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Debates of the Senate (Hansard)

2nd Session, 36th Parliament,
Volume 138, Issue 52

Thursday, May 4, 2000
The Honourable Rose-Marie Losier-Cool, Speaker pro tempore

SENATORS' STATEMENTS
ROUTINE PROCEEDINGS
QUESTION PERIOD
ORDERS OF THE DAY

THE SENATE

Thursday, May 4, 2000

The Senate met at 2:00 p.m., the Speaker pro tempore in the Chair.

Prayers.

[Translation]

SENATORS' STATEMENTS

The Right to Vote for Women of Quebec

Sixtieth Anniversary

Hon. Lucie Pépin: Honourable senators, I rise today to draw attention to the 60th anniversary of the right to vote for the women of Quebec.

On April 25, 1940, the women of Quebec obtained the right to vote in provincial elections. We were the last Canadians to obtain that right. In 1916, the women of Manitoba, Saskatchewan and Alberta were able to vote provincially, followed by the women of British Columbia and Ontario in 1917. The women of the Maritime provinces followed between 1918 and 1925.

Not that Quebec women were not clamouring for the right to vote! The Constitutional Act, 1791 allowed persons responding to certain property ownership criteria to vote. The majority of these persons were men, of course, but a few women property owners were able to vote between 1791 and 1849, at which time the Parliament of the Province of Canada withdrew that right.

In the early 1920s, some women in Quebec — including Marie Gérin-Lajoie, Idola St-Jean and Thérèse Casgrain — made representations to the Quebec Legislative Assembly, what today we would call lobbying. Starting in 1922, a bill on women's suffrage would be introduced every year by male MLAs sympathetic to the suffragist cause since, as you will realize, there were no women MLAs at the time!

The opposition to this suggestion was strong. Premier Taschereau fiercely opposed women's suffrage and continued to do so until the end of his term, in 1936. When Maurice Duplessis, a man with close ties to the clergy, came to power, he was not any more in favour of having women vote in Quebec elections. The honour for this goes to the Liberal government of Adélard Godbout.

Many historians see Adélard Godbout as a reformer if not a forerunner of the quiet revolution. A number of forward-leaning measures are associated with him, including a law in the early 1940s that required young people to attend school to the age of 14 and a labour code recognizing unions. However, most important, Adélard Godbout gave women the right to vote in Quebec elections, which to my mind was his most courageous decision.

A number of arguments were raised against giving women the right to vote. I should like to read you an extract from a text by Henri Bourassa, a politician and founder of the paper Le Devoir:

Parliament, said an old English attorney, can do everything, except change a woman into a man and a man into a woman. It is precisely this impossible task that the advocates of women's suffrage have set for themselves. The difference in the sexes has created the difference in sexual functions, and the difference in sexual functions has created the difference in social functions.

The arguments have changed a bit, but a certain resistance remains.

The most recent electoral reform, introduced last fall in the other place, provided the opportunity for all sorts of arguments to be made against amending the law to promote the election of women to the House of Commons. In fact, the amendments to the bill were withdrawn. I am happy to announce, however, that the constitution of the Liberal Party has been amended to help encourage women to run in politics. I would hope that all our colleagues in the Conservative Party will do the same in the fight against ignorance and prejudice so that women may be recognized as full-fledged Canadian citizens.

[English]

National Defence

Iroquois Helo Detachment Commander's Situation Report

Hon. Gerald J. Comeau: Honourable senators, yesterday the Leader of the Government in the Senate boasted of how safe the Sea King helicopters are and assured us that we should not be concerned about the safety of military personnel who fly them. Senator Hays refused to provide the consent required to allow me to ask a question regarding a report, which I shall now summarize for the record.

This is a December 15, 1999, Iroquois Helo Detachment Commander's Situation Report — Standing Naval Force Atlantic 3/99 Operations Report detailing a month-by-month breakdown of aircraft availability.

July: Days at sea, 6; missions scheduled, 9; missions cancelled due to weather, 1; missions cancelled due to operations, 0; missions cancelled due to aircraft, 0.

August: Days at sea, 18; missions scheduled, 28; missions cancelled due to weather, 0; missions cancelled due to operations, 5; missions cancelled due to aircraft, 1.

September: Days at sea, 20; missions scheduled, 33; missions cancelled due to weather, 2; missions cancelled due to operations, 4; missions cancelled due to aircraft, 3.

October: Days at sea, 14; missions scheduled, 32; missions cancelled due to weather, 0; missions cancelled due to operations, 2; missions cancelled due to aircraft, 18.

November: Days at sea, 11; missions scheduled, 26; missions cancelled due to weather, 0; missions cancelled due to operations, 0; missions cancelled due to aircraft, 16.

December: Days at sea, 9; missions scheduled, 13; missions cancelled due to weather, 1; missions cancelled due to operations, 0; missions cancelled due to aircraft, 11.

