Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 17 - Evidence
Ottawa, Monday, June 10, 1996
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:00 a.m. to consider Bill C-28, respecting certain agreements concerning the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Honourable senators, I am delighted to see you here this early on a Monday morning. I am very pleased to welcome back Senator Nolin, who has been through a difficult week. Senator, let me offer our condolences to you and your family.
Senator Nolin: Thank you very much.
The Chair: We have Professor Patrick Monahan with us this morning, as well as Jonathan Fried, Director General, Trade Policy Bureau & Coordination for NAFTA. Mr. Fried is here at the suggestion of Senator Finlay MacDonald.
Professor Monahan is a professor at Osgoode Hall Law School. He has appeared before us in the past on Bill C-28 in its various forms. We hope he will address not only Bill C-28, but also the proposed amendments to the bill.
Please proceed, professor.
Professor Patrick Monahan, Osgoode Hall Law School: It is a pleasure to be here once again to discuss this bill in its variety of forms. I have had an opportunity to review the amendments which Mr. Rock proposed to the committee last week, and I am here today to address those amendments. From my perspective, I think the amendments proposed by Mr. Rock contain a number of positive. Let me mention three of them.
First, the deletion of the June 30, 1994 cut-off date for damages, as was proposed to be included in the bill in the last round of amendments, is now proposed to be removed. That is positive. I discussed that extensively with you in my last appearance, and I am pleased to see the government is proposing to delete that cut-off date.
Second, I understand that it is proposed to vote down clause 10 when that clause comes up for discussion. Again, I think that is very positive. That removes the 30-day cut-off period for negotiating agreements to provide compensation, and it also deletes the limitation on what an agreement can contain. In other words, it permits an agreement to be reached between the government and a party who has suffered damage. There is no limitation in the bill now. If clause 10 is removed, there would be no limitation on what that agreement could contain.
As I said to you in one of my earlier appearances, it appeared to me that clause 10 would have prevented the government from complying with its obligations under the NAFTA because it said that the government could not compensate a person who had a claim under the NAFTA for the full value of their claim, which would include loss profits. Therefore, deleting clause 10 means that the government is not prohibited from complying with its obligations under the NAFTA.
As a footnote, I noted the discussion of that issue before the committee last week. I noted that the minister, as well as Mr. von Finckenstein, commented that the NAFTA was not implicated here because the repudiation of the contract occurred in December 1993 and the NAFTA only came into force on January 1, 1994. I understand that a second witness this morning will deal with the NAFTA, but I would simply point out that the breach of the NAFTA, if there is one, would occur through the enactment of this bill, not through the repudiation of the contract.
The NAFTA does not require contracts to be specifically performed. That is to say, if I have a contract with an American investor and I breach that contract, I am perfectly entitled to breach a contract and not perform it as long as I pay damages. It is the statement through law that the government will not pay damages which constitutes the breach of the NAFTA. That has not yet occurred because the bill has not been enacted into law. In other words, the enactment of Bill C-28 would constitute a violation of the NAFTA.
The argument that, because the contract was breached in 1993, the NAFTA does not apply seems to me to be wrong. In fact, I find it quite an unusual argument that the breach of the NAFTA resulted from the breach of a contract. The NAFTA does not say that you cannot breach contracts with American investors. I believe I am reading the legislation correctly; if I am not, perhaps senators could advise me.
Third, as I read the proposed amendments, clause 8 will not provide for a limitation on recovery of legal costs or legal fees, as was proposed in the earlier version - that is to say, the list of exclusions does not include that provision. I was troubled by that when I was here last time, and I am pleased that it has been proposed not to add that to the bill.
That leaves only the one last issue that I raised with you - that is, the proposal to include in clause 8 of the bill a prohibition on any award of aggravated or punitive damages. I note that the minister said in his testimony last week that, for example, in a defamation case, the bill as it is proposed to be amended would still permit an award of general damages which are compensatory and intended to compensate the victim for such defamation. Therefore, a person who was defamed would still be able to claim general damages. The minister said that the argument I made in my last appearance here, to the effect that a plaintiff in a defamation case would get nothing, was without foundation.
Let me explain a little more precisely what my concern was the last time I was here and why I said it was possible that a claimant in a defamation action might still get nothing, even though the last round removed this ban on damages for defamation.
My concern arose from a combination of the June 30 cut-off date and this ban on punitive damages. As it was then proposed, if you had not made a defamation claim prior to June 30, 1994, then you were prohibited from making a claim later. The June 30 cut-off date meant that a plaintiff in a defamanation action might still receive nothing. The deletion of that June 30 cut-off date is positive because it means that, if it were found that someone had been wrongfully described or that an untruthful statement had been made about an individual, general damages could be claimed. However, they would be prohibited from claiming aggravated or punitive damages.
Just to give senators a sense of what that might mean in a practical case, we can look at the recent Supreme Court of Canada decision in the case of Hill v. Church of Scientology, 2 S.C.R. 1995, 1130. In that case, Mr. Hill, a former Crown attorney, had been defamed by the defendants and was awarded damages under three heads. He was awarded $300,000 for general damages - the damage to his reputation. He was awarded $500,000 for aggravated damages, and that was intended, said the court, to be compensatory for the additional harm caused to him by the behaviour of the defendants in repeating the defamatory statements knowing that they were without foundation.
In other words, Mr. Hill was awarded $800,000 for the harm to his reputation - $300,000 for general damages and $500,000 in aggravated damages.
He was then awarded an additional $800,000 for punitive damages because not only did the defendants in that case repeat the defamatory statements until the trial, but continued to repeat those statements even after the court had found that they were defamatory. The court in that case awarded a total of $1.6 million.
Of course, an award of this kind in Canada is quite an exceptional case, but it illustrates the magnitude of the damages that could potentially be awarded in an exceptional case.
If Bill C-28 were passed with the proposed amendments, a person who was defamed by the government, rather than $1.6 million, would receive the sum of $300,000. He would have received something substantial but not what the court found appropriate in the in Hill case.
Is that a cause for concern? I say that it is a cause for concern, although I am not sure that a court would find Bill C-28 or even this particular provision to be unconstitutional. I will return to that later.
Let me explain in somewhat more detail why this is a cause for concern. I did not discuss this during my appearance last time to any great extent because of the other issues that I wanted to raise.
