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Debates of the Senate (Hansard)

2nd Session, 36th Parliament,
Volume 138, Issue 50

Tuesday, May 2, 2000
The Honourable Rose-Marie Losier-Cool, Speaker pro tempore

The Late Honourable Richard A. Donahoe, Q.C.
- Tributes

SENATORS' STATEMENTS
ROUTINE PROCEEDINGS
- Special Senate Committee on Bill C-20
  - Notice of Motion to Appoint
QUESTION PERIOD
ORDERS OF THE DAY

THE SENATE

Tuesday, May 2, 2000

The Senate met at 2 p.m., the Speaker pro tempore in the Chair.

Prayers.

The Late Honourable Richard A. Donahoe, Q.C.

Tributes

Hon. Lowell Murray: Honourable senators, I have the sad duty to record the death, on Tuesday, April 25, of our former colleague the Honourable Richard A. Donahoe. Richard Donahoe was elected mayor of Halifax during the 1950s, was five times elected to the Nova Scotia legislature and, from 1979 until his retirement in 1984, was a member of the Senate.

In provincial politics, Richard Donahoe served in the governments of Premier Robert L. Stanfield and Premier G.I. Smith as attorney general and minister of public health. In the latter capacity, he is best known for having successfully guided the implementation of both the National Hospital Insurance Plan in the late 1950s and of medicare in the late 1960s in his province.

Richard Donahoe was a wonderful orator and also a keen judge of oratory. From time to time in my youth, I found myself a small part of a supporting cast of speakers at some of those marathon political meetings in Nova Scotia where Dick Donahoe was usually the main attraction. It was a somewhat intimidating experience. For five years here in the Senate, whenever I spoke, I was aware of his attentive eye and ear. Even today, it is with some trepidation that I begin. Let there be no doubt — he expects us to rise to this occasion.

His funeral last Saturday was at St. Mary's Basilica in Halifax. In that same church, 105 years ago, the requiem was for Sir John Thompson, sometime premier of Nova Scotia and fourth prime minister of Canada. There, 46 years ago, the bells tolled for the Honourable Angus L. Macdonald, premier through five elections and Canada's minister of the navy during World War II. Not far away is Government House, where Joseph Howe, the father of responsible government, died in 1873, and Camp Hill Cemetery, where he is buried. At St. Paul's Anglican Church, at the other end of Barrington Street, funeral services were held in 1915 for Sir Charles Tupper, premier of Nova Scotia, father of Confederation and sixth prime minister of Canada. On an occasion such as Saturday's, one is conscious of being surrounded by history.

Last week, Richard Donahoe joined this political pantheon and there he belongs, now part of the proud political history and tradition of Nova Scotia. He was a greatly gifted and greatly respected public man. He was much beloved, especially by the rank and file of the Progressive Conservative Party. Personally, and from my earliest days as a political partisan, I recall his kindness, thoughtfulness and encouragement to me and to others. Dick was an inspiration to several generations of young Progressive Conservatives in Nova Scotia.

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The funeral service was, as they say nowadays, quite "upbeat." It was the mass of the resurrection, the Easter service, really, with great music, including a Celtic harp and the choir from Senator Carstairs' old school. Two former archbishops of Halifax conducted the service.

It is no disrespect to the liturgy to say that it was also quite a political occasion. Many of Nova Scotia's leading political figures from the recent past and present were there, and probably a few of the future leaders as well. I saw people there with whom Dick Donahoe had clashed memorably over the years, some of them Conservatives. They were all there to pay a respectful and affectionate farewell.

The luck of the Irish had been with Dick Donahoe more than 60 years ago when he met and married a Cape Bretoner, Eileen Boyd. She was there Saturday with her children and grandchildren.

Altogether, I think the send-off was appropriate to his life — blessed by the church and surrounded by friends and colleagues in the city he loved and served. Dick would have found no fault in the service, and I hope only that he will find none in our telling of it. It was always a great experience to have been in Dick Donahoe's company, and I am honoured to have known him.

Hon. B. Alasdair Graham: Honourable senators, I join with the Honourable Senator Murray in paying tribute to our late colleague the Honourable Richard A. Donahoe. The passing of former senator Donahoe was, as indicated by Senator Murray, deeply mourned at his funeral in Halifax last Saturday. As well, his life was properly celebrated.

The great Tory warrior, whose tireless passion for public service was the engine of his long and distinguished career, led a life far larger than most of his contemporaries. His was a life gigantic in generosity, voluminous in achievement, and magnificent in its impact on all of those he touched in this world.

Yes, former senator Richard Donahoe was always larger than life. Whether as mayor of his beloved native city of Halifax, or as minister of health and attorney general in the Stanfield and Smith governments, or as a member of this chamber from 1979 to 1984, Dick Donahoe brought the power of his presence to many of the great issues of our time, including one of which he was most proud — a leading role in the implementation of medicare in Nova Scotia.

A deeply conservative, partisan patriarch of a large, talented and politically committed Nova Scotia family — with the good sense to marry a Liberal, I might add, the beautiful and accomplished Mary Eileen Boyd — Dick remained always the fiery and convincing patriot to his city, to his province, to his country, to his church and to his wonderful Irish inheritance.

Indeed, Dick Donahoe always represented to me many of the fine qualities which are part of that inheritance. He was quick-witted and gifted with a commanding presence. He was eloquent and a champion of all his beliefs. He had a gift for phrases that lingered in the minds of all those who heard him. Dick's wonderful, deep, baritone voice spoke out always for what he saw to be true, for what he saw to be right, and spoke out over the decades for his cherished city, his beloved province, and always in the interests of the public service of his country.

Honourable senators, Dick Donahoe was a great debater in this chamber. I remember that we exchanged words on a particular issue upon which we had a difference of opinion and, as we were walking out, he said, "Al, you sounded great, but what in the name of God did you say?"

When I think of Dick and Eileen today — because this was not only a marriage of love and real devotion but also a powerful political partnership that lasted 63 years, until his death last week — I think of the dreams and the accomplishments of their long life together, of the family they raised, and of the roots they so deeply nurtured and cherished. It is worthy of note that their two sons went on to distinguish themselves in the life of Nova Scotia politics — Terry as both Minister of Education and Attorney General; Arthur, as Speaker of the House of Assembly, and today he holds the important position of Secretary-General of the Commonwealth Parliamentary Association.

Honourable senators, in honouring the memory of our former colleague, I think of the magic of the words of W.B. Yeats, the visionary Irish poet who himself devoted much of his time and energy as a senator to the Irish Free State. In one of his finest pieces, the senator wrote:

I will arise now and go to Innisfree...I hear lake water lapping with low sounds by the shore...I hear it in the deep heart's core.

Dick Donahoe had a heart that was as deep as his conviction and the devotion to the people he touched throughout his life. It was Bobby Kennedy who once said that each time a man stands up for an ideal or acts to improve the lot of others or strikes out against injustice, he sends forth a ripple of hope.

Honourable senators, although the golden voice is now silenced, the ripples of former senator Richard Donahoe's life and times will always be with us.

To his beloved wife, Eileen, to his children and to his extended family, we extend an expression of the deepest sympathy.

Hon. J. Michael Forrestall: Honourable senators, I wish to join with Senator Graham and Senator Murray in expressing my thoughts on the passing of Dick Donahoe. I want at the outset to express my sympathies to his family, to his children, to his grandchildren and to his very large and growing family.

I have known and worked with Dick Donahoe since 1957, when I was working with the party in those days. It was said of Dick that if he did not know you, he knew someone in your family. That is sort of gospel in that it says something of the man who cared, yes, about his city, his church, his family and his province, but above all he cared for all of the people in that charge.

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He was a great Nova Scotian. The Honourable Richard Donahoe practised law in Halifax after graduating from Saint Mary's University and Dalhousie University. He spent the rest of his life as a tireless supporter of that former institution. He served on the board of governors of Saint Mary's from 1965 to 1971, and was granted an honourary doctorate of law at the very university that had nurtured his youth, spiritually and academically.

He was a very prominent member of the Knights of Columbus, having joined that august organization the year that I was born, 1932. He dedicated, through that organization, as with all other organizations with which he associated himself, hours, months and years to works of charity, so much so that the Pope conferred upon him, in 1969, the order Knight of St. Gregory the Great.

His dedication to his community, his province and his country is admirable. He was first elected as a city alderman in 1951, was elected mayor of Halifax in 1952, and by acclamation in 1953 and 1954, a sign of his real and great popularity with the citizenry of Halifax.

He then turned his hands, as Senator Murray has said, to provincial politics, when he ran in a by-election in 1954 and won. He ran in the general election of 1956, 1960, 1963 and 1967. As has been mentioned, he served as attorney general and minister of public health under the then premier, the Honourable Robert L. Stanfield, another great Nova Scotian. He continued to serve in the cabinet of Premier George Isaac Smith.

Dick Donahoe had a leading role — if not the lead roll — in bringing two great medical care programs to the people of our province.

Lastly, he was appointed, as we all know, to the Senate in 1979, serving until his retirement, a life-long member of the Progressive Conservative Party and a protector of his beloved home province.

Today, the Donahoe family name has a recognition within the province, a name intertwined and forever locked now in the hearts of our province's great history. He was a good friend, good counsel, someone with whom I was proud to be associated in the service to people and service to the Province of Nova Scotia.

I wish to send my heartfelt sympathies to his dedicated and loving wife, Mary Eileen, and to his sons, Arthur and family and Terry and family, two great Nova Scotians themselves who have contributed much and have much more to contribute. They learned well from their father. I also send my heartfelt sympathies to Kathleen Niedermayer, Sheila and family, Nora and family, Ellen Feenan and family, and his sisters, Edith Power, Geraldine Curran, Muriel Duxbury, and brother Frank, and innumerable grand and great grandchildren.

Dick Donahoe's life was worth sharing. It was in his practice of concern and care for people and the worth and dignity of the individual through which he planted his finest seeds.

To the Donahoe family, those seeds are now growing and they look pretty good to me.

Hon. Sharon Carstairs: Honourable senators, the Donahoe and Connolly families have a long history in the City of Halifax. I know my family, the Connollys, would wish me to say a few words on the passing of a distinguished man, a politician, a noted orator, and a member of great distinction of the charitable Irish Society of Halifax.

Honourable senators, I was six years old, as was Kathleen Donahoe, when our fathers, Harold Connolly and Richard Donahoe, ran against each other in the 1948 provincial election in the constituency of Halifax North. In that contest, my father was the winner, but it did not affect our friendships, either between Mrs. Donahoe and Mr. Donahoe or between Mr. Connolly and Mrs. Connolly as, of course, we as children referred to our elders in those days.

Kathleen and I continued to walk to Oxford Street School together. Her brothers, Arthur and Terry, were friends and classmates of my brothers, David and Dennis. Both Arthur and Terry, as most of you have already heard, had distinguished political careers themselves in the Province of Nova Scotia. Dennis and I became politicians, too, and, like our fathers, on opposite sides. Because of the examples set by our respective fathers, politics was a logical choice. It was, I would suggest to you, a more civilized time in politics, the passage of which I regret very deeply.

Dick Donahoe — and he was known as "Dick" to most of his friends, not "Richard" — was appointed to the Senate in 1979. It was my father's resignation from the Senate that caused the vacancy to which Dick Donahoe was appointed. Dick's appointment to the Senate was greeted with celebration in the Connolly household. After all, we recognized it had to go to a Tory because the prime minister of the day was a Tory. Therefore, what better Tory to have it go to than Richard A. Donahoe?

Mr. Donahoe, as I always called him, also had a distinguished career as an alderman, as the mayor of Halifax, as a provincial cabinet minister, particularly in the health portfolio — public health, as it was referred to then — and also as the attorney general of the province.

I wish to express my sincere sympathies to the whole Donahoe family. They are our friends — friends of the Connollys. They mourned with us the loss of our parents. We mourn today the loss of their father.

Hon. Donald H. Oliver: Honourable senators, I wish to join other honourable senators in commenting briefly on the extraordinary life of the Honourable Richard A. Donahoe of Halifax.

He was the embodiment of the public service. He was, for all his adult life, a servant of the people, as mayor of the City of Halifax, then as a provincial cabinet minister in the government of Robert Stanfield and others, and finally here as a member of the Senate of Canada.

He and his family have been close friends of mine for more than 44 years. It was through Senator Donahoe, his son Arthur and others, like Mr. Stanfield, that I was strongly influenced toward the values, principles and philosophy of the Progressive Conservative Party.

Richard A. Donahoe was the embodiment of a man, a conservative, a Progressive Conservative with a social conscience directed intuitively to helping the less fortunate and to using the power of politics to equalize opportunity for all Canadians. His work in bringing a modern and equitable medical care system to Nova Scotia is but a small part of his important legacy of public service.

I was honoured to have known him. To his widow, Eileen, his children, particularly Arthur, Terry and Sheila, whom I know well, I express my deepest condolences.

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, with your indulgence, I very much want to say a few words in tribute to a great Nova Scotian.

Dick Donahoe was an honourable man, unashamedly partisan, gifted, unselfish, and Irish. He loved his God, his family, and his province, and on those three cornerstones of his life I am told he would never compromise.

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History shows that he was also not a man easily discouraged. Once he set a course, there was little that could resist his determination. Despite his questionable political background, he was able to woo and win Mary Eileen Boyd, who not only came from one of the strongest Liberal families in Cape Breton but who worked as the secretary to then Liberal premier Angus L. Macdonald during the courtship. Rumour has it that she never cast another Liberal vote from that day on.

An Hon. Senator: Hear, hear!

Senator Boudreau: When Senator Donahoe was elected to the legislature in 1954, he became the first Conservative elected from Halifax County in 26 years, but that election did not come easily. His victory followed four unsuccessful attempts at public office, at municipal, provincial and federal levels — another measure of the man's determination.

Dick Donahoe played a major role in bringing together a distinguished group of Nova Scotians who, in 1956, under Premier Robert L. Stanfield, won the general election and subsequently provided solid, honest and competent government to our province for almost 15 years.

When that team was assembled in 1956, with the path broken and conditions for victory significantly advanced by his 1954 breakthrough, my father was one of those impressed and persuaded to run for office by Senator Donahoe. I can still remember, as a young boy, the admiration and respect that my father had for him. He was quoted often in our home during that campaign of 1956. My father lost that election, beginning an unbroken tradition of political defeat in our family until my election in 1988. I attribute that, in part, to the fact that I was the first member of my family ever to seek office as a Liberal.

When I arrived in the Nova Scotia House of Assembly, two of the first people to make me feel at home were Dick's sons, Art Donahoe, as Speaker, and Terry Donahoe, who served in the cabinet of Premier John Buchanan. Decent, able and principled servants of the people in the mould of their father, I am certain they made him proud.

Others who have spoken today knew Senator Donahoe far better than I, but I have seen his tracks in Nova Scotia and I have felt his legacy. His standard of competent, unselfish and caring public service remains a daunting standard for all of us who would follow.

Honourable senators, Nova Scotia has lost a distinguished citizen, the Donahoe family a loving husband, father and grandfather. My heartfelt sympathy is with them, along with my thanks for sharing him with the people of the province he loved.

SENATORS' STATEMENTS

Holocaust Memorial Day

Hon. Erminie J. Cohen: Honourable senators, today we observe Yom Hashoah, Holocaust Memorial Day. I wish to express my gratitude and respect to the survivors of the Holocaust. Yom Hashoah, which means "day of fire", is an annual tribute to the memory of the 6 million men, women and children who perished during the Holocaust and is the official day of mourning for Jews around the world.

The pain and suffering that was inflicted on the Jewish people and other selected groups is incomprehensible, yet we must understand that it was rooted in the hatred of its perpetrator and in the complacency of those who looked on and did nothing.

It is also a time to pay homage to the many "righteous gentiles" who, at their own peril, rescued and cared for thousands of Jews during those black, painful years.

Honourable senators, the period between 1933 and 1945 witnessed a total devastation perhaps unequalled in all recorded history. Many Holocaust survivors have devoted their lives to ensuring that people never forget the monstrosities that were allowed to happen, and they continue to fight against those who deny the Holocaust ever existed. However, passive recollection is not enough, and the memory of the Holocaust should provide the impetus for active opposition to racism and hatred.

