Honourable senators, I rise today to speak on Bill C-280, now before us for third reading, and to reflect on the implications of its passage without amendment.

The rejection of the committee report is regrettable, as it leaves us with an unamended bill that is deeply flawed. However, this fresh start provides clarity for our debate and compels us to carefully consider what we do with a bill that does not solve the problem it seeks to address, while creating a whole new set of problems.

Despite what proponents might say, Bill C-280 does not provide assurance of reciprocity with the United States in the treatment of unpaid claims of perishable fruit and vegetable suppliers. I don’t doubt that the Americans would like to see Canada put in place a deemed-trust-like structure that would be equivalent to their Perishable Agricultural Commodities Act, or PACA, but as Senator Varone has pointed out, the differences between Bill C-280 and PACA are profound, and we are, at best, taking a stab in the dark with the bill before us.

The nod given to this bill from a few U.S. legislators who have not studied it in detail is far from a guarantee of reciprocity. It is true that the bill, as amended, would not have provided for reciprocity either, but Senator Varone was not promising that it would. He was trying to ameliorate a badly conceived bill and to reduce its harms.

If you are principally concerned about the issue of reciprocity, as is the intent of the bill, you will have been right to vote against the committee report, because the amendment would not have solved the reciprocity problem. But using the same logic, you should also vote against the unamended bill because it is also unlikely to provide reciprocity for Canadian fresh fruit and vegetable suppliers.

The best that proponents of the bill can say is that no U.S. authority has definitively said that the bill would not result in reciprocity. Some may argue that even in the face of uncertainty about American guarantees, we should nevertheless pass this bill because, well, a stab in the dark is better than not stabbing at all. But the trouble with stabbing in the dark is that you don’t know who you end up hurting, and in the case of Bill C-280, there are a lot of innocent victims who could end up with financial knife wounds.

Under this bill, perishable fruit and vegetable suppliers would be prioritized over pensioners, workers in other vulnerable groups, including some farmers and fishers. Such prioritization fundamentally disrupts the hierarchy of obligations that must be balanced in insolvency cases. Bill C-280 upsets that balance, creating uncertainty in the credit market and, for reasons explained by Senator Cotter and others, will almost certainly result in costly litigation.

Creating a super priority for fruit and vegetable producers could result in higher credit costs all along the supply chain. Bear in mind that producers are not putting up homes or boats that the financial institutions can repossess and thus factor into their credit calculations.

Also bear in mind that the super priority given to suppliers only includes those for whom perishable fruits and vegetables:

. . . have been repackaged or transformed by the purchaser to the extent that the nature of the fruits and vegetables remains unchanged.

It does not include the extended supply chain of packaging, transportation, brokering, warehousing, advertising and other ancillary services that go into the delivery of fresh fruits and vegetables from farm to table, so to speak. Where is the fairness for those suppliers of goods and services?

It is bad enough that Bill C-280 would disrupt the social consensus on who should receive priority in the settlement of claims in situations of insolvency. It is even worse that we would be doing so without achieving the reciprocity that this bill seeks to attain.

If we pass this bill and it transpires that we are no further ahead in getting reciprocity from the Americans, what do you think will happen to Bill C-280? Do you believe a future Parliament will seek to repeal these provisions to restore fairness in the hierarchy of creditors? That’s highly unlikely, in my opinion, since we know how difficult it is to get rid of ill-conceived or outdated laws.

If you thought the lobbying effort from the perishable fruit and vegetable sector was formidable on Bill C-280, wait until you see what happens if we try to unwind this law because it is not fit for purpose.

The question we should be asking in this third-reading debate is as follows: Why proceed with a flawed bill that has known collateral damage to other segments of society when we could instead address the reciprocity problem in a more systematic and organized way?

Some honourable colleagues have argued that we should pass Bill C-280 unamended because of the looming threat to market access that awaits us with the advent of Donald Trump’s presidency.

In effect, the argument is that we should pre-empt the review of the United States-Mexico-Canada Agreement, or USMCA, in 2026 by proposing a bill to address reciprocity now, even if we are unsure of whether it will succeed. As with another deeply flawed bill, Bill C-282 on supply-managed industries, pre‑emptive action through Bill C-280 would be a strategic blunder on our part. Why would we give up a bargaining chip before we must play it? Rather than rushing to implement a flawed measure, we should use the upcoming 2026 review as an opportunity to negotiate a comprehensive and definitive solution to the reciprocity issue.