Indeed, since I last appeared, the Supreme Court of Canada handed down its decision in the Hill case in which it talked about the importance of reputation and the importance of the law of defamation in Canada. At page 1775 of that decision Mr. Justice Cory, in discussing the value of reputation, stated:
Democracy has always recognized and cherished the fundamental importance of an individual. That importance must in turn be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.
Earlier at that same page, Mr. Justice Cory had said that a good reputation is an attribute of an individual that must - and I emphasize the word "must" - be protected by society's laws.
Mr. Justice Cory is saying that reputation is linked to the value of individual dignity; that a society's laws must protect a person's good reputation and that it does so through the law of defamation. Later in his judgment, he notes that, although reputation is not specifically mentioned in the Charter of Rights, an individual's good reputation represents the innate dignity of that individual. That is a concept that underlies all of the Charter rights.
Mr. Justice Cory, writing for the Supreme Court of Canada, states that the value of an individual in his or her reputation in a sense underlies the Charter of Rights as a whole.
When turning to the issue of damages, Mr. Justice Cory notes that simply providing compensation to an individual for the damage to their reputation through what we call general damages is inadequate because it does not express society's disapproval of defamatory statements. It does not properly protect the individual's reputation.
At page 1209 of the Supreme Court Reports, Mr. Justice Cory had this to say about punitive damages:
Punitive damages can and do serve a useful purpose. But for them, it would be all too easy for the large, wealthy and powerful to persist in libelling vulnerable victims. Awards of general and aggravated damages alone might simply be regarded as a licence fee for continuing a character assassination. The protection of a person's reputation arising from the publication of false and injurious statements must be effective. The most effective means of protection will be supplied by the knowledge that fines in the form of punitive damages may be awarded in cases where the defendant's conduct is truly outrageous.
The Supreme Court of Canada states in the Hill case that, first, an individual's reputation is tied to the innate dignity of the individual which underlies the rights protected in the Charter of Rights. Second, punitive damages and, by implication, aggravated damages are appropriate and necessary in order to ensure that protection.
Bill C-28 attempts to exclude aggravated and punitive damages. Consider what would happen in an exceptional case where a court found unacceptable behaviour, such as repeating damaging statements which are known to be false, by a person who has been immunized from liability by this bill - that is, a person who is an agent or servant or service-provider of Her Majesty. If the court found the person had acted in a totally unacceptable manner, similar to the finding in the Hill case, this bill would prevent the court from awarding damages which reflected the true damage to the individual and society's disapproval of the defendant's activity.
As I said last time, I express no opinion on whether any defamatory statements have been made about any individual in this matter. I note that the government at one point did feel it necessary to specifically exclude liability for defamation, but I pass no judgment on that.
In my view, if there were facts to support a court's award of aggravated or punitive damages, it would be surprising if the court were to say that it was open to the government, through legislation, to prevent that damage award. Otherwise, by definition, we would be having government officials acting in an arbitrary manner and then being shielded from the consequences of those arbitrary actions.
That, senators, is different from the mere attempt to limit damages for lost profits or simply trying to provide criteria to guide a court in its assessment of damages, which I think the paragraphs of subclause 8(2) would do. I have said all along that those clauses would be valid. However, it is the ban on aggravated or punitive damages, by which we would have arbitrary activity that would be immunized from liability, that concerned me in my last appearance, and I remain concerned about it.
Looking at the bill as a whole, I recognize that the issue of punitive or aggravated damages would only arise in an exceptional case, as the Supreme Court of Canada indicated in the Hill case. They said that, in the normal course, one would not expect an award of punitive or aggravated damages, but that in that case the defendant's actions were so outrageous that these damages were deemed to be appropriate. My conclusion, on balance, would be that it is likely that a court would rule Bill C-28, as it is proposed to be amended, as valid constitutionally, with this remaining concern that I have about paragraph (e) of clause 8.
Let me say that I have no doubt that there would be other arguments raised against the validity of Bill C-28, to the effect that the other limitations in the bill violate the rule of law. I believe that Mr. Chipeur, who has appeared before you a number of times and as recently as last week, expressed continuing reservations about the limitation on lost profits. Again, I have not taken that position before you. I continue to believe that it is open to Parliament to limit compensation for lost profits for breach of contract, even though I do not think, as a policy matter, it is desirable to do so. However, I am not here to offer you my policy views; that is for you to decide. As a matter of constitutional law, I do not believe that that would violate the Constitution.
Those, senators, are my comments on the proposed amendments. I would be happy to discuss them with you.
Senator Gigantès: You have lost some weight since last time, professor.
Mr. Monahan: Well, I do not know about that.
Senator Gigantès: You look a little more grey.
Mr. Monahan: That is probably true. I have been beaten up by you senators so many times.
Senator Gigantès: Who determines the level of general damages to be awarded?
Mr. Monahan: It would be either a jury or a judge. In the Hill case, it was awarded by a jury.
Senator Gigantès: And a judge or a jury would have absolute discretion as to the size of the general damages award?
Mr. Monahan: The general damages are at large. That is to say, they are not quantifiable in a precise way in a defamation case. Unlike in many other types of cases, in a defamation case measuring damage to one's reputation is not precisely quantifiable, so there is a wide measure of discretion in assessing those damages. Of course, an appeal court can review that assessment. In the Hill case, two appeal courts came to the conclusion that the jury's assessment of damages was quite reasonable.
Senator Gigantès: Suppose that in the Hill only general damages were available to the court. Could the court have said, "We award particularly heavy general damages of $1.6 million because the libels were repeated and continued"?
Mr. Monahan: If there was legislation saying that a court could not award aggravated or punitive damages and the court was trying, in effect, through the vehicle of awarding general damages, to award aggravated or punitive damages, I think an appeal court would say that that was not proper and they would measure that general damage award against other similar kinds of awards. They would say that the award was totally out of line with what had generally been awarded. To award, for example, $1 million for general damages would simply have no basis.
An appeal court will measure what is awarded in one case against other awards in similar cases. I would think that would limit that kind of activity, senator.
Senator Gigantès: However, you were saying that, if the libel or defamation continued and was clearly outrageous, the court would take that into account.
Mr. Monahan: Yes.
Senator Gigantès: So a first court could take it into account and make a pretty heavy award, and explain why, and the Court of Appeal might accept that.
