Debates of the Senate (Hansard)
1st Session, 44th Parliament
Volume 153, Issue 89
Wednesday, December 7, 2022
The Honourable George J. Furey, Speaker
- SENATORS’ STATEMENTS
- ROUTINE PROCEEDINGS
- QUESTION PERIOD
- Innovation, Science and Economic Development
- Human Rights
- National Revenue
- Public Safety
- Veterans Affairs
- Delayed Answers to Oral Questions
- ORDERS OF THE DAY
- Business of the Senate
- Federal Law–Civil Law Harmonization Bill, No. 4
- Fall Economic Statement Implementation Bill, 2022
- Business of the Senate
- Business of the Senate
Wednesday, December 7, 2022
The Senate met at 2 p.m., the Speaker in the chair.
Hon. Colin Deacon: Honourable senators, as some of you know, I had a fabulous time at university. Clearly, you remember. It was so fabulous, in fact, that at the end of my first year the dean of agricultural science at the University of Guelph encouraged me to reassess my commitment. I did, and I soon found that I was far better-suited to the practical challenges of the working world.
However, not having a post-secondary degree increasingly required that I create my own employment; that’s how I stumbled onto the path of entrepreneurship. Learning how to turn ideas into businesses — and discovering the countless potholes on the road to success — have taught me the importance of tenacity, risk taking, creativity and resilience.
Entrepreneurship demands that you reflexively turn your problems into opportunities. We live in a world where this characteristic has increasingly become an essential skill. That is why I love learning about programs that train the next generation of entrepreneurs, programs that prove to teenagers that they are capable of creating exciting opportunities and teaching them how to avoid the many potholes that I always seemed to hit.
Take Shad Canada, for example, a national entrepreneurship program for Grade 10 and Grade 11 students that operates at 22 post-secondary institutions across Canada. Shad empowers participants to focus on a real problem, a problem that they’ve seen in their lives or on the news. The Shad staff coach each team of students as they devise innovative real-life solutions with the support of subject-matter experts. There’s nothing hypothetical here.
Bethany Deshpande, a Shad alum who is now the Halifax-based CEO of an ag-tech company called SomaDetect, told me about her experiences at Shad and how they continue to guide her and shape the corporate culture, innovation and success of her company. Bethany powerfully reflected on her experience at Shad saying, “I don’t know who I would be if I hadn’t gone.”
Another example is Outward Bound, a program that equips youth for the future through adventures in nature, testing them physically and mentally. The program empowers students to accomplish things they would never have thought possible, and it does so at a critical age. It creates confidence that enables youth to become a powerful force in the world.
Colleagues, as a consequence of climate change, our generation is delivering an unprecedented challenge to future generations. Investing in programs that strengthen the entrepreneurial culture in Canada will help produce many more creative problem solvers who embrace risk, challenge the status quo and think outside the box.
Thank you, colleagues.
Hon. Senators: Hear, hear.
The Late Donald Sudden
Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, I rise today to pay tribute to an outstanding individual, a Canadian hero and beloved veteran of the Korean War, the late Donald Sudden, who passed away on November 22, 2022, just shy of his ninetieth birthday. He was the last president of the Korea Veterans Association of Canada Heritage Unit, which disbanded at the end of August 2021.
Don proudly joined the Canadian Army on June 7, 1951, and served with the Royal Canadian Artillery, 216 Battery at Petawawa, to train for Korea. He went to Korea in January 1953 and fought in hand-to-hand combat in the Battle of Hill 187 as a front-line gunner in the artillery, alongside the 3rd Battalion, The Royal Canadian Regiment. He was on Forward Line Crew until the July 27, 1953, signing of the armistice, then was assigned peacekeeping duties on the White Front, now the demilitarized zone, or the DMZ.
He left Korea in March 1954 and returned to Canada. From 1965 to 1966, he served in Vietnam as part of International Commission for Supervision and Control, and from 1966 to 1967 in Cyprus as part of a peacekeeping mission.
In 1972, he retired from the Canadian Armed Forces after 21 years of service.
Don’s smile would light up a room, with his contagious laughter and positive outlook on life. He was humble to the core, always appreciating life’s blessings. He was one of my most active Facebook friends. I will miss his thumbs up or hearts and comments on every single post that I made. I will also miss him on our Zoom calls with his signature smile and raspy voice.
To Grace, his beloved widow, I offer my sincere condolences. Don was a devoted husband, and your love was an inspiration. I will miss our visits and hearing Don’s stories. Please know that you are not alone. Don touched so many lives, and his legacy will live on in each of us. We will continue to share his stories and his zest for life and carry a little piece of him in our hearts. Through my advocacy work and that of others, we promise to hold high the torch and uphold the legacy of the Korean War and the selfless sacrifices of our veterans of the Korean War.
Honourable senators, please join me in remembering the late Don Sudden, a Canadian hero of the Korean War. May he rest in peace.
Hon. Senators: Hear, hear.
Climate Change and Culture
Hon. Patricia Bovey: Honourable senators, climate change is dramatic and devastating — the East Coast hurricane; B.C.’s heat dome and floods; the North’s faster-than-predicted ice and permafrost melt. COP 27 and COP 15’s panels and discussions have illuminated — and will continue to illuminate — the resulting humanitarian crises.
UNESCO world heritage sites are in peril or already damaged by drought, acid rain, fire and floods — Egypt’s pyramids, Easter Island’s monolith statues, Peru’s Machu Picchu and our own national historic sites such as the Fortress of Louisbourg, Prince of Wales Fort in northern Manitoba and Dawson City in Yukon.
Artists have raised the alarms for decades. Look at Ed Burtynsky’s and Roberta Bondar’s works in our own foyer, or Emily Carr’s 1930s paintings of British Columbia clear-cuts. So what role can culture play in addressing this crisis? Colleagues, museums have a responsibility with their collections and education mandates and exhibitions to expand awareness. They can for climate change too. Remember, families go to museums together; they do not go to school together.
I think, too, that institutions can easily reduce their footprints. Some already have. Discussions are now under way as to what positive effects may be achieved by slight relaxations of required gallery temperature and humidity levels.
I believe scientists and artists have been 20 years ahead of society in collaborations on a number of issues from health to education to engineering and more, so why not for climate change solutions?
At the end of COP 27, culture and heritage finally was able to meet on site. Held at the Egyptian Pavilion to a full house and chaired by Princess Dana of Jordan, ministers from Jordan, Egypt, Tonga and the U.K.’s National Trust all participated. It was electric and really well received.
Colleagues, this issue affects us all — our cultures, heritages, traditions and livelihoods — but it is beyond us alone to deal with it. Culture has not been at the table. Culture must be in and at the table, and be part of the brainstorming and solutions. Their creative approaches will contribute to solutions to this global crisis. If they can’t be at the table, they won’t be at the table if they continue to be allowed to be isolated in their silos.
To us all, culture and wider society, I say, please, let’s look for creative solutions. Thank you.
Hon. Senators: Hear, hear!
Visitor in the Gallery
The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Craig Pollett. He is the guest of the Honourable Senator Ravalia.
On behalf of all honourable senators, I welcome you to the Senate of Canada.
Hon. Senators: Hear, hear!
Congratulations on Retirement
Hon. Mohamed-Iqbal Ravalia: Honourable senators, I rise today to recognize the outstanding career of Craig Pollett, CEO of Municipalities Newfoundland and Labrador, as he is set to retire at the end of December.
Formed in 1951, Municipalities Newfoundland and Labrador, or MNL, represents the interests of the growing number of municipal councils in the province, representing nearly 90% of the provincial population.
Throughout Craig’s 21 years of service, MNL has supported small town and urban constituencies to further enable them to respond to the ever-evolving issues raised by residents.
With the support of the hundreds of municipal leaders, including the board of directors of MNL, Craig has enriched the landscape of municipal governance. He has developed MNL into a leading organization for research and advocacy. MNL engages directly with municipalities, including by facilitating workshops and hosting an annual symposium to explore the pressing issues that communities are faced with, such as changing climate and an aging population.
Craig has taken steps to strengthen the municipal legislative framework to give councils more and clearer authority to respond to residents’ concerns. He has strategized how to achieve long‑term sustainability for the province by exploring regionalization. He continues to advocate for governments to amend their waste water systems effluent regulations to allow hundreds of communities to come into compliance. Honourable senators, the Organisation for Economic Co-operation and Development, or OECD, has recognized MNL’s regional economic development work as a best practice.
Craig gives his deepest thanks to his family for their support, specifically his parents, Earl and Ruth Pollett, his partner, Gail, and his children, Grace and Abby.
Colleagues, healthy and sustainable communities are the building blocks of a prosperous province and country. Please join me in thanking Craig for his tremendous accomplishments, and for directly helping to support our vibrant communities that we all know and love on our beautiful rock of Newfoundland and Labrador. We wish you all the best in your next chapter, sir.
Thank you, wela’lioq.
Hon. Senators: Hear, hear.
Captain Job Barbour
Hon. Fabian Manning: Honourable senators, may I please present Chapter 68 of “Telling Our Story.”
In today’s modern world full of every type of technology one can think of, where nearly everyone owns a smartphone with built-in Google Maps support combined with a GPS in their vehicle, it is difficult to imagine how someone would become totally lost and have no idea where they are at any given moment.
