48 Elizabeth II, A.D. 1999, Canada

Journals of the Senate

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Issue 111

Tuesday, February 16, 1999
2:00 p.m.

The Honourable Gildas L. Molgat, Speaker

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The Members convened were:

The Honourable Senators

Adams, Andreychuk, Angus, Atkins, Austin, Bacon, Beaudoin, Berntson, Bolduc, Bryden, Buchanan, Butts, Callbeck, Carney, Carstairs, Cochrane, Cohen, Cools, De Bané, DeWare, Di Nino, Eyton, Fairbairn, Fitzpatrick, Forrestall, Fraser, Gauthier, Ghitter, Gill, Grafstein, Graham, Grimard, Hays, Hervieux-Payette, Johnson, Johnstone, Joyal, Kelleher, Kelly, Kenny, Keon, Kinsella, Kirby, Kolber, Kroft, Lavoie-Roux, LeBreton, Losier-Cool, Lynch-Staunton, Mahovlich, Maloney, Meighen, Mercier, Milne, Molgat, Moore, Murray, Nolin, Oliver, Pearson, Pépin, Phillips, Poulin (Charette), Poy, Prud'homme, Rivest, Roberge, Robertson, Robichaud , (Saint-Louis-de-Kent), Roche, Rompkey, Rossiter, Ruck, Simard, Sparrow, Spivak, Stewart, Stollery, Tkachuk, Watt, Whelan

The Members in attendance to business were:

The Honourable Senators

Adams, Andreychuk, Angus, Atkins, Austin, Bacon, Beaudoin, Berntson, Bolduc, Bryden, Buchanan, Butts, Callbeck, Carney, Carstairs, *Chalifoux, Cochrane, Cohen, *Comeau, *Cook, Cools, *Corbin, De Bané, DeWare, Di Nino, *Doody, Eyton, Fairbairn, Fitzpatrick, Forrestall, Fraser, Gauthier, Ghitter, Gill, Grafstein, Graham, Grimard, Hays, Hervieux-Payette, Johnson, Johnstone, Joyal, Kelleher, Kelly, Kenny, Keon, Kinsella, Kirby, Kolber, Kroft, Lavoie-Roux, LeBreton, Losier-Cool, Lynch-Staunton, *Maheu, Mahovlich, Maloney, Meighen, Mercier, Milne, Molgat, Moore, Murray, Nolin, Oliver, Pearson, Pépin, Phillips, Poulin (Charette), Poy, Prud'homme, Rivest, Roberge, Robertson, Robichaud , (Saint-Louis-de-Kent), Roche, Rompkey, Rossiter, Ruck, Simard, Sparrow, Spivak, Stewart, Stollery, *Taylor, Tkachuk, Watt, Whelan

PRAYERS

SENATORS' STATEMENTS

Some Honourable Senators made statements.

With leave of the Senate. The Honourable Senator Hays tabled the following:

Document entitled: "Standing Senate Committee on Agriculture and Forestry's Fact-finding Mission to Europe". -Sessional Paper No. 1/36-1012S.

DAILY ROUTINE OF BUSINESS

Presentation of Reports from Standing or Special Committees

The Honourable Senator Kirby presented the following:

TUESDAY, February 16, 1999

The Standing Senate Committee on Banking, Trade and Commerce has the honour to present its

TWENTIETH REPORT

Your Committee, to which was referred the Bill C-59, An Act to amend the Insurance Companies Act has examined the said Bill in obedience to its Order of Reference dated Thursday, February 4, 1999, and now reports the same without amendment, but with the following observations:

1. The bill contained two parchment errors;

- the Law Clerk was directed to correct these on behalf of the Senate by clerical action; and

- the subject-matter of the correction of parchment errors should be a subject of review by the Privileges, Standing Rules and Orders Committee.

2. Since members of the Committee expressed concerns about the completeness and comprehensibility of the information that would be made available to policyholders by companies, the Chairman agreed to write a letter to the Superintendent of Financial Institutions requesting assurances that:

(a) information distributed to policyholders would be written in plain language;

(b) there would be full and complete disclosure of all relevant information required by policyholders in order for them to make an informed decision;

(c) the Superintendent of Financial Institutions would provided annually a report on the process of demutualization.

The Committee expects an acceptable written reply from the Superintendent of Financial Institutions before the bill receives third reading.