Honourable senators, we are now getting the picture. Upon reading this document, the minister will see that this matter does require a major review.

I shall ask a question of the minister on this topic during Question Period.

(1410)

In Recognition of Naval Forces

Hon. Shirley Maheu: Honourable senators, yesterday I was able to share a poem from an anglophone person about the RCNVR and the reserves. Today I have a liberal or free translation from a senior who was a member of my riding constituency when I was a member of Parliament. It goes as follows.

[Translation]

A Naval Remembrance

They came from the wheat fields,
The forests, the towns,
Great cities and mountains,
Some were of renown.
Many were mere youth
Most all of them young,
The eager, the scared
Knew not what they dared.
They withstood every hardship
Long gut-wrenching days,
Lonely vigils on watch,
They proved that they cared.
Overworked, overtired,
Midst sweat, tears and toil,
And oft when torpedoed
Were covered in oil
Unable to shower —
Subs nearby did hover;
Storms, ice and fog,
Encompassing fear
Of collisions so near;
Messdecks sloshing
With sea, spew and gear;
Homesick and seasick
They still sallied forth
These young men, Canadian,
At sea proved their worth.
Their equipment not modern
Their ships lacking, too,
Their "on-the-job training"
Pushed most convoys through.
Some shipmates were lost
By the wrath of the sea,
By the bombs and torpedoes
Of a harsh enemy.
"Wary Navy" most were,
R.C.N. lads in blue —
100,000 and Wrens
And Merchant Navy, not few;
They all toiled together
Like good ship's crews do
In "sweepers" and "four-stackers",
Corvettes, frigates, too,
Destroyers and launchers,
Cruisers, carriers — not new.
Through frustration, despair
The Canadian Navy yet grew
Midst turmoil and terror
To a multitude from a few.
To 400 ships in our Navy,
400 Merchant Ships, too.
The East and the West
They gave of their best;
These sea-faring sailors —
the R.C.N.V.R., R.C.N.,
Merchant Navy and the Wrens.

The translation into French was done by Henri Savard, RCNVR, regimental number V 44152 in February, 2000.

[English]

United Nations

Funding Arrears

Hon. Lois M. Wilson: Honourable senators, yesterday in the other place, a petition with 2,000 signatures was presented to draw attention to the perennial underfunding of the United Nations and actions that Canada might consider taking. Canada, of course, does pay its dues in full and on time. We have all heard criticisms of the United Nations, but if it did not exist we would have to invent it.

Canada's interest lies in a strengthened, reformed and well-funded United Nations. The core of the UN budget is one half of 1 per cent of the U.S. military budget and far less than the cost of one B-2 bomber aircraft. Yet, as of March 31, 2000, the total amount owed to the UN in U.S. dollars is $842 million, with the U.S. share of arrears being 56 per cent of the regular budget; $1.903 billion of the UN peacekeeping budget, with the U.S. share being 62 per cent of that figure; and all arrears, $2.839 billion, with the U.S.A. share being 59 per cent of that figure.

In November 1999, legislation passed by the U.S. Congress came into effect, making repayment of U.S. arrears contingent on a number of conditions, seeking to force the UN to adopt policies that are contrary to decisions of the majority of its members, thus fracturing the process of multilateral decision-making. Mutinational companies are also responsible parties, because many of them have financed negative campaigns against the UN and fought the efforts of the UN to establish global regulation of the environment and other matters.

What can Canada do? We can make this situation known. We can make diplomatic representations to states that withhold their UN dues to pay in full and on time. Canada might also give consideration to proposals that would establish alternate and reliable revenue sources for the UN with a view to presenting such proposals for consideration at the UN General Assembly.

Africa Direct Mission to Canada

Hon. Donald H. Oliver: Honourable senators, on Wednesday of next week, I shall address a gathering of over 200 business and political leaders from Canada and the sub-Saharan region of Africa at the opening of the Toronto session of the Africa Direct Mission to Canada.

As you know, I am a strong supporter of the development of a solid relationship between Canada and many countries in Africa, particularly on economic and trade levels.

The Africa Direct Mission to Canada is an initiative to promote economic and political linkages between Canada and eight sub-Saharan African countries: Ghana, Mauritius, Mozambique, Nigeria, Senegal, South Africa, Tanzania and Uganda. Business and political leaders from these countries began arriving yesterday for a two-week visit to liaise with their Canadian counterparts in seminars and meetings promoting trade policy dialogue, trade development, and investment between our countries.

It is no secret that Africa is developing at an incredible rate. The World Bank has forecast a 4.2 per cent annual growth rate for sub-Saharan Africa during the next 20 years. According to a survey published in January by the Economist Intelligence Unit of London, England, sub-Saharan Africa will be the fastest growing region in the world this year, setting the pace for economic growth on a global level.

