Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 - Evidence for November 28, 2002
OTTAWA, Thursday, November 28, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10 to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act, met this day at 10:55 a.m. to give consideration to the bill.
Senator Gérald-A. Beaudoin (Deputy Chairman) in the Chair.
[English]
The Deputy Chairman: Honourable senators, I believe we may finish this matter by one o'clock. We have heard all of the witnesses. Ms. Roussel, who is here for that purpose, may answer some questions. We intend to report to the Senate this afternoon. If we succeed, we will send two reports, reflecting the split bill that I would refer to as two documents. One of the documents is already finished. However, we must also move to article-by-article consideration of the document. I do not use the word ``clause,'' because this is not a bill yet.
We will go to article-by-article consideration of the document and I would suggest that we start with this and after that, we will have a motion and this will be part of our report. We will send the two documents to the Senate this afternoon. The Senate will deal with the matter, and the documents will go to the House. However, that is the Senate; that is not this committee.
We have four or five amendments as far as I know. We may start with those amendments or follow the usual practice of going through the document by article. I am not sure that the second possibility is the best one route to deal with the four or five amendments that we have and then we may accept the document at that stage.
Senator Corbin: Mr. Chairman, is it your intention to proceed with an article-by-article study of the document?
The Deputy Chairman: Yes.
Senator Corbin: I move that the committee proceed to article-by-article consideration of the document known as Bill C-10A, to amend the Criminal Code (firearms) and the Firearms Act.
The Deputy Chairman: I want to be sure that we know exactly what we are doing this afternoon. We will go through the first document, as it will be referred to, and then we have a report for the Senate, and we deal with the amendments at the proper time. Is that what you are suggesting?
Senator Corbin: I am suggesting that we begin our article-by-article consideration of the document. We will get to the stages that you refer to in their order.
The Deputy Chairman: We discussed the questions of procedure yesterday. Our experts are here and they may come to the table at any time. However, to save some time and to go directly to the question, we may go article by article.
Senator Stratton: I have voiced concerns about the process, as have others on our side. We do not feel comfortable with the process. It has never really been explained to us from a legal standpoint as to what the process is and how it will withstand any challenge, and yet we are ploughing ahead.
I would recommend to the committee that we hear from someone with technical background with respect to this process so that we know how this bill is to proceed.
The Deputy Chairman: I do not have any objection to that.
Senator Andreychuk: We were advised that we could split the bill and then not deal with clause-by-clause, but comment on article-by-article and report a portion and continue to work on the rest. We would not be violating the Rules of the Senate or creating any precedents, and that we were in line with precedents that had been set. Yesterday we heard that that was not the process and today we are back to the original process.
I want some assurance that the advice we had yesterday, whether it was through the steering committee or from the Clerk's table, is not consistent with good practice and that the original advice we were given is good practice.
We have been given two interpretations. I would like to know why we should go back to our original position.
The Deputy Chairman: Which one?
Senator Stratton: That is the point.
Senator Andreychuk: The point was that when we agreed first we said we could split the bill and we could report a portion. Yesterday, you indicated that the advice you were given was that if we reported a portion of a bill that we would lose the ability to work on the remainder of the bill. In other words, we would lose jurisdiction over the cruelty to animals portion. I was very concerned that that not happen. This all goes back to the 1988 precedent and the interpretation of it.
I want to know why we had the first advice, why you were given second advice and why are we going back to the first advice? Is it because those who gave the second set of indications to you have withdrawn their advice or whether we are simply choosing between two conflicting opinions?
The Deputy Chairman: This is a clear-cut situation. I agree that the experts told us that there is a certain risk. If we make an interim report, it may be the end of our term; our mandate and we may have to go before the Senate to continue the study of the bill.
I am quite ready to call one expert immediately to settle the problem. That is the only problem that we have. We do not have any other problem. That one must be solved.
[Translation]
Senator Nolin: That is precisely my view. I have no problem whatsoever with our beginning clause-by-clause consideration of the bill. We will have a report to make to the Senate. However, before undertaking this task, it would be appropriate to hear the experts tell us if we may proceed in this way and, if so, how.
[English]
Senator Cools: As honourable senators are aware, several days ago we raised concerns and those of us at this table share the belief that we should be proceeding in as proper and as good a way as is possible.
I am also mindful of the fact that what is happening here is unusual. It behooves us even more to leave a clear record for posterity. If we have confidence in what we are doing, we should leave a clear record of our reasoning and our actions.
If you will recall, last week when we met to discuss this matter, it was in camera, and it is true someone from the Law Clerks' office came in for a few moments. I think, honourable senators, that it is in the interests of the integrity of the process itself that we hear from some of our procedural people — and perhaps our Law Clerk himself. Then the record can show that we are acting with due diligence and that we are not acting out of whim or in any effort trying to be hasty. The major thing is that the record should show very clearly that the Senate and the senators are not trying to frustrate any votes or voted will of the House of Commons, which is a question we have not touched on at all here. I think the record should show that we were acting in a way that was consistent with the one precedent that does exist.
The Deputy Chairman: I think we have to proceed.
Senator Corbin: Point of order: I made a formal motion, Mr. Chairman. I think you should put that motion to the committee. If a discussion ensues, then we will deal with it at that time. If I may suggest, that is the way to proceed.
The Deputy Chairman: No, because it was a point of order, Senator Corbin.
Senator Corbin: A point of order seeking clarification, and then I formally moved the motion, Mr. Chairman. This is proper parliamentary process that I am suggesting.
Senator Cools: Perhaps, then, if we are proceeding this way, I think very clearly the record —
Senator Corbin: I do not seek to close debate, Senator Cools.
Senator Cools: I agree. That is why I was about to say that maybe you should withhold your motion for a few moments, just long enough for us to hear some of these people. I think it is in the interests of the record. We have a duty to due diligence.
The Deputy Chairman: I propose that we should suspend that for five or ten minutes. I hope it is not more than that. We have Mr. O'Brien and Mr. Audcent here. We have to clear the point that was raised, because we do not want to be on an empty chair after the report of this afternoon. We want to be sure that we will continue with document B after document A. I use the word ``document'' on purpose. I call on Mr. Audcent and Mr. O'Brien.
Senator Corbin: Five or ten minutes sounds reasonable.
The Deputy Chairman: Let us say ten minutes, but not more. We want to hear you on the point that was raised, that we will not lose any power if we report on the first document this afternoon and on the question of amendments and other related matters, because it was raised in a discussion that I had with you.
Mr. Gary O'Brien, Deputy Clerk and Principal Clerk: Honourable senators, dividing a bill is not unprecedented, but there are very few cases of precedents, and the one example is 1998 with Bill C-103. At that time, the committee acted as follows: It received an instruction to divide the bill into two parts, as you have on November 20. The committee proceeded to divide the bill. It did not then just report that it had divided the bill pursuant to the instruction, because I think the citation from Beauchesne's is very clear that when a committee has been given a bill, it can only report the bill. It did not just report that it had divided the bill back to the committee. It proceeded with its other work, which was to consider the two bills that it had divided. It proceeded with a clause-by-clause consideration of the first bill, and then it reported that bill back to the Senate, at which case the committee felt its work was done with respect to the first bill.
In 1998, the committee, in its report to the Senate, which was agreed to by the Senate, asked that the committee continue its examination of the second part of the bill. In fact, at that time, it was given another order of reference to continue its examination of the second part of the bill. It did not make an interim report because if it had made an interim report, pursuant to the citation in Beauchesne's it has then reported it the bill. However, it had not completed its work. It wanted to continue with the clause-by-clause examination of the first part, and it wanted to ask the Senate to continue its examination of the second part.
Mr. Mark Audcent, Law Clerk and Parliamentary Counsel: Honourable senators, as you know, this committee instructed me to divide the bill, and working copies of the bill were provided to the committee. I think my proper role would be to answer any questions you might have on the division of the bill.
Senator Nolin: Thank you for your explanations. The precedent that you are citing, was that a bill on the spending of public funds?
Mr. Audcent: Yes, it was, senator.
Senator Nolin: Basically, the Senate introduced a money bill. A money bill was introduced in the Senate.
Mr. O'Brien: The Senate divided a money bill into two separate bills. The Governor General had given a recommendation for the spending of the first bill, and nothing substantially changed with respect to either part, so the spending provision remained intact.
I will finish the story on Bill C-103 in 1988. When the bills were returned to the House of Commons, the Speaker of the House of Commons, upon receipt of the message informing that they had divided the bill, in his role as defender of the privileges of the House objected to this and made that clear to the House of Commons. He objected to the fact that the Senate did not ask the concurrence of the House of Commons in the division of the bill, as had been done in 1941 with respect to an action taken by the Senate to consolidate two Commons bills into one bill. It did ask its concurrence to do so. It did not ask the concurrence in the 1988. Speaker Fraser objected to this. The House of Commons followed up. He said it was up to the House to waive its privileges. The House has waived its privileges before. The House did not waive what it considers its privileges on financial initiatives and sent a message back to the Senate asking them to put the bill back together again and not divide the bill. The Senate conceded.
The Deputy Chairman: Thank you.
Mr. Audcent: I could intervene on that one from the legal point of view, Senator Nolin. The Constitution requires that bills that are money bills originate in the House of Commons. This Bill C-10 originated in the House of Commons and has a Royal recommendation. The working copies that are coming out of this committee are proposed to be — and your instruction was — to divide them into Bill C-10A and Bill C-10B, not into Bill S-10A and Bill S-10B. Conceptually, you are dealing with them as a continuation of the Commons bill and you are proposing that there would be two new Commons bills. The concept is that this bill continues to have originated in the House of Commons to satisfy the requirements of the Constitution Act 1867.
The Deputy Chairman: Thank you very much for that explanation.
Senator Andreychuk: I want a little more information. When the committee split the bill and returned it to the chamber, I understand that there was a ruling by the Speaker in the Senate. Is that correct? In other words, the chamber did not agree with what the committee had done; is that my understanding and recollection of that 1988 case? The Speaker in the House had a different opinion from the Speaker in the Senate; is that correct?
Mr. O'Brien: Senator Andreychuk, there was a Speaker's ruling in the House, but it preceded the committee getting instruction. The question of order was on the acceptability of the instruction before the committee began its work.