With that said, it is nearly downright impossible for us to imagine what it must be like to be adrift on the Atlantic Ocean for 48 days with no way of communicating with your family and friends. Well, this is a story of exactly that, which took place in 1929.
Job Barbour was born in the fishing community of Newtown in 1898. He began sailing as a boy, and at the very young age of 21, he became master of a vessel for the first time. For many years, he sailed the treacherous waters off Newfoundland’s northeast coast, carrying provisions from St. John’s to many isolated outports dotting our rugged coastline.
In the late fall of 1929, aboard his three-masted schooner, the Neptune II, Captain Barbour and his crew delivered a load of salt cod and cod oil to the city of St. John’s. On November 29, they began their return journey with a load of cargo that included apples, oranges and raisins for the general store in Newtown, Bonavista Bay. Captain Barbour was very familiar with the 100‑mile route, which under normal circumstances would usually take just a couple of days, but Mother Nature had other plans. By early the next morning on November 30, the winds had reached hurricane strength and the Neptune II, her crew and passengers were driven off course — way off course. They were about to cross the Atlantic Ocean.
In a 1979 CBC interview, at the age of 81, Captain Barbour said:
Like living demons hungry for our lives the seas rushed over our bulwarks and swept the deck fore and aft. They fascinated you almost as they approached. The water seemed to be all colours of the rainbow when coming on in its mad and crested cumulus. I never thought till then that seas could run so high. They looked like huge icebergs that had suddenly been liquefied and driven by some demon of the sea to rush on and crush us to death.
And he went on to say:
. . . I could see the look of anguish that covered Mrs. Humphries’ face. No doubt she thought that it would be her last moment of life.
During the voyage, the high winds and rough seas battered the schooner and left, among other things, crew members injured and passenger Mrs. Humphries incredibly ill to the point that conversations were had of what would be done if she passed away at sea. Water casks were tainted with salt water, leaving it unfit for drinking. The wheelhouse was washed overboard, and the binnacle was smashed to pieces. With the rough seas, the crew was unable to reach the supplies that were lashed down in the hull of the schooner. To add to all that, the compass light went out. These were just some of the issues that the captain and crew had to deal with, but as Captain Barbour once said:
Newfoundland seamen are noted for their ingenuity and when the real thing is gone or won’t work they try to make something that will do.
It was this ingenuity, coupled with their resilience and bravery, that allowed the Neptune II to remain afloat. On January 16, 1930, 48 days after departing the harbour in St. John’s, Newfoundland, the battered vessel was spotted off the coast of Scotland. A steamer, the Hesperus, attached a tow line and brought the schooner and her crew to safety.
Back home, the families had begun to accept the fact that they may never see their loved ones again, so it must have been quite the sense of relief when Captain Barbour’s mother received a telegram which read, “Arrived safely Tobermory, Scotland. All well. Job K. Barbour.”
Captain Job Barbour committed his story to paper in 1932 when Forty-Eight Days Adrift was published in London, England. Newfoundland’s own Breakwater Books revived the story and published it in 1981 and again in 1983, with a reprinting in 2001. It remains a very popular book, which continues to tell the incredible story of Newfoundlanders’ courage, resilience and humanity and their ability to beat the odds.
Hon. Senators: Hear, hear.
Congratulations to Team Canada
Hon. Marty Deacon: Honourable senators, what an interesting act to follow.
As 2022 draws to a close, I would like to take this opportunity to celebrate the amazing work of Team Canada over the past year. And remember, we are all Team Canada.
At the Commonwealth Games in Birmingham this summer, Team Canada won 92 medals, placing third in the medal count, its best showing since the 2002 Commonwealth Games. This was an inclusive team, with a record 28 para athletes winning seven medals. Also important is that Canada was the only carbon-neutral team at the games. We also enjoyed the largest broadcast ever for Commonwealth Games, which included incredible streaming.
These games bode well for the Paris 2024 Olympic Games, where typically Canada’s Commonwealth Games athletes win 70% of Canada’s Summer Olympic Games medals. Also, our Special Olympic athletes are busy preparing for their international games in Berlin this coming spring.
Senators, it was truly an honour a few weeks ago to meet athletes, coaches and volunteers alongside our friend and former colleague Senator Munson and Dr. Frank Hayden, the father of the Special Olympics movement. Watching these athletes in the room being together for the first time in person in three years was uplifting. While the pandemic has led to fewer people volunteering — it’s an issue — we have reason to hope this will improve in due course.
On the pitch, you are all keenly aware of the successes our men’s and women’s soccer teams enjoyed. Just two days ago, Canadian soccer all-stars Christine Sinclair and Diana Matheson announced the creation of a Canadian women’s league, which will launch in 2025. Really exciting.
Slightly less known but just as amazing, our Canadian tennis men performed well, winning the Davis Cup just a few weeks ago. This is a story 15 years in the making, of an organization that needed to do things differently, focusing on high performance, opening a national training centre and hiring international coaches to take the game of tennis to the next level. We celebrate Denis Shapovalov and Félix Auger-Aliassime for this first win in 109 years, but also Milos Raonic, Genie Bouchard, Vasek Pospisil, Leylah Annie Fernandez and Bianca Andreescu.
Finally, we also saw this year bring sport under the microscope for the abuse faced by too many of our athletes at the hands of those they trusted. The stories are being heard, and the work is well under way to better ensure that every athlete, coach and volunteer can feel included and safe in sport. This is taking effort and collective will in a number of areas.
As part of this call to action, I welcome you to join me on Facebook Live next Thursday as I interview leaders who are doing all they can to bring urgent solutions to safe sport.
On a more celebratory note, we also look forward to all of you joining us for some winter activities on Tuesday, February 7, at 12:30, with more to come. Thank you. Meegwetch.
Hon. Senators: Hear, hear.
Charter Statement in Relation to Bill C-29—Document Tabled
Hon. Marc Gold (Government Representative in the Senate): Honourable senators, I have the honour to table, in both official languages, a Charter Statement prepared by the Minister of Justice in relation to Bill C-29, An Act to provide for the establishment of a national council for reconciliation, pursuant to the Department of Justice Act, R.S.C. 1985, c. J-2, sbs. 4.2(1).
2021-22 Departmental Results Reports Tabled
Hon. Marc Gold (Government Representative in the Senate): Honourable senators, I have the honour to table, in both official languages, the Departmental Results Reports for the fiscal year ended March 31, 2022.
Transport and Communications
Committee Authorized to Meet During Sitting of the Senate
Hon. Leo Housakos: Honourable senators, with leave of the Senate and notwithstanding rule 5-5(a), I move:
That the Standing Senate Committee on Transport and Communications be authorized to meet on Thursday, December 8, 2022, even though the Senate may then be sitting, and that rule 12-18(1) be suspended in relation thereto.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to.)
Hon. Donald Neil Plett (Leader of the Opposition): My question to Senator Gold this afternoon is in regard to the unbelievable debt that our government is accumulating on behalf of all taxpayers.
Last month, the Parliamentary Budget Officer, or PBO, released a report containing a risk scenario analysis “to help parliamentarians gauge potential economic and fiscal implications of central banks over-tightening monetary policy.” Under the PBO’s risk scenario analysis, they estimated that public debt charges could reach $53.4 billion in 2024-25. That, Senator Gold, would be an increase of 118% over the debt charges of 2021-22. To put that number in perspective, debt charges basically equal, in two years, what we will spend on our entire defence and on services to Indigenous and northern communities.
Senator Gold, what is your government’s long-term plan to pay the interest costs for this pile of Justin Trudeau-Jagmeet Singh debt? Will you cut services to vulnerable Canadians? Will you raise taxes? Or will you continue with the spiral of unending deficits?
Hon. Marc Gold (Government Representative in the Senate): Thank you for your question and for underlining the challenges that our economy continues to face. The government will continue to act in a prudent and responsible fashion to help Canadians through this period and to support our economy as it grows.
As I’ve said on many occasions in this chamber, the rising interest rates and inflation are a function of many factors, only part of which is attributable to government spending.
Indeed, I was gratified to read that analysis is also shared by Scotiabank economists, who pointed out that the increase in inflation is due to many factors, the great majority of which are global factors, including supply chains. Only 15% is attributable to government spending to help us through the pandemic.
Indeed, the economists also affirmed that these programs had a large and welcome impact on our economy. The government’s credit rating is solid, and we are well positioned for the future.
Senator Plett: I’m surprised how you take solace in the fact that it is not all your fault. Maybe it isn’t all your fault, but certainly a good percentage of it is your fault, and when I say “you,” I mean the Liberal-NDP government. The whole economic plan of the Trudeau-Freeland team was to fuel Canada’s growth with cheap debt. The budget, Senator Gold, again, was to balance itself.
Government leader, the party is now over. The Bank of Canada raised interest rates today for the seventh time this year. Sadly, it will be future generations — your grandchildren, my grandchildren and our great-grandchildren — who will suffer the consequences of your government’s failed economic policies — your government.
Senator Gold, when is the federal budget going to balance itself?
Senator Gold: Thank you for the question.
As the Minister of Finance has announced in various speeches surrounding the Fall Economic Statement, the projections of the government are on track for the budget to continue to come down.
