments to look at and more often than not occasion to act on.

In the Senate we have had the opportunity to work together on issues for the longer term. This is regrettably not often possible in the other place. It is here where the institutional memory and longevity of service permits us this luxury.

Today I wish to speak to Motion No. 192 put forward by long-serving Senator Watt who seeks to strike a special committee on the Arctic.

I would like to quote from Senator Watt's speech when he moved Motion No. 192:

Inuit have been the guardians of the Arctic waters, land and sea within our homeland for thousands of years. During that time, we have managed it the best we can with limited resources, and it has often been described as one of the last pristine places on Earth.

I first travelled to the Yukon in the mid-1980s with chief of staff to Deputy Prime Minister Erik Nielsen. In 2000, I was fortunate enough to spend some time in Nunavut assisting with the training of new deputy ministers in the Government of Canada's then newest territory.

Canada is a geographically vast country. Few of us will ever get to see all corners of this great land. For those of us lucky enough to have gone north, to have experienced the top of Canada in all its unspoiled beauty, the sight is unforgettable and awe-inspiring. I am forever grateful to have had the opportunity.

A constitutionally defined part of our job as senators is to represent minorities, to make sure that all voices are heard and to offer our best advice on behalf of those minority voices. This was and is an essential role as stated by our founding visionaries. The formation of this special committee fulfills part of our job description, giving voice to minorities.

Recently, the conversation relating to Arctic sovereignty has come to the fore as many nations, China, Russia, the United States, the United Kingdom and others have signalled that the resources of the Arctic will be important to their nation's futures.

Intellectually and logically we understand that the subject needs to be deliberated. But do we honestly appreciate to what extent this issue will affect our Canadian sisters and brothers who have been stewards of the North for thousands of years?

Such a committee as proposed provides us an opportunity to examine new and ongoing challenges that the Inuit face from global warming, economic and resource development, the need for infrastructure and how to balance all of this with conservation of our delicate northern environment. It is exactly the sort of study best suited to this chamber.

I would like to quote Natan Obed, President of the Inuit Tapiriit Kanatami, ITK, when he spoke at our Canada 150 Symposium in this chamber last week. He said:

We also need to recognize that Inuit are Canadians, and what we want for ourselves and our families we would also like for other Canadians. That is a very Canadian thing to feel like you're a part of, that we have universal health care, that we are friendly, giving people, but we have huge holes in that tapestry we weave. I'm here not to judge you all on that. I'm here to say that we're still here and we want to partner with you to create a better Canada, to lift up populations that need help, to not only accept that there are indigenous people in this country but respect our rights and respect Inuit governance.

We must not lose sight of Mr. Obed's words. Inuit are Canadians and these Canadians are a minority. It is in our constitutional duty to represent their interests and to attempt to fill the "huge holes in that tapestry that we weave" together.


The creation of such a special committee, under the stewardship of Senator Watt and comprising those in this chamber with knowledge and understanding of the North, would demonstrate our commitment to minority indigenous and Inuit people. Such a committee would also exhibit that we are a forward-thinking chamber: We are able to provide in-depth study on these important issues that currently face our indigenous peoples, Inuit communities and, indeed, all Canadians, as a result of the issues I raised earlier.

I will close with just one other quote from Mr. Obed, in which he says:

I believe that good people, even good politicians, can actually make a tremendous difference in the way that the country thinks about itself and the way that legislation, policy and programs are changed to affect the common good of our people.

This is our opportunity to make a tremendous difference for the common good of our people, and for this reason, I wholeheartedly support Motion 192 and urge its quick adoption.

(On motion of Senator Omidvar, debate adjourned.)