In that case, Speaker Charbonneau anticipated that the committee would divide the bill and bring two new bills back to the house. It was unprecedented. He said, ``Suddenly, there was one bill and now there are two bills. Where did these bills come from, when there was only one?'' They both had money provisions in them.
Other than that, the procedure was acceptable. However, he could not understand and he could not get his head around where the two bills were coming from. He made a ruling that the instruction was not in order. His ruling was overturned.
Senator Andreychuk: Mr. Audcent, you have said that, in essence, we have created two House of Commons bills; is that correct? That by splitting them and reporting them separately, they may have been one bill — Bill C-10 — but now we are reporting two bills? Are we reporting on two portions of one bill, or are we reporting on two bills?
Mr. Audcent: Honourable senators, when you have a bicameral parliament, you end up with complications that you do not have in a unicameral assembly. When you have a unicameral assembly and you divide or amend a bill, the bill is divided or amended. When you have a bicameral Parliament, you divide or amend the bill that is your own bill. The House of Commons divides or amends a ``C'' bill and the Senate divides or amends an ``S'' bill.
However, when you are working with the product of the other chamber, you are dealing with their message for concurrence. Thus, you receive their bill and review it and say whether you amend it or divide it. In fact, it is their bill. Given the fact that it is their bill, it does not get divided or amended until they concur in the division or the amendment. That is why the bill continues to be Bill C-10A and Bill C-10B, as opposed to Bill S-10A and Bill S-10B. This is a ``C'' bill and it is their concurrence in the division of their bill that ultimately perfects the division — the division being a form of amendment.
Senator Andreychuk: Are we obliged to report both portions of the bill at the same time, or do we further complicate the issue when we report only a portion? Following on that, would it be better — and you are our legal expert — if we were going to follow best practices, that when we contemplated in the chamber, as senators, to separate the bill, that we should have sought the concurrence of the House at that moment?
Mr. O'Brien: We are going through the jungle here without too much of a map. The one example we have is the 1988 example. The only objection the House had with that practice was that we did not ask them for their blessing. We did not ask for their blessing when we returned the bills to them.
Senator Andreychuk: Did we return the bills to them at the same time?
Mr. O'Brien: We returned the bills to them at the same time. There have been discussions with officials. There is a proposal to which, obviously, senators and members would have to agree. However, I think the members of the House may look favourably on the point if at the same time that we ask for their blessing, we ask for the bills to be reprinted. If the bills are reprinted, there could be, on the cover of the two new bills: ``Pursuant to the Order of the Senate,'' on such-and-such date, and ``Pursuant to the Order of the House of Commons,'' on whatever date, where they had agreed to our message to divide Bill C-10 as passed in the House of Commons on October 9, into two parts, 10A and 10B, and to reprint the divided bill. There would then be two separate bills. Bill C-10 would be more of an historical document and there would be two new bills, 10A as a new number and 10B.
Senator Andreychuk: You did not answer my question on best practice.
Mr. O'Brien: The best practice is the precedent practice. That was the only thing that was objected to.
The Chairman: We must remember that we are creating a new precedent. There is no precedent that settles the present problem, but we are creating one, having regard to the powers of the two chambers.
Senator Cools: Honourable senators, my recollection is that when the House of Commons objected, they were objecting on the grounds that the Senate had not asked for their concurrence in the dividing of the bill in the first place. That was why I made the proposal when we first started discussing this matter, I said at the time that once you divide the bill you have two creatures and you then need to send it back and then it would be returned. That was my understanding.
That is not my question today. My question has to do with these two entities. My recollection is that when the precedent bill was divided, it was divided into parts, not exactly into two new bills. I do not remember, I would have to look at it again.
In this case, we divided the bill into two bills, being Bill C-10A and Bill C-10B. However, the 1988 precedent was that they divided the bill into part 1 and part 2. Therefore, they attempted to be clear that they were dividing the bill into parts and not pretending to even renumber the bill. Why have we chosen to proceed differently in this instance?
Perhaps you could clarify whether my recollection of the events of 1988 are accurate. I do resolve that we ended up with the same bill, Bill C-103, Part 1 and Bill C-103, Part 2. Here we have Bill C-10A and Bill C-10B. If we say that we should follow that precedent as closely as possible, this is quite a dramatic departure from that particular precedent. Could I have some explanation? I have been trying to get an explanation for a week.
Mr. Audcent: Senator, I can confirm that in 1988, the bill was divided into Bill C-103, Part 1 and Bill C-103, Part 2; that is correct. I can confirm to you that the division that was done this time was into 10A and 10B. The reason for that is that you as a committee have an instruction from the Senate and the instruction from the Senate is to divide it into Bill C-10A and Bill C10-B. This is what you were told to do by the Senate. This is not option. You are responding to what the Senate asked you to do.
I would like to apologize to Senator Cools. I was just taking a look at my notes and I saw the actual motion that you adopted which says C-10A and C-10B. That was the motion that the committee adopted. In point of fact, the Order of Reference from the Senate was to divide C-10. I apologize to Senator Cools.
Senator Cools: Could you read the reference from the Senate?
Mr. Audcent: The Order of Reference states:
That it be an instruction to the Standing Senate Committee on Legal and Constitutional Affairs that it divide Bill C-10 an Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act, into two bills in order that it may deal separately with the provisions related to firearms and provisions related to cruelty to animals.
Senator Cools: What did the reference in 1988 say? I know that, in 1988, the bills became part 1 and part 2.
Mr. Audcent: The Order of Reference in 1988 was:
That it be an instruction of this House to the Standing Senate Committee on National Finance that it divide Bill C-103, An Act to increase opportunity for economic development in Atlantic Canada, to establish the Atlantic Canada Opportunities Agency and Enterprise Cape Breton Corporation and to make consequential and related amendments to other Acts into two Bills in order that it may deal separately with Part I, entitled The Atlantic-Canada Opportunities Agency, and Part II entitled, Enterprise Cape Breton Corporation.
The Chairman: It was two bills.
Senator Cools: That is clear-cut from the point of view of the Order of Reference from the chamber. The deviation is the practice of committee. The committee took it on its own initiative to create Bill C-10A and Bill C-10B and name it that way. It could have named it anything it wanted. If the references are the same and the titling in the committees are different, then this would be a new entity. It is good for the record to show that information. Many people will read this particular record.
Senator Joyal: Again, my question is directed to Mr. O'Brien. Did I understand you correctly when you spoke to our procedure this morning, that we would report the working document C-10A as an autonomous part of the Bill C- 10 in order to be able to continue our work on the other part of the bill, which deals with animal cruelty, for our report this morning to the house later? That will happen after we deal with the motion of Senator Corbin. In our report, we will request authorization from the Senate to continue our work on the second part of the document for Bill C-10. That has to be clear in our report to the house.
Mr. O'Brien: If you were to follow the 1988 example, that is what you would do.
Senator Joyal: Thank you.
The second question deals with Mr. Audcent's proposal. The sequence of the forthcoming steps are such that we adopt the working document that we discussed yesterday; we report to the house; the house accepts it; it is read third time; and we send a message to the other place for concurrence; and the other place concurs.
My preoccupation is that this will be a new legal entity that will not have received first reading in the Senate, as such. How do you deal with that aspect of the question? For a bill to be complete, it has to have three readings in each place. We will have a new entity, which will be called Bill C-10A, that will have been concurred by the house. Legally, however, it will not have had first or second reading in the Senate, as a new legal entity. How do you address that problem? Am I creating a problem that does not exist?
Mr. O'Brien: Senator Joyal, Bill C-10 was given first reading and second reading and referred to the Legal Committee. Bill C-10A will be given third reading, which is part of Bill C-10. The only thing that is engrossed on the new Bill C-10A by the clerk attesting, is the passage of Bill C-10A, which is the one you did pass. It is true that it has gone through variations just as the text of a bill may go through variations at first, second and third readings through amendments, deletions, et cetera. Procedurally, the final product is important as passed by the Senate. Potentially, that would be Bill C-10A.
Senator Joyal: Your reasoning is the same for C-10B. After second reading, we will have created two bills.
Mr. O'Brien: — as will the House of Commons. I doubt they will go through first, second and third reading of C- 10A.
Senator Joyal: It is a motion to concur.
Mr. O'Brien: They will have concurred C-10B would be engrossed, by the Clerk of the House of Commons, C-10A as the final product because that is what the house did decide at the final instance. Legally, that will be the parchment of C-10A and C-10B.
Senator Joyal: Once the house has concurred that the bill sent from the House is different, in part, it will have created by a motion a different legal entity than the first one that we had before this house.
The Chairman: It will be a new entity.
Senator Smith: I thought I would tell you my thoughts on this and perhaps you could guide me if you think that I am astray. It seems that a consensus exists that there are good, valid policy reasons for dividing the bill because if we do not divide it, undesirable consequences could occur. We have heard that from our colleagues. If we were starting with a clean page, we would never go this route but we seem to have wound up in the situation by a combination of circumstances. I did look at this article by the Honourable Allan J. MacEachen, ``Dividing Bills, A Viewpoint from the Senate.'' I quote:
It is worth quoting two paragraphs from Mr. Speaker Fraser's comments because two important conclusions flow from them:
A Canadian precedent does exist for a consolidation of two Common Bills into a single legislative measure by the Senate. That took place on June 11, 1941. ...The Commons agreed with the Senate proposal, that is, a proposal to take two Bills from this place and put them into one Bill. ...
If it is admitted the Senate can consolidate two Bills, why then can it not divide one bill into two or more legislative measures?''
He then goes on to say that the answer really related to the fact that they did not seek concurrence from the House in that action. Therefore, presumably we would seek concurrence. He touches at the end on the issue of whether there are financial aspects to it. These are quite interesting words. Mr. MacEachen said:
I applaud the Speaker and members of the House of Commons for asserting whatever privileges they think they can assert. However, I cannot agree to the imposition of their perceived privileges on to the members of this chamber. They cannot, by a House of Commons motion, strip the Senate of its constitutional right to participate fully in the legislative process. The Senate has never accepted this motion; it has never accepted any limitations beyond those already mentioned.