The Government of Canada, I repeat, has acted in a prudent and responsible fashion. Indeed, as former Bank of Canada governor David Dodge, in expressing his agreement with how quickly and effectively the Government of Canada responded to the challenges of the pandemic, noted more recently than the beginning of the pandemic, “We’ve never had a recovery as rapid as the one we had in 2021. It was incredible.”
In that regard, Senator Plett, the government will continue to work in the best interests of Canadians, as it was elected to do.
Hon. Yonah Martin (Deputy Leader of the Opposition): Actually, another former Bank of Canada governor, Stephen Poloz, last month pointed to the fact that Canada was second to last for productivity performance among the OECD — the Organisation for Economic Co-operation and Development — countries. He said that government red tape and overregulation are impairing Canada’s economic productivity and have created too much uncertainty for businesses.
I do think that there is a stronger incentive to clean up some of the regulatory issues, the red tapey type of issues that are slowing us down.
Senator Gold, do you agree that we must reduce the government’s red tape? What is the Trudeau government’s plan to reduce red tape and regulatory burden?
Hon. Marc Gold (Government Representative in the Senate): I think this government and all governments, provincial and territorial, recognize the importance of modernizing our regulatory framework and making it more efficient and effective for businesses to do their business, to grow and emerge while at the same time making sure that the measures in place to save Canadians, whether it is in the areas of fraud or consumer products, remain vigorous and in place. This government, in its areas of jurisdiction, has embarked upon — and we had an example of it in this chamber not that long ago — measures to modernize regulatory frameworks within many areas of legislation.
Of course, the regulation of businesses is a matter of provincial jurisdiction, and each province has its responsibility as well to ease the regulatory burden where appropriate on individuals and businesses.
Senator Martin: Last summer it was the C.D. Howe Institute that issued a report which found that Canada was lagging behind other OECD countries for attracting investment. Researchers wrote:
Business investment is so weak that capital per member of the labour force is falling, and the implications for incomes and competitiveness are ominous.
William B.P. Robson writes:
Investment per available worker lower in Canada than abroad tells us that businesses see less opportunity in Canada, and prefigures weaker growth in Canadian earnings and living standards than in other OECD countries.
Senator Gold, do you agree with all the experts who say that Canada, under Justin Trudeau, is no longer attractive to foreign investors? And what is your government’s plan to correct this?
Senator Gold: Thank you for your question.
The C.D. Howe Institute plays an important role. It is one of many think tanks in this country with a range of different ideological stripes.
The fact is that Canada remains an attractive place. It is a stable, democratic country with a healthy economy and an educated workforce, and Canada will continue to be a place where businesses can flourish.
COVID-19 Pandemic—Commission of Inquiry
Hon. Marty Deacon: My question is for the Government Representative in the Senate, and it concerns the federal response to the COVID-19 pandemic.
Senator Gold, yesterday the Auditor General released two important reports on the federal government’s response to the COVID-19 pandemic, one on vaccine procurement and the other on COVID-19 benefits. These are two important snapshots of the government response that are part of a much larger picture.
Throughout the pandemic, I often heard that, through no fault of anybody’s, the government’s response to the pandemic was like building an airplane in mid-flight. There are lessons to be learned here that we cannot forget. We need a blueprint for the next big pandemic or whatever the next big thing is.
As we’ve been reminded through the daily work of Justice Rouleau, a commission of inquiry is incredibly effective at working through events in a transparent and systematic way.
Does the government intend to establish a commission of inquiry into the federal response to the COVID-19 pandemic, and if so, when can we expect this to occur?
Hon. Marc Gold (Government Representative in the Senate): Thank you very much for your question.
The government knows that it is very important for us to take stock of the lessons that we learned during this pandemic and prepare for future health emergencies and, indeed, any kind of emergency.
I’m advised that some on this work is, in fact, already under way, colleagues, through internal reviews by the Public Health Agency of Canada in addition to external, independent reviews by the Global Public Health Intelligence Network and by the Auditor General.
Now, the government knows, as well, that more can be done, and that is why I’m advised that the government will, in fact, have a COVID-19 response review in a format yet to be determined that will be announced when the details are finalized. In the meantime, I’m assured that the government will keep working with provinces and territories to improve our healthcare system to keep Canadians safe.
Senator M. Deacon: Thank you.
I’m hopeful that these processes and the number of examples that you’ve described this afternoon do keep us on that path to transparency and a picture that is as clear, open and honest as possible. Thank you.
Innovation, Science and Economic Development
Hon. Stan Kutcher: Senator Gold, the October 2022 report of the House of Commons Standing Committee on Science and Research recommended:
That the Government of Canada increase the number of scholarships and fellowships to graduate students and post‑doctoral researchers, increase their value by 25% to reflect increases in cost of living since their last adjustment in 2003 and index the amount to the consumer price index.
Will the Government of Canada implement this recommendation in the upcoming budget?
Hon. Marc Gold (Government Representative in the Senate): Thank you for your question, senator.
The government understands, as I’ve said before in this chamber, the importance of investing in research and our students, including graduate students. Indeed, the government has made historical investments in fundamental research over the last five years.
Colleagues, I note that the Advisory Panel on the Federal Research Support System was launched on October 6, 2022, and this panel will provide the Minister of Innovation, Science and Industry and the Minister of Health with policy advice on the structure, the governance and the management of the federal system that supports research and talent. As well, the panel will advise how to ensure that federal support for Canada’s academic research enterprise is coordinated, cohesive, responsive and agile.
The government looks forward to the panel’s work, and it is always looking for ways it can better serve Canadians.
Details of the upcoming budget for this initiative will be made available once it has been tabled.
Senator Kutcher: Thank you very much, Senator Gold. Sadly, we are all aware of the number of panels and reports that have happened before with little action resulting from them. I’m hopeful that it won’t be the same with this one.
But that same report lamented Canada’s inadequate and globally lacking investment in fundamental research; we are way behind. It recommended:
That the Government of Canada review and increase its investments in fundamental research through increases to the budgets of the three granting councils.
Thousands of scientists from across Canada have called for a doubling of the funding for the Tri-Council. Will the Government of Canada heed those calls and provide that essential funding for the upcoming budget, or will we continue to languish behind other countries?
Senator Gold: Thank you for your question.
The government has been steadfast in its financial support of all scientists and research. That’s why Budget 2022 proposes $38.3 million over four years to the federal granting councils to add new internationally recruited Canada Excellence Research Chairs in the fields of science, technology, engineering and mathematics. Since 2016, the government has provided more than $14 billion in new resources to support science and research.
As I have said, the government is committed to continuing to support a robust science and research ecosystem that reflects Canada’s strengths and advances Canada’s interests. As I mentioned a moment ago, once the upcoming budget has been tabled, details of that budget will be made available to the benefit of all senators.
Business of the Committee
Hon. Robert Black: My question is for the Chair of the Senate Human Rights Committee.
The committee has been undertaking an extensive study of Islamophobia in Canada. It is a really timely study. Research from Statistics Canada released in August of this year indicates that police-reported hate crimes targeting the Muslim community increased by 71% between 2020 and 2021. This figure reflects the troubling trend we’ve witnessed of hate-motivated attacks on Muslims in Canada, notably the heinous shooting at a Quebec City mosque in 2017 and the brutal attack last year on a Muslim family in London, Ontario.
We all agree that Islamophobia is a pressing issue in Canada, and we are all eager to learn from your committee’s study. Can you please update this chamber on the progress of your study and when you are aiming to report back to the chamber?
Hon. Salma Ataullahjan: Thank you for your question.
The committee had 20 meetings totalling over 36 hours. We have heard from 111 witnesses. We travelled to Vancouver; Edmonton; Quebec City, where we visited the mosque where the terrorist attack took place, and Toronto.
We hear the same thing in practically every city we visit. We heard heartbreaking testimony from Muslim Canadians who continue to struggle to feel accepted and safe in their communities. The trauma that many have experienced through physical and verbal assault, hurtful stereotypes in the media — the role the media plays kept coming up — racial profiling and discrimination are also passed down through younger generations as multi-generational trauma.
I would like to add that women, particularly Black Muslim women, experience greater discrimination and harassment, especially if they choose to wear the hijab.
We still have a lot more witnesses to hear from. We are asking the media to appear. Hopefully, by spring of next year, we should finish the study. Thank you.
Auditor General—COVID-19 Pandemic Reports
Hon. Leo Housakos: My question is for the Leader of the Government in the Senate.
Yesterday, the Auditor General released a scathing report on the Trudeau government’s spending during the pandemic. She found that over $4 billion was paid to individuals who were ineligible for benefits. She went on to say that payments amounting to $27 billion were suspicious.
In the House of Commons, the Minister of National Revenue suggested the Auditor General was playing political games. She said the Auditor General was pressured by the opposition to produce this report. That is obviously totally false and ridiculous. Shame on her for attacking an officer of Parliament like that.
Senator Gold, why is the government trying to discredit the work of the Auditor General?
Hon. Marc Gold (Government Representative in the Senate): Thank you for the question.
The government has the utmost respect for the role of the Auditor General and the independence of her office. It was never the minister’s intention to suggest otherwise.