Mr. Monahan: I think, senator, the general damage award would have to be tied to the damage to this person's reputation, such that the plaintiff would have to show that they had actually suffered damage of that magnitude. In the Hill case, there was a press conference held on the steps of the courthouse by a prominent lawyer, and the defamation was very widely repeated. Therefore, the court held that $300,000 was an appropriate measure of the damage to Mr. Hill's reputation.
Senator Pearson: I was very moved by the quotation about society's interest in reputation. My question is: Is it expensive to mount a defamation case? I am not thinking of the cases of defamation against one's professional reputation but the cases where there have been false accusations of child abuse and sexual assault and so on.
Mr. Monahan: In fact, they are very expensive because the defendants in these cases can put up many procedural roadblocks. In making this comment, I do not make any comment about any particular case and should not be interpreted as doing so. It makes it very expensive because there are a lot of motions and interlocutory proceedings that delay the commencement of the trial. In the Hill case, for example, it took a number of years - and I do not know exactly how many - before it actually came to trial.
Some scholars have written on this to try to dispel the notion that our libel laws have imposed what has been called a libel chill on the press. Some people say the press is not publishing all kinds of things that they would like to publish because they are worried about the law of defamation. In fact, it is very expensive to bring litigation, and very time-consuming, and what the Supreme Court of Canada is saying in the Hill case - and I agree with it 100 per cent - is that the value of reputation is important and that society has an obligation to protect a person's reputation.
Senator Pearson: Perhaps we should be thinking of some ways to make it less expensive.
Mr. Monahan: In this case, I think it would be positive to remove the prohibition on claiming aggravated or punitive damages, but I take it that that is not going to happen. The government is not going to propose such an amendment. However, in my view, it would be preferable by far to leave that to the courts, and to accept that the courts in our country act responsibly and do not award damages that are excessive or generally out of line with what is appropriate, particularly when we have here the Crown creating an immunity for itself that no one else would have, because it is only actions against the Crown that are subject to this prohibition.
Senator Beaudoin: I have one question on the law of contracts. In this case we are concerned with an airport, which is obviously in the federal field. There is absolutely no doubt about that. There is no doubt, also, that the Government of Canada could enter into a contract in respect of the Pearson airport. I entertain no doubt about that.
I should like to have your opinion on one rather technical point. When federal authorities intervene in a federal field, but are relying on the law of contracts, which is a provincial matter, one may contend that they have to rely on the law of contract as it applies in the province concerned.
There are two possibilities. The first is that since it deals with an airport, which is federal, the federal government may, by its accessory power, legislate as it has done in this case. I should like to have your reaction to that rather technical point.
Mr. Monahan: Senator, my view is that this legislation is valid either on the basis that it is in relation to the field of aeronautics or, alternatively, in relation to Crown liability in contract. I take the view that Parliament must, through legislation, have the ability to legislate in relation to Crown liability in contract. Indeed, it does have the ability in the Crown Liability Act. This is an aspect of Crown liability, which is an aspect of Parliament's power over public debt and property.
Alternatively, if specifically enumerated classes of subjects on public debt and property are not found in section 91, it would have to be within the residual power because the provinces cannot legislate specifically, in my view, with respect to the federal Crown's liability in contract. That must be within the power of Parliament.
On that score, senator, I do not think there would be any basis for concluding that this legislation was beyond Parliament's power.
Senator Beaudoin: In other words, if ever paragraph (e) was discarded, it would be for quite another reason than that the federal authority has no power to intervene in that particular field.
For example, last year we raised the argument of the rule of law which, of course, is the basis of our system. That is another thing. If ever a court of justice came to the conclusion that paragraph (e) might be challengeable, it would be because it goes against the access or the amount of damages.
Mr. Monahan: Yes, particularly if there was evidence which a court was prepared to accept that there had been conduct by the government or government officials which was particularly outrageous and that the government or Parliament was trying to prevent damages for that conduct. It is the arbitrary actions of government or government officials which the rule of law is intended to control and limit. That is why I remain concerned about that. However, that would only arise in an exceptional case, and I do not know whether this would be one of those cases.
Senator Lynch-Staunton: Mr. Monahan, I would like to continue on a subject I brought up with the minister last week regarding the propriety of Parliament discussing legislation which, in effect, if passed, would be a form of instruction or guidance to a trial judge in a trial which is already in progress.
The minister told us that that was legal, invoking the supremacy of Parliament. First, is it legal? Second, if it is, is it proper? Is it something that we should be doing right now?
I do not wish to repeat what has been said here previously with you in attendance, but I would like to summarize. I can understand, and even accept, that Parliament can set conditions before a trial starts. We have been told that Parliament could alter a verdict if it were dissatisfied with it. I do not know whether either has happened. However, passing legislation affecting a trial already in progress is the part I find very difficult to accept.
Could I have your views on that?
Mr. Monahan: Senator, I have reflected on that issue. I read the transcript of your discussion last week and I understand the basis for that concern. It is something which gives one pause and reason to wonder why Parliament could, through legislation, tell the trial judge what he or she may and may not do in terms of awarding damages.
On balance, however, I would be inclined to agree with the minister's view on that because, if it were the case that Parliament could not enact legislation dealing with a matter which was before the courts, or the subject of a trial, then if someone did not like a particular government proposal which was before the House of Commons or the Senate, they could simply run off to court, commence a legal action and then say, "You cannot legislate on this because it is the subject of a court proceeding."
I do not think we should have a situation in which Parliament could not enact laws on matters which are the subject of litigation, even if the law were directed at the litigation itself, as it is here, as long as the law satisfies the principles of the rules of law as I have articulated them in my previous appearances before this committee - in other words, if the bill permits access to the courts and limits damages in a way which is justifiable, not in policy terms but in terms of the requirements of the Constitution, which would mean having access to the courts.
The main argument one would want to make if one were going to challenge this legislation would be that access to the courts is not meaningful. That would be the way I would want to frame the argument challenging this legislation. I would say that, although the government has given access to the courts, the limits on damages are so severe that the access is not meaningful.
As I say, on balance, I am not persuaded that a court would agree with that argument. I am not persuaded that a court would say that this is unconstitutional because the access is not meaningful. I believe that the court would say, "We do think there is meaningful access here, notwithstanding the significant limits that are being imposed on the plaintiffs." However, there could be arguments that would be made, and I think that would probably be the strongest argument against that ban on lost profits, for example, which is the key to the whole bill.