He then quotes Speaker Fraser's ruling as follows:
As Speaker of the House of Commons of Canada I must uphold the privileges of this place at all times, and I must also advocate them privately, publicly, and with vigour.
Of course, in situations like this, they consistently waive them.
Mr. MacEachen concludes his article in saying:
I say ``amen'' to that; let them uphold their privileges, but who is to uphold the privileges of the Senate? Who is to advocate at all times, privately, publicly and with vigour, the privileges of the Senate? The senators, I hope. I hope all senators will join in supporting the traditional privileges and purposes of the Senate, and not for a momentary consideration, accept the conclusions that are contained in the motion from the House of Commons.
That motion from the House of Commons was that this infringes on their privileges with regard to the financial applications of it, but then, of course, they have a pattern of waiving that.
I think that if we were starting with a clean page we would never go this route, but if there is a consensus from a policy perspective that it makes sense to divide this bill, we can do this. Former Senator MacEachen makes a case for that. Do you agree with his interpretation that you can do it?
Mr. O'Brien: I think Senator MacEachen was speaking from the longstanding tradition of the Senate, which was embodied in the Ross report of 1918:
That the Senate of Canada has and always has since it was created, the power to amend Bills originating in the Commons appropriating any part of the revenue or imposing a tax by reducing the amounts therein, but has not the right to increase the same without the consent of the Crown.
That this power was given as an essential part of the Confederation contract.
That the practice of the Imperial Houses of Parliament in respect of Money Bills is no part of the Constitution of the Dominion of Canada.
That the Senate in the past has repeatedly amended so-called Money Bills, in some cases without protest from the Commons, while in other cases the bills were allowed to pass, the Commons protesting or claiming that the Senate could not amend a Money Bill.
That Rule 80 of the House of Commons of Canada claiming for that body powers and privileges in connection with Money Bills identical with those of the Imperial House of Commons is unwarranted under the provisions of the Constitution Act, 1867.
He is in the classical traditional position of the Senate on that issue.
Senator Smith: The bottom line is he is saying can you do it if you do it the right way, and if we seek their concurrence, that is the right way. Is that not what he is saying?
The Deputy Chairman: We have to move ahead.
Senator St. Germain: Why did the government not seek concurrence? We have done this to deal with the Aboriginal issue. Why did we not seek concurrence before we referred it to the committee?
Senator Corbin: We are not at that point yet.
Senator St. Germain: Could we not get pre-approval from them?
Senator Corbin: No, we have not arrived at that point in the process. That is for later.
Senator Cools: We could have. We chose not to go that route. The committee chose not to do that, but the record should show that such concurrence was proposed.
Senator Corbin: I want to clarify one thing with our two witnesses, whose expertise I value very much.
Is it not a fact that Speaker Fraser, in 1988, refused to rule on the acceptability of the splitting of the bill by the Senate because, in his opinion, it was a constitutional matter and the Chair never rules on constitutional matters? Contrary to that, the Senate Speaker of the day, the Honourable Senator Charbonneau, did make a ruling on a constitutional matter. The Speaker of the Commons refused to do that and he left it to the politicians to resolve this matter.
Is the 1988 situation not ultimately a political resolution and not one of process or one of Constitution? The same thing could very well happen down the road with respect to this bill, but that is another issue altogether and we should not be, at this stage, worried about or concerned with that.
Mr. Audcent: Yes, Senator Corbin, that is exactly what Speaker Fraser ruled. In his words:
The Speaker of the House of Commons by tradition, does not rule on constitutional matters. It is not for me to decide whether the Senate has the constitutional power to do what it has done with Bill C-103. There is not any doubt that the Senate can amend a Bill, or it can reject it in whole or in part. There is some considerable doubt, at least in my mind, that the Senate can rewrite or redraft Bills originating in the Commons, potentially so as to change their principle as adopted by the house without again first seeking the agreement of the House. That I view as a matter of privilege and not a matter related to the Constitution.
It comes back once again to the difference between advising them that you have done something and saying that you are seeking their concurrence in doing something.
The Deputy Chairman: I think that is enough. I know it is fascinating, and it does fascinate me, but we must proceed.
I now turn to the proposition of Senator Corbin. We will proceed to article-by-article study. I do not use the word ``clause'' because I do not want another debate on this. I will not speak about the first document because I do not want a debate on this either.
We will proceed with the document that is before us.
Senator Joyal: I thought we would have the witnesses back from the Department of Justice this morning.
The Deputy Chairman: They are there.
Senator Joyal: Yesterday, there were a number of issues pending and they were supposed to come back with some additional information.
The Deputy Chairman: I thought we would do that when we are studying article-by-article. However, if you are ready to have the experts from Justice answer the questions we have raised, let us do that right now.
Senator Bryden: Can we do it by getting their replies and not entering into a long debate, albeit perhaps asking for clarification?
The Deputy Chairman: We will receive the replies; that is all.
Senator Nolin: Do you mean that if they are saying something and I want to ask them questions, I will not be able to do that?
Senator Bryden: Senator Nolin, I said that we would confine any questions to points of clarification.
Senator Nolin: Let us hear their answers.
The Deputy Chairman: We will interpret that in due course.
Senator Nolin: We are a Parliament and this committee is a committee of Parliament, and ``Parliament'' means to ``parler.''
The Deputy Chairman: I could not agree more.
Ms. Roussel.
Ms. Roussel, Senior Counsel, Department of Justice: I am not certain of which questions you were seeking clarification for. I presume some of it relates to some undertakings I provided yesterday on what I could report back to this committee.
I provided to the clerk our drafting instructions for the regulations, and they should be provided to all of you. You should also know that under the Firearms Act, the regulations package would be tabled in both Houses, and this committee will be able to study the regulations once they are tabled. I guess I am saying you can expect to see us again some time in the winter or spring.
I have also provided to the clerk the regulations made under the Firearms Act, as well as the regulations made under the Criminal Code.
In the package that is essentially a photocopy of the Canada Gazette, you will note there were some amendments to the coming into force dates of the Firearms Act regulations. There are some minor amendments to regulations that are not before you, and I can certainly list them if you are interested. The majority of them are changes to dates, but there were a few amendments to fees regulations as well. If the senators are interested, I could list those. I apologize that I have not provided all of those, but as you know, the time was very short between last night and this morning to provide those amendments.
You will notice from what you have been provided, that, in fact, the powers under the Firearms Act in the Criminal Code, Part 3, are mainly regulation-making powers. There is, at present, really only one Order in Council that is made, and it is the amnesty order that continues into force until the end of the year. Everything else is made under a regulation-making authority, either under Part 3 of the code or under the Firearms Act proper.
Senator Cools yesterday had raised something in the order of 30 to 50. You will note there are not 30 or 50 regulations in total, but there were some amendments, and if you totalled amendments to coming into force dates, you probably would come somewhere in the order of 30. I have not counted them, quite frankly.
The last outstanding issue is that I hoped to give more news to the senators this morning with respect to what was being contemplated as a relief measure for gun owners who are trying to comply with registration. I am very sorry to inform you that I do not have the information I had hoped to have. I may receive it during the day, and I can certainly undertake to provide any information to the Clerk as soon as it is available to me so that she can pass it on to members of the committee.
Senator Nolin: On one of my questions on the exemption, you alerted my curiosity when you said you already had those amendments. After the meeting I went back to Bill C-36 to see, and you are exactly right. You already have what you are asking for in Bill C-10A.
Ms. Roussel: Yes. The reason for that is Bill C-15, which is what Bill C-10A started as, got divided in the House, died on the Order Paper and then was revived as Bill C-10.
Bill C-15 was introduced before Bill C-36, and when Bill C-36 was introduced, they reproduced our Bill C-15 provision because they felt, rightly so, that they could pass it more quickly and that the provisions could be used to exempt air marshals, if necessary.
I told you yesterday that has not yet been done. We have left it because we did not need to amend the bill. The wording is exactly the same, so if you pass it again, you would simply be passing that which is already in force.
[Translation]
Senator Nolin: Therefore, you have no objection to an amendment withdrawing clause 51?
Ms. Roussel: No, because it is already there.
[English]
Senator Joyal: I appreciate receiving what you have circulated this morning.
I would like to come back to the amnesty, about which want some additional clarification. You mentioned a moment ago that that was done through an Order in Council, but, again, I want to have a clear understanding, and I know that many other people might share the same interest.
The amnesty you are talking about is essentially the amnesty dealing with licensing. It is not possible, through an Order in Council, to waive the deadline that is included in section 98(3) of the Criminal Code. Am I right or wrong?
Ms. Roussel: You are correct. The amnesty is made pursuant to section 117.14 of the code. There was previously a six-month amnesty period for people who complied with licensing but did not get their licence on time. That period has expired. The amnesty that is in force until the end the year protects owners of prohibited handguns that are not grandfathered, protects the business inventories of prohibited handguns and also allows the registration of unregistered restricted firearms until the end of the year.
The amnesty power in section 117.14 would, if the government determined that this was a good idea, certainly allow a registration amnesty for non-restricted firearms. However, you could not amend the defence provisions through the amnesty power, although could you protect the possession of people who are unlicensed and/or whose firearms are unregistered.
Senator Joyal: If I read section 98.3, it deals with the deadline of January 1, 2003. It says:
Every person who, at any particular time between the coming into force of subsections 91(1), 92(1) or 94(1) ... shall be deemed for the purposes of that subsection to be, until January 1, 2003 or such other earlier date as is prescribed, the holder of a registration certificate for that firearm.
I emphasize ``or such other earlier date as is prescribed.'' As I understand, there has been no such earlier date prescribed.
Ms. Roussel: There has not.
Senator Joyal: Are you contemplating having an earlier date? I want to have that on the record.
Ms. Roussel: I will tell you quite frankly, and, certainly, Mr. Webster and I look at these sorts of things to see if there is anything we can do. We had looked at whether we could prescribe a later date than January 1.
Senator Joyal: You are heading where I am going.
Ms. Roussel: When I went to the drafters and asked whether there is any way we could ignore the word ``earlier,'' the answer was no, you cannot. Because it talks about an earlier date, there was no way to do it. The only thing could you do would be to amend that January 1, 2003 date.