Respectfully submitted,

MICHAEL KIRBY

Chair

The Honourable Senator Kirby moved, seconded by the Honourable Senator Poy, that the Bill be placed on the Orders of the Day for a third reading at the next sitting.

The question being put on the motion, it was adopted. The Honourable Senator Kirby presented the following:

TUESDAY, February 16, 1999

The Standing Senate Committee on Banking, Trade and Commerce has the honour to present its

TWENTY-FIRST REPORT

Your Committee, to which was referred the motion of the Honourable Senator Graham, regarding certain amendments to Bill C-20, An Act to amend the Competition Act and to make consequential and related amendments to other acts, and the Message from the House of Commons on the same subject, dated February 5, 1999, has, in obedience to the Order of Reference dated February 11, 1999, examined the said motion and Message and now reports as follows:

The Committee recommends that the Senate concur in the amendments made by the House of Commons in the Message dated February 5, 1999.

Respectfully submitted,

MICHAEL KIRBY

Chair

The Honourable Senator Kirby moved, seconded by the Honourable Senator Kroft, that the Report be placed on the Orders of the Day for consideration at the next sitting.

The question being put on the motion, it was adopted.

The Honourable Senator Rompkey, P.C., presented the following:

TUESDAY, February 16, 1999

The Standing Committee on Internal Economy, Budgets and Administration has the honour to present its

THIRTIETH REPORT

Your Committee recommends the adoption of Supplementary Estimates (C) $1,975,500 for fiscal year 1998-99. These funds are required for three purposes: i) to meet operational shortfalls in Committees and Parliamentary Associations; ii); to cover costs related to employee salaries and benefits; and iii) to replace outdated computer equipment.

The present fiscal year has been unprecedented in terms of Committee work; the number of witnesses who have testified, the number of meetings that have been held and the number of hours committees have worked have far exceeded the five year average. At least 17 major Committee reports have already been made to the Senate during the year. These reports were:

By the Banking, Trade and Commerce Committee:

Pension Plan Investment Board: Getting It Right (April 1998);

Modified Proportionate Liability (September 1998);

Comparative Study of Financial Regulations Regime (October 1998);

The Governance Practices of Institutional Investors (November 1998);

A Blueprint for Change - Response to the Report of the Task Force on the Future of the Canadian Financial Services Sector (3 volumes) (December 1998).

By the Agriculture and Forestry Committee:

Bill C-4, Canadian Wheat Board (May 1998).

By the Fisheries Committee:

Privatization and Quota Licensing in Canada's Fisheries (December 1998).

By the Social Affairs, Science and Technology Committee:

The Federal Child Support Guidelines (June 1998);

Guarding History: A Study into the Future, Funding and Independence of the Canadian War Museums (May 1998).

By the Foreign Affairs Committee:

Crisis in Asia: Implications for the Region, Canada and the World (December 1998).

By the Legal and Constitutional Affairs Committee:

Bill C-220, Profit from Crime (June 1998);

Bill C-37, Judges Act (October 1998);

Bill C-25, National Defence Act (November 1998);

Bill C-3, DNA Identification (December 1998).

By the Special Joint Committee on Child Custody and Access:

For the Sake of the Children (December 1998).

By the Special Committee on Security and Intelligence:

Final Report (January 1999).

By the Special Senate Committee on Transportation Safety and Security:

Interim Report (January 1999).

There are a number of other Committee reports expected as well. These are:

By the Social Affairs, Science and Technology Committee:

- on the effects of globalization and technology on social cohesion in Canada;

- on the health care of Canadian veterans.

By the Aboriginal Peoples Committee:

- on Aboriginal self-government (interim report).

By the Transport and Communication Committee:

- on the impact of new technology on Canadian cultural policy.

By the Agriculture and Forestry Committee:

- on the status of the Boreal Forest;

- on the bovine growth hormone (rBST).

By the Banking, Trade and Commerce Committee:

- on equity financing.

Additional funds of $600,000 are therefore requested to meet Committee expenses.

This Supplementary Estimate also includes an amount for the establishment of a Canada-China Legislative Association which was recommended by the Joint Interparliamentary Council and approved by the House of Commons. The Senate portion of the cost is $27,500.

An amount of $1,163,000 is also included to fund personnel-related expenses. On the advice of Treasury Board, the salary increases retroactive to April 1, 1998, were not included in the 1998-99 Main Estimates. In addition, because of the Department of Human Resources Development's new cost recovery policy, the Senate must reimburse the Department for its share of workers' compensation. The requested funding is also needed for severance pay.