Senator Lynch-Staunton: I certainly agree that Parliament often legislates on matters which have a direct impact on court proceedings, such as increasing sentences, creating new categories of criminal behaviour, et cetera. However, in this case, not only is this legislation based on only one particular trial; it does not have a general application, but a very particular one, and also the government is a defendant in this case.
In effect, to put it in sporting terms, the game has been going on for some time. One of the teams is unhappy with the rules and is going to ask the referee to change the rules to its advantage.
Mr. Monahan: I understand the concern, senator. It is a significant one. On the other hand, and to be fair to the government, the bill was tabled in the House of Commons some time before the court action began. The court action has been working its way through the courts, but the legislation preceded the institution of litigation.
It would be more along the scenario that I described earlier, which is a government introducing a bill and a litigant saying, "Let us commence a court action and we will prevent the government from carrying forward with its legislation." In fact, Bill C-22 was tabled in early 1994, or in December 1993, and the court action did not commence until September 1994.
I understand the concern. I am sure it would be a matter that would be argued before the trial judge.
On balance, my view would be - and I am simply here to offer you my view - that the court would not say that that violated the Constitution.
Senator Lynch-Staunton: I am not even suggesting it might or might not. I am making a suggestion regarding the propriety of doing such a thing.
What I hear you saying is that, once the intent of the legislator is known, one should beware of taking any action which would go against that intent. It sounds like the situation where the budget is read and, even if the enabling legislation has not been passed, the tax measures go into effect. Are you broadening that principle of intent, if I can call it that, to include any government legislation where intent is shown even though that legislation may never be passed?
Mr. Monahan: I am just commenting on whether a court would find something to be unconstitutional. I am not expressing a view as to the policy merits of Bill C-28 because my opinion on that is not worth anything to you. I am not elected to the House of Commons; nor am I a member of the Senate. Therefore, I am not being asked to offer that view.
I do not happen to agree with limiting what courts may award. I do not think the courts should be prevented from carrying on in the normal way and awarding what they regard as appropriate damages. I think it is important in Canadian society that all individuals have the opportunity to bring action against the government. That is something which distinguishes Canada as a free society from many other societies in the world where courts are not permitted to act contrary to what government officials would like them to do. It is a precious value which we have to guard. I am still uncomfortable with the limitations that are there.
However, as a constitutional matter, and having seen how the courts react to these kinds of situations, I am not persuaded that a court would rule it unconstitutional. The policy matter is for you, senators, and your colleagues to debate and to decide.
Senator Lynch-Staunton: Let me try once more. I am not talking about the constitutional or policy aspect. I am talking about proper behaviour on the part of Parliament regarding a trial already in progress. Let us forget that we are talking about this particular trial, although the legislation is aimed at it in particular.
Even the Parliamentary Secretary to the Minister of Transport said in reply to a question only a few days ago, "It would be entirely inappropriate for me to comment on the particulars of this case." This is a spokesman for the government saying, "Let us not even talk about the case because the trial is proceeding." We are being asked now to go farther than that. Not only are we being asked to talk about it, we are being asked to approve instructions to the judge while that trial is going on. That is what bothers me. Perhaps the constitutionality aspect comes into it. The fact that we are being asked to do that makes me feel very uncomfortable. We are being asked to side with a defendant in a case by accepting the conditions that the defendant is setting to give it less exposure to damages which may or may not be awarded against it.
Mr. Monahan: Yes. That goes to the policy of the legislation, as well as to whether the limits or instructions to the court are reasonable in the circumstances. I do not know that I can add much other than to say that it seems to me that that goes to the policy of the bill. I agree with you as a general principle, senator, that Parliament should not be prohibiting access to the courts or preventing the courts from awarding the normal measure of damages that a court would find.
By the way, the minister described an award for lost profits as somehow being a windfall to a plaintiff. I do not think that is a fair characterization because, in a breach of contract case, a plaintiff is saying, "I am prepared to perform the bargain upon which we agreed. I am now prepared to perform. You, the defendant, are preventing me from performing. So you cannot now claim that somehow, because I am prepared to perform this contract, I am seeking a windfall. I am simply saying that I am prepared to perform, and you are not prepared to allow me to perform that contract." Therefore, the plaintiff is not being put in a position of achieving a windfall.
Be that as it may, I have thought all along that legislation limiting compensation for lost profits, while undesirable, is valid. It is undesirable, in particular for the Crown, to set up separate immunities for itself, immunities that are not available to ordinary citizens. It should not be done as a general principle. I would hope that it would not be done again. However, I am not persuaded that a court would say that it was unconstitutional.
Again, senator, that is the only reason I am here.
Senator Milne: Professor Monahan, when you appeared before this committee before, you had four basic areas of concern with this particular bill. You feel that the amendments have solved your problems with three of them. You still have a problem with the fourth one, which is basically paragraph 8(2)(e). However, you do not think that a court would find this provision unconstitutional; is that right?
Mr. Monahan: That provision would only have application in an exceptional case where the conduct of a defendant was extreme and unjustified. If it were proven that there was some extreme conduct by government officials, then I think the court would want to find a way to award compensation to the individual. That may mean holding some words in that clause unconstitutional.
I simply tried to offer you my view. That is to say, looking at this in perspective as a whole, because that would only have application in these exceptional circumstances, I feel it is fair to say to you that, on balance, the legislation would probably be found to be valid.
However, if there were these exceptional facts proven, then I think the court would want to find a way to compensate the individual. It would do that either by somehow reading those clauses narrowly or, perhaps, by saying that they are unconstitutional.
There is an argument to say that that would be ruled unconstitutional by a court. However, it is a very unusual set of circumstances that would lead us to arrive at that situation.
Senator Milne: It is unlikely to happen, is it?
Mr. Monahan: Yes.
Senator Milne: Following on what Senator Lynch-Staunton was saying, perhaps you can solve a problem for me, too. It is my understanding, and always has been, that Parliament and government are two different things, and that government has entered into this contract and is now repudiating it.
However, Parliament still carries on, still has the right to enact laws, and is not a party to this contract. It has the power to legislate in respect of these contracts. I do not see any suggestion of unfairness.