Senator Joyal: Or just remove ``earlier.''
Ms. Roussel: Yes, you could prescribe another day. The issue is whether there would be time to do that between now and Christmas.
Senator Joyal: In other words, if we were to amend that section, we could just change 2003 to 2004.
Ms. Roussel: That would presume you would want to have an extra year. I can tell you that it is not an issue for me as an official.
Senator Joyal: I am not asking you to pronounce on this. When I read this paragraph of the Criminal Code, if it says until January 1, suppose 2004, or such other earlier date as is prescribed.
Ms. Roussel: We could prescribe an earlier date.
Senator Joyal: In other words, we would give a year, but you would be the judge within that New Year, if at a point in time, in all reasonableness, you could say, well, June 30 would be fine.
Ms. Roussel: You could certainly do that. I should point out to the members of the committee that this section only deals with non-restricted firearms. Therefore, if you were also concerned with re-registration of restricted and prohibited firearms, you would have to look at section 127(2) of the Firearms Act, which sets the expiry of certificates to December 31, 2002. I am not trying to suggest a measure of what you should do here, but I want you to have a full picture.
Senator Joyal: We sincerely appreciate your very accurate comments on this subject. I appreciate that very much.
The Deputy Chairman: We are now ready to go to what we call clause-by-clause, but perhaps we should say the study of each article.
Do you accept the proposition of Senator Corbin that we go clause-by-clause?
Hon. Senators: Agreed.
The Deputy Chairman: We will start now. Do we follow the usual procedure? Shall we go one by one or in a block?
Some Hon. Senators: Yes.
Senator Cools: Let us go one by one because everything about this bill is so strange and unusual. Let us proceed and pronounce on every item, since we are not sure there is even a bill before us. It would be nice to pronounce on every item.
The Deputy Chairman: Okay.
Shall the title stand postponed?
Hon. Senators: Stand.
The Deputy Chairman: Shall the short title stand postponed?
Hon. Senators: Stand.
The Deputy Chairman: It was clauses 1 to 43 carried, but now it is shall clause 1 carry?
Some Hon. Senators: Agreed.
Senator Cools: Clause 1? I thought we postponed that to the end.
Senator Corbin: We stand clause 1.
The Deputy Chairman: We stand clause 1. Okay.
Clause 2?
Some Hon. Senators: Agreed.
The Deputy Chairman: Clause 3?
Senator Cools: Honourable senators should remember that many people on this committee are looking at this document for the very first time. I am aware that some people want it voted on quickly, but I think the record should show that senators are doing their job properly. Let us look at each clause by clause because this whole thing is so unusual.
The Deputy Chairman: Clause 2?
Some Hon. Senators: Agreed.
The Deputy Chairman: Clause 3.
Senator Stratton: Just slow down a touch. Will you go back to clause 2? When we talk about muzzle velocity, as I understand it, that is with respect to airguns. Is that correct?
Ms. Roussel: Yes.
Senator Stratton: If an air gun has a muzzle velocity exceeding 152.4 metres per second, it is then subject to registration?
Mr. Gary Webster, Chief Executive Officer, Canadian Firearms Centre: To make this point perfectly clear, we have asked an associate of ours from the RCMP, who is an expert in these matters, to attend here with us. If Mr. Chairman, if you will allow Mr. Murray Smith to come to the chair, he could deal with the issue around air guns.
Senator Stratton: We should have a clear understanding of that.
The Chairman: Mr. Smith, please take a seat at the table.
Ms. Roussel: Mr. Smith is the chief forensic scientist for the RCMP.
Senator Stratton: I need a fuller explanation. When you are looking at 152.4 metres per second or at a muzzle energy exceeding 5.7 Joules, and ``a shot, bullet or other projectile that is designed or adapted to attain a velocity exceeding exceeding 152.4 metres per second or an energy exceeding 5.7 Joules,'' what does that mean to the normal human being — a layman — when he goes to buy an airgun? How does the layman determine, when he walks into a store wanting an airgun, whether or not he must register that?
Mr. Murray Smith, Chief Forensic Scientist, Royal Canadian Mounted Police: Looking at it from the practical aspect, rather than the scientific aspect, under the new system of universal registration where all firearms will be registered, there will come a time when a firearm of a new type, which is previously unknown, will come to the attention of the registrar. At that point, the registrar will have the opportunity to review the characteristics of that firearm, to get the necessary advice and to decide what classification the firearm should be in or if it is a firearm at all.
At that point, then, a decision is made that could be referenced by any future importers or purchasers of that type of firearm, or non-firearm as the case may be. On a practical measure, it will be the institution of the registrar of firearms that will keep a logbook of these decisions, which will be made available to anyone who posed the question.
Senator Stratton: For anyone going into a store to buy an air rifle or air pistol, the sales person will have to inform that person that the gun must be registered if it exceeds that velocity?
Mr. Murray: Essentially, yes the answer will come even before that because the business itself would have to register the firearm if it were subject to registration. They would know at that time whether it is subject to registration or not.
Senator Stratton: Thank you.
The Chairman: Shall clause 2 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 4 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 5 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 6 carry? Senator Stratton?
Some Hon. Senators: Agreed.
Senator Stratton: Just be patient for a moment, please.
Thank you.
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 7 carry? Is it agreed?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 8 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 9 carry?
Senator Stratton: Could you explain to me why the act was changed with respect to this? Has your authorization to transport been eased or been made more stringent, and why?
Ms. Roussel: I would say neither. The reason the definition is changing, and you will see it later on when we get to the sections dealing with this, is that previously we had authorization to transport and in sections 18 and 19 of the act. One dealt with restricted firearms and one with prohibited. We have merged the two sections into one, but the basic requirements have not changed.
Senator Stratton: Thank you.
Hon. Senators: Agreed.
The Deputy Chairman: Nine is carried.
Shall clause 10 carry? Is it agreed?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 11 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 12 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 13 carry?
Hon. Senators: Agreed.
Senator Stratton: Where are we?
The Deputy Chairman: Clause 13. ``Section 10 of the act is repealed''— that is, the Firearms Act.
Ms. Roussel: If I could assist, Section 10 of the act deals with carrier licences. They are not being eliminated but they are being merged into one licence as opposed to an intraprovincial and interprovincial. Section 10 is being repealed because those provisions have been incorporated elsewhere.
Senator Cools: Where?
Ms. Roussel: Mainly in the section you have already passed. You will see in section 2 of the Firearms Act, which was clause 9 of the bill, the definition of ``carrier'' has been amended to incorporate all types of carriers. Later on, when you get to ``issuing authority'', you will see that the registrar would now be issuing all manner of carrier licences as opposed to splitting the authority.
The Chairman: It is agreed that clause 13 is carried.
Shall clause 14 carry?
Senator Joyal: Perhaps the witness could, in a nutshell, tell us the impact of that section.
Ms. Roussel: Clause 14 is the infamous prohibited handgun clause. This is the one that changes the grandfathering date for individuals to December 1, 1998 from what it was previously, February 14, 1995. It also changes the grandfathering date for the handgun itself in that the handgun now only needs to be registered December 1, 1998, to qualify.
The Deputy Chairman: Is it agreed on 14?
Hon Senators: Agreed.
The Deputy Chairman: Shall clause 15 carry?
Senator Bryden: I believe we heard evidence on this last night, but could you explain this? It seems to be requiring people to keep their prohibited weapons only at their dwelling house.
Ms. Roussel: The reason there is a change in 17 is that previously the section read ``at the address on the certificate.'' We are not issuing certificates with an address on it, for privacy reasons, so that is why we changed to the wording ``as in the registry.''
The Deputy Chairman: It is agreed?
Hon Senators: Agreed.
The Deputy Chairman: Shall clause 16 carry?
Hon Senators: Agreed.
The Deputy Chairman: Agreed. Shall clause 17 carry?
Senator Bryden: What does this pertain to?
Ms. Roussel: Section 23 is the section that deals with the authority to transfer a firearm from one owner to the other. Presently, for all firearms, the Chief Firearms Officer of the province has to authorize the transfer. The registrar then issues a certificate. When we are dealing with non-restricted firearms, the only thing that both those people are doing, essentially, is looking at whether there is a valid license, so we have removed the requirement for the authorization from the Chief Firearms Officer. The registrar will verify, obviously, that there is a license to acquire the firearm, so we have eliminated a step that was essentially a duplication. We have also eliminated authorization of the Chief Firearms Officer in business-to-business transfers because firearms businesses are already quite heavily regulated.
The Deputy Chairman: Is clause 17 agreed?
Hon Senators: Agreed.
The Deputy Chairman: Shall clause 18 carry?
[Translation]
Senator Nolin: Ms. Roussel, subsection 24(2)(c) of the previous act was never enforced, was it?
Ms. Roussel: That is correct. The idea was to make this change before it being enforced.
Senator Nolin: It is the Governor in Council who decides if it is to be enforced. We cannot change that!
[English]
The Deputy Chairman: Clause 18 is carried. Shall clause 19 carry?
Senator Stratton: If I have a firearm and I do not want to register it today and I have decided not to register, can I still turn it in?
Ms. Roussel: Absolutely.
Senator Stratton: Up until when?
Ms. Roussel: the way the offence provisions work, it will be an offence for you to hold an unregistered firearm come January 1, 2003. Certainly until that time, you can take any lawful means of disposing of it, including transferring it to a licenced individual, turning it in to the police, deactivating the firearm, or exporting it under an export permit.
Senator Stratton: Thank you.
Senator St. Germain: When you say deactivating it, does that mean physically making it inoperable?
Ms. Roussel: It essentially means making modifications to it sufficient to take it out of the definition of ``firearm.''
Senator St. Germain: Thank you.
The Deputy Chairman: Is clause 19 carried?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 20 carry? Excuse me.
Senator Watt: Does that mean taking out the firing pin?
Ms. Roussel: No, that would not be sufficient.
Senator Watt: How do you do it, then?
Ms. Roussel: I think we would have to call on Murray Smith. I am not an expert on deactiviation guidelines. It requires technical modification to the firearm.