It is sad to say the world has not learned sufficiently well the tragic lessons of the Holocaust. There is much inhumanity around us: the atrocities in Bosnia; the slaughter of thousands of people in Rwanda, the Sudan and now Zimbabwe; and the ethnic cleansing in the Balkans. The rise of anti-Semitism and the insidious growth of hate groups are recent examples that underscore the deep-seated bigotry that begets hatred and violence.

Today, Yom Hashoah serves as a reminder of the millions who died in the death camps. It is our collective duty, as citizens of the world, to continue to educate and to speak out against the evils of hatred, violence and racism.

Canada Book Day

Hon. Joyce Fairbairn: Honourable senators, I should like to draw the attention of the chamber to a very special occasion that took place last week when the house was not sitting. April 27 was the annual Canada Book Day, a project of The Writers' Trust of Canada. This is a day we celebrate each year in this chamber, and we do so in terms of four objectives that this day promotes: to celebrate the importance of the role of literature in Canada's past, present and future; to nurture the love of reading among our young people, particularly in our schools; to celebrate the international success of Canada's literature and our heroes; and to promote Canadian books and the people who write them.

Honourable senators, this is a good occasion for me to point out that if we did not have and were not promoting a culture of literacy and lifelong learning in this country, we would have a sad situation in terms of the work that our talented authors produce.

Because literacy is a cause that governs my life, it is with a sense of joy that I do as I have done for the last several years and give a book to a friend. My friend on Canada Book Day is Senator John Lynch-Staunton, and this year I have a special treat for him. It is a remarkable book by an author and an absolutely outstanding photographer from my home town of Lethbridge, Dr. Van Christou, who, it is said, paints with his camera lens. It is one of the few books that is totally about an area in which many members of Senator Lynch-Staunton's extended family live, that southwest corner of Alberta with its rolling hills and its mountains. It is called, in the words of our aboriginal people, Land of Shining Mountains, and it is a great pleasure for me to give it to the honourable senator today.

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I ask for 24 hours to reply. I appreciate the gift, particularly as I realize that despite our efforts, particularly those of Senator Di Nino, Senator Fairbairn had to pay the GST on this book!

National Defence

Report on Sea King Talon41 Incident

Hon. J. Michael Forrestall: Honourable senators, I wish to place on the record this afternoon something that may cause some of you to think and wonder. I certainly hope this is true of the Leader of the Government in the Senate.

I am referring to the report on the Talon41 incident. It is an official summary and I want honourable senators to listen to it. All times are approximate.

At 10:43, Talon41 crew begin to detect a distinct "waxy acrid" smell in the aircraft. The crew suspected a possible electrical source and turned off all non-essential systems — that is, anti-ice, for example. The crew turned the aircraft in the direction of YAW, which is, of course, Shearwater. At this time, Talon41 was in dip sector 2, approximately 15 nautical miles south of the nearest point of land, or 29 nautical miles southeast of Shearwater.

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At 10:45, two minutes later, the co-pilot noticed a fluctuation in the transmission pressure gauge, between 45 and 60 PSI. Talon41 then declared an in-flight emergency, known as a PAN. Talon41 then turned north to close the NPL, which is the nearest point of land, while continuing to monitor and look for secondary indications. Shark28, which is another Sea King, began to close Talon41 to shadow the aircraft back to Shearwater.

At 10:52, the transmission pressure — Tx. Press — continued to fluctuate and then dropped below the green operational limits. Shark28, now in escort of Talon41, radioed that they could see "considerable" fluids leaking down the left-hand side of the aircraft. TX pressure stabilized at 20 PSI — which is outside of the operational limits. The crew decided to land as soon as possible in the Lawrencetown area. A mayday was sent by Talon41 at 10:52, to land as soon as possible.

At 10:58, the crew noticed the TX pressure drop to 15 PSI. The crew decided to land immediately. Shut-In Island was nearby and chosen as the landing spot.

At 11:01, Talon41 began the transition to land on Shut-In Island.

At 11:02, the crew saw the TX pressure warning light come on, indicating 12 PSI or less. Some grinding sounds were heard by the crew.

At 11:03, Talon41 landed on Shut-In Island.

At 11:11, Talon41 successfully shuts down and radios that the crew and aircraft are okay. The left side of Talon41 sinks slightly into the soggy ground.

I will be asking some questions about that later.

National Native Role Model Awards

Hon. Mabel M. DeWare: Honourable senators, on Friday April 14, after most honourable senators and members of the other place had left for the Easter break, Senator Willie Adams and I had the rare privilege of attending a very special ceremony at Government House. It was hosted by the Governor General of Canada, Her Excellency Adrienne Clarkson.

The ceremony honoured the newest recipients of the National Native Role Model Award. Madam Clarkson presented certificates to nine young people who have made some very impressive achievements in various fields. Their accomplishments are even more remarkable when you consider that each of them had overcome tremendous challenges and personal hardships to achieve the status that they have in their communities today.

I hope I can convey to you something of the sense of awe that I felt as I watched these fine young people being honoured in Rideau Hall. They were chosen as role models for aboriginal young people, yet they are truly an inspiration to us all. The contributions that they have made to their communities and to our society enrich each and every one of us.

The National Native Role Model Program amplifies those contributions by enabling the award recipients to actively serve as examples of what young aboriginal Canadians can hope to achieve. During the next two years, these role models will visit aboriginal communities and share their talents and vision with thousands of young people.

The National Native Role Model Program receives funding from Health Canada and is administered through a national office located in Kahnawake, Quebec. It is a national health program designed to promote and encourage the adoption of healthy lifestyles based on the traditions of wisdom, love, respect, bravery, honesty, humility and truth among the First Nations and Inuit youth in Canada.

All of us who listened to the citations of the year 2000 award recipients felt a real sense of pride in knowing that Canada's aboriginal young people have such role models who can help make an important difference in their lives.

ROUTINE PROCEEDINGS

Special Senate Committee on Bill C-20

Notice of Motion to Appoint

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, I give notice that, on Thursday next, I will move:

That a special committee of the Senate be appointed to consider, after second reading, Bill C-20, to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec secession reference;
That, notwithstanding rule 85(1)(b), the committee be comprised of 15 members, including:

Senator Joan Fraser
Senator Céline Hervieux-Payette, P.C.
Senator Colin Kenny
Senator Marie P. Poulin (Charette)
Senator George Furey
Senator Richard Kroft
Senator Thelma Chalifoux
Senator Lorna Milne
Senator Aurélien Gill;

That four members constitute a quorum;
That the committee have power to send for persons, papers and records, to examine witnesses and to print such papers and evidence from day to day as may be ordered by the committee;
That the committee be authorized to permit coverage by electronic media of its public proceedings with the least possible disruption of its hearings; and
That the committee have power to retain the services of professional, clerical, stenographic and such other staff as deemed advisable by the committee.

QUESTION PERIOD

National Defence

Replacement of Sea King Helicopters—Report on Talon41 Incident

Hon. J. Michael Forrestall: Honourable senators, my question is for the Leader of the Government in the Senate.

A few moments ago I read a brief summary of the events surrounding an incident involving Talon41. I wonder if the minister has had an opportunity to read separately the incident summary. The events to which I refer took place in broad daylight, honourable senators, and in good weather. What would have happened to the brave crew in the dead of night and in bad weather?

I am no longer particularly interested in hearing about the maintenance regime. These aircraft are always safe as long as they are on the ground. That is excellent but not enough to ensure the reliability of these aircraft. I do not want to hear about safety and reliability being the minister's first priority, because action or inaction speaks louder than words.

I want to know precisely what the Leader of the Government will do this afternoon to get the Prime Minister to initiate the Maritime helicopter program.

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I am not familiar with the details of the incident that the honourable senator brings to the attention of the Senate this afternoon. However, I will contact, without delay, the minister responsible and ask him to provide details of this incident to me. Following that, I may be in a position to share those details with all honourable senators, to elucidate on the particular circumstances.

Other than giving that specific undertaking, I wish to say that the Prime Minister is very much aware of my ongoing views with respect to the Sea King helicopter replacement program. I also venture to say that he is familiar with the views of the honourable senator on this issue. The minister responsible, when visiting Halifax this past weekend, indicated publicly his views with respect to the priority of such a replacement.

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The existing helicopters are old. They are complicated pieces of equipment.

Senator Forrestall: "Dangerous" is the word for them.

Senator Boudreau: We expect that the maintenance program now in place will ensure that the equipment remains safe for operation.

Senator Forrestall: Honourable senators, at the risk of being repetitive, those aircraft are safe, stable and wonderful — as long as they stay on the ground.

Will the minister go to the Prime Minister this afternoon and ask him to initiate this program? Do not listen to the Minister of National Defence because God knows that what he is saying has nothing to do with practicality, reality, care or concern. Would the minister please go to the Prime Minister and ask him to initiate the program before we have a death?

I ask the minister to think back to the Talon41 report. They had one minute to get to dry land. I ask the minister go to the Prime Minister and say to him, "For God's sake, Prime Minister, please initiate the program. Show some faith in the men and women who must fly these aircraft."

Senator Boudreau: Honourble senators, I can only reassure the honourable senator and others that the Prime Minister and the Minister of National Defence are concerned with the welfare of all individuals who serve our country in the Armed Forces, including those who fly Sea King helicopters. I am informed by the people who service them and by the senior military personnel who send those people out on the helicopters that, in fact, they are not putting their lives in jeopardy.

However, as we have said before, this is an old, complicated piece of equipment. Although I am not familiar with the details of this particular incident, it seemed that the competence of the crew and their expertise was able to bring it to a conclusion without tragedy.

Senator Forrestall: Honourable senators, I keep hearing that the minister will carry the message immediately to his colleagues later today. In such cases, I do not know whether the minister will send a memo to the Prime Minister's Office indicating the questions to which he has responded in the chamber about this incident. If that is the process, I request that the minister table in this chamber copies of all messages he sends to the Prime Minister about this particular program.

Senator Boudreau: Honourable senators, I would be very reluctant to indicate to the honourable senator that I will table documents which may have constituted discussion around the cabinet table. The conveyance of the honourable senator's views and, indeed, of my own, has been done by various means, all within the confines of cabinet confidentiality. I can assure the honourable senator that those views are made known on a regular basis.

Hon. Gerald J. Comeau: Honourable senators, I was surprised when the minister indicated that he was not familiar with the incident, even after it was carried in all of the media at that time in Nova Scotia and throughout Atlantic Canada. One must wonder where the minister was during that information session.

Honourable senators, I should like to point out that the minister and the government are being extremely irresponsible regarding this incident. They are sending the message that the Government of Canada condones sending people out in machines that are not safe to fly. The minister calls them old — we call them something worse. What kind of message is this sending to the Canadian public when they have to rely on examinations of commercial airlines by Canadian authorities?

I want the minister to realize the seriousness with which Canadians, especially Atlantic Canadians, view depending upon their government for safety. If the Canadian government cannot provide safety for its military, how can we depend on the government to take care of the safety of all Canadians?

Senator Boudreau: Honourable senators, I can only convey to the honourable senator the reassurance I have received from the people who are directly involved. I have had an opportunity to visit the site where these helicopters are maintained. I have spoken with those who work directly on the equipment and with senior officials in the company. I have spoken to other military personnel and to the minister. I can only give the honourable senator the assurance that I have received, that senior staff would not send military personnel out on a piece of equipment that they felt would endanger lives.

These incidents do occur. As a matter of fact, they occur with brand new equipment. In saying that, I am not minimizing the fact that this equipment is old and complex. It is subject, however, to incidents like this one from time to time which, again, was handled very professionally by the crew in this situation.

Hon. David Tkachuk: Honourable senators, many of us on this side of the house are quite disturbed. We do not understand why the government is so reluctant to address this important issue. I will be careful in what I am about to intimate. It seems to me that the government has been intransigent in this matter, as it has been in other matters since the 1993 election. I refer, for example, to the supposed Pearson airport scandal and the purchase by Air Canada of airplanes in the supposed Airbus scandal. After being intransigent, they attempted to implicate the then prime minister in something which everyone now knows was totally false. They refused to withdraw their allegations of criminal behaviour. In this case we have aircraft that are falling out of the sky.

Is this because there is a lack in government policy or, perhaps, a reluctance on the part of the government to admit that they were wrong in cancelling the contract? The reason they are willing to sacrifice the lives of Canadian boys is that they are reluctant to admit that they were wrong in 1993, when they cancelled the contract for new government aircraft. They are so reluctant, in fact, that they would rather fly a bucket of bolts and risk the lives of military personnel, whom we have an obligation to respect and protect. I believe that is why the government is acting in the stubborn manner in which it is behaving today.

Senator Boudreau: Honourable senators, I find it rather difficult to find a question in the honourable senator's statement. In fact, one might even describe it as a diatribe.

If the honourable senator is suggesting that the Prime Minister, the Minister of National Defence and senior military personnel are all involved in a massive conspiracy for political purposes to put Canadian servicemen's lives at risk on a daily basis, then I think he has gone way out in left field and overstated his argument. I can only assure him that any evidence I have received or any discussions I have had with senior people, many of whom are not politically involved, indicated to me that such is not the case.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, the position of some of us on this side is simply that we believe the Sea King helicopters should be grounded. The position on the government side seems to be that the minister in this place and the Minister of National Defence say, "No, it is okay. They can continue to fly them."

Based on that, are the minister in this place and the Minister of National Defence prepared to resign, should there be another incident such as the one described in detail by Senator Forrestall?

(1500)

Senator Boudreau: Honourable senators, I will repeat once again that indications from senior military personnel, senior civilian personnel, and from the Minister of National Defence himself are that the equipment is competent to do the job. No personnel is sent up in equipment that is known to put that serviceman in harm's way. That is the responsible answer to the question.

Replacement of Sea King Helicopters—Possible Examination of Airworthiness of Aircraft by Transportation Safety Board

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, perhaps I can phrase our concern in another way. Is it not true that if the Sea Kings were civilian rather than military aircraft and came under the jurisdiction of the Transportation Safety Board, they would have been declared unfit to fly and grounded a long time ago?

Basic knowledge of the criteria applied by the Transportation Safety Board and its equivalent in the United States indicates that aircraft are grounded on the slightest suspicion of the most superficial flaw. Here we have had years of chancy flying and all we get is the reassurance that the guys on the ground say it is okay. I would be more reassured if the minister would ask the Transportation Safety Board to examine these aircraft and give us a full report. The reassurances of the military are not enough.

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I cannot speculate on what the situation might be in any of those hypothetical circumstances.

Senator Lynch-Staunton: They are not hypothetical; they are fact.

Senator Boudreau: I can tell my honourable friend that the senior military personnel who were charged with making these operational decisions are responsible people. They are concerned about the welfare of the people whom they command and we should allow them to do their job.

Replacement of Sea King Helicopters—Clearance to Fly Aircraft in United States Air Space

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Can the minister advise this house whether the Sea King helicopter, when it can fly, is permitted to fly in American air space subject to the regulations of the Federal Aviation Administration?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I cannot answer that question. I will take it as notice and return with an answer.

Replacement of Sea King Helicopters—request for Review of Maintenance Records by Transportation Safety Board

Hon. J. Michael Forrestall: Honourable senators, the answer to that question might spur some action.

It is quite true, honourable senators, that Talon41 was in good mechanical condition while it was sitting on the ground, but within the space of 10 minutes it went from being stable to being critically unsafe.

I hope that the Senate Subcommittee on Transportation Safety will pursue the question of who should have priority jurisdiction over the investigation of air incidents, in particular, in Canada.

Would the minister consider having a discussion with the Minister of National Defence, perhaps the Prime Minister, and perhaps other members of that military advisory group within cabinet with a view to inviting Mr. Benoit Bouchard, Chairman of the Transportation Safety Board, and his team to review the evidence provided to the Minister of National Defence by the maintenance staff, the very people who look after these aircraft, and to make such a review public so that we might have a properly informed debate on who is right and who is wrong?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, as I indicated in response to Senator Forrestall's first question some time ago, with respect to this particular incident, I will request that the Minister of National Defence supply me with what information he can and make it available to the honourable senator. I will include in that request all of the remarks that have been made by Senator Forrestall and other senators today during Question Period.

Replacement of Sea King Helicopters—Clearance to Fly Prime Minister in Aircraft

Hon. Marjory LeBreton: Honourable senators, would the Royal Canadian Mounted Police, who are responsible for the personal security of the Prime Minister, allow the Prime Minister to fly in a Sea King helicopter?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, that is what we refer to as a hypothetical question.