Mr. Monahan: The unfairness would occur if Parliament enacted, as it proposed to enact in the original Bill C-22, that no one may have access to the courts for breach of the contract. I know the government maintains that the original version was perfectly acceptable. I take a different view. I take the view that the rule of law requires that individuals be able to sue the government for wrongful actions, including repudiations of contracts that are wrongful. There must be meaningful access to the courts. I think a court would uphold that position, and the courts have held that that principle of the rule of law limits Parliament, as well as government.
Recognizing that Parliament is a separate entity from government, the court ruled in a case handed down in late 1995 called MacMillan Bloedel that a provision in the Young Offenders Act was unconstitutional because it violated the principle of the rule of law.
There is an example since I last appeared before you where the court held that the rule of law in fact could lead to legislation being ruled invalid. When I appeared before you last time, there had not been a case where legislation had been ruled invalid. Now there is a case.
Some government witnesses have tried to argue that Parliament can do whatever it wants and that the rule of law does not matter. I do not think that is correct. I think Parliament must meet standards that are consistent with the rule of law in enacting its legislation. If Parliament were to say that it would abolish the courts or prevent anyone from suing the government on contracts that the government breached, I think the courts would say that that was unconstitutional and that Parliament could not do that.
Senator Milne: These amendments, then, solve your problem.
Mr. Monahan: Yes, with the exception of the aggravated damages point, which only arises in exceptional cases. I think the limit on lost profits is consistent with the rule of law.
Senator Doyle: When the minister was with us last week, Senator Jessiman asked him about the impact of the rule of law on what we are doing and evoked the following statement from Minister Rock:
When legislation is put before Parliament; when elected representatives debate that legislation and vote on it; when that vote gives rise to a bill which is then sent to the Senate for consideration by its committee; and when senators then debate and vote on that legislation and take account of all the interests sought to be protected by the Bill of Rights, that is the fair hearing that is guaranteed by that statute.
He stated that that is all the attention we need to pay to the rule of law and that, when we act out that set of procedures, then we have done our job. He, of course, assumes that eventually the Senate will vote as he wishes, since he says he has demolished all reason not to vote for it.
Have you any difficulty with that statement? You said a moment ago that Parliament must have a set of standards to meet the test of the rule of law, which would suggest that you are speaking of some ingredient other than those the minister outlined when he was here.
Mr. Monahan: I read Mr. Rock's testimony. I do not recall reading that particular passage. However, I take the view that the rule of law limits Parliament. It is not simply a matter of saying that whatever Parliament may vote to include in a bill, after it has engaged in debate, will satisfy the principles of the rule of law. To enact, as the original Bill C-22 proposed to enact, that there would be no access to the courts, that someone who signed a contract with the government had no rights under that contract, I think would violate the rule of law. It would authorize arbitrary conduct by government. That is no longer the bill we have before us.
I agree with the thrust of your question which is that, yes, the rule of law does impose limits on Parliament. As I have said, I believe the courts would find that this present bill meets and satisfies those requirements. However, an argument could be made to the contrary and perhaps will be made to the contrary. I just do not think the courts would accept it at the end of the day.
Senator Gigantès: In a previous meeting when we were discussing the original bill, I remember you agreeing that the party that felt itself injured could have gone to the courts to claim that the bill was unconstitutional.
Mr. Monahan: Yes, they can always make that argument.
Senator Gigantès: Access to the courts was not denied because they could always go to court to say that this bill, which denies them access to the courts, is unconstitutional. Following your arguments, the courts would have found it unconstitutional if they had listened to you. I am still puzzled as to why you keep saying this bill denies access to the courts when in fact it is impossible to deny access to the courts.
Mr. Monahan: That is only on the hypothesis that I am right and the government would be wrong. I thought you were taking the opposite view.
Yes, if you went to court and had the court rule this unconstitutional, then you would succeed. However, the minister's position was that yes, you could go to court, but you would be thrown out. First, the government would bring a motion to say that you cannot bring an action because these contracts never existed. That is what the original version of the bill said, that there would be no contract to sue on.
Senator Gigantès: You said that the court would not accept it. I am delighted to see a professor admit that he may be wrong. I never met one before.
The Chair: I am not sure Professor Monahan actually admitted he was wrong. I would like the record to show that.
Thank you very much for your presentation this morning, professor.
Our second witness this morning, honourable colleagues, is from the Department of Foreign Affairs and International Trade.
Please proceed.
Mr. Jonathan Fried, Director General, Trade Policy Bureau & Coordinator for NAFTA: Madam Chair, appearing with me today is Mr. Serge Fréchette. He is Senior Counsel with the Trade Law Division of the Department of Foreign Affairs and International Trade in the Department of Justice housed in the Department of Foreign Affairs but accountable to the Attorney General for advice.
Madam Chair, I do not have a prepared statement. Minister Eggleton asked that I make myself available to the committee to be of whatever assistance I can this morning. That request, I understand, was made last Friday. I am here at the disposal of the committee to be of help, if I can.
The Chair: Mr. McIlroy, in his presentation, suggested that we should hear from someone from the Department of International Trade. At the steering committee meeting, that was confirmed by Senator MacDonald. Some senators have specific questions for you.
Senator Nolin: Have you read Bill C-28?
Mr. Fried: Yes, as a client rather than as a lawyer.
Senator Nolin: Do you see a problem between this bill and NAFTA or the previous Free Trade Agreement?
Mr. Fried: No, I do not.
Senator Bryden: I think everyone accepts that the FTA does not apply, but there has been some discussion as to whether the NAFTA applies because, if I understand the argument properly, the action to cancel the contract occurred when the NAFTA was not in effect. However, when the bill with which we are dealing now becomes law, the NAFTA is in effect. Have you any view as to whether the fact that the bill will be enacted while the NAFTA is in effect will affect the rights under the NAFTA? Indeed, even if the whole thing happened now, would we be in violation of the NAFTA?
Mr. Fried: Indeed, the question you asked is one that the government itself asked. In such circumstances, the Department of Foreign Affairs turns to its legal advisers in the Trade Law Division and the Department of Justice for a precise opinion on the limits of our NAFTA rights and obligations.
Consistent with the testimony you received from Mr. von Finckenstein last week, we have been informed and advised that since all of the relevant events took place prior to the coming into force of the NAFTA, and since independent of the operation of the legislation when and if it is passed there was a repudiation of the contract which took place in December 1993, there would not be any NAFTA consequences from the events surrounding the cancellation of the contract.