Africa is on the move and its future looks bright. Canadians can benefit by pursuing business opportunities in Africa. There is a lot of good business to be done.

With over 750 million people living in sub-Saharan Africa, this region, with its abundance of untapped natural resources, has the potential to become a major marketplace for Canadian business. Newly found political stability and economic reforms combined with an increased investment in people and technology have brought growth and progress to Africa. Yet, weaknesses in the infrastructures of these countries are creating a barrier to their continued growth.

Fortunately, this is an area where Canada can be of great assistance. These barriers create opportunities for Canadian companies to assist in the building and maintenance of new infrastructure systems, including improving access to telephones, satellite communications and Internet services.

In conclusion, honourable senators, increasingly so, Africa is a potentially huge market for Canadian businesses, thanks to recent reductions in trade barriers between Canada and some countries in the sub-Saharan region. Expanding trade is an important means of growth for both the African and Canadian economies. I urge all honourable senators to join me in supporting initiatives like Africa Direct Mission that promote global cooperation.

ROUTINE PROCEEDINGS

National Defence Act

Bill to Amend—Report of Committee

Hon. Peter A. Stollery, Chairman of the Standing Senate Committee on Foreign Affairs, presented the following report:

Thursday, May 4, 2000
The Standing Senate Committee on Foreign Affairs has the honour to present its
EIGHTH REPORT
Your Committee, to which was referred Bill S-18, An Act to amend the National Defence Act (non-deployment of persons under the age of eighteen years to theatres of hostilities), has examined the said Bill in obedience to its Order of Reference dated Tuesday, April 4, 2000, and now reports the same without amendment.
Respectfully submitted,
PETER STOLLERY

Chairman

The Hon. The Speaker pro tempore: Honourable senators, when shall this bill be read the third time?

On motion of Senator Stollery, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.

(1420)

Payments in Lieu of Taxes Bill

Report of Committee

Hon. Lowell Murray, Chairman of the Standing Senate Committee on National Finance, presented the following report:

Thursday, May 4, 2000
The Standing Senate Committee on National Finance has the honour to present its
SIXTH REPORT
Your Committee, to which was referred Bill C-10, an Act to amend the Municipal Grants Act, has, in obedience to the Order of Reference of Monday, April 10, 2000, examined the said Bill and now reports the same without amendment.
Respectfully submitted,
LOWELL MURRAY

Chairman

The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the third time?

On motion of Senator Hays, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.

[Translation]

L'assemblée parlementaire de la francophonie

Report of the Canadian Delegation to Meeting in Libreville, Gabon Tabled

Hon. Pierre De Bané: Honourable senators, pursuant to rule 23(6) of the Rules of the Senate of Canada, I have the honour to present to the Senate, in both official languages, the report of the Canadian Branch of the Assemblée parlementaire de la Francophonie, and the related financial report. The report deals with the meeting of the APF Committee on Education, Communication and Cultural Affairs, held in Libreville, Gabon, March 6 and 7, 2000.

[English]

Foreign Affairs

Notice of Motion to Authorize Committee to Examine Performance Report of Department of Foreign Affairs and International Trade

Hon. Peter A. Stollery: Honourable senators, I give notice that on Tuesday, May 9, 2000, I shall move:

That the Standing Senate Committee on Foreign Affairs be authorized to examine the Performance Report of the Department of Foreign Affairs and International Trade for the period ending March 31, 1999, tabled in the Senate on November 2, 1999 (Sessional Paper No. 2/36-71); and
That the committee report no later than March 31 of the year 2001.

Notice of Motion to Authorize Committee to Examine Emerging Developments in Russia and Ukraine

Hon. Peter A. Stollery: Honourable senators, I give notice that on Tuesday, May 9, 2000, I shall move:

That the Standing Senate Committee on Foreign Affairs be authorized to examine and report on emerging political, social, economic and security developments in Russia and Ukraine, taking into account Canada's policy and interests in the region, and other related matters; and
That the Committee submit its final report no later than June 15, 2001, and that the Committee retain all powers necessary to publicize the findings of the Committee contained in the final report until June 29, 2001.

Agriculture and forestry

Notice of Motion to Authorize Committee to Meet During Sitting of the Senate

Hon. Leonard J. Gustafson: Honourable senators, I give notice that on Tuesday, May 9, 2000, I shall move:

That the Standing Senate Committee on Agriculture and Forestry have power to sit at 3:30 p.m. on Tuesday next, May 16, 2000, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.

Prime Minister's Visit to Middle East and Persian Gulf

Notice of Inquiry

Hon. Pierre De Bané: Honourable senators, I give notice that on Tuesday next, May 9, 2000, I shall call the attention of the Senate to the visit of the Prime Minister of Canada to the Middle East and the Persian Gulf from April 7 to 20, 2000.