Senator Kinsella: The question is operational in nature.

Senator Boudreau: I am sure that the Prime Minister would be interested in knowing that the honourable senator is concerned about his flight arrangements. I will pass that concern along to him.

Replacement of Sea King Helicopters

Hon. Brenda M. Robertson: Honourable senators, I should like a simple answer from the minister, please. Why is the government so reluctant to replace these worn-out helicopters? Everyone down East knows that they should not be in the air. They should have been gone years ago. What is going on? Does the government not care?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I take exception to my honourable friend's premise that everyone knows that these aircraft should not be in the air. That implies a level of irresponsibility on the part of many people who are directly involved in the operational requirements of these aircraft.

The Senate

Report of Special Joint Committee on Code of Conduct—Government Response

Hon. Donald H. Oliver: Honourable senators, my question is directed to the Leader of the Government in the Senate and deals with allegations of conflict of interest. It arises from a story in today's Globe and Mail. It is entitled "Senator denies conflict of interest, Bell links past ties with rival and membership on communications subcommittee." The article by Lorne Surtees, which my honourable colleague will have read, states:

Senator Michael Kirby has dismissed suggestions from Bell Canada that past ties with AT&T Canada Enterprises Inc. and his membership on a Senate subcommittee on communications put him in a conflict of interest.

As the Leader of the Government will know, in March of 1996 a Senate and House of Commons committee adopted resolutions, which included the following:

That a Special Joint Committee of the Senate and the House of Commons be appointed to develop a Code of Conduct to guide Senators and Members of the House of Commons in reconciling their official responsibilities with their personal interests, including their dealings with lobbyists;

Later, as the honourable minister will know, a report of that special joint committee was tabled in this house.

When, if ever, will the minister act on that report? Does he not think that acting on a report such as that, which outlines ways in which allegations such as this can be dealt with fairly, is an appropriate way to proceed? Does the minister not understand that failure to act is doing a disservice not only to this chamber but to individual senators?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, the Honourable Senator Oliver raises a very interesting point and I should like an opportunity to review some of the information. It might be helpful if I referred the question to the chairman of the Rules Committee so that it can be addressed specifically, perhaps with whatever information the senator can contribute. I will reserve my response until I review the matter in more detail.

Hon. Jack Austin: Honourable senators, Senator Kirby wrote to me, as Chairman of the Standing Committee on Privileges, Standing Rules and Orders, raising the question of conflict of interest with respect to both his directorship on a company known as Extendicare, which question was raised relative to his chairmanship of the Standing Senate Committee on Social Affairs, Science and Technology, and with respect to AT&T Canada, where he served as a director up until two years ago. He asked in his letter that the committee undertake a review of the appropriateness of service on committees by senators.

Honourable senators will recall that when Senator Kirby was chairman of the Banking Committee, three or more senators were directors of banks and other financial institutions. In that case, the procedure used by the Banking Committee was a policy of transparency and disclosure of all interests.

(1510)

Honourable senators, the Standing Committee on Privileges, Standing Rules and Orders has a meeting tomorrow to examine this question raised by Senator Oliver. I would welcome his presence there.

Senator Oliver: I thank Senator Austin. May I ask that his committee consider the report of the Special Joint Committee on Code of Conduct that has been tabled in this chamber and in the House of Commons? It is a report that might help shed some light on this problem. I would direct Senator Austin in particular to two of the purposes set forth in the official report that was tabled in this chamber, which read as follows:

The purposes of the Code of Official Conduct are:
1. to recognize that service in Parliament is a public trust;
...
3. to reassure the public that all Parliamentarians are held to standards that place the public interest ahead of Parliamentarians' private interests and to provide a transparent system by which the public may judge this to be the case;

Senator Austin: I thank Senator Oliver. In fact, that document is one of the documents that will be placed before the committee tomorrow afternoon.

[Translation]

National Defence

Proposal to Develop Ballistic Missile Defence System with United States—Government Position

Hon. Roch Bolduc: Honourable senators, the Americans plan to deploy a limited system of defence against ballistic missiles that might be launched by certain countries. Has the Government of Canada taken a firm position on this matter?

[English]

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, with respect to that possibility, I understand that certain plans are being considered in the United States. As I understand it, the Government of Canada has not taken a position in that respect. Perhaps I may be able to provide better information shortly, but at the moment I am unable to give any more detail except to say that, to date, I believe the minister has not yet taken a public position on that issue.

[Translation]

Senator Bolduc: Honourable senators, I should like to put the question in greater detail. On the one hand, the Government of Canada says it has not taken a position. On the other, the Minister of Foreign Affairs stated in his speech to the UN Security Council in New York that he was opposed to such an agreement. Meanwhile, the Minister of Defence, without necessarily being opposed to an agreement, did suggest the situation be looked into.

This is an irresponsible attitude on the part of the Minister of Foreign Affairs. Without any debate, without any decision by cabinet, the government suddenly announces that it is opposed, without any knowledge of the repercussions its decision will have on Canada's participation.

The Americans are not asking us for money, nor are they asking us to take part. They have, in fact, asked for nothing. There is something wrong here, it seems to me. Could it be the minister's activism, which compels him to talk about anything and everything? How can one conceive that the Minister of Foreign Affairs, without any clue about what it is all about, would voice his opposition to an agreement before the United Nations Security Council?

This is a limited defence system. This is not what President Reagan wanted, but something completely different, a serious matter involving a 1972 treaty with the Russians. The minister says he is against the agreement and the government says it has not taken a position. Just how does the Government of Canada operate?

[English]

Senator Boudreau: Honourable senators, the issue that the honourable senator raises is one on which at least, as he points out, two ministers have made some comment. I would prefer to have an opportunity to clarify the current position of the government and return to this chamber with some specific information for the honourable senator.

Research and Development

Requirement that Federal Research Grants have Private-sector Partners—effect on Areas with No Commercial Interest

Hon. Mira Spivak: Honourable senators, Dr. David Schindler is a world-renowned scientist who was twice honoured in Europe. He made Western Canada his home decades ago when the Department of Fisheries and Oceans lured him from the United States.

Dr. Schindler was recently in Washington to attend the annual meeting of the American Association for the Advancement of Science to explain to fellow scientists what has happened to research in this country. He described to them the Canadian government's Industrial Innovation Strategy, which now requires that most federal grants have a private-sector partner — no commercial partner, no research money.

John Polyani, the Nobel laureate at the University of Toronto, has warned that industry now has a stranglehold on research. Dr. Schindler left the Department of Fisheries some years ago and has been guiding young scientists at the University of Alberta. Today his research on pesticide contamination in supposedly pristine lakes in the Rockies is stymied. No chemical company wants to go there. Therefore, federal research grants are unavailable.

My question to the Leader of the Government in the Senate is this: First, has the government considered the consequences of this approach to research, given these warnings of our most respected scientists? Second, has the government considered loosening the criteria for research so that someone like Dr. Schindler can examine a very important question, namely, the contamination of lakes in the Rockies?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, perhaps in making those comments Dr. Schindler may not have been addressing his mind to some of the very significant programs announced in the last two budgets of the Government of Canada. There has been a requirement to match funds, but that requirement is not strictly limited to the private sector. If that were the case there would not be much going on in some places like parts of Atlantic Canada, where the private-sector commitment to research and development is not large.

I will give you two examples of massive programs. There is the Canadian Foundation for Innovation, which received $900 million last year and another $900 million in this year's budget — $1.8 billion directed toward research and development. There is a matching requirement in there, but it is not necessarily for industry. Universities have matched funds and, indeed, provincial governments have set up matching funds. As a result, a great deal of research and development has been done across this country.

If you look at another major initiative in the budget, namely, the Chairs of Excellence, $900 million has been devoted to securing 2,000 of the best and brightest researchers in the world to come to Canada, not only to support them in terms of their presence, salaries, but with respect to equipment and other things.

Those two huge programs will have an incredible impact on the level of research and development and, perhaps, may even be of use to the particular gentleman to whom the honourable senator referred.

Senator Spivak: Honourable senators, I recognize the very important initiatives that have come forward. In fact, Dr. Henry Friesen and I believe one of our colleagues here were instrumental in lobbying the government. I certainly think these are notable achievements. However, I am not sure that what the leader is saying will assist the gentleman. Is that the Leader of the Government's final answer?

Senator Boudreau: Honourable senators, with new and exciting government programs, large commitments of money to research and development coming on stream now with virtually every budget of this Liberal government, of course that is not my final answer. There will be more exciting programs and a larger commitment, I am sure, in the next budget and in the budget after that.

Senator Spivak: Honourable senators, I have a supplementary question. I do hope that, since Dr. Schindler is one of our stars, as is John Polyani, the minister will convey to the powers that be this particular situation that confronts Dr. Schindler in his research on pesticides in lakes in the Rockies. I should hope he would use his good offices to do that.

(1520)

Senator Boudreau: I would say to the honourable senator that I will use my good offices, as she points out, to convey that.

Many universities all across this country will be searching for those 2,000 people. If there are quality people doing solid research, they will have plenty of opportunity, both from the Chairs of Excellence and from the Canadian Foundation for Innovation.

[Translation]

Pages Exchange Program with House of Commons

The Hon. the Speaker pro tempore: Honourable senators, I should like to introduce to you the pages from the House of Commons who will be in the Senate this week.

[English]

Sonja Harrington is from of Ottawa. She is pursuing her studies at the Faculty of Public Affairs and Management at Carleton University and is majoring in international business.

We also have Cheryl Kawaja of Port Hawkesbury, Nova Scotia, who is enrolled in the Faculty of Public Affairs and Management at Carleton University. She is majoring in journalism.

Welcome to the Senate.

ORDERS OF THE DAY

Canada Elections Bill

Third Reading—Debate Adjourned

Hon. Dan Hays (Deputy Leader of the Government) moved the third reading of Bill C-2, respecting the election of members to the House of Commons, repealing other Acts relating to elections and making consequential amendments to other Acts.

He said: As there are other honourable senators who wish to speak at third reading, I will take my place and see if that is the case.

Hon. Donald H. Oliver: Honourable senators, I wish to speak but not today. Therefore, I will take the adjournment of the debate.

On motion of Senator Oliver, debate adjourned.

[Translation]

Bill to Give Effect to the Requirement for Clarity
as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference

Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Boudreau, P.C., seconded by the Honourable Senator Hays, for the second reading of Bill C-20, An Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference.

Hon. Céline Hervieux-Payette: Honourable senators, Canada is a magnificent country and a strong federation. It is the envy of many nations because of its tolerance and the fact that it engages in dialogue to resolve differences. It can sometimes happen, however, that events and a desire for urgent action can hasten changes before time has been taken to consider all the factors involved. The purpose of Bill C-20, the clarity bill, is to protect the rights of all Canadians during a referendum that could result in negotiations on separation. I therefore believe that this bill is as important as it is necessary and I support it without reservation.

Quebecers could not answer the questions asked during the 1980 and 1995 referendums by a simple yes or no. These were complex questions involving options that were not clear. Their ramifications were difficult, if not impossible, to assess. The leaders of the separatist movement had formulated the questions so as to let voters think that secession was not really separation from Canada, when the intention was in fact to destroy such a beautiful country with all it has to offer.

Let us remember that, in both cases, the questions asked were formulated unilaterally and adopted by the Péquiste majority, and imposed on provincial Liberals and, obviously, on the rest of Canada.

Should a nation such as ours be dissolved because the question is not clear? Of course not. Canadians have rights and freedoms and a quality of life unheard of in many countries.

The people of Quebec must not be allowed to lose these advantages because they have been taken in by flowery rhetoric. If, by misfortune, the government were to have to enter into negotiations on separation, it should do so only on condition that the population of the province of Quebec has clearly expressed its desire to no longer be part of Canada.

Following the 1995 referendum in Quebec, with its dubious question on sovereignty association, the issue of secession was referred to the Supreme Court of Canada. In its opinion on the reference concerning the secession of Quebec, the Supreme Court confirmed the rights of citizens to be protected against any unilateral attempt to proceed with secession and stated that there is no obligation to negotiate separation, unless a clear majority votes in favour of that option.

The Supreme Court also said that if there were a clear majority on a clear question on separation, it would then be necessary to negotiate within the Canadian constitutional framework, which is currently silent on such a process.

Honourable senators, there are people willing to ignore or threatening to ignore parts of that opinion, thus putting Canadians in a position where they could lose their country in the heat of the action.

Above all, we must not forget that secession would affect not only our contemporaries but also future generations, who might well wonder how something so important was done so flippantly. Honourable senators, I will certainly have to answer for this to my three children and six grandchildren.

Separation must not occur in a state of confusion and outside legal parameters. Bill C-20 follows up on the Supreme Court opinion and ensures that the Government of Canada cannot enter into negotiations in the absence of a clear majority on a clear question, and that such negotiations would take place within a legal framework.

Honourable senators, the federation called Canada works. It is a federation that is evolving and the Government of Canada wants to work with all its partners to make sure it is evolving in the best possible way.

Our federation is made up of a strong national government and of strong provinces, as evidenced by our tax system. Some areas come under federal jurisdiction, while others fall under the provinces' authority. However, the various levels of government, including municipalities, must increasingly work together to better serve the public. Our federation is strong because it is based on a well-established solidarity and diversity, and also on a tradition of sharing based on the best possible practices. It is always possible to improve things, and we can continue to make our federation more effective by cooperating in areas where federal and provincial activities complement each other.

Therefore, when we coordinate our energies, we work hand in hand with our partners. The infrastructure program is a fine example of this. Thus, the federation is all the more effective and national unity stronger.

More recently, the Government of Canada took a number of steps to renew its association with the provinces. These include a framework to improve the social union for Canadians, the national child tax credit, the Team Canada trade missions and the manpower agreements.

Does Quebec benefit from this flexible partnership? Yes, and it enjoys an enviable degree of autonomy. The flexibility of Canadian federalism has also enabled Quebec to be distinct from the other provinces thanks to special arrangements in many areas. For example, the Civil Code in Quebec underwent a major reform a few years ago; Quebec has a separate law on income tax; in international relations, we are familiar with the agreements in the area of the Francophonie; Quebec administers the pension plan of many Quebecers, through its Caisse de dépôt et placement and several other funds in many areas, and there is the whole area of social policy, which includes post-secondary education and immigration.

(1530)

Instead of considering Bill C-20, introduced by the Government of Canada in an attempt to fix the current federal partnership in time, I would encourage you, honourable senators, to see it for what it is: an instrument to protect the rights and interests of Canadians.

A provincial legislative assembly can formulate a question and put it within its area of jurisdiction. However, the public to whom a question on separation is put is entitled to know in advance what the Government of Canada thinks about the clarity of the question, given that it will be one of the parties involved in negotiations and that it represents all of the citizens of Canada.

The question and the majority therefore need to be evaluated to ensure that there is a manifest desire to separate before the Government of Canada undertakes discussions that could lead to the breakup of our country. Bill C-20 applies the Supreme Court's opinion. Today, in fact, Minister Facal, who spoke before the Ottawa press club, recognized that Bill C-20 does so.

Instead of having a small majority dictate the breakup of the nation, Bill C-20 provides for the evaluation of the quality of a majority. The two go together, in that the majority must be clear and so must the question. The two cannot be separated. It would be absurd to base a decision of such magnitude on a voting process where it was necessary to recount the votes because the results were too close, as was the case during the last referendum, or to examine ballots that had been invalidated by the thousands in certain ridings.

Moreover, it would be irresponsible to think about building a new country on the basis of a small majority that would not withstand the uncertainties of long and arduous negotiations on separation.

Bill C-20 does not set a threshold, since the majority will have to be evaluated under the circumstances surrounding that particular referendum, as recommended by the Supreme Court. It will assess the nature of the question.

Should voters give their clear support to a clear question on secession, Bill C-20 sets out the legal framework for negotiations. It ensures that all negotiations will comply with the rule of law and our constitutional principles.

Contrary to the comments made by Mr. Facal today, his government says that it does not recognize any legitimacy and scope to the bill. In other words, it does not recognize the legislation of the Government of Canada, the country in which that government exists. From a democratic point of view, Quebecers are protected by this bill.

Let us never forget that secession is a serious measure which cannot be undone easily. Negotiations to that effect would seek to end all the Government of Canada's responsibilities toward a segment of the Canadian population to which I belong.