As the minister has said on a number of occasions, we are grateful for the Auditor General’s work, which confirmed that the benefits provided to Canadians during the pandemic were very effective.
The government will continue to focus on improving the well‑being of Canadians.
Senator Housakos: Senator Gold, the Auditor General said that it was not effective at all. She found $27 billion in suspicious payments.
Like many of her colleagues, Minister Diane Lebouthillier is making blunder after blunder and, like her colleagues, she never apologizes. Your government is always ready to apologize for mistakes made by others years ago, but it is never ready to take responsibility for its own.
When will the minister apologize to the Auditor General of Canada?
Senator Gold: Thank you for the question.
As I said, the minister did not intend to insult the Auditor General. She has expressed her support and respect for the Auditor General’s role, and she will continue to work hard for the well-being of Canadians.
Contract Awarded to Chinese Company
Hon. Claude Carignan: My question is for the Leader of the Government in the Senate.
Leader, CBC’s Marc Godbout reported this morning that the government awarded a contract for a radio frequency filtering system to a certain company. These systems are supposed to protect the RCMP’s telecommunications.
Why did the government award a contract for filtering systems meant to protect RCMP communications to a Chinese company? Leader, what is going on within your government? I think there is a problem.
Hon. Marc Gold (Government Representative in the Senate): Thank you for the question.
The government takes seriously any allegation of foreign interference in our system.
The government relies on a rigorous screening system for all partners and all initiatives, including procurement processes. I’m told the government is aware of the allegations regarding the contract that you just mentioned with Sinclair Technologies. As the Prime Minister said, the government looked into the allegations, and it will take all the necessary measures to ensure the integrity of our critical infrastructure.
I’m also told that Minister Mendicino has instructed his senior officials to review the details of that contract carefully in order to reassess the process under which it was awarded.
Senator Carignan: Leader, are you aware that the filtering systems will be installed in all of the Canadian provinces, including Ontario? Where in Ontario do most of the RCMP’s communications occur? Right here in Ottawa. What is the reason for the RCMP’s communications here in Ottawa, on confidential frequencies used by public servants, ambassadors and foreign visitors?
Are you aware that you gave a Chinese company access to those communications and that that poses a national security risk for all government communications?
Senator Gold: As I said, the government, the minister and Prime Minister have already shared their thoughts on that. We will be making inquiries to ensure that the integrity of our systems is protected.
Medical Assistance in Dying
Hon. Donald Neil Plett (Leader of the Opposition): Senator Gold, my next question is indeed troubling and very personal. There are now four reported cases of veterans being offered assisted suicide by the federal government, and more cases are expected to come forward.
The Veterans Affairs’ website has the following message front and centre:
If you are a current or former member of the CAF or RCMP, or a family member, we have targeted services and benefits to improve your well-being.
I have pause, as I struggle to stomach this, Senator Gold. The department responsible for providing support and services to members of the Canadian Forces — to soldiers who have put their own lives at risk for us and for others — is offering to our veterans assisted suicide to end their lives, Senator Gold.
Some Hon. Senators: Shame.
Senator Plett: Senator Gold, how can you justify assisted suicide as a service to improve the well-being of veterans?
Hon. Marc Gold (Government Representative in the Senate): Let me begin by saying that what happened to those veterans is totally unacceptable. It should never have happened.
Senator Batters: He should get fired.
Senator Gold: However, it is not my understanding that the services to which you refer on the website include medical assistance in dying. I’m assured that providing advice pertaining to medical assistance in dying is absolutely not a Veterans Affairs Canada service. You didn’t say it in so many words, Senator Plett, but you implied it, so I’m glad for the opportunity to correct the record.
Colleagues, this is a serious matter. I’d like to finish my answer. I understand the minister has directed the department to conduct a full investigation, which is ongoing, to ensure that all front-line staff are trained to deal with any issues, including issues around medical assistance in dying, or MAID, and to ensure that this never happens again. The government is taking all necessary steps to make sure that no veteran ever has to go through this again.
Senator Plett: Let me repeat what Senator Batters alluded to: Who is going to get fired, Senator Gold? Something happened here. Somebody dropped the ball, Senator Gold. You can say all you want that this will never happen again. But it is happening — over, and over, and over again. The lives of our veterans mean nothing to this government. They have put their lives on the line for you and me, Senator Gold. How can this even happen, Senator Gold, not once or twice, but on four occasions — four times — with more cases expected to come forward.
Minister MacAulay’s mandate letter said the following:
Your top priority is to ensure that services and benefits necessary for the physical, mental and economic wellbeing of Veterans and their families are easily accessible, responsive, and available in a timely manner.
Obviously, this is rhetoric. These are only words. The reality — let me finish — is quite different, Senator Gold. Under the Trudeau government, we have seen wait times increased, veterans brought to court and now assisted suicide offered to our courageous veterans.
Senator Gold, shuffling ministers out of this portfolio has not been successful for your government. At what point will our veterans get the respect and the services that they need and died for?
An Hon. Senator: Hear, hear.
Senator Gold: Your passion on behalf of veterans is justified. The implications that this government doesn’t care is odious. It is simply not the case. Please allow me to express my feelings and my statement.
My understanding is that it may have been simply one person who made this offer. The investigation is under way. The government is taking this seriously —
An Hon. Senator: Let him finish!
Senator Gold: I will begin again, colleagues.
Senator Plett: And again and again.
An Hon. Senator: Order, please.
Senator Gold: What happened was unacceptable. The government is doing what it can to find out what happened, and through what agency it happened, meaning by what person or persons it happened. It may very well have been only one person, but I’m not affirming that because the investigation is under way.
This government cares deeply about its veterans. It is committed to their well-being. Indeed, they put themselves on the line for all of us. It is simply repugnant for the Leader of the Opposition in this chamber to suggest otherwise. The government considers what happened unacceptable. It is not a service offered by Veterans Affairs. It was an example of someone doing something that should not have been done. When the investigation is completed, I have every confidence this government will take the appropriate action.
Eligibility for Medical Assistance in Dying
Hon. Julie Miville-Dechêne: Senator Gold, the opposition’s question made me think of the debate on medical assistance in dying. I had serious reservations about expanding eligibility to medical assistance in dying to people suffering from mental illness only.
In the past few weeks and days, people have been speaking out against this change, which is set to take effect in mid-March. Some are saying that we are not ready, and it’s not just anybody.
It includes the Association of Chairs of Psychiatry in Canada, which includes the heads of psychiatry departments at all 17 medical schools.
Are you going to postpone the implementation of this change?
Hon. Marc Gold (Government Representative in the Senate): Thank you for the question. It is a serious issue.
The government is aware of the concerns expressed not only by several doctors and doctors’ groups, but also by some provinces and territories that are taking the issue seriously and reflecting on what should be done.
That being said, a report being prepared for February will contain some recommendations on this subject, and the government will take all of this into consideration before making a decision.
Delayed Answers to Oral Questions
Hon. Marc Gold (Government Representative in the Senate): Honourable senators, I have the honour to table the answers to the following oral questions:
Response to the oral question asked in the Senate on June 15, 2022, by the Honourable Senator Lankin, P.C., concerning female genital mutilation.
Response to the oral question asked in the Senate on October 26, 2022, by the Honourable Senator Saint-Germain, concerning the Canadian Thalidomide Survivors Support Program.
Female Genital Mutilation
(Response to question raised by the Honourable Frances Lankin on June 15, 2022)
Department of Justice
Female genital mutilation/cutting (FGM/C) constitutes a serious threat to the health of women and girls. The Department of Justice is not aware of any charges or prosecutions in relation to this conduct. The provinces are responsible for enforcing Criminal Code offences within their respective jurisdictions, and the Public Prosecution Service of Canada prosecutes criminal offences in the territories.
The Federal government’s approach to addressing FGM/C domestically includes supporting community-based work. Through Canada’s Strategy to Prevent and Address Gender‑Based Violence, Women and Gender Equality Canada (WAGE) is working to prevent and address all forms of gender-based violence, including FGM/C. Currently, WAGE is providing funding to the End FGM Network to address knowledge gaps in medical, education, and child protection areas; Women’s Health in Women’s Hands Community Health Centre to develop a tool kit for survivors, health care and community service providers with regards to FGM/C; and, the Centre d’établissement des Nouveaux Immigrants de Peel to increase advocacy against FGM/C.
Canadian Thalidomide Survivors Support Program
(Response to question raised by the Honourable Raymonde Saint-Germain on October 26, 2022)
The federal government is committed to supporting Canadian thalidomide survivors. This includes providing a fair and compassionate approach for assessing unconfirmed individuals that apply to the Canadian Thalidomide Survivors Support Program.
Epiq Class Action Services Canada, a well-established service provider, is the independent third-party administrator responsible for delivering the program and brings expertise and impartiality to the process. Epiq has established a reconsideration process to ensure that applicants denied at any step of the assessment process are given an opportunity to submit additional information in support of their application, without the need to reapply.
At the last step of the assessment process, the multidisciplinary committee of medical and legal experts will consider all information available before making a recommendation to the program administrator on whether the applicant should be eligible under the Program. Applicants denied at this last step will have the opportunity to request reconsideration in writing, via virtual meeting or in person. For details on the options for reconsideration at Step 3, applicants are encouraged to contact the administrator directly. All individuals are treated with respect and compassion.