Some Hon. Senators: Oh, oh!

QUESTION PERIOD

National Defence

Airworthiness of Sea King Helicopters

Hon. Gerald J. Comeau: Honourable senators, my question is for the Leader of the Government in the Senate. I listened very carefully yesterday to his response to Senator Forrestall's questions regarding the helicopters. I think the minister is still missing the point.

We know that the Sea Kings have a good maintenance regime. The ground crews are at the top of their profession, as are all of our aircrews. A 35-year-old Sea King is checked on the ground and is found to be airworthy. It then embarks on a mission. Once it is in the air, anything can go wrong, and too often it does. Any aircraft that has ever crashed was airworthy enough to get off the ground.

I draw the senator's attention to the Iroquois Detachment Commander's report that I read into the record earlier.

I shall summarize that report: Days at sea, 78; missions scheduled, 141; missions cancelled, 65. So 46.1 per cent of all missions were cancelled, 4 due to weather, 11 because of operations, and 50 due to the aircraft. That is 35.5 per cent of all missions. We are talking about a complete failure to even get off the deck.

Does the minister still want to talk about maintenance routine when, despite an excellent maintenance regime, the Sea Kings failed to fly 35 per cent of the time?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I thank the honourable senator for that question and his interest in a very important topic, an interest shared by many senators, particularly those from Nova Scotia.

In responding to this question, I would say we had an interesting and, at times, lively debate yesterday with respect to a number of issues. In responding to his question, I want to point out that there are a number of issues on which we agree. The first issue upon which everyone agrees is that the Sea King is an old aircraft and that it is a priority for replacement. There is no disagreement on that issue since it has been expressed in this chamber by a number of senators on many occasions.

Senator Lynch-Staunton: Is that why you cancelled the contract?

Senator Boudreau: There is no dispute that the Sea King, as an older piece of military equipment, requires quite a large amount of maintenance and upkeep. Statistics have been given on that issue. No one has stood in this place, least of all myself, to say that was not correct. We have an older piece of equipment that does require a high level of maintenance.

(1430)

However, I believe we parted company yesterday over a belief on the part of some that military personnel were being subjected to life-threatening situations in equipment that was absolutely unsafe and that we were putting military personnel at perilous risk of life and limb in this equipment. On that point, I disagreed, and I continue to disagree because I believe that the people who repair and service the craft and send it back into operation have integrity. The company that repairs and services the Sea Kings has integrity and its employees also have integrity. They believe that when that equipment goes back into service, it is fit and safe for the servicemen who will work in it. I know that because I have been to the plant and I have asked them that myself.

I also believe that military personnel who are in charge of operations and who assign people to go out on Sea King helicopters to perform tasks would not do so if they thought they were putting these lives in serious peril.

As I said yesterday, the minister continues to regard this as a top priority of his department. The equipment is old and needs a significant amount of maintenance. When individuals are sent on missions on this equipment, it is because that equipment is deemed to be able to perform that mission and to not place those individuals in peril of their lives.

Senator Comeau: Honourable senators, Lieutenant-Colonel Lee Myrhaugen, former Sea King squadron commander of Shearwater, said on CTV news that Sea Kings can be certified as safe on deck, but 10 minutes into flight they become unsafe due to their age and unreliability. Those are not my words; those are his.

With all due respect to the Leader of the Government in the Senate, who wants to win a seat in Halifax in the next federal election, Lieutenant-Colonel Myrhaugen knows more about Sea Kings than either the minister or myself. Would the Halifax candidate go to the Prime Minister this afternoon and demand that the Prime Minister initiate the Sea King replacement project?

Some Hon. Senators: Hear, hear!

Senator Boudreau: Honourable senators, the honourable senator is absolutely right about one thing: The individual he references knows more about Sea King helicopters than I do. I do not know the lieutenant-colonel, but I think that is probably a fairly safe assumption to make.

I was not able to watch the lieutenant-colonel's comments, but I did pick up the newspaper this morning and read some comments made by Brigadier-General Colin Curleigh. You will recall he was referred to and quoted here yesterday by another honourable senator. His comments were disturbing. I had the impression — and perhaps it was not the correct impression and I misunderstood the purpose of the quote — that it was done to support a contention that people were being sent out on missions in equipment that was putting them in peril of their lives and that Brigadier-General Curleigh was supporting that belief and that opinion.

I read this morning in a Halifax newspaper a quote from Brigadier-General Curleigh wherein he said that they reviewed everything and came to the conclusion that it is almost time to say these helicopters are unsafe. However, looking at the total picture, they could not bring themselves to say that they are dangerous or that they are unsafe.

Senator Lynch-Staunton: What do you expect him to say? That is comforting.

Senator Boudreau: In fact, the point made in the story is that he signals a need to make the replacement a priority and to take action.