Mr. Smith: Essentially, deactiviation is a procedure whereby the key components of the firearm are disabled or removed. In essence, the barrel must be blocked or disabled in some fashion. Secondly, the firing mechanism component of the bolt or bolt carrier must be disabled. Provision must be taken to make the replacement of the damaged parts with good parts difficult to achieve.
Senator St. Germain: So blocking the barrel and removing the bolt does not is not sufficient?
Mr. Smith: No. The reason is that under the definition of firearms in the Criminal Code, the frame or receiver of the firearm constitutes the firearm. Therefore, just disabling the peripheral parts is not enough. Legally, you must actually disable the core part, the frame.
Senator Joyal: I have to tell my colleague Senator St. Germain that I went through that last month. I inherited a handgun from a member of my family. When I went to the police station I said that I did not want to use it but I want to keep it. They welded the barrel to the frame of the handgun so that in fact it is really disabled on a permanent basis. If you just remove the barrel, you can always at some later point in time put it back, but if it is welded you can never reactivate it.
Senator St. Germain: You did not have to take the firing pit off. All you had to do was weld the barrel and that was acceptable? Is that acceptable to you, Mr. Smith?
Mr. Smith: There is no definition of deactivation in the Criminal Code, except the indirect one of sufficient modifications being made such that the device in question no longer falls within the definition of firearm.
With respect to the practical aspects of it, through the office of the registrar a deactivation guide has been provided. It has no standing in law but it lists the number of protocols to be followed, which will receive the backing of the Registrar of Firearms if the individual in question follows that procedure. If the individual chooses a different course of action, or something less than what is prescribed in the deactivation guidelines, the onus then falls on the individual to establish to the police or to the courts that the deactivation was sufficient.
The Deputy Chairman: Is 19 carried? I want to be quite sure.
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 20 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 21 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 22 carry?
[Translation]
Senator Nolin: Ms. Roussel, am I mistaken in saying that subclause 1 of clause 29 is still not in force?
Ms. Roussel: No.
Senator Nolin: Subsection (1) no longer serves any purpose given that the mechanism for provincial minister permits is valid.
Ms. Roussel: Subsection 29(1) is really the prohibition from operating a club or a firing range.
Senator Nolin: It is therefore an infraction?
Ms. Roussel: It is an infraction that is not in force because we have to give the firearms officers or the provincial minister enough time to authorize the shooting ranges and shooting clubs. The other subsections of clause 29 are in force.
[English]
The Deputy Chairman: Shall clause 22 carry?
Hon. Senators: Agreed.
[Translation]
Senator Nolin: I simply wanted to give my colleagues time to think.
The Deputy Chairman: That is fine.
[English]
The Deputy Chairman: Shall clause 23 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 24 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 25 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 26 carry?
Senator Bryden: Can I have a quick summary of what is happening here?
Ms. Roussel: A few things are happening. I can tell you our colleagues from Customs are here today.
Senator Bryden: I am sorry I asked.
Ms. Roussel: Many of these amendments come as a result of implementing the non-resident provisions in the Firearms Act. In the two things we have added essentially are some more options for non-residents. What is added here to what already exists is a one-year confirmed declaration as opposed to simply 60 days for frequent visitors. It also gives the registrar the authority to pre-process their applications. That is the first issue.
The other option added is that some of our American friends have obtained Canadian possession and acquisition licences. Under the present provisions of the act, we had no way for them to import the firearms unless they registered them. Some of them will not want to register their firearms. They want a licence to allow them to buy and export if need be.
Those are the amendments contained in this clause.
The Deputy Chairman: Shall clause 26 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 27 carry?
Ms. Roussel: The last comments I gave you related to clause 27. I dealt with them both at once.
The Deputy Chairman: Shall clause 27 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 28 carry?
Senator Bryden: Maybe you could tell us the changes here.
Ms. Roussel: These are complementary to the ones I just discussed. Thirty-six is the section that deems what they get at the border as being a licence. They had to be adjusted to deal with the one-year declaration.
The Deputy Chairman: Shall clause 28 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 29 carry?
Senator Joyal: Thirty-seven is still unproclaimed?
Ms. Roussel: That is correct.
The Deputy Chairman: Shall clause 29 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 30 carry?
Ms. Roussel: Mr. Chair, I think one of the senators will ask this question. All of the following sections up to section 53 are not presently in force.
The Deputy Chairman: They are not in force?
Ms. Roussel: They are not.
The Deputy Chairman: Shall clause 30 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 31 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 32 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 33 carry?
Senator Joyal: I have a question. I understand that clause 32 deals with section 42 of the Firearms Act, but I see in my own notes that 43, 44, 45 and 46 seem to be unproclaimed. Why do you not amend them or change them as well, because then we go through section 47(4)?
Ms. Roussel: It was felt there was no reason to amend those provisions. They deal with importing and exporting of firearms by businesses and, obviously, the issuance of authorizations to import and export. Although those sections are not being amended, you will see in the amendments to section 49 and also in the amendments that you have already adopted to section 2 that we are deeming permits to export to be authorizations to export. Although we did not need to amend our sections to allow us to issue the authorizations to export, we are dealing with them in some other fashion.
The Deputy Chairman: Shall clause 33 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 34 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 35 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 36 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 37 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 38 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 39 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 40 carry?
Senator Joyal: With regard to clause 40, can the witness state clearly the element dealing with the dates and the deadline on this one?
Ms. Roussel: This one is not an issue with respect to this Christmas. We call this a ``load-levelling'' provision. Certainly senators will be aware that most Canadians who decided to comply with licensing did it at the tail end of the licensing period. That causes a surge of applications that will come back up for renewal every five years in a large block. This provision will allow the chief firearms officers of each province to settle their workload equally in each of the five years of a normal renewal cycle.
The Deputy Chairman: Shall clause 40 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 41 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 42 carry?
Hon. Senators: Agreed.
The Deputy Chairman: Shall clause 43 carry?
Senator Joyal: Can we have a quick word on the fact that we are restating the same text in the same official language?
Ms. Roussel: That is right. It is a concordance issue. It is because it is a concordance issue that they are both in English. It only replaces the English version.
Senator Joyal: Are you saying that in the drafting there was a mistake in the English version?
Ms. Roussel: Yes.
Hon. Senators: Article 44?
Hon. Senators: Agreed.
The Deputy Chairman: Article 44, carried.
Article 45?
Hon. Senators: Agreed.
The Deputy Chairman: Carried.
Article 46?
Ms. Roussel: That is again the business of carriers, which is dealt with elsewhere.
Hon. Senators: Agreed.
The Deputy Chairman: Carried.
Article 47?
Hon. Senators: Agreed.
The Deputy Chairman: Carried.
Article 48, Commissioner of Firearms?
Senator Joyal: Who is presently the Acting Commissioner of Firearms? Who exercises the powers of the minister?
Ms. Roussel: At present, under the Firearms Act, only the minister has the powers of the minister.
Senator Joyal: There is certainly an officer in your department that prepares the work for the ministers and does the various authorizations, the power to prepare. I understand at the end the minister signs, but there is somebody who, in practical terms, does the job.
Ms. Roussel: I should tell you what the powers of the minister are. The main ones are prescribing of forms, the exemption power we discussed — which would not, by the way, pass to the commissioner — and the authority to name a chief firearms officer in a province that has opted out of the administration of the act. Those things are done by the minister.
Obviously, there are bureaucrats who prepare. We have drafters who would draft, for example, the forms prescribing order. However, it is always the minister who has the authority to sign.
With respect to requests, for example, if we became aware that a chief firearms officer had died — which happened to us, sadly, last year — certainly, we would advise the minister in a briefing note and perhaps present appropriate candidates, but it is still an order only of the minister. That is an authority that the commissioner would be able to exercise on behalf of the minister.
Senator Joyal: What would the level of that person be in the public service? I understand by section 81.5 that that officer will have a certain rank in the Department of Justice. At what level would he or she be?
Ms. Roussel: I am not able to tell you. That is a classification question in terms of the human resources department. I am sure our human resources personnel would have some views, but I do not think I am qualified to answer.
Senator Joyal: In other words, you are asking us to approve the creation of a job in the civil service for which the classification has not been looked into?
Mr. Webster: As a Governor in Council appointment, that comes out of the purview of the Privy Council office, and, in conjunction with the Treasury Board, they are in the process now of doing that review, in the event that the bill is passed and there is a commissioner position established at that point. However, it is a Governor in Council appointment outside the normal staffing of the Public Service Employment Act.
Senator Joyal: However, you do not know whether he is on the level of assistant deputy minister or under deputy minister. Which level are we discussing here? You have administered the act since it has been passed. As you said, there is a civil servant who presently more or less exercises that job. You certainly have an idea of the level the job would be at. I am not asking you to tell me exactly, but give me a minimum of information.
Mr. Webster: At the present time, it is at the assistant deputy minister level, subject to a GIC appointment. That decision has yet to be made.
Senator Joyal: I would like to make a comment. It is not a debate. Last year, we were asked by the Department of Justice to approve the registrar of the new Federal Court, and we were pushed to do so. It was needed very quickly.
I checked last week, and the job is still vacant. They just issued the job description, I believe, two weeks ago. We studied that bill under quite some pressure, and I remember it very well. We did it in one sitting. I had different views on this, which I will express in due time.
I would ask, when we are asked to approve a new permanent job in the line of administration, that we have better information in terms of the administrative implication of the position. I have no objection to creating a forum per se, but we should know the job classification, the position and the salary before we are asked to blindly approve something.
The Deputy Chairman: Thank you, Senator Joyal.
Senator Cools: How does this particular position compares to other positions, such as the Commissioner of Corrections or the National Parole Board? You have conceptualized it.
Mr. Webster: I do not think I would be able to make a comparison about other positions without understanding fully what those other positions might entail.
I described it earlier as being at an ADM level. It is beyond our purview to make the final decision as to what GIC that would be. We just cannot answer that question, unfortunately.
Ms. Roussel: I can tell you, if it is of assistance, what we conceptualized at the time the section was being drafted. The idea was to have a position reporting directly to the Minister of Justice to make it clear that the accountability is with the minister, someone to whom the minister could provide direction on the administration of the program. It is a chief administrator type of position. That is how it was conceptualized.