The remaining $185,000 will cover the costs of replacing computer equipment within the Senate administration. Such funds are required to maintain the institution's investment in information technology and infrastructure and continued compatibility with Parliament Hill programmes.

Respectfully submitted,

WILLIAM ROMPKEY

Chair

The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Maloney, that the Report be placed on the Orders of the Day for consideration at the next sitting.

The question being put on the motion, it was adopted. The Honourable Senator Rompkey, P.C., presented the following:

TUESDAY, February 16, 1999

The Standing Committee on Internal Economy, Budgets and Administration has the honour to present its

THIRTY-FIRST REPORT

Your Committee has examined and approved the Senate Estimates for the fiscal year 1999-2000 and recommends their adoption.

The Expenditure Plan 1999-2000 and a summary accompanies this report.

Respectfully submitted,

WILLIAM ROMPKEY

Chair

(The summary of the Expenditure Budget 1999-2000 is printed as an Appendix)

The Honourable Senator Rompkey, P.C., moved, seconded by the Honourable Senator Whelan, P.C., that the Report be placed on the Orders of the Day for consideration at the next sitting.

The question being put on the motion, it was adopted.

Government Notices of Motions

With leave of the Senate, The Honourable Senator Carstairs moved, seconded by the Honourable Senator Bacon:

That when the Senate adjourns today, it do stand adjourned until tomorrow Wednesday, February 17, 1999, at 1:30 p.m.

The question being put on the motion, it was adopted.

SPEAKER'S RULING

On Tuesday February 2, at the conclusion of Orders of the Day, Senator Kinsella rose to speak on a question of privilege of which he had given notice earlier. The subject of the Senator's question of privilege had to do with a current issue of Hustler magazine alleged to contain some lewd and obscene references to the Minister for Canadian Heritage, the Honourable Sheila Copps. According to the Senator, the intent of the magazine's publishers was to intimidate the Minister, who is the sponsor of Bill C-55. This bill is currently being considered in the other place. The purpose of Bill C-55, as Senator Kinsella explained, is to make it illegal to solicit Canadian advertisers to place ads in split-run magazines including apparently Hustler magazine. In presenting his case, Senator Kinsella cited some recent newspaper accounts as evidence that Hustler magazine opposes the objectives of this bill.

By raising this matter as a question of privilege rather than as a substantive motion that could be debated after notice, Senator Kinsella is seeking to have all other Senate business put aside so that it might be considered as a matter of the utmost importance. To achieve this, the Senator has asked me, as Speaker, to recognize the prima facie merits of his question of privilege.

In presenting his case, Senator Kinsella did acknowledge that his question of privilege is somewhat unusual in that it involves a Minister who is not a member of this Chamber. The Senator also admitted that "a careful reading of the Rules of the Senate speaks of the duty of every Senator to preserve the privileges of the Senate and not necessarily the privileges of the other place." Nonetheless, the Senator expressed his conviction that the attack on the Minister is really an attack on all parliamentarians. It is Senator Kinsella's contention that unless Parliament takes steps to deal with this kind of attack, it could have a chilling effect on the process of debate that is at the very core of our parliamentary system. As Senator Kinsella put it, the work of Parliament should not be obstructed or influenced by the improper means utilized by Hustler magazine.

After some brief exchanges between Senator Kinsella and Senator Stewart, Senator Robertson intervened to recall a similar incident that had occurred several years ago. At that time, however, no question of privilege was raised.

The position taken by Senator Kinsella was then strongly endorsed and supported by Senator Cools. According to the Senator, Parliament has been timid in recent years in the defence of its own privileges and the media have often taken advantage of this situation. Explaining that she was speaking from first hand experience, Senator Cools stated that this technique to embarrass and shame politicians has often been used in the past. The attack on the Minister, in the Senator's judgement, was nothing less than a vulgar attempt to offend.

In the course of her remarks, Senator Cools also reiterated a point that had been stressed by Senator Kinsella. Both explained that the Speaker in making a prima facie ruling is not assessing the question of privilege itself. Rather, the role of the Speaker is limited to deciding whether there is sufficient evidence at first sight to give this issue priority of debate.