Motion to Strike Special Committee on the Charitable Sector—Debate Adjourned

Hon. Terry M. Mercer, pursuant to notice of May 3, 2017, moved:

That a Special Committee on the Charitable Sector be appointed to examine the impact of federal and provincial laws and policies governing charities, nonprofit organizations, foundations, and other similar groups; and to examine the impact of the voluntary sector in Canada;

That the committee be composed of eight members, to be nominated by the Committee of Selection, and that four members constitute a quorum;

That the committee have the power to send for persons, papers and records; to examine witnesses; and to publish such papers and evidence from day to day as may be ordered by the committee;

That, notwithstanding rule 12-18(2)(b)(i), the committee have the power to sit from Monday to Friday, even though the Senate may then be adjourned for a period exceeding one week; and

That the committee be empowered to report from time to time and to submit its final report no later than September 28, 2018, and retain all powers necessary to publicize its findings until 60 days after the tabling of the final report.

He said: Honourable senators, I am honoured to rise today to speak to you on this motion to create a special committee to study charities and non-profits and the volunteers who support them.

As a professional fundraiser for most of my life, I have seen some good reforms to government policy, and I have seen some bad. But I always saw, and continue to see, great volunteers.

I have spoken in this place many times about charities and non-profits and the value of volunteers, so for some of you, much of this information is nothing new. However, I hope all of you will understand the value of this sector in Canada and that it will encourage you to support this motion and study.

The philanthropic sector has been a very important part of my life. From the backrooms to the front lines, the entire sector is so vast and diverse that I believe it is time that we take a look at the policies that govern the work non-profits and charities do and what we can do to encourage more volunteers and support the ones already there.

I would like to acknowledge the work of Senators Eggleton and Tardif on our Liberal Senate Forum Open Caucus initiative. Indeed, we had a very informative meeting on the charitable sector in February.

Since I have been working on the idea of a special committee for a while now, I decided the time was right to introduce the motion here in the Senate. I hope you will support me in this initiative.

I believe we should approach this study by: examining the impact that volunteers have in our great country; studying the policies and laws that govern the work that non-profits and charities do; and exploring innovative ideas that could lead to change where needed.

Charities and non-profits cannot exist without volunteers. Imagine trying to deliver meals to seniors or running a political campaign without them.

But also, imagine a volunteer showing up — to make phone calls for cancer care or to sort food at the food bank — to a locked building because the organization could not afford to keep the lights on.

Volunteers are indeed the life support of non-profit and charitable organizations across Canada and around the world. In fact, the philanthropic sector draws on over 2 billion volunteer hours, which is the equivalent of over 1 million full-time jobs in Canada. You have heard those stats before and you can see why it is important to repeat them.

The philanthropic sector employs over 2 million Canadians and has a significant impact on our economy: It accounts for over 6 per cent of our GDP. But there is a current downward trend in the number of people donating their time and money to fund worthwhile organizations.

According to the Statistics Canada General Social Survey: Giving, volunteering and participating, 2013, 12.7 million Canadians, or 44 per cent of people 15 years of age and older, participated in some form of volunteer work. This represents a decrease from a high of 47 per cent in 2010 and follows a slight increase recorded between 2004 and 2010.

The total number of volunteers was lower in 2013 than in 2010, at 12.7 and 13.2 million respectively. This translates into a 4 per cent decline in the total number of Canadian volunteers. However, the population of people 15 years of age and older increased by about 1 million during the same period.

Volunteers contributed 154 hours on average in 2013, unchanged from 2010, but that was lower than the 168 hours recorded in 2004.

Why are these numbers falling? Do they continue to fall? I, for one, would like to find out.

In the report of the Senate Special Committee on Aging released in 2009, it was recommended that a further study be initiated by a special committee to examine the impact of the voluntary sector in Canada. Recently, the aforementioned Senate Liberal Caucus hosted an open caucus on charities and echoed the same thing.

Canada's philanthropic sector is in need of a comprehensive review. We need to increase our understanding of the sector and encourage more people to volunteer and donate. We need to ask the right questions to see what the sector needs to continue to provide the much needed services to families and to our communities.

Honourable senators, you would be hard-pressed to find any person living in this country that has not been touched in some way by a non-profit or charitable organization.

The major legislation governing non-profit and charitable organizations is that famous Income Tax Act. The act sets out the provision for the registration of charities, a process which allows exemptions from income tax and allows donors to claim tax credits or the like.