Senator Lynch-Staunton: What are you waiting for?

Senator Boudreau: In fact, when questioned yesterday about this very topic, the minister referred to the $50-million refit of these Sea King helicopters. I gave more specific details in this chamber yesterday when I answered one of the questions with respect to that program. The minister lumped everything together and talked about the $50-million upgrade and refit. I think that is a substantial measure toward maintaining this equipment so that it will not become unsafe while we are in the process of hopefully replacing them.

Senator Comeau: Given that the minister is quoting selectively, would he go on to read the rest of the article, where it indicates that the reason these gentlemen are holding back on their comments is because they do not wish to worry and place the families of the men and women who fly these helicopters in a situation where they feel that their loved ones are being sent into danger? That is the reason these honourable people held back somewhat. If the minister wishes to quote the article further, I think it says that it is not a question of if but a question of when these helicopters will fall out of the sky.

Senator Boudreau: I think the honourable senator characterizes the situation in a fairly correct fashion. He says that unless something is done, at some point the Sea Kings will become unsafe. However, I do not see that anywhere in this article, although there may have been other articles making that suggestion. I did not cut that part out; however, it does not appear in this particular article.

He is quoted a second time as saying, "We are not saying they are unsafe, but by God we are seeing more and more indications that we are reaching that point."

Senator Lynch-Staunton: That is reassuring.

Senator Boudreau: That is fine, but the issue here yesterday was whether the Government of Canada or the senior military was sending people up —

Senator Forrestall: The issue is safety.

Senator Boudreau: The answer, according to Brigadier-General Curleigh, is no.

Senator Lynch-Staunton: He said we are not there yet.

Senator Boudreau: To ensure that this day does not come, the government has embarked on the $50-million program we spoke of in detail yesterday.

Replacement of Sea King Helicopters

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, yesterday, the minister told us that he met yesterday morning with senior military personnel to go over the procedure to keep these aircraft as safe as possible, and he was to give us a list of their names. I wonder if he could provide us with those names today.

Hon. J. Bernard Boudreau (Leader of the Government): I shall do so, honourable senators. The senior military personnel were directed to brief me on the program that I detailed yesterday at the instance of the minister, and out of courtesy I want to indicate to him that I shall be giving those names to the Senate.

Senator Lynch-Staunton: The reason I ask, honourable senators, is because I suspect that the same people the minister met with yesterday might also have been there some years ago urging the government at the time to replace both the Sea Kings and the Labradors, the same people who supported the contract to buy 50 EH-101s and who urged that the Labradors and the Sea Kings then were unsafe. I suggest that was the reason the Government of Canada agreed to a major purchase of the EH-101s. This government, in 1994, cancelled the contract at a cost of well over $500 million — in fact, close to $800 million. Here we are seven or eight years later, no further ahead, with the same military personnel wondering why the Government of Canada is not following through and replacing the Sea Kings, which are deemed day by day, according to the quotation from The Chronicle-Herald, to be more and more unsafe.

Senator Boudreau: I shall say that the quote I referred to indicated that this gentleman, a retired brigadier-general, indicated they were not unsafe.

Senator Lynch-Staunton: Yet.

Senator Boudreau: He was concerned. I do not think we shall find a single person in uniform, or a single person here perhaps, who would not suggest that they want the Sea Kings replaced. That is not the issue. The issue was very important because yesterday in the Senate, an honourable senator was saying that military personnel are being sent out deliberately on equipment that is putting their lives in peril. That is a very important yet incorrect statement. Quite frankly, I do not see that statement supported, not even by the individual who was quoted.

(1440)

Hon. J. Michael Forrestall: Honourable senators, the minister knows the issue. The file is on the Prime Minister's desk, to quote the Prime Minister, but it is not on the agenda. Will he put it on the agenda? In 1978, the Prime Minister of this country was a member of a government that recognized the need to replace the Sea King.

If the minister is well briefed, he will know that a Labrador aircraft went down over Northumberland Strait today and landed. I do not have any other news yet. Another one was forced into the position of having to land outside its mission.

In 1993, a briefing note prepared by the Parliamentary Centre for Foreign Affairs stated that:

...the Sea Kings and the Labradors are old and safety measures are becoming increasingly difficult to guarantee.

The Prime Minister has the file. That plane is stable and safe as long as it is on the ground. Ten minutes in the air and only God has control over what happens to that plane, along with the gifts and talents of the men and women who fly them.

Senator Boudreau: Honourable senators, I have no difficulty delivering the message that the Honourable Senator Forrestall brings with respect to replacement. It is a message I can easily share, which has been indicated in the past.

Senator Forrestall: Will the government leader do something about it?

Senator Boudreau: It is a message that the Minister of National Defence has given personally on a number of occasions.

As the honourable senator will know, the Labrador helicopters are in the process of being replaced. Hopefully, that will be completed.