Senator Fraser then suggested that some consideration in this matter had to be given the right of freedom of speech and of the press. In her view, these constitutional guarantees which are fundamental to our free society mean that we, as parliamentarians, must accept the possible risk of exposure to cruel personal attack by the media. It is a price that must be paid, she said, in a society that professes to be free. The Senator's comments were made after noting that Minister Copps has responded to the Hustler magazine insult with dignity and forbearance. This was also indirectly acknowledged by Senator Kinsella who had noted that the Minister had taken no action to raise the matter as a question of privilege in the other place. Senator Fraser concluded by expressing some apprehension in establishing a precedent that might have the effect of granting to parliamentarians privileges beyond those enjoyed by ordinary citizens.

Finally, Senator Carstairs joined the debate. Like the others, the Senator agreed that the article in the magazine was disgusting and degrading. As an attack on female politicians, the Senator said, the magazine was particularly offensive. Senator Carstairs took note of the fact that Senator Kinsella had mainly focused on the question of whether it had offended the privileges of parliamentarians as a whole, and not just the Minister. The question that the Speaker had to address, Senator Carstairs said, was whether the privileges of Parliament had been so jeopardized that they must override any claims to freedom of speech or press. The Senator concluded her remarks by citing two relevant references from the sixth edition of Beauchesne, including a citation about direct threats to influence the actions of parliamentarians.

Let me begin by thanking all the Senators who expressed their views on this matter. As Speaker, I find it useful when there is a full discussion of the issues involved in any alleged question of privilege or point of order. It assists me in coming to an understanding of the specific elements of the particular question or point. This, in turn, provides me with the framework I need to reach a decision on the merits of each case.

While the focus of my ruling is not the actual publication of Hustler magazine and the lewd depiction of the Minister of Canadian Heritage, I will confess that I myself was disgusted by it. Portraying Minister Copps in this loathsome fashion is, I think, a degrading sexist assault on all female parliamentarians. I am certain that there is no one in this Chamber who would doubt that this publication is indeed very objectionable. If it does in fact have any connection to the debate on Bill C-55, it need hardly be said that it is a despicable contribution to the process of public debate.

In presenting his case, Senator Kinsella made it clear that what he was seeking was an opportunity to bring the publishers of Hustler magazine before a parliamentary committee to have them explain "why they chose to resort to these sexist tactics in their opposition to Bill C-55." This is certainly an understandable request, given the facts that he presented. As Speaker, however, my task is to determine whether the question of privilege has sufficient merit prima facie to be accorded priority over all other business of the Senate.

To make this determination, I am obliged to consider the Rules of the Senate as well as any relevant precedents. Rule 43, which was adopted in its current form in 1991, lists certain criteria that must be met to be considered a valid question of privilege. The question must, for example, be raised at the first opportunity. Certainly with respect to this criterion, there is no doubt that Senator Kinsella raised the matter at the earliest possible opportunity he could, the very first day the Senate resumed its sittings following the holiday adjournment.

The second criterion is that a putative question of privilege must "be a matter directly concerning the privileges of the Senate, of any committee thereof, or any Senator." As to this point, Senator Kinsella acknowledged that "a careful reading" of the rules would indicate that his question of privilege would not appear to meet this condition. It is conceded that the target of the magazine article, the Minister for Canadian Heritage, is not a member of this Chamber. As well, no evidence was presented to indicate that the Minister had been intimidated by the publication in anyway. It was also noted that the Minister has not sought to raise the matter in the other place as a question of privilege. Moreover, Senator Kinsella did not provide me with any precedent from Canada or any other jurisdiction where one House of Parliament considered a question of privilege that related directly to a member of the other House.

Senator Kinsella's argument for a question of privilege, however, was not limited to the attack on the Minister. The Senator went further to suggest that sordid publications of this kind could have an intimidating effect on other parliamentarians, including Senators, who could be deeply offended and hurt by such a disgusting portrayal. I agree that were this to happen - if it were ever claimed that Senators felt they were under some kind of direct threat that prevented them from discharging their parliamentary responsibilities - it could result in a serious question of privilege. But with reference to this specific case, the Senator provided no evidence to suggest that this had occurred.

A third criterion that needs to be taken into account is that the question of privilege must "be raised to seek a genuine remedy, which is in the Senate's power to provide, and for which no other parliamentary process is reasonably available." Once a prima facie question of privilege is established, it is for the Senate to decide what corrective action should be taken. With respect to this case, however, there are other parliamentary procedures available to deal with this serious complaint. As I mentioned previously, Senator Kinsella expressed a desire to have the offending publishers appear before a committee to have them explain why they used such an offensive personal and sexist attack to express their opposition to a government bill. Senators will have an opportunity to consider this option if and when Bill C-55 comes to this Chamber from the other place. Alternatively, a motion after notice can be proposed at any time to refer this issue to an appropriate committee for investigation.