Whether the minister would allow the commissioner to exercise his powers under the act will be left to the minister. You will see it is not an absolute. However, if the minister wanted the commissioner to appoint a chief firearms officer, he could delegate that, but he is not bound to it. We wanted to leave some flexibility.
The main concept was to have a direct reporting relationship so that the minister could have direct accountability and be seen to be directly accountable with what I would call a chief bureaucrat dealing with the firearms program.
Senator Cools: My concern is that we are not dealing with the creation of a position, which, over time will claim its independence from the minister. I was looking at the sections that discuss the relationship between this new position and the minister. You are saying that you have been giving that some thought.
I know, for example, that the Solicitor General had a Commissioner of Penitentiaries, Corrections Canada, and then the Chairman of the National Parole Board, and those two could not get together at all. It was a constant state of conflict causing enormous problems to the minister and to the system as a whole for a few years. It eventually got straightened out.
At the time, at least one of the occupants of those positions was quite insistent that the minister could not do this and that. I am sure you remember the period of time that I am talking about. It was difficult for the minister to operate at the time. I believe that ministers must be left with full powers to act as required.
Ms. Roussel: If you look at the wording in proposed section 81.2, I can tell you that the advice that I have given is that this clearly means that any direction must be given by the minister. The minister is not giving up authority over the program, quite the opposite; the minister takes on direct accountability. That was not necessarily as previously seen in the act.
Senator Cools: As long as we are satisfied. Maybe we can revisit this in debate. It should be clear that this position is subject to the minister and is not independent of the minister.
If you look at even the other two positions that I described, they quite frequently claim independence of the minister. I have concerns about handing these powers over to a position that eventually confronts the minister as almost a hostile agent.
Senator Joyal: According to proposed new section 81.2, the new commissioner will perform the duties and functions relating to the administration of the proposed act.
How many public servants are involved in the administration of the existing act?
Mr. Webster: On the federal side, as you know, we have agreements with provincial governments to deliver. In Ottawa and in the federal jurisdiction, which is western Canada and the territories, as well as the processing facilities at Miramichi, New Brunswick, I cannot give you the exact number, but you would be looking at between 350 and 400 employees.
Senator Stollery: What if you add on Ontario?
Mr. Webster: I could not give you the numbers for the provinces. We provide through a memorandum of understanding an agreement with the provinces and the budgets we provide, in Ontario we provide through the Ontario Provincial Police. We have agreement with them and they provide the personnel under the arrangements that we have with them. I could provide you with the specific number at a later time.
Senator Cools: This question springs out of the blue: Why did you ever conceptualize of this position in this way, rather than as a civil service position. Do you know? As it is, this is an Order in Council appointment.
Mr. Webster: I do not believe Ms. Roussel or myself would know the answer to that question. Those are certainly the instructions that she received. Prior to my being here to understand the rationale, when I arrived in July 2001, the drafts of Bill C-15 were already there that identified a commissioner.
Senator Cools: There are quite a few of these commissioners; some are quite menacing. The Commissioner of Judicial Affairs can be quite menacing. That is another issue, but we create these positions one after the other and nobody ever looks at them.
Senator Corbin: What is the instrument of delegation from the minister to the commission in 81.2 in either direction; how is that done — by regulation, letter or what?
Ms. Roussel: You will see that 81.2 and 81.3 are somewhat different; 81.2 is a direction with respect to general administration. In my view, that would not require a formal instrument. Article 81.3 would require formal delegation from the minister, which is essentially an order from the minister delegating a power under the legislation.
Senator Corbin: That would be in writing.
Ms. Roussel: Yes.
The Deputy Chairman: Honourable senators, is it agreed?
Senator Cools: On division.
The Deputy Chairman: Agreed to, on division.
We shall now turn to article 49.
Senator Joyal: Old section 82 provided that the Commissioner of the Royal Canadian Mounted Police shall, after consulting with the federal minister and Solicitor General appoint the registrar. That is changed by the Public Service Employment Act. What is the rationale to remove the power of the minister and the RCMP commissioner?
Ms. Roussel: This would move the registrar into a normal Department of Justice position as opposed being directly an appointee. He or she would be a civil servant in the true sense. That would bring the registrar under the Department of Justice as opposed to where he is presently. I can tell you that we did have support for this from the Commissioner of the RCMP.
The Deputy Chairman: Is article 49 agreed, honourable senators?
Hon. Senators: Agreed.
The Deputy Chairman: We shall now turn to article 50.
Senator Rompkey: I note that the report will be laid before each House of Parliament.
The Deputy Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Deputy Chairman: We shall now turn to Article 51.
Senator Nolin: If I may, colleagues, I should like to suspend a decision on 51. I do have an amendment, but if that is the only amendment that will hold this up today, I may not table my amendment. What we are asked to do is already in my law. That was my question earlier this morning. If we are to do a good job, the House of Commons should have seen that and amended the bill when it was in front of them. It is not for me to comment on how they do their job, but if we are to do a good job, we should do that. However, if that is the only amendment that carries today, I will not table that amendment.
The Deputy Chairman: Is it agreed, honourable senators?
Senator Corbin: I would stand it for now, because if I understood the witness correctly, Ms. Roussel did say that could be eliminated.
Senator Nolin: It is up to us to clean up the bill and make it at least look good.
The Deputy Chairman: Is it agreed to stand the clause, honourable senators?
Hon. Senators: Agreed.
Senator Watt: Yes, I am sitting in peculiar situation because I am not a member of the committee, but I do have an amendment, under article 51, proposed section 97(1), on a matter that we spent a great deal of time yesterday talking about: The fact that the extension is coming up very soon.
The Deputy Chairman: We agreed to stand the article.
Senator Watt: That is even better.
Senator Corbin: Senator Watt has given notice.
Senator Joyal: That could affect the amendment of Senator Nolin. If Senator Nolin asks us to delete 97 on the basis of the testimony that it is already in the act, then Senator Nolin's argument would not float anymore. Am I correct, Senator Nolin?
Senator Nolin: You are absolutely correct.
The Deputy Chairman: Stand?
Hon. Senators: Stand.
The Deputy Chairman: Article 52.
Hon. Senators: Agreed.
The Deputy Chairman: Article 53.
Hon. Senators: Agreed.
The Deputy Chairman: Article 54.
Hon. Senators: Agreed.
Senator Joyal: It is only the three lines with the previous export-import section of the amendment?
Ms. Roussel: That is right.
Senator Joyal: You are satisfied?
The Deputy Chairman: Article 55.
Hon. Senators: Agreed.
The Deputy Chairman: Article 56.
Hon. Senators: Agreed.
The Deputy Chairman: Article 57, the last one.
Senator Bryden: What is the proposed date under 57?
Ms. Roussel: There would likely be two dates. The articles dealing with handguns are urgent, as is the regulation- making authority. Certainly we want to bring in the handgun provisions this year to ensure they have some effect. We would likely want to bring in a regulation-making authority at the same time because we need it to make any regulations.
The remainder of the provisions would likely not be brought into effect until we had regulations that matched what we had done in the bill. It would be some time well into next year.
The Deputy Chairman: Article 57.
Hon. Senators: Agreed.
The Deputy Chairman: We return to the Senator Nolin.
Senator Nolin: I think it would be preferable to hear from Senator Watt because my amendment is drastic.
Senator Watt: I have two amendments to Bill C-10A.
I move that the following be inserted under a new section 97:
That the Governor in Council shall exempt the Aboriginal peoples of Canada from the obligation section 112(1) of the Firearms Act.
and:
That the federal minister shall exempt the Aboriginal people of Canada from application of the section 112(1) of the Firearms Act.
Senator Watt: I submit those amendments to concur with the Notice of Motion, filed by Nunavut Tunngavik Incorporated, NTI, with the Nunavut Court of Justice. Section 112(1) of the Firearms Act makes it an offence not to register a firearm. The Government of Nunavut is named as an intervenor on the Notice of Motion. The territorial government is also an intervenor on the Statement of Claim filed by NTI in the year 2000 with the Nunavut Court of Justice.
My second motion is to insert under new section 91 the following:
That the Governor in Council shall exempt the Aboriginal peoples of Canada from the application of section 92(1) of the Criminal Code.
Also to be inserted is:
That the minister shall exempt the Aboriginal peoples of Canada from the application of Section 92(1) of the Criminal Code.
Section 92(1) makes it an offence to use a firearm that is not registered. This proposed amendment is based on the NTI Notice of Motion to which I have referred. The Government of Nunavut supports this Notice of Motion.
The senators might very well know this because we have been wrestling with the non-derogation clause issue. There is an absence of stand-alone legislation to recognize section 25 of the British North America Act, which has already described the non-derogation clause properly. I refer to section 2(3) of the Firearms Act in respect of Aboriginal and treaty rights:
For the greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.
The Deputy Chairman: Do you have the French text?
Senator Watt: We were sitting until about 11:00 p.m. last night wrestling with this. I have not had time to make a translation of this. I am not a member. Another senator would need to move that.
Senator Corbin: I have a question for Senator Watt. Not being a member you cannot move the motion, however, to what degree would you persist in having that put before the committee at this stage, or would your preferred choice be to do it on third reading in the house when it gets there?
Senator Watt: I am facing a very critical matter. When I was home recently, the local police enforcement officer highlighted how many people have already gone through the criminal system. Our population is only 9,500, approximately. I was very alarmed to hear that 8,000 people have already gone through the system.
Senator Corbin: They are categorized at criminals.
Senator Watt: It may be for a small reason that could be reconciled.
Senator Nolin: You must be precise. When you say went through the system, do you mean being arrested or charged?
Senator Watt: Charged. That only leaves 1,500 who have not been charged. Those 1,500 are mostly children and a small number of adults.
The other aspect is that which we elaborated on yesterday. There seems to be a backlog. They have applied, but there is no response. What do you do with these people? Those are law-abiding citizens. Why are we penalizing those people? What more I can say to make it absolutely clear that the system that we are instituting is putting people into a criminal category? Why do you want to penalize the Inuit, Aboriginal people and non-Native people who may be in the same category?
Senator Corbin: Could we have the officials respond to the initial statement?
Senator Watt: They already responded yesterday.