Therefore, the basic rules must be very clear. Some have said that Bill C-20 is a step toward secession. For the past 30 years, we have been living with the uncertainty of a question and we have had two referendums. I think Bill C-20 aims at keeping us on the road to democracy. It is sometimes a bumpy road and there are no shortcuts, but it always leads us towards our goal, which is a strong country.

It is strange that while Premier Bouchard recognizes that the Supreme Court opinion establishes the rule of law, today his government refuses to recognize the bill that is the result of that opinion.

It seems to me that when Mr. Facal speaks to us of good faith he should go back to the statements made at the time of the Supreme Court reference and ask himself this question: Which is the responsible government? The one that sets the rules of the game or the one that continues to play with those rules?

Honourable senators, for the past 30 years, I have seen Quebec evolve in Canada, within a federation. It has developed industries in leading edge technologies such as aeronautics, pharmacology, telecommunications, multimedia, and biotechnology in partnership with and under the leadership of the Government of Canada. How can we now ignore the fact that people want to abandon this country by not passing a bill which will oblige us to respect the wishes of Quebecers? The bill sets out clear indicators. That is why, honourable senators, I consider it my duty to support this bill and I encourage my colleagues to do likewise.

Hon. Lowell Murray: Honourable senators, does this bill mean that in another referendum Quebecers will have to choose between the constitutional status quo and separation?

Senator Hervieux-Payette: The bill deals only with the clarity of the question and the answer. The question will be up to the National Assembly alone. I remind honourable senators that, in the past two referendums, the official opposition in Quebec has always refused to endorse the question. I return the question to the honourable senator. We cannot now decide on one option or another as long as the question has not been formulated. This bill, as I have already said, is like an insurance policy on the clarity of the question so that we will have a clear answer with respect to our collective future.

Hon. Pierre Claude Nolin: Honourable senators, I will ask my question as a legal expert. Can the honourable senator read clause 1.(1) of the bill? The honourable senator told us in her speech that the National Assembly has full authority to ask whatever question it wants. However, Bill C-20 stipulates that, for there to be negotiations after this referendum, the question must be specifically about the secession of the province. Clause 1.(1) reads as follows:

...the House of Commons shall...consider the question and...set out its determination...

Is this not an appeal against a decision by a Parliament at a provincial level of the federation? This decision is being appealed and heard by another level of the same federation?

Senator Hervieux-Payette: When referring to the question the National Assembly may ask, I believe that it has shown on two occasions that it was capable of asking a question that was certainly checked several times through polls. As long as there was no possibility of a majority, they kept modifying the wording. I have seen no questions that asked clearly for a yes or no on the subject of Quebec's separation. Given the last two referendums, which gave rise to uncertainty, which have cost two generations of Quebecers dearly, Bill C-20 now puts an end to the ambiguity of the questions asked.

The Quebec referendum legislation, honourable senators, can be used in numerous other cases, not just the future of Quebec. It can be used for mergers of municipalities, or the acceptance of other important measures.

Recently, Albertans asked their government to hold a referendum on the health system. This legislation covers questions such as these, in Quebec. The government or the House of Commons will have to address the matter when it affects all Canadians, including Quebecers.

Senator Nolin: Honourable senators, can the House of Commons sit in appeal of a decision taken by the Quebec National Assembly? The answer is yes. The honourable senator must answer yes, under this bill. Under what principle of Canadian federalism can this be done?

(1540)

Senator Hervieux-Payette: It is because when that discussion takes place, Quebec will still be bound by the Canadian constitution, which does not include any secession process as such. It is certainly more prudent for the Government of Canada to know what the discussions will be. I was not there in 1867. Other honourable senators may have a better knowledge of history than I do, but all the provinces thoroughly discussed why they joined the federation. They did not think about including provisions on secession. If Quebec wanted to patriate the powers in another area of federal jurisdiction, we could ask a question. That would not lead to the secession of Quebec. When the House of Commons has to decide on the question, it will be to decide whether Canada accepts to go to the negotiation table to end Quebec's participation in Canada.

Senator Nolin: Honourable senators, I have another question.

The Hon. the Speaker pro tempore: Honourable Senator Nolin, I am sorry to interrupt, but the allotted time period has expired. Honourable senators, is leave granted to continue?

Hon. Senators: Agreed.

Senator Nolin: Let us go back to November 1995, when, together, we just barely saved Canada. Let us suppose that we have Bill C-20. We have a question that was chosen by the National Assembly. If you remember, in early September 1995, the federalist forces were ahead by about 20 points in the polls. By the end of the debate on the question, there was a 25-point lead over the yes side. The House of Commons, under the power provided to it by Bill C-20, made a decision and told federalists in Quebec that the question was not clear. Therefore the House of Commons considered that the question did not exist. What must the federalists in Quebec do then?

Senator Hervieux-Payette: Honourable senators, I clearly recall the 1995 campaign, but I do not recall the results of the polls so well. I know that it is always distressing. I canvassed, as did a number of my colleagues. If I recall rightly, the official opposition had criticized the question. It mentioned partnership. There was talk of the agreement reached on the question with a member of the ADQ. No one knew what agreement they were talking about. When we asked people in Quebec, they thought there was an agreement with the federal government. At that point, the members of the official opposition in the National Assembly criticized the question. We knew they had managed to rope the ADQ opposition member into a rather convoluted agreement. It is ridiculous to mobilize federalist forces each time for an obscure question that makes a mockery in the end of the future of Quebecers. When the government has the courage of its convictions and puts the real question, it will be easy for us to decide.

Senator Nolin: I agree with the honourable senator. The question was very difficult to understand, even if we managed to grasp the implications. We fought to ensure that this question did not win the favour of Quebecers. Let us transpose Bill C-20 to 1995. If the House of Commons had declared in 1995 that the question was not clear, what would the federalists in Quebec have done?

Senator Hervieux-Payette: The question is hypothetical. It is impossible to answer it except to ask why we are going to play a very dangerous game that destabilizes the entire country, that will cost the nation in energy and effort and that will leave marks? The honourable senator acknowledged the obscurity of the question. In general, we negotiate when the other party is of good faith and puts the right question. It will be up to the House of Commons to decide on a question. The real question, in the past 30 years, would never have had significant support from Quebecers.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, Senator Hervieux-Payette is a good legal expert. My remarks concern the opinion of the Supreme Court. I imagine you have all read it carefully. My question concerns the problem at page 2 of the bill.

Whereas, in light of the finding by the Supreme Court of Canada that it would be for elected representatives to determine what constitutes a clear question and what constitutes a clear majority —

In all the paragraphs dealing with this question, the expression used by the Supreme Court is "political actors." It is only in paragraph 101 that the Supreme Court uses the expression "elected representatives." In this paragraph, the court addresses the problem of the negotiations. The negotiations are the responsibility of elected representatives. Can the honourable senator explain this?

Senator Hervieux-Payette: The entire debate with respect to our honourable institution hinges on whether we are political actors. The government has decided that the representatives of all electoral ridings in the country are the political actors. Once the House of Commons, through its elected representatives, has decided, I see no harm to our institution. If there were negotiations or major changes, our institution has only a suspending power, not a final veto. Our institution will certainly give its opinion on the question. In order to avoid any confusion that might arise from an unclear question, elected representatives will have to make known to their constituents their assessment of the question. Legally speaking, the Senate must examine the bills that could change the rules of the game following a referendum.

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I know that we are not all in agreement on the definition of "political actor," nor do I like the word "actor." We are not elected representatives; we are appointed for a fairly lengthy period. I believe that the decision will have to be taken quickly and I do not see how our rights as senators and representatives of the same people represented by members of the House of Commons will suffer if only elected representatives decide on the clarity of the question.

Senator Kinsella: It is our duty to protect the future of this institution. There are two Houses in this Parliament. It is a bicameral system. If we can find a solution so that both Houses are equal in the determination of the question without departing from the process envisaged in the bill, if we can avoid collateral damage with a certain creativity, would the senator be prepared to support a proposal to that effect?

Senator Hervieux-Payette: I am certainly prepared to listen to suggestions, but I have not been convinced so far by the arguments expressed earlier on the need, in order to go ahead with Bill C-20, to establish a sine qua non that the Senate be given a say on the clarity of the referendum question.

Following the decision as to whether the question is clear or not and whether the process is recognized or not, should changes be made to rights, this house will retain its legislative powers. The issue remains the nature and the clarity of the question. For the institution that will have to consider the question, it will be more a matter of subjectivity than quality. The same goes for the majority issue, and I do not believe elected representatives should be the ones to decide that. However, I am open to any suggestion from honourable senators.

Hon. Gérald-A. Beaudoin: I should like to ask a question on our bicameral system. The Fathers of Confederation chose for Canada a bicameral system at the federal level. Does the honourable senator not agree that in a bicameral parliamentary system, both chambers are equal in principle? There might be a few exceptions, but from a purely legislative point of view, both chambers are equal and no bill can become law unless they both agree to it. This is also true of Bill C-20. So why are senators being asked to vote for a bill that gives the House of Commons a power it does not give the Senate, and this at a very important time in our history? Why vote in favour of our exclusion from the provisions of a bill? I could understand that if it were a constitutional matter, then we would certainly have suspensive powers. However, this is not a constitutional matter, it is a legislative matter. I believe it is not appropriate to ask, through a bill the fate of which we are to decide today, that we be excluded. People might say that both chambers may have different powers, but when one chooses to legislate, one must play by the rules of the legislative system. In our legislative system, both chambers are equal.

Senator Hervieux-Payette: I am totally in agreement. This is a bicameral system and the two Houses are equal as far as bills are concerned. In this case, however, it is a matter of recognizing the clarity of a question by resolution. In the past, the House of Commons passed resolutions without their having been passed here in the Senate. I am thinking, for example, of armed forces participation in certain peacekeeping missions. These were resolutions and not legislation. Bill C-20 is being examined by both Houses and will certainly go through the entire process with both Houses. When it comes to the question and its clarity, this involves implementation of the bill. For a number of bills, this can be done only in the House of Commons, this is not a precedent.

Senator Beaudoin: Honourable senators, it is true that Bill C-20 says that, if the House of Commons reaches the conclusion that the question is not clear, it must order the government not to negotiate. I am not debating the clear question and the clear majority, that is another matter. The Senate is mentioned, however, as having been consulted, whereas the choice has been made from the start to use legislation in order to negotiate. The government is perfectly entitled to go the legislative route, and I am not questioning that. Once it has chosen to negotiate using a law, it is clearly obliged to respect the principles of the bicameralism to which I have referred, which provide that, for either an ordinary law or for an extremely important one such as Bill C-20, the agreement of the Senate must be obtained. So much so that, if we say no to the bill, it will not be able to be passed. Both Houses are therefore equal. Why, then, in a piece of legislation, is a power assigned to one of the Houses and not the other? We are told it was because of the time factor. We can reach a decision in 30 days. There are 105 of us here. There are three times as many in the other place. We can reach a decision just as quickly. It seems to me that, if they choose to take the legislative route, this is very important, but there is less flexibility. At this point, I wonder if it is not contrary to the very principles of our parliamentary system to give the House of Commons considerable power that is not given to the Senate, whereas we are legislative equals.

Senator Hervieux-Payette: I acknowledge that I subscribe to much of the honourable senator's rationale, however, I would point out that, if the House of Commons did not agree on the clarity of the question or of the result, a vote of non-confidence would follow and the government would be defeated, something that certainly could not happen in this house. Furthermore, to move from that to thinking that we are on equal footing with respect to all questions in legal terms is another matter. I think there are powers that belong to the House of Commons that are not found here. I think that no government has ever been defeated in the Senate. We must consider the bill in its context.

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This bill will enable the Government of Canada to represent all Canadians and to make sure that all the representatives of Canadian electoral districts support and grant or refuse the power to negotiate. This unanimous position would certainly not come from the separatist bloc.

On two occasions, and in good faith, we entered into referendum processes with questions that put the entire future of Canada at issue. At the national level, these referendums left us unable to re-establish the facts.

We have a bicameral system, it is true, and we have essentially the same powers, except when it comes to bringing a government down on a non-confidence vote. This question will certainly lead to this type of vote, and only the House of Commons has this power.

Senator Beaudoin: Honourable senators, it is true that the vote of confidence occurs only in the House of Commons. The suspensive veto of the Senate applies only to a constitutional amendment.

My point is that this is not a constitutional amendment or a confidence vote. We are dealing with passage of a bill which, like any other bill, requires the consent of both Houses.

They suggest that we adopt Bill C-20 because they need the Senate. If we say no, there will be no Bill C-20. We are therefore being asked to vote on Bill C-20 and, at the same time, on our own exclusion. This goes against the principles of a bicameral Parliament.

[English]

Hon. Anne C. Cools: Honourable senators, I commend Senator Hervieux-Payette for her patience. Would the honourable senator take a question from me?

Senator Hervieux-Payette: Yes.

Senator Cools: The senator has premised a lot of what she is saying on the term "political actors" — a bizarre, strangely imprecise term to fall from the mouths of the courts. The honourable senator gave me some comfort by saying that she did not like the term.

In Canada, in our system, the position of the Prime Minister is not an elected position; it is an appointed position. The Prime Minister of Canada has a commission of appointment that sits on his wall, just as every member of the Senate does.

There have been several moments in the constitutional experience of Canada when premiers and prime ministers have held their offices without even holding a seat in the legislative assemblies or in the House of Commons. For example, Mr. Bouchard himself was premier of Quebec for a period of time without holding a seat in the National Assembly of Quebec. Prime Minister John Turner was Prime Minister of Canada without holding a seat in the House of Commons.

My question to the honourable senator is: Would the term "political actors" include a Premier Bouchard if he were premier without a seat in the National Assembly, or would it include a John Turner, who was a prime minister without a seat in the House of Commons, or, better still, a prime minister of Canada who was a prime minister from the Senate of Canada?

Senator Forrestall: Some of them are stars.

Senator Cools: Yes, some are falling stars.

Senator Hervieux-Payette: Honourable senators, I would have appreciated notice from the honourable senator in order to do the proper research to determine whether that is so according to our Constitution, especially since the whole question of political actors is at the core of our dissenting opinion as to whether we should be part of the process or not. Should we go back to the Supreme Court of Canada and ask them to define "political actor" for us? I do not like to be described as one. I am someone representing a province and trying to do my best to serve the interests of my province, but I am not an actor. If I had chosen to be one, I would not be here.

I do not have the answer the honourable senator is trying to get from me. If I can get a legal opinion from someone more qualified than I in defining the necessary quality to qualify as a political actor, I would be pleased to give it to the honourable senator.

Senator Cools: I thank the honourable senator. I am quite sure the court also meant political actresses, but we will not bother with that particular issue.

My question is premised on the fact that so much of Bill C-20 seems to be based on the fact that senators are appointed and not elected, and so much of the argument that we have heard here in support of Bill C-20 keeps using the term elected representatives. I was trying to show that, while the term used is "political actors," there are many political actors in Canada who are not elected. In this country, we have had at least two prime ministers from the Senate, and it is quite foreseeable that in the future we could have another prime minister from the Senate.

Senator Kinsella: Yes, Boudreau!

Senator Cools: As the honourable senator is attempting to answer the question, I would ask her to remember that the answer is not a legal one. This is a political issue — which is the entire problem: These are political questions, not legal questions. It does not matter how elaborate the legal dress is that you put on them, they remain political questions.

I now move to my second question. The honourable senator said in her speech — and I may not have got the exact words — something to the effect that the Supreme Court confirmed the right of Quebec or Quebecers to secede. I wonder if the honourable senator could tell me where this right has come from. Can the honourable senator, or anyone in the government, point me to the set of statutory laws, the set of constitutional laws, that ever conveyed the right of any province of Canada to secede?

Perhaps I did not make myself clear enough. The honourable senator said the court confirmed it. She did not say they created it, but that they confirmed that right.

Senator Hervieux-Payette: Honourable senators, I do not have the whole text of the decision before me; as such, it would be difficult for me to reply, because it is a long judgment. When I referred to the Supreme Court judgment, I was more or less referring to the overall framework addressing the question of a future referendum, and, of course, I think it is pretty clear. There is no specific article or even any constitutional convention in Canada that one can separate. I think we go far beyond that. I think we refer much more to the democratic process in a free society, but as to whether it is confirmed by a law or by our Constitution, I do not think we can have any reference to that.

What I wish we would have, of course, is a specific clause like they have in France, where they forbid separation. We do not have such a clause.