The current basic provisions of the Income Tax Act relating to charities were introduced in the 1960s. Within the early years of the system, there were some 35,000 registered charities. There are over 170,000 charitable and non-profit organizations in Canada today, and 85,000 of those are registered charities which are recognized by the Canada Revenue Agency.

We have not had an in-depth review to see if the laws and policies regulating non-profits and charities are adequate.

Non-profits and charities deliver services and programs where there is a lack of service being provided by others, and specifically, not being delivered by government.

Today, charities are looking for new ways to sustain themselves and the services they provide to Canadians. This is not simply about tax credits or the like; it is about the entire sector — from the volunteers to the CEOs. Frankly, this special committee is needed and needed now.


Honourable senators, I have asked myself the following questions while designing what I think we can do with this type of study. Ask yourselves the following questions. The list is long, but you'll notice the questions are all very important.

How do we modernize the non-profit and charitable sectors in Canada? Why do we need volunteers and donations? What motivates someone to volunteer or donate? How does age affect volunteering and donating? How does socio-economic status or geography affect volunteering or donating? How do gender, culture and language affect volunteering and donating? What can we do to encourage more volunteering and donating, and what form would that encouragement take? What areas are in need of more volunteers or donations? What factors prevent people from volunteering and donating? How are current tax credits working? How should they be updated? How is the Income Tax Act performing to support charities, non-profits and volunteers? What ideas have been tried in the past? What continues to work? What does not work?

When we look at how the philanthropic sector is governed, how efficient and effective are the policies? How transparent is the process? Do people trust charities? How ethical are non-profits acting? Are volunteers being trained properly to adhere to the regulations? How do charities actually raise money and encourage volunteers? How has this changed in the digital age? How does the size of the charity impact its fundraising efforts and volunteer sign-ups? How are charities regulated? Are there barriers to their success, either provincially or federally, or both? How do government departments interact with charities?

I could go on and on because, as you just heard, there are many questions that need answering and plenty more, I'm sure, that will come up during this study.

One other question, though, is who would we talk to? Well, it would be appropriate to speak with federal and provincial government officials, of course. We would also need to hear from non-profit and charitable organizations themselves. They represent a vast array of services in the fields of health, the environment, hospitals, international aid and development, science, social services, the arts, religion, recreation and sport, and of course politics.

There are also organizations that represent groups of non-profit and charitable organizations themselves, including the Association of Fundraising Professionals' Foundation for Philanthropy in Canada, Imagine Canada, the Muttart Foundation, United Ways across the country and many others.

Honourable senators, I did save the best witness for last: volunteers. Organizations like Volunteer Canada work to support volunteers in the work they do and would be invaluable to the work of this special committee.

As for the committee itself, I do realize that we are busy and time to conduct hearings is limited to certain days and times. That is why I've suggested that the committee be made up of eight senators, with the form of committee being representative of different regions across the country, ideally equal in gender and across the three groups that sit here in the Senate.

If we get the framework ready to start the study — perhaps in the fall — we could have a year and would report by the end of September 2018. I would hope that we could get this approved prior to the break this June so that we could do some work over the summer and get the committee at least working, if only by conference call.

Is that enough time for such a job to study? Maybe we would need to get the time extended at the end, but that will be determined.

The timing of meetings is also important to mention. For our new colleagues here, this would be one of the first special committees that we've had since many of you have arrived. It would probably mean some meetings on Thursday evenings, when we don't normally have committee hearings, or Friday mornings, and maybe even Monday evenings. I don't like Monday evenings because it's difficult for people, particularly from Western Canada, to be here in time for meetings, but we would work that out. We would probably sit during several break weeks, not the full week.

I'm trying to be frank with our new colleagues to show them this is the commitment that the people who join the committee — Senator Cordy and I were on the Special Committee on Aging, and it was a commitment we had to make to give up some time.

While not ideal to some, we must think about the work of this special committee that will be so important to the volunteers and organizations that are an essential part of the very fabric of Canadian society.

Honourable senators, I hope this has provoked some thought and that you will support the motion wholeheartedly. Volunteering is an integral part of Canadian culture. Our society would not function to its best right now without the existence of the non-profit and charitable sectors.