The Deputy Chairman: I think we should hear them. I agree with Senator Corbin.
Ms. Roussel: I have a few comments for the senators.
Senator Cools: If a member of the committee, which Senator Watt is, places a motion, I am wondering about the propriety of asking strangers to pronounce on a member's proposal, without first discussing it among members to see if there is some agreement as to whether or not members would even consider it.
Senator Nolin: Do you need someone to make the motion properly? I make the motion.
Senator Cools: The motion is before us.
The Deputy Chairman: Then I will repeat: Could you answer that?
Ms. Roussel: It is not so much an answer for Senator Watt, but I think I have a few issues that the committee may wish to consider. All the exemptions in section 97 are, by their nature, discretionary. They are not meant to be broad- based, mandatory exemptions. They are meant to be used in particular cases.
Senator Watt has suggested not so much a general exemption as exemption in particular cases and a broad-based exemption from particular sections. If the committee were considering that, the proper place for that sort of pronouncement would be not in the exemption section but in the offence sections to which Senator Watt has referred.
I would also urge the committee, if they are going to be using words like ``Aboriginal peoples of Canada,'' to define them. They may be problematic in terms of interpretation at some later time. You could certainly, honourable senators, refer to the definition in the Constitution or the Firearms Act for ease of reference of the judiciary.
My concern as counsel is that you may be usurping some discretion that rests with the courts. The question that Senator Watt has raised is certainly one that has great merit, but I note that the Federal Court is indeed seized with it and that a determination will be made in that forum. I do not wish to comment on how much power the Senate has or does not have. I am not an expert on that subject, and there are people around this table better placed than I to do so. You should certainly be mindful that those exact questions of applicability to Aboriginal persons are before the Federal Court and would certainly be determined there.
The Deputy Chairman: You do not want to comment on this, as it is before the courts. However, this committee has the right to do what we are asked.
Senator Smith: What is the exact issue before the courts? Would it mean that an Aboriginal living in downtown Toronto could have all the guns they want?
Ms. Roussel: If the exemption were this broad-based, anyone fitting the definition of Aboriginal people would not be subject to registration of their firearms in any circumstance. What is before the courts is far more specific. There are some applications before the court by some identifiable Aboriginal groups. The one that is being heard December 18 that Senator Watt was speaking of is Nunavut Tunngavik Inc. They are asserting a treaty right and arguing that the Firearms Act does not apply to them because of their treaty right to hunt.
Senator Smith: Is it in a defined geographical area?
Ms. Roussel: It defined by members of a particular treaty group. It is defined by association, whereas what Senator Watt is proposing is more broad-based and would apply to anyone who would fit the definition of Aboriginal peoples of Canada.
Senator Smith: Would that mean that any Aboriginal living in the city could have all the guns they wanted without having to register?
Ms. Roussel: What Senator Watt has proposed here would do that, but what is before the Federal Court would not. It is more targeted.
Senator St. Germain: At the time of the original debate of C-68, senators Watt, Adams and some of the rest of us presented this scenario. I am a Metis.
This scenario was fully discussed and it was predicted during that debate, as were the cost overruns. This scenario was predicted because of the geographical location of our natives. I was just at Treaty 6 in Saskatchewan. I believe the penitentiary in Prince Albert has an 80 per cent native population. Senator Watt points out the unfortunate plight of our native peoples, be they Inuit, reserve natives, non-reserve natives or Metis, they have all been subjected to the vagaries of the white community. They have been sent to residential schools or placed on reserves that have put them in the situation in which, unfortunately, their lives have been impacted with criminal charges. These criminal charges must have a definite impact, because everyone is supposed to be treated fairly in front of the law. I am not sure how licences will be issued to these people, for one thing. A lot of our Inuit people are unilingual.
There is nothing about this process that should be a surprise, honourable senators. It has just arrived at D-Day and now these people are faced with criminal charges to further exacerbate the situation.
I can understand what Senator Smith is saying. It is hard to justify a native living in downtown Toronto or Vancouver being allowed to have a store of guns.
We tried to deal with these issues at the time. Minister Rock would not listen to us and Wendy Cukier came in here and told us it would cost nothing and this would resolve all the problems in the world and that natives had to be treated exactly so.
Native people have never been treated the same in this country. They have never been treated equally. They have been discriminated against, they have been ghettoized, and the list goes on.
I can only say to you, senators, if you can deal with the Inuit situation that would be a great step. However, we also have the complexities of northern Saskatchewan, northern Manitoba and northern Alberta. How you differentiate these and deal with it is beyond me.
I rest my case. I do not know if the legal counsel has a comment on this criminal aspect. Senator Watt was careful to say that 9,000 people or 9,500 people have criminal records. How do you deal with that? I am asking you, Ms. Roussel.
Ms. Roussel: I do not think it is appropriate for me to comment. I am not an expert on the criminal justice system.
Senator St. Germain: Perhaps Mr. Webster can answer then.
Mr. Webster: I am not an expert on the criminal justice system either.
Senator St. Germain: Are you the head honcho?
Senator Bryden: We are getting a long way from this amending bill. What we are doing is entering into what is a legitimate debate that was exercised —
Senator Stratton: We are talking about an amendment.
Senator Bryden: I had my hand up for a long time.
The Deputy Chairman: Senator Bryden.
Senator Bryden: We cannot rehash all that was done in Bill C-68. If we want to fix Bill C-68, let us introduce a bill to amend it. Right now, we are dealing with this bill. In my mind, there are some competing interests here — not only in relation to Senator Watt's proposed amendment, but also to the fact that we are trying to accomplish public policy without preventing the airing of views.
There is no way that I can see us dealing expeditiously with what we are trying to do and, at the same time, deal with the issues that are causing the amendment to come forward. There would be a better opportunity for a good, careful examination of the amendment, Senator Watt, if you could put a clear position in a reasoned statement before our chamber at third reading where we could debate this amendment. Senator St. Germain would have the opportunity and I would have the opportunity to at least canvass the issues.
I do not think that I could be put in the position today such that I could agree to such an amendment. I know that Senator Nolin has put the amendment on the table. However, I do not want to give the impression that that is intended to cut off your opportunity to bring before the chamber on third reading an amendment, speak to it and give others the opportunity to do that as well.
It is not in the public interest — or in our interest — to attempt to squeeze a total critique of Bill C-68, which I disagree with in many areas as everyone else does. If we are to go after a public policy issue that is in place, then we need to target it. We are talking about firearms; we need to have a rifle, not a shotgun, and we need to go in and say what has to be changed and then let us have an amending bill at some point to deal with that.
Senator Stratton: If I were to give appropriate advice to Senator Watt, it would be to not delay what he wants urgently now. There is a reason — he does not want his people to become criminals, and that will happen. My advice to him would be to consult with our legal counsel to ensure that the wording of the amendment is appropriate and bring it forward at third reading. In so doing, he will have exactly the wording required to carry on the floor. You will get our support, Senator Watt, on that amendment. However, you need to check with our legal counsel to ensure that it would pass muster, as the legal experts down the road have advised.
Senator Cools: We are dealing with the motion that is before us, moved by Senator Nolin, which is not to be forgotten.
In response to Senator Bryden, I would like to say that when he refers to the business of time to canvass, the fact of the matter is that Bill C-10 was before us and that was a perfectly adequate opportunity for the Senate to canvass all the issues that would have been needed. Yet again, we are in a situation where the government wants a major study done in exactly 24 hours, which is the exact amount of time since we began to study the bill yesterday.
This is no fault of Senator Watt or of anyone else on this committee, because the time to have canvassed these issues was when this bill was fully before us. The time is always when the issue is open and when it has been opened for amendment. I want to use this opportunity to say that there is a profound dissatisfaction on the part of the members on both sides. The government would not allow us to have adequate time to study the issue.
Furthermore, the particular question that Senator Watt has raised is one that the minister should have been answering himself directly before the committee. This committee has had to function without the input of and the exchange with the minister.
I also want to say that that sort of dismissal of Senator Watt — to wait for the future to bring another bill — never comes; it never happens. It does not even stand up.
I would like to thank the witnesses, particularly Ms. Roussel, because she has been helpful and open. Ms. Roussel, you do not always hear that from us but you have been a welcome witness to answer our questions. It makes it even more difficult when your own colleagues do not want that to happen.
My question to you is the following: Senator Watt has major concerns. Perhaps Senator Watt's amendment — his proposal as was executed by Senator Nolin — is not the most finely scripted such as a legislative proposal would be. However, last night you pointed out to us particular aspects that would have to be amended to make any proposals complete. Could you share that information with us now about the concerns that Senator Watt has raised?
If he wanted to bring forth such a proposal, how should he do it?
Ms. Roussel: There would be a few ways to do it. Probably, my first instinct would be to look at the offence provisions to see if something could be crafted in terms of a defence to the offence, or an exception to the offence, within the provision itself. The other option would be to look at sections 117.07 and 117.08 of the Criminal Code. They deal with a very different subject — public agents and public officers. You will see that they are, essentially, exemptions from offences. Something similar could be crafted to deal with particular offence provisions in the code and in the Firearms Act.
Obviously, it depends how broadly based those exemptions are required to be. There are different ways to look at it. I do not know if Senator Watt is looking for exemptions from everything, or simply from registration or time-sensitive exemptions. Depending on how the amendment was crafted, you may have to look at the regulations, particularly in the area pertaining to fees.
Senator Cools: I was not finished, but I will come back.
Senator Joyal: Ms. Roussel has raised an important point. I am certainly concerned about the condition for Aboriginal people, especially those who live by hunting and fishing. I insist on that because it answers the preoccupation of our colleague Senator Smith. Aboriginals living by hunting and fishing, normally live in areas close to the resource.
I am impressed by section 2(3) of the Firearms Act, which recognizes the treaty rights of the Aboriginal people of Canada, the derogation clause of the act. It is on that basis that there is current litigation in court. I am wrestling with the legal aspect of this, if we were to exempt Aboriginal people from the act as Senator Watt's amendment purports to do, I feel that we would be giving to section 2(3) a broader perspective. That is because it would have the impact of addressing the point made by Senator Smith. In consideration of treaty rights and Aboriginal rights, they have been interpreted by the Supreme Court within the context of the traditional way of living and traditional culture of the Aboriginal people. We know that this issue is in the court presently.