ORDERS OF THE DAY
Business of the Senate
Hon. Raymonde Gagné (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: consideration of Motion No. 72, followed by second reading of Bill S-11, followed by all remaining items in the order that they appear on the Order Paper.
Statutes Repeal Act—Motion to Resolve that the Act and the Provisions of Other Acts not be Repealed Adopted
On the Order:
Resuming debate on the motion of the Honourable Senator Gagné, seconded by the Honourable Senator LaBoucane-Benson:
That, pursuant to section 3 of the Statutes Repeal Act, S.C. 2008, c. 20, the Senate resolve that the Act and the provisions of the other Acts listed below, which have not come into force in the period since their adoption, not be repealed:
1.Parliamentary Employment and Staff Relations Act, R.S., c. 33 (2nd Supp.):
2.Contraventions Act, S.C. 1992, c. 47:
-paragraph 8(1)(d), sections 9, 10 and 12 to 16, subsections 17(1) to (3), sections 18 and 19, subsection 21(1) and sections 22, 23, 25, 26, 28 to 38, 40, 41, 44 to 47, 50 to 53, 56, 57, 60 to 62, 84 (in respect of the following sections of the schedule: 2.1, 2.2, 3, 4, 5, 7, 7.1, 9, 10, 11, 12, 14 and 16) and 85;
3.Comprehensive Nuclear Test-Ban Treaty Implementation Act, S.C. 1998, c. 32;
4.Public Sector Pension Investment Board Act, S.C. 1999, c. 34:
-sections 155, 157, 158 and 160, subsections 161(1) and (4) and section 168;
5.Modernization of Benefits and Obligations Act, S.C. 2000, c. 12:
-subsections 107(1) and (3) and section 109;
6.Yukon Act, S.C. 2002, c. 7:
-sections 70 to 75 and 77, subsection 117(2) and sections 167, 168, 210, 211, 221, 227, 233 and 283;
7.An Act to amend the Canadian Forces Superannuation Act and to make consequential amendments to other Acts, S.C. 2003, c. 26:
-sections 4 and 5, subsection 13(3), section 21, subsections 26(1) to (3) and sections 30, 32, 34, 36 (with respect to section 81 of the Canadian Forces Superannuation Act), 42 and 43;
8. Budget Implementation Act, 2005, S.C. 2005, c. 30:
-Part 18 other than section 125;
9.An Act to amend certain Acts in relation to financial institutions, S.C. 2005, c. 54:
-subsection 27(2), section 102, subsections 239(2), 322(2) and 392(2);
10.Budget Implementation Act, 2009, S.C. 2009, c. 2:
-sections 394, 399 and 401 to 404;
11.Payment Card Networks Act, S.C. 2010, c. 12, s. 1834:
-sections 6 and 7;
12.An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, S.C. 2010, c. 23:
-sections 47 to 51, 55 and 68, subsection 89(2) and section 90.
13.Financial System Review Act, S.C. 2012, c. 5:
-sections 54 and 56 to 59;
14.An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act, S.C. 2012, c. 7:
-subsections 7(2) and 14(2) to (5);
15.Protecting Canada’s Immigration System Act, S.C. 2012, c. 17:
-sections 70 to 77;
16.Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19:
-sections 432, 433, 459, 460, 462 and 463; and
17.Jobs and Growth Act, 2012, S.C. 2012, c. 31:
-sections 361 to 364.
Hon. Pat Duncan: Honourable senators, I rise today to speak to Government Motion No. 72, which proposes deferring repeal of statute in accordance with the Statutes Repeal Act.
As we know, this is a yearly exercise, and I want to put a few words on the record, mainly from the sections related to the Yukon. Senators will know that I support the adoption of the motion forthwith, and that my remarks will be brief.
Honourable senators, I am truly grateful to the Government Representative’s legislative deputy for distributing a document including the responsible ministers’ recommendations and explanations as to why the various provisions should be kept as part of the Statutes of Canada, even if not yet in force.
Honourable senators, yesterday I questioned the Government Representative on the modernization of Employment Insurance in Canada. I note that there are three provisions of the Modernization of Benefits and Obligations Act that are included in this particular matter before us; they have been since 2011. This section deals with expanding the classes of parents who can receive parental benefits through the EI system if legal parentage is denied by a province or territory.
As an aside to that, another area where changes are much needed is for those who are self-employed yet have to pay EI premiums. This affects taxi drivers and hairdressers or barbers who rent chairs in a salon. There have been reports made to me and others of challenges when such self-employed people try to claim EI benefits like parental benefits. Streamlining and clear guidelines must be developed as part of the EI modernization. This is one of many issues that show the urgent need for a complete overhaul of our EI system. Honourable senators, Canadians are anxious, and look forward to the results of the government’s modernization efforts on this important issue.
Honourable senators, turning from the national to the Yukon, there are several sections of various acts in which repeals have to be deferred. Some provisions of the Yukon Act are consequential amendments to other acts which come into force once the Yukon Surface Rights Board Act is repealed and the territory’s legislature enacts its own legislation in its place.
I would like to explain the background on this particular piece of the motion before us. I want to explain why it is still outstanding.
In 1998, Canada; the Yukon; the Council of Yukon First Nations’ Grand Chief, on behalf of 11 of the 14 First Nations in Yukon; and representatives from three First Nations who have not signed a land claims agreement signed the Yukon Devolution Protocol Accord. That accord set out a framework to guide the devolution process and permitted simultaneous negotiations of unresolved claims. On October 29, 2001, that process led to Canada and the Yukon signing the Yukon Northern Affairs Program Devolution Transfer Agreement. My signature is on that document.
I must explain to senators who are not familiar with the devolution process how important that is to the three territories. It is like our constitution. It gave us provincial-like powers over our land and resources. I would stress, again, the emphasis on the consultation accord, and that this document proceeded in consultation and with the full support of Yukon First Nations.
The framework, as I mentioned, was agreed upon in 1998, and it was a consultation process. These consultations are still ongoing, as is the dialogue between Canada, the Yukon and First Nations governments. They will resolve and ensure that the Yukon Surface Rights Board legislation is right.
Honourable senators, the Yukon Act also includes sections on a territorial auditor general. At the moment, the Auditor General of Canada is responsible for auditing all the territorial governments’ spending. The unique skill set needed for an auditor general, as we see in our own colleague Senator Elizabeth Marshall, is hard to come by. The labour pool for someone to perform the daunting task with excellence is shallow, since there are not many Senator Marshalls around. Recruitment is difficult and demands resources as does setting up an entire support structure. It makes much better sense to pool our resources and use the existing Auditor General of Canada rather than separate auditors general for each territory in the North given our small populations and limited resources.
Honourable senators, the Yukon is a good place when it comes to ensuring control over public spending through the Yukon Taxpayer Protection Act. The Act, in part, says — since you’re fond of legislation reading:
3(1) An accumulated deficit must not be created or increased.
(2) An appropriation that would create or increase an accumulated deficit must not be sought from the Legislative Assembly . . . .
(4) A special warrant must not be made if it would create or increase an accumulated deficit.
And the act continues:
6(1) If the non-consolidated public accounts laid before the Legislative Assembly or distributed to its members show that an accumulated deficit has been created or increased . . . the Government Leader must
(a) request before February 1 of the following year that the Assembly be dissolved; and
(b) if dissolution is granted, immediately recommend that writs for a general election be issued.
In other words, honourable senators, should the premier — who is usually also the finance minister — want to go into debt, they would have to go to the polls to get support to do so. This ensures the government’s responsible stewardship of public funds.
The Honourable Sandy Silver, Yukon’s premier, said in his testimony this week before the Standing Senate Committee on National Security, Defence and Veterans Affairs that:
We have been providing surplus budgets every year for the last six years . . . .
We have within been recognized from the C.D. Howe Institute for our openness and transparency in Canada for finances. We came in second in the whole country in our budgeting. . . .
“We,” in that quote, is the Yukon.
This reinforces the solid support the Yukon receives from the services of the Auditor General, and reinforces the need to leave it as it is in this legislation. I trust that this reinforces with my colleagues the retention and the motion for the use of the Auditor General of Canada.
Honourable senators, I am, of course, in support of the adoption of this motion. I hope that my explanations about the Yukon-related provisions have provided some background for why they need to remain in the law. I appreciate your understanding and your time and attention, and look forward to the passage of this motion.
Thank you. Mahsi’cho. Gùnáłchîsh.
Hon. Senators: Hear, hear.
Hon. Dennis Glen Patterson: Honourable senators, I rise today on behalf of my group, the Canadian Senators Group. We have several concerns about the annual Statutes Repeal Act motion, which we believe goes to the heart of our duty as senators to protect the rights of Parliament and keep the government accountable to the legislative branch.
The Statutes Repeal Act began as a Senate initiative led by the late former senator Tommy Banks. Every year, Parliament passes bills that have a coming-into-force date that is left to the government to determine. The reasons for this, as we know, are that sometimes the government needs to draft supporting regulations or complete final consultations with stakeholders. But what happens if a government doesn’t bring an act of Parliament into force, either in whole or in part?