With respect to the Sea King, I would also say — and this information came by way of relative accident as opposed to any briefing session — that when I was reading the article to which I referred earlier, I happened to see that IMP Aerospace has landed a large contract to maintain the U.S. navy's Sea King helicopter fleet.

Senator Lynch-Staunton: How old are they?

Senator Boudreau: I have no idea. However, this same company performs the maintenance and will do much of the $50-million upgrade program on our Sea Kings. They have been awarded what I am told is the largest military contract ever awarded to a Canadian company. That expresses the confidence at least of the U.S. navy in the ability of that company to do very good work with respect to the Sea Kings.

Senator Lynch-Staunton: How old are their Sea Kings?

Senator Forrestall: Honourable senators, would the minister table the documents from which he quoted yesterday, together with the names requested by the leader of our party?

Senator Boudreau: I have no difficulty tabling that document, honourable senators.

Senator Forrestall: The minister said yesterday that he would do it, but he did not.

Senator Boudreau: I do not recall discussing the tabling of any documents.

Senator Forrestall: The minister volunteered to do so — until he lost his cool.

Senator Boudreau: If the honourable senator wants the document, we shall give him the document. I can do it, perhaps, by the end of today. However, failing that, the honourable senator will have it at the next sitting of the Senate.

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

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, the other day I asked if the minister knew whether the FAA in the United States of America permitted Canadian Sea King helicopters to fly in American airspace. Can the minister answer that question today?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I put that request forward and am awaiting a response. I have not as yet received an answer. I shall forward the answer as soon as I receive it.

Possibility of Suspension of Anthrax Vaccination Program

Hon. Michael A. Meighen: Honourable senators, yesterday, a delayed answer was given to an oral question I asked of the minister on April 13 as to whether the crew of the HMCS Calgary would be vaccinated with that suspect anthrax vaccine from the U.S. The government responded that the U.S. manufacturer's vaccine will be carried onboard the ship but used only if the present threat level escalates. My question to the minister is twofold.

The anthrax vaccine must be given three times over six weeks initially and then at six-, twelve- and eighteen-month intervals to ensure full protection. Can the Government of Canada guarantee that they will have 18 months' advance warning of a biological threat?

The government indicated that the vaccine manufactured by Bioport has not been banned for use in the United States. That may be so, but what we do know is that the U.S. Food and Drug Administration has questioned the credibility of the Bioport vaccine. If there are concerns about the credibility of this U.S. product, why are we not seeking an alternative vaccine from elsewhere, such as Great Britain, where I understand such a vaccine does exist?

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I thank the Senator Meighen for his question and his follow-up to the response supplied by the department. It will come as no surprise that I am not a medical expert either in the area of the anthrax vaccine or in any other area. I can simply convey the additional follow-up inquiries that the honourable senator has raised and, hopefully, provide him in due course with a response to both of his questions.

[Translation]

Health

Approval Process of Pharmaceutical Products—Effect of Delays on Investment by Companies

Hon. Roch Bolduc: Honourable senators, my question is for the Leader of the Government in the Senate. The pharmaceutical industry is a major industry in the province of Quebec, among others. It invests $1 billion a year. This industry, thanks to the good policies of the Conservative government, managed to triple, from 1,000 to 3,500, the number of researchers in this area. It is an industry of the future.

The problem is the approval of new drugs, after the research stage, by the Department of Health. Mr. Marcheterre, chairman of the board for Canada's pharmaceutical research companies, indicated that it takes 600 days in Canada to evaluate a new drug, compared to 350 days in the United States and 200 days in France.

Why does it take so long in Canada? Delays ultimately have an impact. People lose patience and go elsewhere to develop their products. The evaluation must be done in an effective manner. Is it because health standards are higher in Canada? Are these standards higher in Canada than in France and in the United States? Is it that the department does not have enough personnel to deal with these issues? Can something be done to improve the situation? The situation improved between 1986 and 1994. It has also improved since 1994, but it seems to me that a time frame of 600 days does not make sense.

[English]

Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, in responding to Senator Bolduc, I would be interested in knowing — and I ask very directly and I have no ulterior motive in knowing — whether the approval time changed over that period of time. Has it been increasing, or has it always been at that level and we simply have not kept up with others? That would help me in terms of directing my honourable friend's inquiry to the appropriate authorities.

As the honourable senator will know, it is a question of balance. On the one hand, there is the protection of the public and those individuals who would be using these pharmaceutical products. On the other hand, that protection must be balanced with a need to bring a new and beneficial product to the potential patient as quickly as possible for the benefit of that patient, and also to allow the company to deal with these matters in an efficient, businesslike way. That balance must be struck. If we lean too much to one side, then I think we want to be on the side of protecting the public and the potential consumer. However, I shall certainly take this issue up with the Minister of Health.