We can do what Senator Watt proposed to do. I would certainly like to recognize the difficult — sometimes impossible — situation in which some Aboriginal people will be faced with the implementation of this act. I tried to work with our witnesses yesterday to find a way to give more time to address those problems while the court litigation that is pending will find its conclusion in the court.
Those rights are protected by article 2(3) of the act. We must recognize that a certain number of Aboriginal people have tried to comply with the act, with difficulty. Some have complied with the act.
We would say to the court, if we adopt the amendment as presently drafted, that in future it does not need to deal with Aboriginal people insofar as the act is concerned. In other words, it would be the end of court litigation in terms of the implementation of this act with the Aboriginal people.
The Deputy Chairman: Section 35 of the act of 1982 is still there, and it is right in the Constitution.
Senator Joyal: It would have an impact indirectly on the present case in the court. There is no question about that. It would signal an intention of Parliament that from the moment that this act is implemented, Aboriginal people are not within the confines of this act.
The Deputy Chairman: What do you propose?
Senator Joyal: I am trying to protect the rights of the Aboriginal people because I feel that clause 2(3) is a recognition of their rights, while at the same time I am trying to address the point raised by witnesses and some senators yesterday that the problem is immediate.
Its final resolution would be better in the court. I would be more supportive of an alternative that gives a time frame for a better implementation of the act that deals with the special circumstances of the Aboriginal people, which are already recognized in 2(3) of the act.
The case is in the court. We know that the court will resolve the issue one day.
I am not inimical to the objective pursued by our colleague, Senator Watt. At the same time, in practical terms, today there is a problem we must to address. That is the balance that we are trying to make here with this act.
The witnesses have helped us to remain coherent with the act.
The Deputy Chairman: Is your argument that because of section 2(3) of the act and section 35 of the Constitution Act, we had better wait? They have already protection. Are you suggesting that the court would be more useful than what we can do at this moment?
Senator Joyal: It would be more useful to the Aboriginal people to recognize in the act, that they have a problem with registration and they need more time. If we put that in the act, it would signal that we recognize that when sentencing Aboriginal people, the court must take the previous condition into account. It also signals that in implementing the act, we are taking into account the Aboriginal condition.
In my view, that is a fair and reasonable approach. I do not have amendments to that effect today. I am trying to see how we can resolve it.
Senator Nolin: I too am trying to solve the problem. To answer Senator Bryden, I think my motion is quite in order. We are dealing with exemptions. If it is fine to deal with exemptions to non-residents, I think that it is quite in order to deal with exemptions that deal with Aboriginal people.
Senator Bryden: I am not saying it is not in order.
Senator Nolin: You do not want to revisit C-68. Through me, Senator Watt is proposing an amendment. It is quite in order to discuss it.
Senator Watt, unless you tell me that we should try to go to third reading, I would probably modify my motion to include in section 97 a new exemption by the Governor in Council — not by the minister, by the Governor in Council — to one or any Aboriginal from the application of subsection for any Aboriginal from the application of subsection 112(1) the Firearms Act, and subsection 92(1) of the Criminal Code. I am prepared to translate it into French.
All the requirements, obligations and responsibilities of the Crown exempting non-residents would be applicable to Aboriginal peoples. That would answer Senator Smith, who raised a very valid point.
I personally do not want a member of the Aboriginal community living in downtown Montreal or Toronto to be able to carry a gun when neither Senator Smith nor I are able to do it. In his wisdom, the Governor in Council should be allowed to give an exemption. It would be discretionary. We should work out something under section 97.
The Deputy Chairman: What is your reaction to that?
Senator Nolin: Do you want to wait until third reading?
Senator Watt: I will react to the suggestion that Senator Nolin is making. First, I would like to say, honourable senators, that I value your input. To me, this is a critical and crucial matter. I will not allow myself to be put into the position that I will be voted down in this committee. This is too important. I need your support. I need your sensitivity. The only thing I can do is to try to read your mind to see how I will be treated on third reading. I am sorry to say that.
It is important because we are dealing with the lives of people. If I were not dealing with the lives of the people, do you think that I would be putting my neck on the line without support from many people? Do you think I would do that? No.
I have tried. This is very well recorded. This is something that we dealt with in the past. We told you so. That is the only thing I can say.
I would also like to help you try to find some solutions. You have expressed concern about the broadness of my proposed exemption — that it could easily apply to downtown Toronto. That is not my intention.
Senator Nolin: We know.
Senator Watt: That is definitely not my intention. My intention is to look after the people who have that livelihood. You cannot use a geographical area. Sometimes the government has the tendency to use ``North of 60,'' which cuts out part of the sub-Arctic. We have an agreement with the Crown, the James Bay Northern Quebec Agreement, which covers two nations, the Inuit and the Cree. Senator Adams represents them. I represent the same people who live up in the higher north — the Tunngavik Inc., the Nunavut Land Claims agreement.
The Deputy Chairman: We have to close.
Senator Watt: I am trying to say that the agreement does not take into account Labrador people because they have not yet reached an agreement. So what do we do with that?
Senator Rompkey: Mr. Chairman, I have much sympathy for the position that Senator Watt is defending. I want to associate myself with the comments of Senator Joyal as well. However, there is a motion on the floor. My sense is that we should put that motion now —
Some Hon. Senators: No!
Senator Rompkey: — and resolve the motion, unless it is withdrawn. That would probably be the preferable course of action, to withdraw the motion so that there is not a statement from the committee as such.
The Deputy Chairman: We have to settle the problem of whether it will be at third reading or now.
Senator Rompkey: If the motion is not withdrawn, we would have to put it now and dispose of it.
Senator Nolin: Withdrawn.
The Deputy Chairman: Is it withdrawn?
Senator Joyal: With the present proviso, that there are points raised by my colleagues around the table that are very important for Senator Watt; and with the proviso that meanwhile those who have worked on this could see what other options we could consider on third reading.
The Deputy Chairman: Is it agreed?
Hon. Senators: Agreed.
The Deputy Chairman: It is clear-cut? Okay.
Senator Corbin: Clause 51 is adopted, chair.
The Deputy Chairman: Yes, clause 51 is adopted.
Senator Nolin: Are there any other amendments to 51? Those are the only amendments?
There are no more amendments to this bill? Okay. Therefore, I will not table my amendment.
The Deputy Chairman: You will not table your amendment. That is solved.
Shall the short title carry?
Hon. Senators: Carried.
Senator Stratton: On division.
The Chairman: On division. Shall the title carry?
Hon. Senators: Carried.
Senator Stratton: On division.
The Deputy Chairman: On division. Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
Senator Stratton: On division.
The Deputy Chairman: On division. Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Deputy Chairman: The Senate is sitting this afternoon.
Senator Stratton: On division.
The Deputy Chairman: Agreed, on division.
Senator Corbin: I would like to propose to my colleagues the following in terms of the report of this committee to the house. I have taken into consideration the concern expressed among others by Senator Andreychuk, who wishes to preserve this committee's ability to examine the other half of the original bill, which is now Bill C-10B. Therefore, I wish to put before this committee the following proposal for the report. I have copies, which I asked the Clerk to distribute because it is a long paragraph and there are technical things in there.
Your committee to which was refer Bill C-10, An Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act, and to which instructions were given to divide Bill C-10 into two bills, has, in obedience to both orders of reference, examined the said bill and now reports that it has divided the bill into two bills, Bill C-10A, An Act to amend the Criminal Code (firearms) and the Firearms Act, and Bill C-10B, An Act to amend the Criminal Code (cruelty to animals), both of which are set out in Appendices A and B respectively to this report.
Your committee has agreed to report Bill C-10A without amendment and further reports that it is continuing its examination of Bill C-10B.
I humbly seek the concurrence of honourable senators.
Senator Stratton: No.
The Deputy Chairman: I have a problem with some words, because the bill is not yet two bills. We have to discuss this.
What is your reaction, Senator Stratton?
Senator Stratton: I have the same concerns. It is essentially one bill. It is not two.
Senator Corbin: In response to that, this was drafted by our legal adviser. Our working copy does carry the title, the enumeration of Bill C-10A and C-10B. That is our document.
Senator Joyal: I am concerned with the last line, and the information that was given by our legal adviser this morning: ``Your committee has agreed to report Bill C-10A without amendment and further reports that it is continuing its examination...''
I thought we would be seeking the authority from the house to continue to report, because we would have reported today. What we are doing now is partially reporting. I want to have a clear legal answer.
Senator Corbin: I should have informed honourable senators before reading this that the wording is strictly based on the 1998 committee procedure when it reported the bill at that time. Nothing has changed.
Senator Stratton: At that time, were they reporting on both parts of the bill? We are only now reporting on one part of the bill.
Senator Rompkey: It reads, ``...it is continuing its examination of Bill C-10B.''
Senator Stratton: The legal authority accepts that that is not a problem?
Senator Corbin: Apparently not. This wording concurs completely with the precedent, senator. Be mindful of the fact that the problem was not with the committee's report. The problem was with seeking concurrence from the House of Commons. That is where the problem lay. There was nothing wrong with the report at that time. This follows the same lines.
The Deputy Chairman: We did not use the words ``Bill C-10A'' and ``Bill C-10B.'' This is the difficulty.
Senator Corbin: So did they.
The Deputy Chairman: I refer to the document on the firearms and the document on the other.
Senator Bryden: The intent is to track what has already been done exactly here in these words. Can you read that?
Senator Rompkey: This is the wording from Hansard at that time in 1988, at page 3886:
Your Committee has agreed to report Bill C-103 (Part 1) without amendment, and further reports that it is continuing its examination of Bill C-103 (Part 2).
Respectively submitted,
William M. Kelly
Deputy Chairman.
It is exactly the same as in 1988.
Senator Corbin: Let us have the question.
The Deputy Chairman: We have to put the question. We agree on this.
Senator Cools: In two minutes, this committee has no authority to meet.
Senator Stratton: Have the bells stopped?
The Deputy Chairman: You told me you were ready to vote. Let us have a vote.
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The committee adjourned.