Whereas we are currently operating on winks and nods from the Americans and a lot of second-guessing on our part, we could, in a formal review of the U.S.-Canada trade, put reciprocity squarely as an issue we both want to resolve and get our respective agriculture and finance authorities to work on. This would allow for a thoughtful and deliberate bilateral approach to solving a problem, rather than a unilateral action from a private member’s bill.

For those of us who are against Bill C-280, adopting the report with an amendment to the bill might have been sufficient for the grudging acceptance of that bill at third reading. Critics of this approach would say that it is a disguised attempt at killing the bill.

I think of it, rather, as a conversation between the upper house and the lower house. The conversation will pause if an amended bill does not see the light of day in the other place, but the good faith ideas offered by the Senate — in this case, Senator Varone and members of the Banking Committee — can live on in a future better version of the bill. That is an entirely legitimate act on the part of our institution, and one that should not be disparaged.

However, colleagues, that ship has sailed.

What we have before us is Bill C-280 in its naked glory. If we were mollified by the bill as amended, we should be horrified that it has reverted to its original form. For those who feel as I do, the only question left is whether we have the right to defeat it.

The answer is unambiguously “yes.” Our constitutional right to defeat bills is unqualified, even if it is guided by convention and tempered by practice.

I accept some version of the Salisbury convention, which requires us to hold our noses when approving flawed bills that respond to an election platform promise from the government of the day. I also accept that we should be very reluctant to defeat government bills that do not correspond to an election platform promise, subject to the usual constitutional caveats, of course.

The bill before us, however, is a long way from those two high-minded tests. Bill C-280 is a private member’s bill that slipped through the House of Commons, operating under the dysfunction of a minority government. It is precisely under these kinds of circumstances that our guard, on the one hand, should be heightened and our tolerance for defeating flawed legislation, on the other hand, should be lowered.

It is no secret that the other place is currently in a shambles. There is little legislative work taking place, and the debate on the floor of the House is a distasteful parade of name-calling, nasty asides and self-promotion. The government’s legislative accomplishments in the current Parliament are meagre at best, and the opposition is doing what it can to keep it that way.

Under these circumstances, it is my belief that the government is supporting some private members’ bills to pad its legislative accomplishments in the Forty-fourth Parliament, even when those bills have not gone through the rigour of departmental review. There is a certain desperation to this effort, and it is cynical at best.

Perhaps the government is counting on a future parliament to fix the flaws. Perhaps it is doing so with the expectation that a different government will have to deal with those flaws. That is cynicism squared, but we can at least say, in this instance, that the government and the opposition are willing partners in a danse macabre.

Do you remember what the Supreme Court said about the role of the upper house? It stated:

The framers sought to endow the Senate with independence from the electoral process to which members of the House of Commons were subject, in order to remove Senators from a partisan political arena that required unremitting consideration of short-term political objectives.

Colleagues, this is not just a reminder of how we are fundamentally different from the other place; it is also an admonition for us to be courageous in the discharge of our duties.

My point is this: While we should always be mindful of our role as a complementary chamber of sober second thought, the need for sober thinking in a dysfunctional minority Parliament is greater, not less, than in normal circumstances. And when it comes to private members’ bills that are patently flawed, even with government support, we are far away from the forbidden grounds of Salisbury.

Of course, if you think this is a good bill, you should vote for it, but if you think that it is deeply flawed, as I do, you should not hesitate for a minute to defeat it at third reading.

To recap, Bill C-280 will not solve the reciprocity problem. However, it will disrupt the balance of priorities in resolving insolvency and leave important groups of Canadians, including vulnerable Canadians, in the lurch. If we pass this bill, it will be very difficult to unwind, even if the promised reciprocity does not materialize.

There is a better way to negotiate reciprocity, which is through the upcoming review of the Canada-United States-Mexico Agreement, or CUSMA, with the full participation of the relevant authorities in Canada and the United States. If you agree with this analysis, you should reject the fallacious arguments aimed at browbeating us into voting for this bill. On the contrary, you should take the only option we have left on this flawed bill, which is to defeat it.

Like fruits and vegetables, this bill has a limited shelf life, and we are coming to the end of it. Perish not our responsibility for good public policy; perish instead Bill C-280. Thank you.