I am sure there are countries that approve some drugs in two weeks. We do not want to follow those examples. In terms of the major countries cited by the honourable senator and the comparison he made to Canada, I shall ask for a response.

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I would be interested in knowing if the honourable senator knows whether or not that circumstance in Canada has changed and whether our approval has increased, decreased or remained the same?

Senator Bolduc: I have stated before that it has improved in the last five or six years, perhaps 10 years, but the rate is still double what is happening in the United States and three times what is happening in France. I believe France is recognized as a country where the standard of public health is quite good.

Would the Leader of the Government in the Senate ask the minister to provide an explanation, and, second, if he can, to do something to improve the situation? Otherwise we shall lose investments, and we all know that we need investments.

Senator Boudreau: Honourable senators, I certainly shall undertake to the honourable senator to ask for an explanation on the comparison that he cites, and perhaps as well get other comparisons to countries with an acceptable process of drug acceptance. While I am pleased to see that the situation has improved over the last number of years, I shall also ask whether the department has any plans presently to narrow that time frame even further.

Delayed Answer to Oral Question

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, I have a response to a question raised in the Senate on March 1, 2000, by Senator Oliver, regarding the transitional job fund grants to PLI Environment Ltd.

Human Resources Development

Transitional Jobs Fund—Grants to PLI Environment Ltd.

(Response to question raised by Hon. Donald H. Oliver on March 1, 2000)

Regarding questions on why PLI Environment Ltd. was awarded "three times the amount requested" and how HRDC justifies the significant increase in the amount of the funds awarded:

- The increased assistance was requested by the company through an amended proposal for additional funds to increase the number of new sustainable jobs created from 50 to 125.
- The PLI project — Sydney Steel North End Clean-up — was recommended by the local advisory committee, the local MP and the Province of Nova Scotia.

The government cannot comment any further on this project as it is currently under investigation.
However, all projects have a degree of risk associated with them, particularly when we are trying to create jobs in areas with significantly high unemployment. Projects are approved in good faith that they will proceed as planned.
Getting people back to work so they can support their families — that is the government's priority and this is what it needs to focus on.

Answers to Order Paper Questions Tabled

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, pursuant to rule 25(2) of the Senate, I table replies to a series of written questions by Senator LeBreton, most of the responses being from the Minister of Human Resources Development.

Human Resources Development—Grant to 10642 Newfoundland Limited

Hon. Dan Hays (Deputy Leader of the Government) tabled the answer to Question No. 1 on the Order Paper—by Senator LeBreton.

Human Resources Development—Grant to 9057-5093 Company

Hon. Dan Hays (Deputy Leader of the Government) tabled the answer to Question No. 2 on the Order Paper—by Senator LeBreton.

Human Resources Development—Grant to 904-30042 Comapny

Hon. Dan Hays (Deputy Leader of the Government) tabled the answer to Question No. 3 on the Order Paper—by Senator LeBreton.

Human Resources Development—Grant to 3393062 Canada Inc.

Hon. Dan Hays (Deputy Leader of the Government) tabled the answer to Question No. 4 on the Order Paper—by Senator LeBreton.

Human Resources Development—Grant to 9069-1049 Québec Inc.

Hon. Dan Hays (Deputy Leader of the Government) tabled the answer to Question No. 5 on the Order Paper—by Senator LeBreton.

Human Resources Development—Grant to 9037-1956 Québec Inc.

Hon. Dan Hays (Deputy Leader of the Government) tabled the answer to Question No. 6 on the Order Paper—by Senator LeBreton.

Human Resources Development—Grant to 3458121 Canada Inc.

Hon. Dan Hays (Deputy Leader of the Government) tabled the answer to Question No. 7 on the Order Paper—by Senator LeBreton.

Human Resources Development—Grant to 142968 Canada Ltée

Hon. Dan Hays (Deputy Leader of the Government) tabled the answer to Question No. 8 on the Order Paper—by Senator LeBreton.

Heritage—Visit of Minister to Newfoundland

Hon. Dan Hays (Deputy Leader of the Government) tabled the answer to Question No. 9 on the Order Paper—by Senator LeBreton.

National Capital Commission—A Place for Canadians, the Story of the National Capital Commission

Hon. Dan Hays (Deputy Leader of the Government) tabled the answer to Question No. 10 on the Order Paper—by Senator LeBreton.

ORDERS OF THE DAY

Canada Elections Bill

Third Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Hays, seconded by the Honourable Senator Moore, for 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.

Hon. Donald H. Oliver: Honourable senators, it has been clear for a number of years now that the restrictions imposed on third-party advertising, like those proposed in this and previous governments, infringe on the right of free expression as guaranteed by the Charter of Rights and Freedoms.