When Parliament enacts a statute, it is not a suggestion. Governments can’t pick and choose which parts of laws to enact or hold back entirely and indefinitely. All bills that receive Royal Assent must eventually come into force or be repealed.
This is exactly what the Statutes Repeal Act is designed to do. It is, we believe, an important accountability mechanism to ensure that the will of Parliament is fulfilled. It ensures that no current or future government can ignore legislation duly passed through our rigorous legislative process. The act requires the government to table a report to Parliament each year, listing all parts of statutes that have not been brought into force after nine years.
This year’s report of the Statutes Repeal Act, which this motion deals with, is the twelfth annual report. We see in it many of the same provisions that were listed in the first annual report, which was tabled over a decade ago. This begs the question: What has the government been doing over the past 12 years to bring these provisions into force? In some cases, decades have gone by and parts of acts of Parliament are still sitting idle. In most cases, we don’t really know what, if anything, the government is doing to bring them into force. When the Statutes Repeal Act motion was brought before this chamber last year, Senator Downe asked Senator Gagné about deferred provisions related to Canadian Armed Forces benefits, which were enacted in 2003. This same provision is before us again this year, but we have no further information about what has been done to complete the necessary regulations.
There are other provisions that we’re being asked to extend for another year that are even older. Part II of the Parliamentary Employment and Staff Relations Act was enacted in 1985. The government has asked to defer its coming into force once again because it needs to — listen to this carefully — follow “appropriate policy work and consultation with parliamentary stakeholders.” After 37 years, one begins to wonder if this policy work has ever started or if the government is just, dare I say, kicking the ball down the road.
The same could be said for many of the other statutes for which we are being asked to defer a coming-into-force date for another year through this motion. For example, reading through the government’s explanations for the deferrals in this motion, we see that an amendment to the Bank Act, passed by Parliament in 2005, still needs regulations developed before it can be brought into force. An important change to Canada’s anti-spam legislation, passed by Parliament in 2010, apparently needs more consultation with industry stakeholders.
We are concerned that this important accountability exercise will become an automated parliamentary routine unless we exercise a more robust oversight role. If our government is going to continue to not enforce the will of Parliament year after year after year, it needs to provide better explanations.
I note that the Standing Orders of the Australian Senate requires the government to not only table in Parliament which laws have not come into force but to also include “a statement of reasons for their non-proclamation and a timetable for their operation.” In other words, it’s not sufficient for the government to simply say that certain laws have not yet come into force. It must also explain when the will of Parliament will be respected.
Honourable senators, when the Statutes Repeal Act motion comes before us again next year — as it surely will — we will likely see many of the same bills listed in this year’s motion deferred again. I suggest that, before agreeing to it, we take some time to get answers from the government about the status of the consultations or of the regulation drafting. We might want to refer the motion to a committee to get these answers directly. For the Statutes Repeal Act to work as it was intended when it was passed by this chamber, we need to keep tabs on the status of the unenforced laws we agreed to defer year after year.
As our late dear former colleague Senator Tommy Banks said when he introduced the bill:
. . . Parliament is not a function of the government . . . . When Parliament expresses its will it is a form of instruction . . . to the ministry, to say what it wants the ministry to do and it is the business of the executive to do it.
Honourable senators, going forward, let’s do our due diligence and ensure that the will of Parliament is respected. Thank you.
Some Hon. Senators: Hear, hear.
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to.)
Federal Law–Civil Law Harmonization Bill, No. 4
Bill to Amend—Second Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Clement, seconded by the Honourable Senator Petitclerc, for the second reading of Bill S-11, A fourth Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law.
Hon. Pierre J. Dalphond: Honourable senators, I am pleased to rise today in support of adopting the principle of Bill S-11, which is entitled A fourth Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law.
A bill with such a long title was bound to contain at least a few hundred clauses, 642 to be exact, making it a 224-page bill, not counting the additional 161 pages of explanatory notes.
On a more serious note, I want to congratulate Senator Clement, the bill’s sponsor, who highlighted the bill’s objectives and also held our colleagues’ attention with much appreciated quips during her presentation.
As she pointed out, this is the fourth such bill, which incorporates the results of a meticulous review of another set of federal statutes that was completed in 2017. A total of 52 statutes were reviewed, adding to the other 90 statutes that were reviewed for the first three harmonization acts.
The work done to date is impressive and reflects the federal government’s commitment to delivering on its responsibility to draft the legislation brought before the Parliament of Canada. As you know, under the Constitution Act, 1867, federal legislation must be drafted in French and English in order to be understood by most Canadian citizens. In short, it is a matter of access to justice, to reflect this country’s linguistic duality.
On this point, I think it is important to remind you that the fundamental law of the land, the Constitution Act, 1867, officially exists for the most part in English only. In fact, so far, only seven sections in total, namely sections 1, 29, 51, 90Q.1, 90Q.2, 92A and 93A, have been adopted in English and French and have the force of law in both languages. In other words, practically every section of this country’s fundamental constitutional law has official value in English only.
This is a terrible situation in a country that calls itself officially bilingual, and it persists despite the promise that was made to the francophones of this country in 1982, when the Constitution was repatriated. Despite section 55 of the Constitution Act, 1982, this promise still has not been kept 40 years later, and the current government is refusing to lift a finger to finally honour it.
When the Official Languages Act is modernized, we will have to ensure that it contains provisions that will force the government to stop ignoring its constitutional obligation to give the country a bilingual Constitution so that francophones finally have access to a version of the country’s most important law in their own language.
Similarly, I encourage Indigenous people to once again become proficient in their traditional languages, and I urge the Government of Canada to ensure that our most important laws are made available in those languages. Again, it is a matter of equal access.
To reflect the reality of our country, it is not enough to just have laws in both official languages. We need to go further, as Senator Dupuis so eloquently reminded us while laying out the historical context last week. We need laws that respect the fact that, in Quebec, as was the case in Lower Canada before Confederation, private law stems from a system based not on the British common law, but on a civil law whose origins date back to the Coutume de Paris, French customary law. That was followed in 1866 by the coming into force of the Civil Code of Lower Canada, which itself was derived from the French civil code that was adopted in 1804 following the French Revolution led by Emperor Napoleon. After falling from power and being exiled to Saint Helena, Bonaparte allegedly commented:
My real glory is not to have won forty battles, for Waterloo’s defeat will destroy the memory of as many victories. But what nothing will destroy, what will live eternally, is my Civil Code.
He was right, because the revolutionary civil code, later called the Napoleonic Code, is the source of private law in most of Europe. For Quebec, the passage of the Civil Code of Lower Canada in 1865 reflected a desire to ensure that Quebec private law would continue to be connected to the Napoleonic Code, even as Confederation loomed.
Since 1978, in order to take into account Quebec’s unique legal system, federal bills and regulations have been drafted by a team of two drafters consisting of an anglophone jurist, who is an expert in common law, and a francophone jurist, usually a civil law specialist. The final product of this codrafting process reflects the two Canadian legal systems.
In 1991, after decades of discussion and drafting, the National Assembly of Quebec adopted a new civil code, which replaced the Civil Code of Lower Canada as of January 1, 1994. The Civil Code of Quebec uses a structure and principles that originated in revolutionary France, but adapts them to the new reality, particularly in terms of trade.
This code is so modern that it has inspired many civil lawyers in other countries. It even served as a model for the civil codes of Argentina and Romania and inspired new chapters in the existing civil codes of Belgium, France and the Czech Republic.
When Quebec adopted a new civil code, that forced the federal government to update its statutes in 1993 and harmonize them with the new code.
I also want to point out that, after the 1995 referendum, Prime Minister Chrétien tabled a motion in the House of Commons in which he proposed that “the House recognize that Quebec’s distinct society includes its French-speaking majority, unique culture and civil law tradition.”
Later that same year, the Department of Justice Canada adopted the policy on legislative bijuralism, the goal of which is to provide Canadians with federal legislative texts that reflect, in each linguistic version, the legal system in use in their province.
Since then, we have had not only bilingual laws, but bijural laws, laws that use concepts from both of Canada’s legal systems. As Minister of Justice Anne McLellan said when the first harmonization act was passed in 2001:
Federal laws are uniform in the sense that they apply a single rule throughout Canada. They are also harmonized in that federal statutes, in relation to matters of property and civil rights, respect the particularities of the civil law or common law as it applies in a given jurisdiction.
In other words, federal laws do not seek to ensure uniformity in every detail across the country, but rather harmonization with the private law that applies in the relevant province.
The result is federal legislation that actually has four dimensions: an English version applicable in the provinces that practise common law; a French version applicable in those same provinces but drafted using French-language common law terminology, which is an innovation that did not exist anywhere else in the world; a version using civil law concepts specific to Quebec; and a fourth version using English-language civil law terminology, applicable in Quebec.
The implementation of this important policy resulted in the passage of Harmonization Act, No. 1, in 2001. That legislation affected nearly 50 statutes and, importantly, added two sections to the Interpretation Act, sections 8.1 and 8.2, which affirm bijuralism as an interpretive principle for all federal statutes.
Commenting on the bijuralism that underpins the drafting of federal laws, my friend, the Honourable Jacques Dufresne, a recently retired judge, wrote the following in the unanimous 2014 Quebec Court of Appeal ruling in Salaberry-de-Valleyfield (Ville de) c. Lavigne:
The drafting technique used by the legislator to harmonize . . . with both Quebec’s civil law and the common law, which consists of rendering in different terms the rule of law applicable to each system of law, is a powerful indicator that applicable legal concepts can have nuances or distinctions that may even be significant.