Senator Lynch-Staunton: Put it in!

Senator Hervieux-Payette: We will play by the rule of democracy. If the people of Quebec have the will and if they are asked the right question and there is a qualified majority, I am sure the rest of Canada will agree to the separation, but it has to be done within the framework of the Constitution of Canada, with the approval of the rest of the country.

[Translation]

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Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, following the statement made by Senator Hervieux-Payette, who does not feel she is a political actor and who represents a region, as I do and as Senator Fraser and others do, I have a supplementary question.

[English]

My question is this: The Leader of the Government in Quebec and the Leader of the Opposition in Quebec, on behalf of their parties, have spoken out against this bill. The majority of the elected members from Quebec in the House of Commons have voted against the bill. Who are we here, appointed, to pretend that because we represent the regions, we can substitute ourselves for the overwhelming decision of the elected representatives on this bill, which is almost unanimously negative?

Senator Hervieux-Payette: Honourable senators, I come from Quebec, as does Senator Lynch-Staunton. For the last 30 years, I have lived the agony and the ambiguity of trying to be in favour of Canada and in favour of Quebec, and trying to be faithful to Quebec while being proud to be Canadian. For me, it is a very easy task. My family arrived in this country in 1670, so I consider myself to have Canadian roots. We have, in fact, suffered for the last three decades the denunciations of the separatists that those who do not support the separation issue are not democratic.

Honourable senators, as I stand here today, I am a democratic person. My raison d'être in politics has been to support the fact that, in Quebec, being in Canada is a good deal. I am proud that my ancestors helped in creating, founding and discovering this country, but that is not the current trend in Quebec. It is tough to be a federalist in Quebec. My honourable friend knows that as well as I. It is not easy to face, on a day-to-day basis, a separatist government that has adopted another option. That is their choice. That is why I am here. If I had been in Quebec at this moment, I probably would have said that I support Bill C-20, but I must admit that it is not easy to stand for Canada when one is in Quebec.

Senator Lynch-Staunton: Honourable senators, I have no difficulty in standing for Canada when I am in Quebec, nor do most Quebecers. I have more difficulty in standing as a Tory, but I am proud of it.

My question was, how far can we go in neglecting the expressed sentiment of the elected representatives of the National Assembly and that of the majority of the elected members from Quebec in the House of Commons on Bill C-20? The government on this side is ignoring the expressed will of the elected representatives completely, and I find that rather arrogant.

Hon. Jack Austin: That is our job.

Senator Lynch-Staunton: "That is our job," says Senator Austin. Our job is to ignore the wishes of the elected representatives?

Senator Austin: No, it is to hear the wishes of Canadians.

Senator Lynch-Staunton: I oppose the bill, and I think it is in the interests of Canadians to oppose the bill. Perhaps when we get to the committee, whether a special committee or not, we will invite representatives from every province to come and give their views on how the House of Commons is being asked to interfere in a decision taken by a legislative assembly.

Senator Austin: And which would have no impact on Canada?

Senator Lynch-Staunton: Parliament makes many decisions without consultation that have a tremendous impact on the provinces.

Senator Hervieux-Payette: On the point about a majority of elected members from Quebec, we must remind ourselves that the majority the honourable senator is talking about are separatist members of the Bloc Québécois. These people represent a separatist option at the federal level in a democratic society, and they are very happy to be part of the Canadian family when they are travelling with us abroad. We must recognize that the majority on the government side who come from Quebec support the government. We must recognize the facts.

Senator Lynch-Staunton: That is all we have to know.

Senator Hervieux-Payette: The honourable senator says that we are neglecting the opinion of the Liberal opposition in Quebec. I must remind him, although this might hurt some feelings, that when we passed the Constitution in 1982, some Liberals in the National Assembly did not support it. I did support it, along with over 70 Liberal members of Parliament at the time. I want to remind my honourable friend that my colleagues and I in the Liberal Party support Bill C-20 because we believe in Canada.

[Translation]

Hon. Michel Cogger: Honourable senators, I have a question for the Honourable Senator Hervieux-Payette. We must conclude that, in the unwritten preamble to that act, there is the premise that Canada is divisible. That premise is not in the text, but if we start from the premise that Canada is indivisible, then there is no need for Bill C-20. Conversely, as soon as we consider Bill C-20, we must conclude that, under certain conditions, Canada would be divisible. Canada's ambassador to Paris, Mr. Roy, recently said how the French found Canada to be a very democratic state, because it was the only established country to declare itself divisible, under certain conditions.

Honourable senators, where can we find the foundation, the text, the convention, the legal basis for Bill C-20? Where can we begin to build on such a bill? Where does the Canadian government find the power to propose this legislation to the two Houses?

Senator Hervieux-Payette: Honourable senators, Senator Cogger says there have been two referendums. It must be remembered that in Canada we have constitutional conventions, tradition, and legislation. I agreed that there were no provisions in the Canadian Constitution recognizing the divisibility of the country, but that the Government of Canada took part in two referendums in the past. We all took part in this very painful exercise. The Supreme Court opinion mentions this possibility of divisibility, following these two referendums.

If the Canadian government had decided in the 1980s that it would not under any circumstances recognize the results of the referendum within the constitutional framework of the time, things would, perhaps, be different. I cannot rewrite history. We took part in two referendums and put everything we could into protecting the interests of Quebec within Canada. I hope that I will not repeat the exercise a third time. This bill is an insurance policy. It is a bill that defines the frame of reference. I agree with you that there are few countries in the world that would allow civilized people to take a democratic decision to destroy a country. It has taken several hundreds of years to build it in a civilized manner and by constitutional agreement. We must not deceive ourselves. If ever there were a clear question and a clear result, I do not believe that the negotiations would be any easier or that we would emerge any the better. It is an exercise in which all Canadians would lose.

On motion of Senator Atkins, debate adjourned.

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Modernization of Benefits and Obligations Bill

Second Reading—Debate Adjourned

Hon. Lucie Pépin moved second reading of Bill C-23, to modernize the Statutes of Canada in relation to benefits and obligations.

She said: Honourable senators, I rise today in support of Bill C-23, to modernize the Statutes of Canada in relation to benefits and obligations. I support this bill because it is in line with the actions I have been taking for a number of years in favour of equality, tolerance and respect of others.

As honourable senators are no doubt aware, Bill C-23 is intended to recognize heterosexual and homosexual common-law unions as having the same status in the eyes of the federal state. Concretely, this translates into identical treatment of common-law partners in Canada as far as the benefits and obligations arising out of their union are concerned, whether this is a same-sex or opposite-sex couple. The consequence of Bill C-23 will therefore be, first, to extend to same-sex common-law partners the advantages and obligations that currently apply only to opposite-sex common-law partners and, second, to extend to opposite-sex or same-sex common-law partners certain benefits and certain obligations to which they do not have access at the present time.

Strictly speaking, that is the entire scope of this omnibus bill.

In practice, however, Bill C-23 involves amendment of a number of federal laws, affecting some twenty or so departments or agencies in seven different areas, including pensions, income tax and criminal law.

I will go into further detail, if I may, on certain of the more significant changes. First, Bill C-23 uses the term "spouse" to designate married partners exclusively and the new term "common-law partner" to designate persons of the same or opposite sex who have lived together in a common-law union for at least one year.

I note, honourable senators, that the one-year period of cohabitation required to entitle couples living in a common-law situation to benefits and obligations is not new and that Bill C-23 in no way changes it.

There are some who see Bill C-23 as an attack on marriage. This situation led to the provision of a rule of interpretation in the bill providing that:

... the amendments made by this Act do not affect the meaning of the word "marriage", that is, the lawful union of one man and one woman to the exclusion of all others.

It is my opinion, honourable senators, that this motion was unnecessary, first, because the bill has nothing to do with marriage and, second, because the meaning of "marriage" is already clear in law. Nevertheless, the Minister of Justice said there was a need to reassure certain Canadians that Bill C-23 does not in any way alter the meaning of "marriage." Bill C-23 is restricted to recognizing other forms of stable relationships based on a commitment.

Why the law, then? It is Parliament's answer to changes in Canadian society and to a series of decisions by courts at various levels over the past few years in Canada, which all had the effect of questioning the fact that social programs did not include partners of the same sex, in other words, were limited to a heterosexual reference.

Whether some people like it or not, Canada must no longer be a society where being lesbian or gay is a disgrace. This has been the case, however, in the past. It was in 1992 that the World Health Organization stopped defining "homosexuality" as a mental illness.

To illustrate the distance covered since then, allow me, honourable senators, to share with you the results of an Angus Reid poll released in October 1998, which showed that Canadians now accept same-sex couples. The poll revealed that a majority of Canadians, more specifically, 67 per cent, believed that same-sex couples living as a married couple should enjoy the same tax or employment-related benefits as heterosexual couples. In April 1995, this figure was 49 per cent. Of course, the support of Canadians for this proposal was not uniform. Women were more in favour than men of recognizing same-sex couples, and the younger and more educated were more in favour of according this recognition. In short, a majority of Canadians feel that same-sex partners should enjoy the same benefits and obligations as accorded by the federal government to partners of the opposite sex, married or not.

I would even bet that the adoption of Bill C-23 will help reduce the percentage of Canadians who are still opposed to the recognition of same-sex couples, since the state is showing tolerance and respect and is taking measures to achieve equality. By passing Bill C-23, Parliament sends the message that homosexuals are no longer second-class citizens but full-fledged members of the Canadian political community.

Bill C-23 is also in response to a number of court rulings. With your permission, honourable senators, I will mention the decisions that have paved the way toward the recognition of same-sex couples, and I will draw some lessons from them.

The Quebec government was the first one, in 1977, to prohibit any discrimination based on sexual orientation. Two years later, the Canadian Human Rights Commission recommended that the Canadian Human Rights Act be amended to include "sexual orientation" as a prohibited ground of discrimination. I remind you that the Canadian Charter of Rights and Freedoms was adopted in 1982, but its section 15(1) did not include sexual orientation as a prohibited ground of discrimination. In 1985, the idea of considering sexual orientation as a prohibited ground of discrimination received the support of the Parliamentary Subcommittee on Equality Rights, through its famous report entitled "Equality for All." In 1992, in the Haig case, the Ontario Court of Appeal ruled that the Canadian Human Rights Act must be interpreted as prohibiting discrimination based on sexual orientation. Four years later, in 1996, the Canadian Human Rights Act was finally amended accordingly and, the following year, the Canadian Human Rights Tribunal issued its first ruling in favour of granting benefits to the spouses of homosexual public servants.

The 1990s saw many outcomes favourable to the recognition of same-sex couples. In 1992, the armed forces lifted the restrictions on enrolment and promotion based on sexual orientation. In 1995, the Supreme Court of Canada handed down its first decision under section 15 of the Charter with respect to sexual orientation and the awarding of benefits to same-sex spouses — the Egan decision. In a unanimous decision, the court ruled that sexual orientation constituted a prohibited ground of discrimination under section 15 of the Charter, just like sex or age. Several decisions favourable to same-sex couples at the federal and provincial levels ensued. With respect to the granting of benefits to same-sex spouses, five of the nine judges ruled that the definition of "spouse" in the federal Old Age Security Act contravened section 15 of the Charter but that this violation was justified under section 1 of the Charter.

In 1998, two decisions overturned this preliminary interpretation of the Charter. In Vriend v. Alberta, the Supreme Court held that the deliberate omission of sexual orientation in Alberta's Individual Rights Protection Act contravened section 15 of the Charter and that this departure was not justified under section 1. The Court of Appeal of Ontario handed down a similar ruling. In Rosenberg v. Canada, it ruled that the fact of excluding same-sex spouses from the federal Income Tax Act was not justified under section 1 of the Charter. These two rulings affirm that section 1 of the Charter cannot justify discrimination on the grounds of sexual orientation.

In 1999, in M. v. H., the Supreme Court opened the door to claiming support payments following the breakdown of a relationship between persons of the same sex.

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Indeed, the court found that Part III of the Family Law Act of Ontario contravened section 15 and was not justified under section 1 because it only referred to opposite-sex couples. This decision states that recognition does not mean benefits only, but also obligations, which a number of speakers in this debate tend to forget.

Finally, I will touch on the enactment of Bill C-78, regarding survivor benefits. This is the first federal act explicitly granting benefits to same-sex couples. For the first time ever, Parliament used its legislative authority to grant full citizenship status to some homosexuals by making them eligible for social benefits.

Honourable senators, it is in this context that Bill C-23 must be seen. It is now clear that the Charter offers legal guarantees to homosexuals and that the recognition of same-sex couples does not imply only benefits, but also obligations. This principle must now be put into practice. This is precisely the point of Bill C-23, to bring federal legislation in line with the Charter of Rights and Freedoms.

In the other place and at the Standing Committee on Justice and Human Rights, many spoke against passage of Bill C-23. Many objected on moral grounds, but several raised legal and societal issues. Allow me to review some of the arguments put forward against the recognition of same-sex couples in Canada.

One argument that was often heard against Bill C-23 was that it would harm the institution of marriage and the family. Both institutions are supposed to be the pillars of Canadian society and ensure its stability. To attack them could only lead to social unrest.

Not being a visionary, I will not voice any opinion on the apocalyptic interpretations of what will happen the day after Bill C-23 is passed. In reality, I simply do not believe that this bill could lead to such chaos, simply because there is no basis in its contents to justify that. The bill in question does not in any way modify the definition of marriage, that is, the lawful union of one man and one woman to the exclusion of all others. Bill C-23 merely recognizes other forms of stable relationships based on commitment.

In this connection, honourable senators, I would like to quote to you from the testimony given by Professor Martha Bailey, a family law specialist from Queen's University, on March 2, when she gave her opinion on Bill C-23 before the Standing Committee on Justice and Human Rights. At the time, she stated as follows:

[English]

...all Bill C-23 does is extend certain benefits and obligations traditionally associated with marriage to same-sex couples. It does not affect marriage.

[Translation]

Nothing could be clearer than that.

Another argument that has been put forward in connection with Bill C-23 is that it constitutes an attack on the family. By extending to same-sex couples the advantages and obligations traditionally recognized for married couples, Bill C-23 supposedly would be sounding a death knell on marriage and the family. What advantage would there be for couples to marry and start a family if they could enjoy the same status and advantages without doing so? This is, if I may say so, an extremely narrow-minded view of marriage. Let us be serious about this. Who, except someone with very utilitarian views, decides to marry in order to have access to these advantages? Is there not something more profound to marriage and the desire to start a family?

Bill C-23 is resolutely realistic, since it acknowledges that Canadian society is no longer made up of only heterosexual unions — indeed, numerous studies show that there have been same-sex couples in Canada for a long time. By passing Bill C-23, Parliament will merely be recognizing the existence in Canada of unions other than those of heterosexual couples. Parliament will no longer bury its head in the sand, and will be putting an end to a long-standing practice of social exclusion.

On this, honourable senators, allow me to quote from a passage in Rosenberg:

There is less to fear in recognizing conjugal diversity than in tolerating exclusionary prejudice.

By passing Bill C-23, Parliament will resolutely prove its modernity.

Let us move now from marriage and the family to the field of law. Justice is a pillar of a state with rule of law where the government is governed by law in order to protect the public from the government itself. Democracy is not domination of the minority by the majority, nor the reverse. It is, rather, a search for compromise and negotiated solution based on a desirable societal balance. There can be no democracy without political pluralism, nor political pluralism without rule of law and no rule of law without legal interpretation. This is the fundamental role of the courts: the formulation of a consensus leading to the attainment of a desirable societal balance. In other words, honourable senators, those who balk at having the Supreme Court interpret the Charter are purely and simply advocating a form of rule in which the government arbitrarily sets the laws.

Some have held that, with Bill C-23, the government would be giving in to judicial activism; the courts would replace Parliament, with the supremacy of the court replacing the supremacy of Parliament. Were this the case, a bill recognizing same-sex couples would have been submitted to us long before 2000, with the initial decisions on the matter. Far from giving in to judicial activism, the federal government, on the contrary, took the time to examine the situation and to propose legislation intended to put an end to a flagrant injustice and, in so doing, it was responsible. With Bill C-23, the government is providing a framework that is responsible, equitable and legally solid, providing room for the latest court decisions on the eligibility of same-sex couples for the benefits and obligations of opposite-sex couples.