Senator Beaudoin: The other day, Mr. von Finckenstein and Mr. McIlroy disagreed on exactly that point. It is important because of the NAFTA. I asked that question of the Minister of Justice, and the Honourable Allan Rock said, "Well, Canada is not violating any treaty rights or any obligation in international law."
I understand that you have looked into this matter and that you do not consider that the paragraph in clause 8 dealing with investment would go directly or indirectly against our obligation pursuant to the NAFTA. Do I understand that there is no violation of any obligation?
Mr. Fried: That indeed is my understanding of the advice from the Attorney General and his representatives to our department.
Senator Beaudoin: This is important. We have dealt in depth with the rule of law and the constitutional law question, but not very much with the international law. This is the first time it has come to my mind. Is it your opinion that there is nothing to worry about?
Senator Nolin: It is not his opinion. It is Mr. von Finckenstein's opinion. He just said that to Senator Bryden. He is relying on the opinion of Mr. von Finckenstein.
Mr. Fried: Madam Chair, if I may, you introduced me as the director general for trade policy. In the Department of Foreign Affairs, as with other government departments, when legal questions arise, we turn to our legal advisers for a precise reading of legal rights and obligations, be they national or international.
The Trade Law Division, as I explained, through Mr. von Finckenstein and the Department of Justice, has indeed provided that precision.
Senator Nolin: It is the same opinion.
Senator Beaudoin: Let us clarify that point.
The Chair: You do realize that Mr. Fried is not a lawyer.
Senator Beaudoin: Yes. However, we now have three opinions. We have the opinion of Mr. McIlroy; we have the opinion of Mr. von Finckenstein; and we have the opinion of the Minister of Justice of Canada, which obviously is the opinion of the Department of Justice. It is two to one.
I simply asked the question. I am not saying that I agree or disagree. I am inquiring because it is an interesting point of law.
The Chair: Thank you, Mr. Fried, for appearing this morning, and thank you for bringing Mr. Fréchette.
Senator Doyle: Will the Minister of International Trade be appearing before us?
The Chair: No, the Minister of International Trade will not be appearing, nor will the Minister of Transport.
Senators, I have called for clause-by-clause consideration of this legislation for two o'clock this afternoon. If it is the will of the committee, we can do it this morning. What is your pleasure?
Senator Milne: Do it this morning.
The Chair: You would like to do it this morning. Is it agreeable that we move now to clause-by-clause consideration of this bill rather than meeting again at two o'clock?
Senator Doyle: Is there no opportunity to question either the Minister of International Trade or the Minister of Transport? The previous Minister of Transport set the stage for much of what we have been debating for two years. I think that the new minister should be asked to put his imprint on what has gone before or whatever is new, in his interpretation.
The Chair: Senator Doyle, as you know, through the clerk, I verbally invited him to attend. I then wrote last Tuesday to the Minister of Transport. I received a letter this morning from the Minister of Transport indicating that his schedule did not permit him to appear before the committee. I believe we have sent a copy of that letter to Senator Nolin, as the deputy chair, but I will see that you receive a copy of it as well.
Senator Doyle: Can we delay the clause-by-clause consideration until the opening of our hearings this afternoon?
The Chair: Do you wish to wait until two o'clock this afternoon for clause-by-clause consideration? Is that the will of the committee?
Senator Beaudoin: I would prefer that. It was scheduled for two o'clock.
The Chair: I will not do this unilaterally. I asked if it was your will to proceed now or if you would prefer to wait. If it is your will to wait until two o'clock, we will assemble here at two o'clock for clause-by-clause consideration.
The committee adjourned.
OTTAWA, Monday, June 10, 1996
The Standing Senate Committee on Legal and Constitutional Affairs met this day, at 2:00 p.m., to consider Bill C-28, respecting certain agreements concerning the redevelopment and operation of Terminals 1 and 2 at Lester B. Pearson International Airport.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Honourable senators, we will now begin our clause-by-clause consideration of Bill C-28. Is it your wish that we now proceed?
Senator Milne: Yes.
The Chair: Shall clause one stand?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 2 stand?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 3, as amended, carry?
Senator Lynch-Staunton: To help accelerate the procedure, are the amendments being proposed the same as those distributed last week?
Senator Bryden: Yes.
Senator Lynch-Staunton: Word for word?
Senator Bryden: With the exception, Senator Lynch-Staunton - that is, if your copy is the same as mine - that included in my copy of the amendments were marginal notes.
Senator Lynch-Staunton: I do not have marginal notes.
Senator Bryden: There was also a heading in mine.
Senator Lynch-Staunton: I have some headings. I want to make sure we are all reading from the same text.
Senator Bryden: I am prepared to move the amendments clause by clause as we go through.
Senator Lynch-Staunton: Will they be read?
The Chair: I will ask Senator Bryden to read them in each case.
Senator Lynch-Staunton: Before we proceed to the first amendment, I should like to reiterate that, first, we on this side feel that it is highly irregular to proceed in this way - to discuss a bill and amendments to it when a court proceeding is going on. We have presented the arguments here and elsewhere; I want to reiterate them as we proceed to this stage.
Second, it is our feeling that these proposed amendments are taken, as a whole, quite contrary to the principle of the bill itself. There are elements in those amendments which deny and contradict what the bill states, both in intent and in form.
It is under those two major objections that we will proceed to examine the amendments. It is also for those two reasons that they will lack our support.
The Chair: Senator Bryden, will you read your amendment to clause 3 now, please?
Senator Bryden: Yes. I move:
That clause 3 of Bill C-28 be amended by striking out lines 1 to 3 on page 2 and substituting the following:
3. The agreements are hereby declared to have no legal effect after December 15, 1993.
The Chair: Is there any discussion? If not, shall clause 3, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Next is Clause 4.
Senator Bryden: I move:
That clause 4 of Bill C-28 be amended by striking out lines 7 and 8 on page 2 and substituting the following:
hereby declared to have no legal effect after December 15, 1993.
The Chair: Any discussion? If not, shall clause 4, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Perhaps you would now turn to clause 5.
Senator Bryden: I move:
That clause 5 of Bill C-28 be amended by striking out line 19 on page 2 and substituting the following:
declared to have no legal effect after December 15, 1993.
The Chair: Discussion? Shall clause 5, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 6 carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Clause 7 is next.