Colleagues, there is more than what meets the eye with this bill. Beyond the long list of laws that are amended in a very technical way, the bill acknowledges one of the distinctive features of Quebec: its Civil Code and civil law tradition. It also shows that our federation is able to respect this distinction.
As said by Senator Joyal in 2004, while he was speaking to a previous harmonization bill:
Essentially, that is in keeping with the philosophy of this country, that is, we maintain our identity while we move forward together.
This is also the reason why there are, by law, three judges from Quebec sitting on the Supreme Court of Canada, and the need for a chief justice and a deputy chief justice of a different legal tradition at the helm of the Federal Court of Appeal, the Federal Court and the Tax Court.
In conclusion, colleagues, I invite you to adopt this bill in principle in order to reaffirm the importance of the bijural nature of Canada. It could then be sent to the Standing Senate Committee on Legal and Constitutional Affairs for careful review of its contents, including the technical aspects.
Thank you, Meegwetch.
The Hon. the Speaker pro tempore: Senator Clement, do you have a question?
Hon. Bernadette Clement: Yes. Would Senator Dalphond take a question?
Senator Dalphond: Yes, of course, with trepidation given that the question is from the bill’s sponsor.
Senator Clement: Thank you for the wonderful speech, in which you spoke about linguistic duality, recognition of Indigenous languages and the Interpretation Act. You made some very good points.
Do you know how civil law practitioners are generally reacting to this ongoing harmonization project?
Senator Dalphond: Bijuralism is a rather Quebec-specific concept. When I was in university, we did not have the Canadian Charter of Rights and Freedoms yet, but we had a lot of discussions about bijuralism and the need to harmonize federal laws with Quebec’s civil law. My professor, André Morel, wrote many articles on the subject.
When the federal harmonization policy was adopted in 1991 or 1993, but before bilingual drafting was introduced, a separate civil law unit was created at the Department of Justice. I believe that happened in 1991. It was a good sign. A deputy minister for civil law was appointed. I believe it was Justice Anne-Marie Trahan. When the bijuralism policy was announced in 1995, it was welcomed in Quebec. I attended many law faculty lectures, and I must confess that I own the three-volume collection published by the Department of Justice on lexicology, history and bijuralism.
Not enough people realize what Canada contributes. As a bijural federation, it is something of a rarity internationally. Our contribution, not only to common law in French and civil law in English, but to bijuralism at the same time, is entirely unique, in my opinion. In that sense, in Quebec and elsewhere in Canada, I think we can be proud. We are participating in two of the world’s great legal traditions, which is also fantastic. I hope that answers your question.
The Hon. the Speaker pro tempore: Senator Cotter, we have eight seconds.
Hon. Brent Cotter: I’ll save my question for another time.
The Hon. the Speaker pro tempore: Unless Senator Dalphond is requesting we add five minutes.
Senator Dalphond, are you asking for five more minutes?
Senator Dalphond: If the Senate agrees.
The Hon. the Speaker pro tempore: Honourable senators, is five more minutes granted?
Hon. Senators: Agreed.
Senator Cotter: My short question is about the bijural nature of Canada, not specifically to this bill, but the question will get there.
As you may know, Senator Dalphond, Paul-André Crépeau, a distinguished Canadian, is sometimes described as the father of the modern Civil Code of Quebec. I’m mentioning him in particular because, as you may know, he was born in Gravelbourg, Saskatchewan, has received honorary doctorates from Dalhousie University and the University of Saskatchewan and has a doctorate of laws from Sorbonne University. My question is partly in terms of the constructive bijural nature of Canada, which is emphasized by his work. Would he have anticipated the need for the exercise we are now going about, and do you think he would have supported this as a corollary requirement of supporting the bijural nature you spoke of?
Senator Dalphond: Once more, I am learning something from you. All the famous people come from Saskatchewan, obviously. The proof is made on a daily basis here.
Paul-André Crépeau was a great jurist who left us too early in his life. He left a legacy not only in his books, but he also founded at McGill University the Centre for Private and Comparative Law, which I think is one of the leading institutions. It was once led by Justice Kasirer, who is now at the Supreme Court.
I think Mr. Crépeau’s contribution and legacy are important. If he were looking at us today, debating in the Senate about the bijural nature of Canada, I think he would be proud of us — proud of a question from somebody from Saskatchewan and proud to see that ideas coming from Saskatchewanians are the ideas being adopted in Quebec and are the ideas that govern federal legislation nowadays. I think it is quite an achievement, and he would be proud of us.
(On motion of Senator Martin, debate adjourned.)
Fall Economic Statement Implementation Bill, 2022
Ninth Report of Indigenous Peoples Committee on Subject Matter—Debate Adjourned
The Senate proceeded to consideration of the ninth report of the Standing Senate Committee on Indigenous Peoples (Subject matter of Bill C-32, An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 3, 2022 and certain provisions of the budget tabled in Parliament on April 7, 2022), tabled in the Senate on December 6, 2022.
Hon. Dennis Glen Patterson: Honourable senators, I rise today to express my concern regarding this report. I want to make it clear that my concern is not with the work of the Standing Senate Committee on Indigenous Peoples on which I sit.
I feel that, unfortunately, the report is no longer reflective of the entire picture with regard to Subdivisions A and B of Division 3 of Part 4 of Bill C-32. Division 3 deals with proposed changes to the First Nations Land Management Act.
At 7:30 p.m. on Thursday, November 17, this chamber passed an order of reference instructing the Indigenous Peoples Committee to conduct a pre-study of this division and report back on December 5.
We began the work immediately. We identified witnesses and requested their appearance before the committee. We heard from our first two witnesses — organizations who advocated for these changes — on November 22, and heard from Ministers Miller and Hajdu on November 30. We had to finalize drafting instructions right after the ministers’ appearance in order to have the report prepared, drafted and translated by the December 5 report-back date. This gave us a total of 12 business days to complete the study and report-back process.
Unfortunately, two of the First Nations we approached declined the invitation, and four others did not respond. Recognizing that time was tight and factoring in the necessary time for approvals and translation prior to our required tabling date, we did not have time to look for and approach other communities.
On December 1, the day after we finalized drafting instructions in committee, we received word from Manitoba Keewatinowi Okimakanak, or MKO, requesting to appear. We knew we didn’t have any time to hear from them as we were due to report the following Monday, but I did insist that we ask for a brief, and we suggested that a brief also be sent to the Senate National Finance Committee.
I know that Senator McCallum is planning to speak to those concerns as well, but I will say that in the brief we received this past Sunday, there was strong language about the gaps in enforcement of bylaws created using the authority granted to First Nations communities by the First Nations Land Management Act. Coordinating amendments to various related legislation was suggested by MKO in an effort to address these major concerns about enforcing the provisions of the new First Nations Land Management Act.
Colleagues, I am using this opportunity to speak to this report today to highlight why our newer approach to examining legislation should be a major concern to all. There has been a trend, I believe, in the last two sessions to rush through legislation. Everything is somehow a priority that always needs to be passed by a certain date, and the use of pre-studies — a tool once reserved for extremely complex legislation and budgets — is now becoming a norm.
There is logic behind the use of consecutive studies of legislation by us and the other place. Namely, concurrent studies lead to major gaps in testimony, and do not maximize the time available for interested stakeholders to appear on pieces of legislation that they may have expertise on.
MKO is not just another First Nations band. MKO represents 26 First Nations communities in northern Manitoba that span some two thirds of the province. The four MKO First Nations with land codes include an original signatory agreement First Nation, and have some of the longest practical experience implementing the First Nations Land Management Act. It is some of that practical experience that informed the brief they submitted. However, due to self-imposed deadlines, we did not have enough time to accommodate them at the Indigenous Peoples Committee. In fact, in speaking with MKO, they had only learned of the study early last week, and they immediately requested to appear before the Senate committee and the committee in the other place that was studying this bill.
Colleagues, it is my hope that the Finance Committee will be able to give some time to MKO’s Grand Chief, who is currently in Ottawa for another event. However, I know that they, too, are short on time.
I rose today because I’m frustrated by the number of times we have had to miss important testimony or cut back our witness lists because we have such tight timelines. While 12 business days may sound like a lot of time to some, those with knowledge of Senate procedures will know it is barely enough time once you start factoring in witness response times and the time required for translation.
Especially when we are dealing with Indigenous or grassroots organizations that often already face capacity issues, we need to give as much notice as possible to prospective witnesses. We need to slow down and make sure we are properly reviewing legislation, taking the time to hear from as many people and as many different perspectives as possible.
It’s time for the Senate to take back control over our schedule and our affairs, instead of being completely beholden to government ministers who are unaware of our procedures, timings and the various priorities we are juggling.