In fact, far from giving in to judicial activism, the federal government might be accused of lagging behind a number of provinces that have already amended their statutes so that they no longer discriminate against same-sex couples. Moreover, in the absence of legislation, the courts will continue to hear cases individually, maintaining confusion and constant and costly litigation. It is precisely for these reasons that the government must assume the responsibility of proceeding with Bill C-23.

Honourable senators, while I am asking you to vote in favour of the bill to modernize the Statutes of Canada in relation to benefits and obligations, I am well aware of the limitations of the proposed measure and I know that Bill C-23 will not solve all the problems experienced by homosexuals in our society. Nevertheless, Bill C-23 can help alleviate some of these difficulties.

Bill C-23 cannot eliminate biases against homosexuals, and particularly the abuse to which they are subjected. The group EGALE, which is a national leader in the protection and promotion of the rights of homosexuals and which testified before the Standing Committee on Justice and Human Rights, noted with sadness that physical violence against homosexuals was on the rise again. This is not to mention the psychological abuse against homosexuals — the jokes and so on — which pushes some of them to commit suicide. Indeed, an article published in Le Devoir on March 17 stated that:

...the fear of being identified as a homosexual and then be ostracized for that reason is a major cause of depression and suicidal impulses among young people.

This is true at least in the case of young men, who were the target group in the study referred to in this article. Bill C-23 will not solve the tragic issue of suicide, but sending the message that any individual, whether homosexual or heterosexual, has a right to a full life might help reduce the number of suicides.

Notwithstanding these criticisms, honourable senators, I urge you to vote in favour of the bill to modernize the Statutes of Canada in relation to benefits and obligations. As its title indicates, Bill C-23 seeks to modernize, that is to update, the act and to bring it more in line with the reality. The reality is that, today, equality is a fundamental value of the Canadian political community, as evidenced by our charter. The reality is also that, in the Canadian society, there are opposite sex couples and same-sex couples. The law must reflect today's reality.

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With Bill C-23, Canada follows the example of several countries which, in recent years, have recognized same-sex couples in one way or another. As the very advanced nordic countries have already done, Canada is now ready to recognize the diversity of lifestyles within its population. Incidentally, these countries are also among the most advanced in terms of the political representation of women, another issue which you all know is very important to me.

In passing Bill C-23, Canada will honour its international commitments with regard to civil and political rights. The federal government will also cease to be lagging behind several municipal governments and several large Canadian companies that have already given full recognition to those of their employees who are engaged in a same-sex relationship. Bill C-23 is a logical conclusion. It is the product of a constitutional state, a state that submits its decision to the wisdom of law.

Above all, Bill C-23 is a matter of simple justice. Today, a substantial minority, or 40.7 per cent, of married or common-law couples in Canada do not have children. However, even with no children and contrary to same-sex couples, several of whom do have children, heterosexual couples have the advantage of having their union recognized by the state. It is clearly unfair to same-sex couples, at least in a constitutional state where equality is an exemplary value and where its opposite, discrimination, cannot be justified in a free and democratic society.

In closing, honourable senators, we must pass Bill C-23 because it shows an openness to the pluralism of Canadian society and it promotes tolerance to diversity, mutual respect, justice and equality. There is no doubt that these are the components of a modern political community.

Hon. Fernand Robichaud: I congratulate Senator Pépin on her speech. I think this bill is certainly justified, but I notice an omission. We know, and I am aware of some cases, that other people live together, like a brother and a sister, two brothers or two sisters. They sometimes live together for a long time and are able to have a decent living because they live together. When one of them has to leave, the other finds himself or herself in a miserable condition. Should we not include these people in the definition of "common-law partnership"? They live just like a family does.

Senator Pépin: You are right when you say that when several people live together in a family, there is a relationship of economic dependency. However, after examining the obligations and the scope of such a bill, the government has concluded that this situation should be dealt with in a separate bill.

Since these people do not live as couples, it would be better to keep both types of situations separate instead of joining them in a single bill, because they are different.

Senator Robichaud: You say it is completely different. I do not really see how because there is certainly a dependency relationship between these two people living together. If you tell me that the government intends to go in this direction later and to look at this, I hope it will do so fairly quickly because I think that this situation should not continue. It is not fair to those in dependency relationships.

Senator Pépin: Honourable senators, one does not live with someone just to be dependent either. These are two completely different issues. I am in favour of your request and agree that we should consider the problem these people are facing. You do not live like a married couple because you are dependant on each other. I am prepared to pass on your requests to the government. At this stage, this addition would add confusion to the bill.

[English]

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I am curious about whether the public policy objective of this bill is to have the state facilitate people who are dependent on another. If that dependency is responded to by the fruit of the labour of the one who is at work, the state will not have carriage of the social needs of the dependent person. What exactly is the social policy objective of this bill? Is it meant to maintain the dependency relationship between a citizen and another citizen and therefore not have that citizen dependent upon the state through some other social program?

[Translation]

Senator Pépin: I do not think the bill's purpose is to recognize dependency relationships. The government recognizes that heterosexual people are capable of living together and I think that that is not necessarily a dependency relationship. However, it does not recognize same-sex couples who are fond of one another and wish to live together.

I think there is a slight difference. I may be wrong, but when people in the same family live together, with one responsible for the other, the responsibility is often different. For instance, I am responsible for my mother; there is a relationship of affection, but I am still responsible for my mother. However, if you are a couple, heterosexual or homosexual, I believe that the two relationships are similar and should be recognized. There is no dependency or financial relationship. If some honourable senators have better arguments, they can answer your question.

[English]

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Hon. Anne C. Cools: Honourable senators, Senator Pépin just responded to a particular question on the issue of dependency. The chamber should be informed that Minister Anne McLellan appeared before the Standing Senate Committee on Legal and Constitutional Affairs on September 23, 1998, and said the opposite of what Senator Pépin has said.

Minister Anne McLellan appeared before the Legal and Constitutional Affairs Committee on Bill C-37, which was to amend the Judges Act. In response to a question from Senator Bryden, Minister McLellan put the following on the record. I think it should form part of the record here today. She said:

I will be very candid: This government's expressed approach to this is that we will deal with every case on a case-by-case basis. The court has said that it will take a similar approach. However, I would remind honourable senators — and I said this in response to Senator Bryden — that we are doing policy work that potentially speaks to a fundamental change to whom benefits might be extended within Canadian society, at least within the federal jurisdiction, and that we do not want to restrict ourselves to a discussion simply of same sex or opposite sex, but to consider a more legitimate question in Canadian society which is one of true dependency. When that work is done, as I have already indicated, we may return to both you and the House of Commons with an omnibus piece of legislation which will deal with the extension of benefits and entitlements of one sort or another on the basis of dependency. That work is well on its way, and my colleagues and I will be talking about it in detail starting next week.

This is a very important question. At what point in time did the minister abandon and retreat from her stated intention of extending benefits to all relationships of economic dependency and move to the very questionable area of extending benefits based on sexuality? That is very unusual. It is a question with which the committee must deal.

I have two questions to ask of the Honourable Senator Pépin. First, what is a conjugal relationship as defined in this particular bill? Second, how will the existence of a conjugal relationship be determined?

Hon. Serge Joyal: Honourable senators, I wish to follow up on the question raised by Senator Cools about conjugal relationships. The Supreme Court judgment in the case referred to by Senator Pépin, and in particular Justice Cory, has defined clearly what is a conjugal relationship. It is not based on sex. Sex is one element. However, it is not an exclusive element of a conjugal relationship. In fact, the court has said that in many conjugal relationships there is no element of sexuality involved. That is because people can enter into marriage or common-law situations and have no children.

The morals of today allow people to have abortions, to resort to contraceptives and to decide on a common ground not to have children. It is the right of people in a couple to choose. Thus, the element of sexuality is not an exclusive element of any conjugal relationship on that basis. Justice Cory established that very clearly when he established the five elements of a conjugal relationship. As Senators Pépin and Cools have mentioned, we will have ample opportunity in committee to debate those issues.

There is a fundamental element in what Senator Pépin has said. Bill C-23 is based on the judgment and interpretation of section 15 of the Charter. Section 15 of the Charter in relation to common-law couples was not adopted on the basis of children versus parents, uncles versus nephews, and so on. The Supreme Court interpretation of section 15 is that people who live in a common-law situation are entitled to the same benefits, be they heterosexual or same-sex couples. That is essentially what the court has said. The court has not pronounced on the rights of parents or relatives on the basis of the interpretation of section 15. It has not established such a right. However, the court has established such a right for people living in a common-law situation.

A mother and nephew, for example, are not in a common-law situation. They might have dependency responsibilities one to the other. They might benefit from some fiscal recognition by the state, be it at the provincial or the federal level, for reasons related to social policy. In other words, governments may support people helping one another when they became older, handicapped, or when they need the support of a parent to address the needs of living. That is a totally different issue. It is not a legal issue confirmed by the Supreme Court's interpretation of section 15.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I rise on a point of order.

Senator Cools: Honourable senators, if Senator Joyal is asking a question, I should like to respond. I welcome what the honourable senator has said. I want to ensure that we will have an opportunity to debate his remarks.

Senator Pépin has just said that she is not answering questions. Thus, I welcome the comments of Senator Joyal. However, we need an opportunity to debate his points.

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, I do not know if Senator Pépin's 45 minutes have expired, but I should like to comment on the point of order.

Any senator, including Senator Pépin, is entitled not to answer a question, if that is their choice. They do this individually, although it seems arbitrary to answer one senator's question yet not answer another senator's question. I do not think it is inappropriate for Senator Pépin not to answer a question yet accept another senator's question. It is in order to make a comment or to ask a question. However, I think there is a time frame in which a question or a comment is to be put.

I submit that we are getting close to the time limit of a comment. Thus, on the matter of the point of order, I would put it that a senator can refuse to answer a question or answer a question on a senator-to-senator basis.

I also submit that we should do everything we can to encourage debate. However, I remind honourable senators in speaking to this point of order that I believe the rules anticipate brevity in putting a question or in making a comment.

On motion of Senator Robertson, debate adjourned.

Heritage Lighthouses Protection Bill

Second Reading—Debate Adjourned

Hon. J. Michael Forrestall moved second reading of Bill S-21, to protect heritage lighthouses.

He said: Honourable senators, this matter is, perhaps, a little less controversial. However, to some it is of equal interest, but not nearly so commanding of one's time and mental capacity.

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Honourable senators, it is my pleasure today to speak to Bill S-21 and, in so doing, to express my sincerest appreciation to Mr. Joe Varner and the very capable assistants of Mr. Mark Audcent, Law Clerk of the Senate, for the work they have done in bringing together a non-controversial piece of legislation. I want particularly to express appreciation to Deborah Palumbo.

This is neither a partisan nor a money issue. I ask those senators familiar with Nova Scotia and our beautiful tourist trails to imagine the Lighthouse Trail without one lighthouse or its outlying structures. Try to envision Peggy's Cove without a lighthouse. Every day that we sit idle, coastal communities throughout Canada, whether on the beautiful East Coast, along the scenic St. Lawrence, on Lake Winnipeg, or on the majestic shores of our Pacific northwest, we face the loss of historic lighthouses — lighthouses which have been the source of salvation to sailors for hundreds of years. They have served as the centres for many coastal communities.

Beautiful pictures of lighthouses from around the world adorn many a prominent wall, because they are symbols of man's conquest of the high seas and the oceans. In the past, they captured people's hearts, for they were the first sight of land to be seen upon returning home. Lighthouse portraits are among the most popular of wall hangings. There is no question of their place in the human heart, their simplistic beauty set against the rugged, dark seas. You need not be from the shores of the Atlantic, the Pacific or the Arctic to be attracted to lighthouses.

The Lighthouse Preservation Society based in Nova Scotia, with representatives from across Canada, has done extraordinarily good work in examining the plight of Canada's lighthouses and has attempted to save them from destruction. There are other groups on the West Coast that have also attempted to preserve this valuable part of Canadian maritime history. Our colleague, the co-sponsor of this bill, the Honourable Senator Pat Carney, has worked tirelessly with lightkeepers on the West Coast to protect stations and, indeed, the keepers themselves. I cannot tell you how many times I followed Senator Carney up spiralling staircases to dizzying heights to help her in her cause, a cause that brings credit to the Senate and tells isolated coastal communities that the government cares.

Today, there are over 500 lighthouses left in Canada. Only 19 of these have full heritage protection. Another 101 have partial protection and recognition as heritage sites. The rest exist in no man's land at this time.

What does heritage protection status mean in real terms? I bring your attention back to Bill C-62, the Heritage Railway Stations Protection Act of 1988, upon which this bill is modelled. Why, if heritage sites are so special, was another act required to protect the heritage railway stations found in most Canadian communities? The answer, sadly, is that even with heritage designation these historic railway stations, some dating to Confederation, could be sold, transferred, altered, or destroyed with little recourse to the public. The Heritage Railway Stations Protection Act set up a process of public consultations prior to any action being taken with regard to the invaluable heritage sites and imposed stiff penalties in the event that precipitous action was taken that damaged historical railway stations. It has been determined that Canada's 19 heritage lighthouses and 101 partially recognized sites are in the same vulnerable position as Canada's historic train stations were prior to the passage of Bill C-62.

This is the very purpose of Bill S-21, an act to protect heritage lighthouses. Clause 3 of the bill states:

The purpose of this Act is to facilitate the designation and preservation of heritage lighthouses as part of Canada's culture and history and to protect them from being altered or disposed of without public consultation.

The bill defines "heritage lighthouse" as:

...any lighthouse, together with all buildings and other works belonging thereto and in connection therewith, designated by the Minister on the recommendation of the Board as a heritage lighthouse.

It defines "alter" as:

...to change in any manner, and includes to restore or renovate, but does not include routine maintenance and repairs.

"Board" means the Historic Sites and Monuments Board of Canada.

The minister responsible for this act shall be the Minister of Heritage.

Clause 4 states:

This Act applies to all lighthouses within the legislative authority of the Parliament of Canada, whether or not they are used as navigational aids.

Clause 5 states:

The Minister may, on the recommendation of the Board, designate, for the purposes of this Act, lighthouses as heritage lighthouses.

Most important, honourable senators, clause 6 (1) states:

No heritage lighthouse shall be removed, destroyed, altered, sold, assigned, transferred or otherwise disposed of, unless authorized by the Governor in Council.

For the purpose of safety, clause 6(2) reads:

Subsection (1) does not apply in respect of the alteration of a heritage lighthouse where the alteration is made in response to an emergency.

Clause 7 states:

Where it is intended to remove, destroy, alter, sell, assign, transfer or otherwise dispose of a heritage lighthouse, an application for authorization to do so shall be filed with the Minister, in accordance with the regulations, after public notice is given in the prescribed manner of the intention to file the application.

Thus, a regulatory mechanism is set in place to protect these invaluable heritage sites.

Clauses 8 through 10 spell out the terms for public hearings and empowers the minister and the Governor in Council to act in the public interest.

Honourable senators, this means that before a heritage lighthouse is pulled over or, in the unlikely event, sold to McDonald's or Burger King for advertising purposes, the public will be consulted. It also sets up a framework for the transfer of some of these heritage lighthouses to private hands or coastal community groups while maintaining the Government of Canada's ability and right to protect and preserve Canadian culture.

In the end, according to clause 7, the minister will make a recommendation to the Governor in Council based on the report of the board. Finally, clause 9(1) states:

The Governor in Council may, on the recommendation of the Minister and on such terms and conditions as the Governor in Council considers appropriate, authorize the removal, destruction, alteration, sale, assignment, transfer or other disposal of a heritage lighthouse.

The key, though, is that the Canadian public will have been consulted first.

In conclusion, honourable senators, these are not partisan issues. There currently exists a so-called "doomsday list" of lighthouses, some of which are heritage lighthouses, that are about to be demolished without even a thought of public consultation. There is a legislative void to guide the work of our tireless public servants. This is simply not right.

What would Cape Spear, Newfoundland be like 20 years from now if it were decided to sell the historic lighthouse there to private interests, or simply to pull it down? What of the Yarmouth lighthouse that was due to go to the community, the fate of which now hangs in the balance due to real environmental concerns? What of the few real lighthouses left on the St. Lawrence, not the small, modern two- or three-metre tall posts with a light bulb at the top? I am talking about real lighthouses. What of the historic lighthouse on Georges Island in Halifax Harbour along with several historic structures now virtually ready for collapse?

It is for the preservation of Canadian culture that we need the Heritage Lighthouse Protection Act.