The final criterion listed in rule 43 is that the question of privilege must "be raised to correct a grave and serious breach." I have already indicated that no substantive evidence was presented during discussion on the alleged question of privilege suggesting that any Senators had been obstructed in the performance of their duties as a consequence of the repugnant Hustler publication.

Based on the criteria of rule 43, it is my assessment that, at first glance, the matter does not directly involve the Senate or a member of this House. It also appears to me that alternative parliamentary processes are available to address this complaint. I can see nothing to suggest that a grave and serious breach affecting the ability of Senators to perform their duties has actually occurred. Accordingly, I rule that no prima facie case of privilege has been established.

ORDERS OF THE DAY

GOVERNMENT BUSINESS

Bills

Order No. 1 was called and postponed until the next sitting.

OTHER BUSINESS

Senate Public Bills

Resuming debate on the motion of the Honourable Senator Forrestall, seconded by the Honourable Senator Atkins, for the second reading of Bill S-19, An Act to give further recognition to the war-time service of Canadian merchant navy veterans and to provide for their fair and equitable treatment.

After debate, The Honourable Senator Carstairs moved, seconded by the Honourable Senator Joyal, P.C., that further debate on the motion be adjourned until the next sitting.

The question being put on the motion, it was adopted.

Reports of Committees

Consideration of the Report of the Special Committee of the Senate on Security and Intelligence, deposited with the Clerk of the Senate on January 14, 1999.

The Honourable Senator Kelly moved, seconded by the Honourable Senator Beaudoin, that the Report be adopted.

After debate, The Honourable Senator Bryden moved, seconded by the Honourable Senator Butts, that further debate on the motion be adjourned until the next sitting.

The question being put on the motion, it was adopted. Orders No. 2 to 4 were called and postponed until the next sitting. Consideration of the Sixteenth Report (Interim) of the Standing Senate Committee on Banking, Trade and Commerce entitled: "The Governance Practices of Institutional Investors", tabled in the Senate on November 19, 1998.

After debate, The Honourable Senator Oliver moved, seconded by the Honourable Senator Keon, that further debate on consideration of the Report be adjourned until the next sitting.

The question being put on the motion, it was adopted.

Other

Orders No. 46, 39 (inquiries), 118, 45 (motions), 44, 50, 48, 51, 34 (inquiries), 88 (motion), 23, 47, 49 (inquiries), 1 (motion) and 1 (other) were called and postponed until the next sitting.

MOTIONS

The Honourable Senator Kirby moved, seconded by the Honourable Senator Callbeck:

That, notwithstanding the motion adopted by the Senate on Thursday, December 10, 1998, the Standing Senate Committee on Banking, Trade and Commerce be authorised to extend the date for the presentation of its final report on the state of the financial system in Canada from February 28, 1999 to December 31, 1999; and

That, notwithstanding usual practices, if the Senate is not sitting when the report is completed, the Committee be authorised to deposit it with the Clerk of the Senate, and that the said report shall thereupon be deemed to have been tabled in the Chamber.

After debate, The question being put on the motion, it was adopted.

REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):

Summary of the Capital Budget Amendment for 1998-99 of the Canada Post Corporation, pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11, sbs. 125(4). -Sessional Paper No. 1/36-1010.

Report on the implementation of the Employment Equity Act for the year 1998, pursuant to the Employment Equity Act, S.C. 1995, c. 44, s. 20.-Sessional Paper No. 1/36-1011.

ADJOURNMENT

The Honourable Senator Carstairs moved, seconded by the Honourable Senator Losier-Cool:

That the Senate do now adjourn.

The question being put on the motion, it was adopted.

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Changes in Membership of Committees Pursuant to Rule 85(4)

Standing Senate Committee on National Finance

The name of the Honourable Senator Carstairs substituted for that of the Honourable Senator Cook (February 12).

Standing Senate Committee on Banking, Trade and Commerce

The names of the Honourable Senators Kenny, Kirby, Kolber and Kroft substituted for those of the Honourable Senators Chalifoux, Poy, Kroft and Stewart (February 15).

Standing Senate Committee on Transport and Communications

The name of the Honourable Senator Kenny substituted for that of the Honourable Senator Perrault (February 15).

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