Senator Bryden: I move:
That Bill C-28 be amended by striking out the heading before clause 7 on page 2 and lines 25 to 39 on page 2 and substituting the following:
Liability
7.(1) In any action or proceeding that is based on or is in relation to
(a) The Request for Proposals,
(b) the negotiations that followed that Request,
(c) any agreement,
(d) any advice or services provided to Her Majesty in relation to any agreement, or
(e) any thing done by the Government of Canada in relation to the announcement of the cancellation of any agreement,
and that is instituted before or after the coming into force of this Act by anyone against Her Majesty in relation to any agreement, relief shall be granted only by way of an award of damages in accordance with section 8.
(2) In any action or proceeding that is instituted before or after the coming into force of this Act and that is based on or is in relation to any matter referred to in any of paragraphs 1(a) to (e), no relief may be granted against any minister or any servant.
The Chair: Discussion? Shall clause 7, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Clause 8 is next.
Senator Bryden: I move:
That clause 8 of Bill C-28 be amended by striking out lines 4 to 7 on page 3 and substituting the following:
8.(1) In any action or proceeding referred to in subsection 7(1), an award of damages may be made only in respect of claims that
(a) relate directly to Terminals 1 and 2 at Lester B. Pearson International Airport; and
(b) are recoverable by law against Her Majesty.
(2) In any action or proceeding referred to in subsection (1), no award of damages shall be made in respect of
(a) a loss of profit by a claimant or anyone else, or an amount based on the loss of future revenue the payment of which was contingent on the execution and continuation of an agreement;
(b) any fee paid for the purpose of lobbying a public office holder, within the meaning of subsection 2(1) of the Lobbyist Registration Act, in connection with any agreement;
(c) Any investment in any company or partnership controlled by one or more partners of T1T2 Limited Partnership, or by the controlling entity of that partner or those partners, that resulted in a change of control of that company or partnership.
(d) any claim for loss of value of any share, partnership interest or investment; or
(e) non-compensatory, punitive, exemplary or aggravated damages.
The Chair: Discussion? Shall clause 8, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 9 carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 10 carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 11 carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 12 carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall the schedule carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill as amended carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Shall I report the bill as amended to the Senate?
Some Hon. Senators: Agreed.
Senator Lynch-Staunton: Madam Chair, before you close the proceedings, I would hope to have it recorded again that this side did not take a position on the amendments one way or the other. We did not vote in favour. We did not vote against. We abstained. That should be noted for the reasons already given. I would like those reasons included in the report. It does happen, when there is not unanimity, that the comments of the dissenting side can be included. I have a very short statement here which I would like you to include in your report. I will read it:
The Progressive Conservative members of the committee cannot support the government amendments at this time -
The words "at this time" are underlined for emphasis.
- and urge rejection of Bill C-28 as amended for the following reasons:
1. The amendments proposed by the government are contrary to the principle of Bill C-28 and therefore should have been the subject of a new bill introduced in the House of Commons.
2. Legislation which would have a direct impact on a trial should not even be considered, much less agreed to, while the trial is in progress.
The Progressive Conservative members also deplore the fact that both the Minister of Transport, who is the sponsor of Bill C-28, and the Minister of International Trade refused to appear before the committee and give testimony on the subject-matter of the bill.
I ask that this be included in the committee's report.
The Chair: Honourable senators, is it the decision of the committee that those comments be included?
There is no question in my mind that the Minister of Transport did in fact turn down a formal request from this committee. However, no written request was ever made to the Minister of International Trade.
Senator Lynch-Staunton: If he was not invited, I will certainly strike that reference out. I apologize. I will amend that to read:
...deplore the fact that the Minister of Transport, who is the sponsor of Bill C-28, refused to appear before ....
The Chair: Any discussion?
Senator Bryden: I do not see any problem with the statement being included, as long as it does not create a procedural problem.
Senator Lynch-Staunton: It would not create a problem on Pearson but it might create a political problem.
Senator Bryden: I take it that this is simply a request of the Chair that she include in her report your comments?
The Chair: There is apparently no provision for a minority report to be given on any bill. However, there is no precedent, to the clerk's knowledge, that it cannot be included in the overall report of the bill, if that is the wish of the members of the committee.
Senator Stanbury: Madam Chair, my only concern is that it not be indicated that these remarks are part of the report of the committee. The committee has a certain make-up. I would not want it thought that the majority of the committee had agreed to those remarks or was in agreement with those remarks. I am a little concerned about how the committee can report remarks which do not express the will of the committee.
Senator Lynch-Staunton: First, the comment includes the statement that this is the view of the Progressive Conservative members. That is stated twice. There is no question that this is a view of the minority.
Second, as to precedents, there are precedents for this. I recall one in which I was involved when we were discussing the Patent Act to extend the protection period for pharmaceutical companies to 20 years. At that time, Senator Kirby insisted on including a minority opinion or dissenting opinion in the report, and it was included.
This comment serves to express the thoughts of the committee on the study of the bill. It does not bind anyone except those who share this thought. In my opinion, it is valuable that the Senate should have this drawn to its attention.
Senator Stanbury: I am sympathetic. I am trying to think of how it can be done without giving the impression that it is the report of the committee, which has a certain make-up.
Senator Lynch-Staunton: It is not the report of the majority. It is the report of the committee. I quite agree with you.
Senator Bryden: Is it possible that Senator Lynch-Staunton could make his statement when the report is presented in the house?
Senator Lynch-Staunton: These remarks are being made because the assumption is that all committee reports must be unanimous. For the Senate to appreciate perhaps any committee report, it should hear as many views as possible without cluttering the report. We have one view which supports the amendments; and another view which, for various reasons, is not prepared to support the amendments at this time.
We are urging that that view be incorporated in the report. It does not bind the chairman or anyone who disagrees with the view, but it has the value of allowing senators who will receive the report to see that two opposite views were expressed on the same subject-matter.
Senator Stanbury: Would it help to use the words at the beginning of your statement, "the minority view of the Progressive Conservative members of the committee," or something of that kind, to indicate that this is a minority view?
The Chair: Technically, we report bills either amended or unamended. That is the traditional way in which a committee reports a bill. In this case it will be reported with amendments. At that point, we can also go on to say that those amendments were not supported by all members of the committee.