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Finally, Bill S-21 will empower citizens and communities to take an active part, along with government, in preserving our heritage for future generations. It is for this purpose that I seek your support.

On motion of Senator Hays, for Senator Callbeck, debate adjourned.

Criminal Code

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Cools, seconded by the Honourable Senator Milne, for the second reading of Bill S-9, to amend the Criminal Code (abuse of process).—(Honourable Senator Kinsella).

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I have a few words on Bill S-9.

We all understand the motivation that one delays the presentation of this bill as we have delved into it in the past. As honourable senators know, it is really trying to come to grips with the problem of false accusations in cases of custody and access.

I remind honourable senators of the work of the Special Joint Committee on Child Custody and Access. In the report of that joint committee, we were told that the committee heard a great deal of testimony from parents involved in custody and access disputes, who felt that they were being undermined by false accusations of physical or sexual abuse by their spouse or former spouse.

That joint committee heard many examples of parents being unable to see their children for years while these allegations were under investigation. Tragically, at the end of the day, the allegations were proven to be false, and the human suffering that flowed from those accusations and the injustice of it all was underscored by the committee. In the committee report of December 1988, there was this recommendation:

This Committee recommends that, to deal with intentional false accusations of abuse or neglect, the federal government assess the adequacy of the Criminal Code in dealing with false statements in family law matters and develop policies to promote action on clear cases of mischief, obstruction of justice or perjury.

The government's response to that report was to announce a further three-year study. We do not have a government proposal or even an indication before Parliament as to how it wishes to deal with this problem of false accusations. I believe it is quite appropriate that the Senate provide a tremendous legislative and policy development service by bringing forward S bills in this house. This one was before us before and had gone to a committee. I should think that, if it was to be referred to, perhaps, the Legal Committee, there would be a canvassing of views, a putting together of the up-to-date data. Some time has lapsed since the joint committee looked at this issue.

The Senate provides a policy development service when it initiates such bills, sends them to committee and invites this kind of study. Therefore, we would support that course of action.

On motion of Senator Hays, debate adjourned.

Changing Mandate of the North Atlantic Treaty Organization

Report of Foreign Affairs Committee on Study—Debate Adjourned

The Senate proceeded to consideration of the seventh report of the Standing Senate Committee on Foreign Affairs entitled: "The New NATO and the Evolution of Peacekeeping: Implications for Canada", tabled in the Senate on April 5, 2000.—(Honourable Senator Stollery).

Hon. Peter A. Stollery moved the adoption of the report.

He said: Honourable senators, I should like to take a few minutes to speak on the seventh report of the Standing Senate Committee on Foreign Affairs.

As honourable senators know, the Foreign Affairs Committee spent a great deal of time holding hearings and investigating the new NATO.

Before I say anything, I would like to thank my predecessor, former senator Stewart, under whose chairmanship much of the work of our report, which was tabled in the Senate a few weeks ago, was done. He made a great contribution to this report on the new NATO.

Members of the Foreign Affairs Committee are very proud of this nearly 90-page report. It covers a great many subjects. The Foreign Affairs Committee has essentially examined economic matters for many years, not defence matters. The members of the committee did not come to this subject with strong views. We were not anti- or pro-NATO. Our report is the result of investigations and hearings, not one that was already in our minds when we started. That is very important, because there are anti-NATO people and pro-NATO people. The Foreign Affairs Committee of the Senate was very independent.

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We questioned a broad range of witnesses in Ottawa, London, Paris, Bonn, Brussels and Mons, Washington, and at the United Nations in New York.

For the record, the project was an exhausting one; it really was. During our four or five days in Brussels, we included meetings at the European Union, which resulted in our report entitled "Europe Revisited." Our former chairman, my predecessor, former senator Stewart, tabled that report in the Senate before he retired in November. In these investigations, we did two reports at the same time, although it must be said that our efforts were concentrated on the new NATO and the evolution of peacekeeping.

Honourable senators, Senator Lynch-Staunton played a very important role in the genesis of this study. I must say, however, that shape of the study changed as it went along. It was a very strange experience. Our chairman, along with many of the members, perhaps all of them, became more interested as we went along. Remember, honourable senators, our study began about a year ago, just as events in Kosovo were unfolding. Although we did not set out to study Kosovo, we could not ignore the fact that NATO, the subject of our study, had just become involved in, I think, its first non-NATO campaign, because Kosovo, as we have noted very clearly in our report, was what is known as an out-of-area operation or, to those who study NATO matters, a non-Article 5 intervention.

This is very important, because anyone who takes the time — and it does not take very much time — to read the 16 articles of the original NATO treaty will know that the treaty is a short, clear, and simple treaty. One does not have to be a lawyer or an expert in drafting to understand the NATO treaty. Article 5 is the guts of the treaty. It explains that it is a mutual self-defence treaty and states that, if any of the members is attacked, the others have to go to their defence.

NATO got its start in 1949, at the beginning of the Cold War. The problem for NATO became that the enemy left; the Soviet Union was no longer there. The Soviet Union collapsed, and the question became: What does NATO do? That is what the committee studied. What does NATO do? NATO, itself, in fact, has been wondering what it does. It changed its original terms of reference in November 1991 and again last April. While the original NATO treaty is very simple, a reading of the NATO terms of reference after the fall of the Berlin Wall is evidence of a much more vague treaty. That resulted, last year, in NATO involving itself in its first non-Article 5 intervention. That is the term that is used.

Of course, members of the committee asked: What is the legal basis for a non-Article 5 intervention? Speaking for myself as the new chairman, I found the replies unsatisfactory. What was the legal basis for the Kosovo intervention? NATO is a self-defence organization, authorized under the Charter of the United Nations, but when they attempted to establish a legal basis for the Kosovo intervention, it became less than clear.

In our report, we deal with the old NATO, the one before 1990. That is the NATO we all understood during the Cold War. Then we talk about the new NATO — the moving target, as I describe it. The terms of reference have been changed twice, and undoubtedly will be changed again, because NATO is looking for a role.

In 1996, I believe, the Foreign Affairs Committee undertook its first European study, and we ended up in Brussels. Naturally, when we were in Brussels, we went to NATO. We got the NATO briefing that everyone always gets, and the question could not escape us: What do they do now? The Soviet Union does not exist any longer, so just what does the organization do? This, of course, is a question that a lot of people are asking.

Honourable senators, in our report, we made 16 recommendations, all of them extremely good.

We questioned the legal basis for these interventions. We do not think Canada should be involved in interventions that are not authorized by the United Nations, or else there should be some other very clear and good reason for our being involved.

We would like to know more about the definition of "human security." We think that we are in favour of human security but we would like to know what the internationally accepted definition is.

That is why, in Recommendation No. 14, we recommend that the Main Estimates of the Department of Foreign Affairs and International Trade and the Department of National Defence be referred to the Standing Senate Committee on Foreign Affairs for review.

Let me remind all honourable senators that this is a unanimous report. Both parties in the Senate support this report. We are very interested in having some meetings with the Department of Foreign Affairs and the Department of National Defence so that some of the questions members of the committee have can be answered as we look at the estimates of the two departments. We think that would be an important reform of the system. If there is any single point that leaps out at one, it is that there does not seem to be a great deal of parliamentary input into these decisions.

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We have also noted very strongly that Parliament should be more involved in decisions that involve sending Canadian soldiers to conflict situations, peacemaking and peacekeeping missions. We suggest that the government clearly spell out Canada's interests and the scope of Canadian involvement. In Recommendation No. 12, we say that Parliament should have a direct role in the review of important international agreements, while Recommendation No. 13 states:

That both houses of Parliament have the opportunity to debate and approve at the earliest possible moment Canadian participation in any military intervention or external conflict situation, including peacekeeping and peacemaking missions, with the Government clearly spelling out Canada's interest in the situation and the scope of Canadian involvement.

These are good recommendations. They are very important recommendations.

In the changing international environment, NATO is looking for a role that is unclear. We discussed the European Strategic Defence Identity in our report. Will the Europeans, because of their dependence on the United States in NATO, develop their own defence arrangements, in particular, regarding heavy lift? Presently, they are unable to get the equipment there. As well, what about satellite communications and a common procurement policy?

It is fair to say that the members of the committee were more skeptical of the European strategic defence initiative at the beginning of our hearings than we were at the end. At the end, many of us thought, "Where does this all leave Canada?" That is the question: Where does it leave us? What if the European Union, the world's most powerful trading block, develops its own army — and they have talked about it — as well as a common foreign policy and a common defence policy? If they go ahead, as they say they will and as some people say they should, we do not know where that leaves the Americans. Furthermore, where does it leave Canada? That is the question our committee wants to put to Canadians and to the Canadian government.

Honourable senators, we are a founding member of NATO, but what if NATO leaves us, which is the phrase we use in our report?

The Hon. the Speaker pro tempore: Honourable senators, the speaking time for the Honourable Senator Stollery has expired. Is he asking for leave to continue?

Senator Stollery: May I have leave to continue, honourable senators?

The Hon. the Speaker pro tempore: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Stollery: Where does this leave us, honourable senators? The Foreign Affairs Committee of the Senate will certainly be following this issue and asking these questions.

I will end by thanking my colleagues from the Foreign Affairs Committee, who put in an enormous amount of time working on this report. We are all proud of our work and of the result of our work. I want to thank them for taking so much of their time contributing to this report.

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, would Senator Stollery permit a brief question?

Senator Stollery: Yes.

Senator Hays: Senator Stollery referred to Recommendation No. 13 as a parliamentary role — that is, when the executive takes a decision such as the stretch that they took using NATO to intervene in Kosovo. I remember the event because I was there. It caused a controversy. It came to Parliament's attention. What more would he envisage Parliament doing and to what extent does he see the executive being tied to an executive decision before action is taken?

My second question concerns the National Missile Defence Initiative that is being proposed by the United States. Senator Forrestall gave a speech on this subject and it was raised in Question Period as well. Regarding the post-Cold War role of NATO and the possible divorce between Europe and North America in terms of the current cohabitation through NATO, what should our position be on the National Missile Defence Initiative of the United States and our participation in it?

Senator Stollery: Honourable senators, I cannot respond to the question concerning that defence system because the committee did not discuss it. It was not in our mandate. The information in our report is based on the evidence we collected. We did not put anything in the report that we did not hear a lot of evidence about. I cannot comment about the missile defence system. It may well be part of the evolving NATO. That is to say, it may well be that the Americans will defending themselves rather than NATO. I do not know.

As to the senator's first question about Parliament, we have been very careful not to bind the government. We understand perfectly well that the executive in our parliamentary system makes decisions. We have been very careful not to impede the power of executive decision. We discuss this issue in the report and did a thorough job on that subject. We heard from an excellent legal advisor.

Chapter VIII of the report is entitled "Parliament and Canada's External Security Commitments." We state that the first role of Parliament is to examine the financing of these operations. However, we do not believe that the examination of the financing has been particularly thorough. For example, from where did the money come to pay for Kosovo? In our system of government, when the minister or the departmental officials go before a committee of the House of Commons, they are asked questions about how the money was spent. It has been said that this is not being done very effectively. We have allotted an entire chapter to this subject.

Over the years, Parliament has been consulted less and less on matters of foreign involvement. It has been the opposite in other countries. Even in 1939, Prime Minister King spoke to the House of Commons. In Canada, there has been a lessening of parliamentary consultation. We think that should be ended, but not to the degree that the government cannot act. We are not saying that. I think that answers Senator Hays' question.

[Translation]

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Hon. Roch Bolduc: Honourable senators, I should like to point out that Senator Lynch-Staunton was particularly active in the committee. He made an outstanding contribution, and I should not forget the Deputy Chair of the committee, Senator Andreychuk, who already has a long experience in international affairs.

[English]

Honourable senators, when faced with the threat of the Soviet Union after World War II, it became obvious to Americans and Europeans that they had to create a strategic defence alliance. It was for this purpose that NATO came into existence. It was for this reason that West Germany became bound to Western Europe. This is what happened and it was a success in that peace was maintained without any major armed conflict.

After the fall of the Berlin Wall, the Soviet threat faded, but the transatlantic link remained an essential insurance policy for world peace, as it was not known what would become of Russia.

As for trading nations such as Canada, world peace was an essential condition to our prosperity. The same was true of the United States-Japan defence alliance, in light of the uncertainty surrounding China's future. Together with the Americans, Canada also joined NORAD, to provide for the joint defence of North America.

Apart from these geo-political uncertainties, NATO has focussed over the past decade on other less global but, nevertheless real threats to what foreign affairs has called "human security" — that is to say, the security of civilians as opposed to that of the alliance states, which, more often than not, is threatened by conflicts such as inter-racial issues, terrorist acts, and so on.

These types of conflicts alter NATO's activities and add a new dimension to its international role. This was how we came to develop the concept of peacemaking as opposed to the peacekeeping activities of our armed forces, activities that have long been under way in the context of the United Nations.

The Minister of Foreign Affairs has spoken out several times in recent years to explain and justify this type of intervention. Among other things, I am thinking of the minister's speeches at Middlebury College, last February, in Calgary, in March, and his recent address to the Security Council.

We are far from being on the verge of nuclear war, even though certain Middle Eastern states and North Korea are still special cases. We have not forgotten the tension between India and Pakistan, Iran and Iraq, and other countries. We are thinking mainly of the delicate situation in the Balkans and tribal conflicts in Africa, where Europe maintains an interest.

The concept of peacemaking is still developing, but the remarks by the UN Secretary General and Mr. Axworthy reveal the varied nature of the causes of peacemaking efforts and of the security activities to which they are likely to lead. This situation is thus likely to alter the nature of our armed forces. Authorities refer at times to armed intervention as a way to stop conflicts such as those in Kosovo. With others, they consider policing efforts, such as where the RCMP is involved — and here I am referring not only to Haiti — and at others they engage in civil administration and even social work in regions devastated by conflict.

The potential danger here, honourable senators, is that of state activism which can arise because there are no longer any clear decision-making centres, or because Parliament is ignored or information on potential missions is defective or biased or the cost of missions are concealed. We must be clear and selective. Our interests must also be concerted in establishing the criteria that will guide Canada's actions.

In the case of Kosovo, for example, it is now quite certain that Canada has made a long-term commitment without any real, preliminary or serious public discussion in Canada.

The Treasury Board, for example, estimates Canada's costs in this operation at $500 million in 1999; and at $350 million for 2000. There were probably also costs in 1998 in the preparation period, but the figure for that is not given. I hope that we have not placed ourselves in the situation of another Cyprus, a 25-year venture which, in 1987, cost us $1 billion per year, because it also partly justified our presence in Germany at the time.

[Translation]

Data now available on the conflict in Kosovo seem to indicate that, first, Mr. Clinton had other existential concerns when he said yes to Mr. Blair, who himself might have been driven by his own eloquence; second, that atrocities did not cease during the war; and, third, that we have not yet reached the end of the tunnel in this conflict in former Yugoslavia.

I will let others debate the legality of the NATO intervention in Kosovo and simply say that, in the future, we will have to be more careful before ignoring the will of the Security Council, even if it needs to seriously review its mandate and ignore the will of the United Nations.

However, this conflict has had a positive impact on another level: the image that Europeans have of themselves. I think that the European conscience, which was heretofore monopolized by economic and financial issues, has now been extended to security and defence issues.

Western Europeans realized, honourable senators, their logistical incapacity to deploy their forces on their own continent, their lack of equipment and tactical information, the absence of coordinated management of personnel, and so on. In short, it was a clear reminder that NATO is first and foremost U.S. might, even 50 years after World War II.

The resulting European defence initiative is a healthy and legitimate movement. It will take a lot of time and goodwill to coordinate the defence budgets of our European allies. It will be as important a test as Maastricht with regard to the willingness of the French, the British and the Germans to work together and to coordinate their forces and their materiel purchases.

What is important for us is that this initiative is developing within NATO in order to preserve the transatlantic tie to which I was referring earlier and which is so vital to us.

I should now like to talk about the very important issue of government accountability in foreign affairs in general, but particularly in the area of defence and, to a lesser extent, in the area of international aid. It is not the first time that I raise this issue here. I do so again today because I believe that it is fundamental to Canadian democracy and that an adjustment is necessary in the evolution of our parliamentary practices.

Under the Canadian Constitution, which is 133 years old and inspired by Westminster, the government or executive has the upper hand over foreign policy, including security matters; the government enters into treaties, declares war and deals with foreign countries.