Hon. Mary Jane McCallum: Honourable senators, I am going to quote a submission of Grand Chief Garrison Settee, Manitoba Keewatinowi Okimakanak, Inc., or MKO, to the Standing Senate Committee on National Finance on Bill C-32, with specific reference to Part 4 of Division 3, framework agreement on first nation land management act:
The efforts by the MKO First Nations to make and enforce laws and By-Laws to respond to the COVID-19 pandemic uncovered and starkly illuminated that the previous two attempts by Parliament to create or support Indigenous self‑government through Bill C-428 in 2015 and Bill C-49 in 1999 have created “stranded regimes” of First Nation laws and By-Laws that are not subject to prosecution and therefore are unenforceable or will not be enforced by police.
This exists all across Canada. I heard the senator say that it’s only for one band, but it occurs for every single band.
This submission will address the “stranded regime” of First Nation laws pursuant to the former Bill C-49, the First Nations Land Management Act.
The experiences of MKO and the MKO First Nations indicate that Part 4 of Division 3 of Bill C-32, being the proposed Framework Agreement on First Nation Land Management Act, should be amended to ensure clarity on enforcement and prosecution such that no doubt remains in terms of an obligation to enforce and prosecute First Nation laws enacted pursuant to the agreement. Otherwise, we will see a return to or continuation of the limbo of what MKO describes as a “stranded regime” of First Nation laws enacted by First Nations pursuant to an act of Parliament that — through the policies applied by Canada and RCMP — are not recognized as valid, are not subject to prosecution and are not enforced by RCMP or police.
MKO can only describe as horrific the experiences of the First Nation Land Management Act community of the Misipawistik Cree Nation at Grand Rapids, Manitoba in their efforts to apply and enforce an Emergency COVID-19 law enacted pursuant to its land code without the support of RCMP.
On May 25, 2021, Chief Heidi Cook of the Misipawistik Cree Nation recounted the community’s experiences during an outbreak of COVID-19 in the winter of 2020-2021 to the House of Commons Standing Committee on Indigenous and Northern Affairs:
During that time, it was expressed by the members of our pandemic emergency response team, our health team and our enforcement team that we felt abandoned. We were struggling to control the spread. Our second wave reached 155 cases and close to 300 contacts. We all suffered personal fallout. I feel that we all have PTSD from the situation we found ourselves in.
We have not enacted any laws after the expiry of our emergency law. The decision was, basically, what good is the law if it’s not enforceable? As a result, we haven’t done anything since then.
The experiences of the Misipawistik Cree Nation arising from the refusal of RCMP to enforce the measures in the COVID-19-related emergency law of the Misipawistik Cree Nation galvanized MKO to reach out to and join efforts with Chairman Robert Louie of the Lands Advisory Board (LAB) in January 2021. MKO and LAB closely collaborated to elevate these pressing and exigent First Nations public health and safety issues to the responsible federal and provincial ministers, to the Commissioner of the RCMP and to parliamentarians.
In a February 17, 2020 letter of response to myself, as MKO Grand Chief, RCMP Commissioner Brenda Lucki wrote:
The RCMP recognizes First Nations’ authority under the FNLMA. However, there are concerns as to whether the FNLMA Land Codes provide the legal authority to enact COVID-19 related laws. Pending further direction, the RCMP will continue to follow the processes in place with respect to the enforcement of COVID-related bylaws passed under the Indian Act, as well as enforcing applicable provincial laws.
Similar to the position of the RCMP Commissioner, on March 15, 2021, Kelley Blanchette, Assistant Deputy Minister, Lands and Economic Development, Indigenous Services Canada (ISC) wrote to Chairman Robert Louie:
I appreciate the frustration felt by First Nations who have taken on such fundamental aspects of their governance through the enactment of a Land Code, only to be forced to rely on Indian Act authorities to address the current COVID-19 pandemic.
While more analysis will need to be done, I have instructed my team to collaborate with you on options to expand and clarify authorities through the next amendments to the Framework Agreement.
During a May 21, 2021, virtual meeting between MKO, LAB and several senior federal officials and a number of senior officials from Manitoba Justice that was facilitated by ISC, the Deputy Director of Public Prosecutions, David Antonyshyn, is recorded in the minutes prepared by ISC as advising, in part:
PPSC mandate is to prosecute offences on behalf of the Government of Canada that is prosecuting laws passed by Parliament and reviewed by the Attorney General (AG).
Except in Territories where PPSC provides full prosecutorial services, PPSC shares prosecutorial authorities with provinces.
PPSC can prosecute under the Indian Act, as it is a federal statute.
PPSC perspective is that it does not have the mandate to prosecute under the Framework Agreement (19.10)/FNLMA (22(3)). Adjusting these legal frameworks for PPSC to play a role would require federal-provincial, federal-First Nation, provincial-first Nation discussions.
The RCMP Commissioner and ISC suggested that Land Code First Nations apply By-Laws enacted by a Council pursuant to the Indian Act to address the dilemma of a lack of enforcement and prosecution of COVID-19-related First Nation laws enacted pursuant to a Land Code. As Indian Act By-Laws had not been enforced or prosecuted in Manitoba for 25 years, this would be through the Protocol relating to the Enforcement and Prosecution of ByLaw(s) adopted pursuant to s. 81 and 85.1 of the Indian Act (Protocol) that had recently been developed by the Public Prosecution Service of Canada (PPSC) and the RCMP.
However, with the repeal of the Ministerial power of disallowance through the Royal Assent given to Bill C-428, the Indian Act Amendment and Replacement Act as of December 16, 2015, both PPSC and RCMP advised that no By-Law enacted after the coming into force of Bill C-428 would be enforced or prosecuted unless the By-Law had been reviewed by “an appropriate federal authority” for validity and Charter compliance. This meant that the duly enacted and published COVID-19-related Indian Act By‑Laws enacted after January, 2020 in response to the pandemic were “stranded” and would not be automatically eligible for enforcement and prosecution, even under the Protocol.
It is important to mention here that MKO, in partnership with the Manitoba Public Interest Law Centre, worked diligently over several months in 2021 with senior officials of ISC and the federal Department of Justice culminating on November 16, 2021, in an MKO Framework COVID-19 Health Protection By-Law that is acceptable to PPSC and RCMP for enforcement and prosecution pursuant to the Protocol.
It is also necessary for MKO to say here that at the outset of MKO’s deep engagement in the process to implement the Protocol and to urgently develop a Framework COVID-19 Health Protection By-Law that would be enforced by RCMP and offences subject to prosecution, MKO clearly expressed our objection to the policies of Canada and the RCMP that a duly enacted First Nation law or By-Law required review by the Attorney General or by an “appropriate federal authority”. It is the position of MKO that the First Nations laws enacted further to the authority of a First Nation pursuant to the First Nation Land Management Act and a By-Law enacted further to the authority of a First Nation pursuant to the Indian Act are subject to enforcement by RCMP and police and offences of these laws are subject to prosecution.
It is the application of these policies of Canada and RCMP to require review by the Attorney General of First Nation laws and By-Laws that has created what MKO describes as the two “stranded regimes” of First Nation laws and By‑Laws that have been duly enacted pursuant to Acts of Parliament that are expressly intended to implement the First Nation inherent right to self-government.
The non-enforcement and non-prosecution of a First Nation law pursuant to a Land Code required the K’omoks First Nation to enforce their Land Code by way of a private prosecution at a cost of $178,000. The B.C. Provincial Court observed that a private prosecution was necessary because the local RCMP had “no experience with this sort of thing” and that “both the Provincial Prosecution Service and Crown Federal have declined to assist K’omoks.” Prosecution options must be flexible as proceeding by way of private prosecution of all offences of First Nation laws is not sustainable.
LAB Chairman Robert Louie advised the APPA Committee on November 22, 2022:
We have come to find out over the last 20-plus years that Canada and the RCMP are not readily backing and enforcing the First Nation laws that First Nations have passed. It’s an issue that is bubbling. It’s something that we didn’t quite expect at the outset, but we’re working now with Canada and with provinces and with Attorneys General both at the Canadian and provincial levels to deal with this issue. We have a lot of work to do to get enforcement fully recognized so that First Nation laws can be accepted, enforced and, in certain cases, prosecuted. That’s a very big area.
MKO reiterates that our lived experiences indicate that unless Part 4 of Division 3 of Bill C-32, being the proposed Framework Agreement on First Nation Land Management Act, is amended to ensure clarity on enforcement and prosecution such that no doubt remains in terms of an obligation to enforce and prosecute First Nation laws enacted pursuant to the Agreement, we will see a return to or continuation of the limbo of what MKO has described as a “stranded regime” of First Nation laws enacted by First Nations pursuant to an Act of Parliament that are not recognized as valid, are not subject to prosecution and are not enforced by RCMP or police.
That is why MKO had wanted to present to the Standing Senate Committee on Indigenous Peoples and to the Standing Senate Committee on National Finance to clear this so that they don’t continue in limbo. I don’t understand why the Indigenous Peoples Committee didn’t make amendments to this or why they didn’t deal with the issues that were brought up by Robert Louie.
Thank you for your attention, honourable senators. I thank MKO who has provided all this information so that I could present it on their behalf. Thank you. Kinanaskomitinowow.
(On motion of Senator Dalphond, debate adjourned.)
Business of the Senate
Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Honourable senators, with leave of the Senate and notwithstanding rule 5-13(2), I move:
That the Senate do now adjourn.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
(At 3:55 p.m., the Senate was continued until tomorrow at 2 p.m.)