In understanding who is volunteering and what they are volunteering for, we would have a greater understanding of the issues that are important to Canadians. In understanding how non-profit and charitable organizations operate within the current framework, we would have a greater understanding of how we could update those policies that would help them deliver the services so desperately needed.

One final thing, honourable senators. All of us here have interacted with tens of thousands of volunteers across the country for political parties or for causes that we hold dear to our hearts. We should remember that they are volunteers, and we should thank them for their participation as much as we can. We all, I hope, continue to volunteer for our causes as well.

People volunteer their time and money, and non-profit and charitable organizations provide services that are invaluable to our communities. Let's see what we can do to help them.

Hon. Ratna Omidvar: Honourable senators, I would like to thank Senator Mercer for this timely and important initiative. He is very concerned about volunteers. I understand that. They are, to a great extent, the lifeblood of the service sector, but I would also like him to comment on the people who work in the sector.

The Hon. the Speaker pro tempore: Are you asking a question or are you on debate?

Senator Omidvar: I'm asking a question.

The Hon. the Speaker pro tempore: Senator Mercer's time is up.

Are you requesting more time, Senator Mercer?

Senator Mercer: Yes, a couple of minutes to take a question.

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

Hon. Senators: Agreed.

Senator Omidvar: Have you thought about the professionals and the semi-professionals in the sector who work equally long hours, sometimes under trying conditions, who are not well-compensated?

Senator Mercer: Of course, having been one of those professionals who has worked the long hours for many charities over the years, there are groups of them and individuals who I think we should consult.

In my preparation, I did consult with others who are very interested in the sector. We've all received a letter from a gentleman by the name of Don Johnson in Toronto who works with the Bank of Montreal and who is very interested in tax policy. While I was in Toronto a few weeks ago with the Transport Committee, I stopped and had a coffee with Don and told him where I was going with this. He was supportive of the idea. People like him I would want to consult, because he's not a professional in the sector; he's a professional in the sense that he raises a lot of money as a volunteer.

Indeed, we'd reach out to organizations like the Association of Fundraising Professionals, and we'd also reach out to people in the health care sector. There are groups of people who are professional fundraisers in hospitals, et cetera, who we would want to talk to and hear their opinions.

It's important not just to talk to professionals but to the people they report to, the volunteers on their boards, et cetera, who we would want to consult, as well as funders like various foundations. I mentioned one, the Muttart Foundation, in my comments. There are dozens others we would want to add to the list of very good foundations that provide so much money for good work across the country.

(On motion of Senator Omidvar, debate adjourned.)


Legal and Constitutional Affairs

Committee Authorized to Deposit Report on Study of Matters Pertaining to Delays in Canada's Criminal Justice System with Clerk During Adjournment of the Senate

Hon. Denise Batters, pursuant to notice of May 31, 2017, moved:

That the Standing Senate Committee on Legal and Constitutional Affairs be permitted, notwithstanding usual practices, to deposit with the Clerk of the Senate a final report relating to its study on matters pertaining to delays in Canada's criminal justice system, between June 7 and 21, 2017, if the Senate is not then sitting, and that the report be deemed to have been tabled in the Chamber.

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

Hon. Senators: Agreed.

(Motion agreed to.)

Committee Authorized to Deposit Report on Study of the Reports of the Chief Electoral Officer on the Forty-Second General Election with Clerk During Adjournment of the Senate

Hon. Denise Batters, pursuant to notice of May 31, 2017, moved:

That the Standing Senate Committee on Legal and Constitutional Affairs be permitted, notwithstanding usual practices, to deposit with the Clerk of the Senate a final report relating to its study on the reports of the Chief Electoral Officer on the 42nd General Election of October 19, 2015 and associated matters dealing with Elections Canada's conduct of the election, between June 5 and 15, 2017, if the Senate is not then sitting, and that the report be deemed to have been tabled in the Chamber.

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

Hon. Senators: Agreed.

(Motion agreed to.)

(The Senate adjourned until Monday, June 5, 2017, at 6:30 p.m.)

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