For its part, Parliament either amends or does not amend Canadian laws to bring them in line with the obligations stemming from the treaties entered into by the government and either appropriates or does not appropriate the funds necessary for war expenses or foreign aid.

Parliament may also hold debates on any issue it deems necessary to bring to the public's attention; it may also question the government on its public policies or criticize them. In a nutshell, this is where Canada's constitutional law is at in this regard.

Parliamentary practice in this respect varies a lot. In the 1920s, Prime Minister Mackenzie King, frustrated by the military commitments involving Canada made by London, made sure that Parliament passed a resolution in the summer of 1939 before Canada declared war in September 1939.

The United Nations Charter, in 1945, and the NATO treaty, in 1949, were submitted to Parliament before they were ratified by the government. The same approach was followed to amend the NATO treaty in order to admit Greece and Turkey, in 1952, and Germany, in 1955.

During this period, Parliament's participation in the decision to deploy troops abroad has been sporadic, as stated by our committee chairman, Senator Stollery. In the case of Cyprus, the Golf War and Somalia, Parliament was consulted, but it was not on Korea, Zaire and Kosovo.

[English]

Similarly, the NORAD agreement, in 1958, was not submitted for Parliament's approval, nor was the admission of new members such as Spain, in 1982, or Hungary, Poland and Czechoslovakia, in 1999. Even well-established customs such as the tabling of international agreements in Parliament was abandoned.

Honourable senators, I submit that this situation is utterly unacceptable and that Parliament must be more consistent with the requirements of democracy in the 21st century. It is not because Canada is a member of the United Nations organization that it must take part in all operations authorized by the United Nations, the nation's voice must be heard before young people are sent to face enemy fire.

In security matters, it cannot be taken for granted that what the minister wishes will always be desirable for the people. For example, if the minister is in favour of policing operations, he will want to establish order around the world, despite the sage advice of our former ambassador to the United States, who maintains that even the United States cannot do that. Thus, if the minister is a proponent of military operations, he will need troops on every front. If he is more of a social worker, he will have to be involved in all humanitarian undertakings.

(1750)

Honourable senators, I submit that it is wise that ministerial aims be viewed against those of Parliament so that what the people view as important foreign policy, security and international aid issues can be ascertained.

A very serious effort must therefore be made to remedy Parliament's virtual absence from these important areas, which is an unhealthy development for Canadian democracy.

I understand that the British tradition of our parliamentary system favours the executive branch of government, which historically held all powers, much more than the republican systems of the United States and France. The British system existed prior to the advent of democracy and, although it has been influenced by that event, it remains, perhaps more so in Canada than in England itself, characterized by this predominance, although not domination, of the government's power.

Honourable senators, I submit that, in the year 2000, it is high time we change the way in which we do things and that we submit the government to rules that, while allowing it reasonable room to manoeuvre in order to be effective, reasonably restrict its discretionary power. The other Western democracies appear to give their parliaments a broader official role in reviewing major foreign policy decisions: declaration of war resolutions, prior debate and approval of treaties, debate on important agreements, and authorization to deploy military forces abroad.

In England, for example, our report discusses the "Ponsonby" rule, which, since 1920, has required that international agreements that are to be ratified be communicated to the Houses of Parliament at least 21 days prior to ratification — hence, the importance of our recommendations 12 to 15 on page 84 of this report.

I personally would prefer to see a constitutional amendment partially limiting the discretion of the executive branch in foreign policy. In other words, it seems to me that the general rule of liberal societies that the government may do nothing unless authorized by Parliament is a wise rule, whereas it now appears to be the rule that the government can do everything except what it is prohibited from doing. I would remind honourable senators that, in true liberal societies, it is individuals that enjoy this freedom, not governments, which should be governed by the rule that they may do nothing except what is permitted by law.

Failing an appropriate constitutional amendment, we should perhaps consider including in the Department of Foreign Affairs' enabling statute criteria that will set limits for departmental intervention abroad in the field of human security, such as, for example, a resolution by the United Nations General Assembly in the case of mass genocide.

In his speech at Middlebury College, Minister Axworthy spoke more openly than previously about the criteria for military intervention outside Canada.

We have addressed security issues here. In closing, I wish to emphasize that this rule should also prevail as regards development assistance to Third World countries and in national and international commitments through the specialized institutions of the UN or those established under the Bretton Woods accords. Here, as well, limits must be placed on ministerial discretion through clear statutory criteria known to all.

While that discretion must be broad enough to permit flexible ministerial action where required, its limits must not be so unclear as to lead to bureaucratic abuse. I would recall here that an organization as important as CIDA was not even constituted by an act of Parliament, but by a mere Order in Council. However, this organization annually allocates $2 billion in public funds for various purposes. Statutory criteria are clearly called for here in order to set parameters for administrative action.

Just as in security matters, Parliament's voice must be heard before the government gives orders to the Armed Forces, so the voice of the people must guide the diplomatic actions of ambassadors.

You must understand, honourable senators, that as a former senior public servant I have the greatest respect for military personnel, diplomats and ministers, but, in free societies, the law as enacted by Parliament must rightly be the supreme guide of government action.

On motion of Senator Andreychuk, debate adjourned.

[Translation]

The Hon. the Speaker pro tempore: Honourable senators, it is 6 p.m. Is leave granted for the Chair not to see the clock?

[English]

Hon. Dan Hays (Deputy Leader of the Government): I do not think it is quite six o'clock, Your Honour. However, if you wish, I suggest that if we go past six o'clock and we only have a few items of business with which to deal that we not see the clock.

The Hon. the Speaker pro tempore: It is agreed, honourable senators?

Hon. Senators: Agreed.

Bill to Give Effect to the Requirement for Clarity
as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference

Motion to Instruct Committee to Amend—Point of Order—Speaker's Ruling

On the Order:

Motion of the Honourable Senator Lynch-Staunton, seconded by the Honourable Senator Kinsella:
That upon committal of Bill C-20 to committee, that the committee be instructed to amend Bill C-20 to rank the Senate of Canada as an equal partner with the House of Commons, and report back accordingly.—(Speaker's Ruling).

The Hon. the Speaker pro tempore: Honourable senators, on Tuesday, April 11, when Senator Lynch-Staunton, the Leader of the Opposition, moved a motion of instruction, Senator Hays, the Deputy Leader of the Government, rose on a point of order. Senator Hays claimed that the motion of instruction was out of order because it was not in the correct form. The motion of Senator Lynch-Staunton seeks to instruct the committee that would examine Bill C-20 to make certain amendments "to rank the Senate of Canada as an equal partner with the House of Commons." According to Senator Hays, this instruction is mandatory in form and, consequently, is out of order. Senator Hays argued that the instruction must be permissive, rather than mandatory, because the power to amend the bill is a power that the committee already possesses. In support of his position, Senator Hays referred to a ruling of November 1995, as well as to Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada.

[Translation]

Subsequently, there were some other interventions by several senators, including Senator Lynch-Staunton who supported his motion with a citation from Beauchesne's Parliamentary Rules & Forms as well as a reference to the Companion to the Standing Orders and Guide to the Proceedings to the House of Lords. I want to thank all senators who spoke on the point of order. I have reviewed the material and the references that were cited during the discussion on the point of order. I am now prepared to give my ruling.

[English]

Motions of instruction are relatively infrequent in Canadian parliamentary practice. They are not a regular feature in either the Senate or the House of Commons, and it is not altogether surprising that their use can give rise to some confusion. A motion of instruction was last moved in the Senate December 6, 1999, by Senator Murray. In that particular case, the instruction proposed to empower the committee to divide Bill C-6, a bill dealing with electronic commerce. This motion was taken up for consideration immediately after the bill had received second reading. As it happened, however, no decision was taken with respect to the motion, because it was withdrawn some days later after the Senate had actually disposed of Bill C-6.

(1800)

The point of order raised by Senator Hays focuses on the question of whether the motion of instruction should be in a permissive form rather than in the mandatory style proposed by Senator Lynch-Staunton. If it is determined that the point of order is well founded, then the motion must be ruled out of order.

In trying to determine the proper answer to this proposition, I felt obliged to investigate some of the history of motions of instruction in earlier editions of Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, the British parliamentary authority. This seemed appropriate given the limited use made of instructions in the Canadian Parliament and the fact that these motions are derived from British parliamentary practice.

[Translation]

Motions of instruction developed in the British Parliament at a time when the powers of committees were narrowly defined and severely constrained. Through the 18th century and into the first decades of the 19th century, it would seem that the authority of committees to amend bills was so limited that they frequently required instructions from the House to carry out their work effectively. A partial remedy to this problem was to incorporate within the rules or standing orders of the House certain powers whereby the committees acquired the authority to make amendments to legislation so long as those amendments were generally within the scope of the bill and were relevant. Thereafter, the need for instructions became less frequent and they developed certain characteristics which remain generally the same to this day. Among these characteristics was the distinction between permissive and mandatory instructions. The more ordinary instruction was the permissive instruction which empowered a committee to exercise certain powers at its discretion. Instructions had to be in the permissive form if they were to apply to committees which already possessed some authority under the standing orders. Instructions could be either permissive or mandatory if the committees involved possessed no powers because they were created on an ad hoc basis or if they concerned private bills.

[English]

Applying this basic distinction to the rules of the Senate as they are presently written, it would seem to me that motions of instruction to a committee with respect to the study of public bills must be in the permissive form. This is because our rules already authorize any committee examining a bill to recommend any relevant amendments it deems appropriate. Thus, a committee looking at Bill C-20 has the power to amend it in the way suggested by the motion of instruction proposed by Senator Lynch-Staunton. The text of the motion, however, is mandatory in its form and this is contrary to established usage. This position is supported by recent Canadian authorities, including Beauchesne, and is confirmed in the latest Canadian parliamentary manual, House of Commons Procedure and Practice, at page 641 as follows:

Motions of instruction respecting bills are permissive rather than mandatory.

[Translation]

Moreover, the present motion of instruction, even if it had been written in the permissive form, would still not past muster procedurally. There are various criteria listed in Erskine May on admissible and inadmissible instructions. Admissible instruction can authorize a committee to treat legislation in a variety of different, but specific, ways. Among the instructions which are acceptable are motions empowering a committee to divide a bill, to consolidate several bills or to report separately on different parts of a bill. The motion of instruction of Senator Lynch-Staunton seeks to do none of these things. Rather it seeks to instruct the committee to do something which it already has the power to do. This in fact, is a form of instruction which is recognized to be inadmissible because it is superfluous.

[English]

Beyond this, there is still another reason the motion would give rise to some doubts about its acceptability, quite apart from what has already been discussed. Any motion seeking to authorize or direct a committee in its study of a particular bill must be clear and explicit. As I read it, the current motion does not meet this standard. In seeking to have the committee make whatever changes are required "to rank the Senate of Canada as an equal partner with the House of Commons," the motion is not providing an instruction that is adequately explicit. The language is not clear or specific enough. It does not allow the committee to understand definitely what provisions the Senate desires that it should take into consideration. For these reasons, therefore, I rule that the motion of instruction proposed by Senator Lynch-Staunton is out of order.

As a final comment, while the point of order was raised at the earliest opportunity when the motion of instruction was first called, I think it advisable to note that a motion of instruction cannot properly be taken up for debate prior to the adoption of the second reading motion on the bill to which it relates. Again, all the authorities are clear on this. Beauchesne states, at paragraph 684 on page 204, that:

The time for moving an Instruction is immediately after the committal of the bill, or, subsequently, as an independent motion. The Instruction should not be given while the bill is still in the possession of the House, but rather after it has come into the possession of the committee. If the bill has been partly considered in committee, it is not competent to propose an Instruction.

Canadian Radio-Television and Telecommunications Commission

Motion Urging Reconsideration of Ruling Denying TVOntatio Request to Distribute Télévision Française de L'Ontario in Quebec Withdrawn

On Motion No. 56:

That the Senate recommend to the Government of Canada that it request the Canadian Radio-Television and Telecommunications Commission (CRTC) to reconsider the decision handed down on March 1, 2000, regarding the application by TVOntario - TFO (French-language television channel), in order to allow the only network producing French and cultural programming outside Quebec to distribute that programming in Quebec by cable.

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, I rise at the request of Senator Gauthier to ask leave of the Senate to withdraw this motion standing in his name. Briefly, the reason for the request is that Senator Gauthier has, in the absence of a response from the Chairman of the CRTC, become frustrated with this approach and has commenced a legal action to seek a remedy, the thrust of this motion being the reconsideration of a CRTC decision.

Therefore, on behalf of Senator Gauthier, I request leave for this motion to be withdrawn from the Notice Paper. I should be happy to give further clarification, if requested.

The Hon. the Speaker pro tempore: Honourable senators, is leave granted to allow that Motion No. 56 standing in the name of Senator Gauthier be withdrawn from the Notice Paper?

Hon. Senators: Agreed.

Motion withdrawn.

Adjournment

Leave having been given to revert to Government Notices of Motions:

Hon. Dan Hays (Deputy Leader of the Government), with leave of the Senate and notwithstanding rule 58(1)(h), moved:

That when the Senate adjourns today, it do stand adjourned until tomorrow, Wednesday, May 3, 2000, at 1:30 p.m.;
That at 3:30 p.m. tomorrow, if the business of the Senate has not been completed, the Speaker shall interrupt the proceedings to adjourn the Senate;
That should a division be deferred until 5:30 p.m. tomorrow, the Speaker shall interrupt the proceedings at 3:30 p.m. to suspend the sitting until 5:30 p.m. for the taking of the deferred division; and
That all matters on the Orders of the Day and on the Notice Paper, which have not been reached, shall retain their position.

Motion agreed to.

The Senate adjourned until Wednesday, May 3, 2000, at 1:30 p.m.

Debates of the Senate (Hansard)

Debates of the Senate (Hansard)

2nd Session, 36th Parliament, Volume 138, Issue 50

Tuesday, May 2, 2000 The Honourable Rose-Marie Losier-Cool, Speaker pro tempore

Table of Contents

THE SENATE

Tuesday, May 2, 2000

The Late Honourable Richard A. Donahoe, Q.C.

Tributes

SENATORS' STATEMENTS

Holocaust Memorial Day

Canada Book Day

National Defence

Report on Sea King Talon41 Incident

National Native Role Model Awards

ROUTINE PROCEEDINGS

Special Senate Committee on Bill C-20

Notice of Motion to Appoint

QUESTION PERIOD

National Defence

Replacement of Sea King Helicopters—Report on Talon41 Incident

Replacement of Sea King Helicopters—Possible Examination of Airworthiness of Aircraft by Transportation Safety Board

Replacement of Sea King Helicopters—Clearance to Fly Aircraft in United States Air Space

Replacement of Sea King Helicopters—request for Review of Maintenance Records by Transportation Safety Board

Replacement of Sea King Helicopters—Clearance to Fly Prime Minister in Aircraft

Replacement of Sea King Helicopters

The Senate

Report of Special Joint Committee on Code of Conduct—Government Response

National Defence

Proposal to Develop Ballistic Missile Defence System with United States—Government Position

Research and Development

Requirement that Federal Research Grants have Private-sector Partners—effect on Areas with No Commercial Interest

Pages Exchange Program with House of Commons

ORDERS OF THE DAY

Canada Elections Bill

Third Reading—Debate Adjourned

Bill to Give Effect to the Requirement for Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference

Second Reading—Debate Continued

Modernization of Benefits and Obligations Bill

Second Reading—Debate Adjourned

Heritage Lighthouses Protection Bill

Second Reading—Debate Adjourned

Criminal Code

Bill to Amend—Second Reading—Debate Continued

Changing Mandate of the North Atlantic Treaty Organization

Report of Foreign Affairs Committee on Study—Debate Adjourned

Bill to Give Effect to the Requirement for Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference

Motion to Instruct Committee to Amend—Point of Order—Speaker's Ruling

Canadian Radio-Television and Telecommunications Commission

Motion Urging Reconsideration of Ruling Denying TVOntatio Request to Distribute Télévision Française de L'Ontario in Quebec Withdrawn

Adjournment

2nd Session, 36th Parliament,
Volume 138, Issue 50

Tuesday, May 2, 2000
The Honourable Rose-Marie Losier-Cool, Speaker pro tempore

Bill to Give Effect to the Requirement for Clarity
as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference

Bill to Give Effect to the Requirement for Clarity
as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Reference