Senator Bryden: The report is submitted in the normal course. It is then open to you or anyone on your side to read that statement into the record of the Senate. I do not see the advantage of having it reported by the Chair.
Senator Lynch-Staunton: I am surprised that Senator would be the one to raise an objection because a lengthy minority opinion was included in the report of the Pearson inquiry. Whether we agreed with the views in it or not, as the majority at the time, we felt it was quite appropriate that diametrically-opposed views, as it turned out in that case, would be included in that report to allow the reader to understand the full value of all the conclusions, both in favour and against.
All we are asking is that a conclusion, short and to the point, of the five members of the opposition on this committee be included in the report. We want to give two views to allow the Senate to assess the work of the committee with more knowledge. It does not compromise anyone who dissents with this view.
Senator Bryden: By incorporating this position as a minority part of this report, does it give rise to any future procedural possibilities within the Senate that otherwise would not be available if it were not included?
The Chair: We will get some further information about that particular procedure, but it is certainly not customary to include minority opinions in the reports of committees. There has been some tradition of minority and majority reports when presenting the report of an inquiry, such as the Pearson Inquiry, but it has certainly not been the custom to report bills in the fashion Senator Lynch-Staunton is suggesting today.
Senator Gigantès: Perhaps, if it is not forbidden, Senator Lynch-Staunton could add the word "minority" to his statement, and say, "The Progressive Conservative minority disagreed with the Liberal majority, for the following reasons:..."
Senator Doyle: I think Senator Stanbury feels that he would not want people to think that anyone on his side adopted the position Senator Lynch-Staunton has put forth. I would assure you that no one on this side would like anyone to think that we would take your position. In the interests of clarity, we should be able to say that not everyone marched when the minister shouted.
There are certainly precedents for this. I can recall many recommendations from this very committee going forth with comments to the minister. We expressed the view that, while some members of the committee made certain recommendations, alternative suggestions had been made. We have used every conceivable avenue of trying to communicate, without going into lengthy advocacy, where we have stood. When people are going through the transcript, three months or three years from now, they will see that the committee passed the bill, and unless they read 20 pages on, there will be no indication that it was not a unanimous report. Senator Lynch-Staunton's suggestion may be totally out of keeping with the formal rules, but perhaps we should change the rules. That is all I have to add.
Senator Pearson: I recall that, after our examination of the Young Offenders Act, the report indicated that some senators had disagreed with some of the amendments. In that case, it was actually some senators from both sides. That was done to show that some of us were not in complete agreement with the report.
Senator Lynch-Staunton: I would be willing to word this in such a way that it would not compromise those who disagree with it - by simply saying that the PC members of the committee cannot support, or stated they would not support, the amendments at this time. I would take out the phrase, "urge rejection of the bill." The statement would be: "PC members of the committee cannot support the government amendments at this time as they feel that the amendments proposed by government... In addition, they feel that the legislation, which will have a direct impact..." It would be leaving an impression. It would not categorically state that this is the view of the committee. It would be giving a sense and feeling of the minority members.
The bill to which Senator Kirby attached a lengthy minority opinion is Bill C-91. I also believe that the GST report had comments by the government members who were then in the minority. The more I think of it, the more we will find examples of reports, particularly urging amendments, containing a lengthy narrative and, on occasion, comments from the dissenting side.
The Chair: Dr. Lank, please explain what you have learned.
Ms Lank: I consulted with some procedural experts in the chamber, the Clerk of the Senate being one, to discuss this issue. From a procedural point of view, which has been discussed in this committee before, the important distinction is lies in the use of the word "recommendation." There can be no use of the word "recommendation" should there be the addition of a commentary on a minority opinion. That would causes procedural problems because the adoption would be a decision of the Senate. Clearly, you would then have an internal contradiction within the report. However, if you word it to indicate that it is an observation or a commentary, and clearly identify it as being distinct from the amendments, there should be no procedural problem at all with the report.
Senator Milne: Dr. Lank has answered my first question. I have no problems with this except that I would be concerned about connecting this committee's name put anything that stated that a minister refused to appear, because when you read the reply you will see that it was not that he refused to appear but that he had other commitments.
The Chair: Yes. The letter states:
I am writing in response to Senator Carstairs' letter of June 4, 1996 inviting the Honourable David Anderson, Minister of Transport, to appear before the Standing Senate Committee on Legal and Constitutional Affairs.
Minister Anderson's agenda is unfortunately very full, both here in Ottawa and away, until the end of June. He will therefore not be able to accept the Senator's invitation.
Senator Lynch-Staunton: Then I would be happy to drop the word "refused" and put in "was unable", after referring to that letter.
Senator Stanbury: I have the impression that Senator Lynch-Staunton's modifications in the last couple of minutes have solved the problem that our clerk has pointed out. I would think there is no objection.
Senator Bryden: Perhaps it can be read.
The Chair: Perhaps Senator Lynch-Staunton could read it once more and propose it as a motion so we can vote on it.
Senator Lynch-Staunton: I move that the following be added to the report:
The Progressive Conservative members of the committee cannot support the government amendments at this time as they feel that the amendments proposed by the government are contrary to the principle of Bill C-28 and therefore should have been subject of a new bill introduced in the House of Commons.
In addition, they feel that legislation, which would have a direct impact on a trial, should not even be considered, much less agreed to, while the trial is in progress.
The Progressive Conservative members also deplore the fact that the Minister of Transport, who is the sponsor of Bill C-28, was unable to appear before the committee and give testimony on the subject-matter of the bill.
Senator Gigantès: Did not the clerk say that we would or would not avoid procedural troubles if the world "commentary" was used?
Ms Lank: "Commentary" is fine. "Observation" is fine. The word that cannot be used is "recommendation."
The Chair: The word "recommendation" is not used.
Senator Gigantès: Could Senator Lynch-Staunton use either the term "observation" or "commentary" at the beginning of his motion?
Senator Lynch-Staunton: I am submitting the text, but I am sure those who write the report will give it the appropriate title.
Senator Gigantès: We do not want to use a title which has not been agreed upon.
The Chair: Would it be acceptable if we started, "The Progressive Conservative members make the following observations"?
Senator Lynch-Staunton: Certainly.
The Chair: All those in favour of Senator Lynch-Staunton's motion?
Hon. Senators: Agreed.
The Chair: Carried.
There being no further business before this committee at this time, the committee will adjourn.
The committee adjourned.