Honourable senators, the issue of limiting third-party advertising goes back to the Trudeau years and, indeed, before. I suppose it really started with the advent of television and the exorbitant costs associated with television advertising. From the late 1950s on, these costs became a source of increasing concern to everyone involved in politics, particularly at the federal level.

In 1964 the Committee on Election Expenses was set up to study the problem. The Barbeau commission, so called after its chair, Alphonse Barbeau, recognized in its report that there was a need to impose greater controls on election spending. This was to be achieved, among other ways, by limiting the amount of money that parties and candidates could spend on election advertising.

At the same time, the commission realized that restrictions would be effective only if all the actors in elections, including third parties, were covered by the same legislation. However, it was not until 1974 that the Canada Elections Act was finally amended. The amendments prohibited individuals and groups from incurring expenses to promote candidates or parties except with the express permission of their agents, and then only within the limits set out by the law. Third parties were permitted to incur expenses but only for the purpose of attracting support for their own views on policy issues or those of a non-partisan organization.

Human nature being what it is, people were quick to take advantage of the possibilities offered by the imprecise nature of the clause. Soon the Chief Electoral Officer was warning that what had begun as a restraint on third-party spending had turned, instead, into a growing loophole. Therefore, in 1983, the law was again amended. The amendment effectively prohibited third parties from using their own resources to support or oppose candidates or parties during election periods. It is not surprising that the measure was soon challenged.

In 1984 the National Citizens' Coalition won its case. The Alberta Court of Queen's Bench ruled that the original 1974 clauses, as amended in 1983, prohibiting all independent election spending, were unconstitutional. They constituted an unjustified restriction on freedom of expression as guaranteed by the Charter of Rights.

Honourable senators, I should like to quote a short passage from the Lortie commission report.

The federal government decided not to appeal the judgement —

They are referring to the Somerville decision.

— or to amend the law in a manner consistent with the Charter. Elections Canada decided not to enforce the law outside Alberta during the 1984 and 1988 general elections, even though the judgement was not binding on courts outside of Alberta. These decisions destroyed the overall effectiveness of the legislative framework for promoting fairness in the exercise of freedom of expression and of democratic rights during Canadian elections...
The gaping hole in our existing framework that this development presents for electoral reform is now widely acknowledged. Without fairness, we may continue to have a "free" society, but we would certainly diminish the "democratic" character of our society. The Charter couples these two dimensions. It is essential that both Parliament and the courts acknowledge this fundamental fact.

Honourable senators, those opposed to the limits put their arguments in the context of freedom of speech, the right of Canadians to participate in the most important of our democratic processes, and their right to be properly informed about the issues. For myself, I agree wholeheartedly that the election playing field should be level. At present, it is not, but with this bill the situation will not be any better. A maximum limit of $150,000 for 301 ridings is a little ridiculous. That is approximately $500 per riding. What is an organization or a group to do with $500 today? I feel that section 350(2) should be amended.

Surely, honourable senators, you would agree that elections are a time of fundamental importance in our national life, and that the more information people have the better their chances of casting informed votes.

Let me again quote the Lortie report. I do so to underline for honourable senators that my intent is not to redesign the wheel. What I am saying here has been discussed and debated for a long time. On page 328 of Volume 1 of the Lortie report we read the following:

Given the centrality of fairness as a fundamental condition of equality of opportunity in the electoral process, the electoral regulatory framework must be rebuilt. This requires a law with provisions that promote fairness by limiting the election expenses of candidates and parties, by securing access to the broadcast media, and by also limiting, but not ruling out, the opportunity for other individuals and groups to spend independently of candidates and parties during the election period in ways that may directly or indirectly affect the election outcome for at least one candidate or party.

Three times now, in the Roach case, the Somerville decision, and the Pacific Press/Nixon ruling just two months ago in the British Columbia court, the courts have found punitive restrictions on third-party advertising to be unconstitutional.

Honourable senators, the government still has not got it right. For decades now, the federal government has been trying to regulate the activities of the so-called third parties and their activities during an election period. The government tries to legislate controls that limit what third parties can do to directly promote or oppose candidates and parties during an election. As I tried to say in my second reading address to the chamber, Bill C-2 still has it wrong. Bill C-2 did not heed the advice of the Lortie commission, and the bill does not heed the advice of academics who have spent long periods of time extensively studying the issue.

Honourable senators, it is my opinion, based on some 30 years of studying election law in Canada and being actively engaged as a legal director of six national elections campaigns, that, if challenged, Bill C-2 provisions respecting third-party advertising will once again be struck down as unconstitutional.

Permit me, honourable senators, to briefly give you the most recent judicial statements on the problem in Canada. It is from a case called Pacific Press, a Division of Southam Inc. v. British Columbia (Attorney General). This is a decision of the British Columbia Supreme Court filed by Brenner J. in Vancouver on February 9, 2000. In these actions the plaintiff challenged the constitutionality of the 1995 amendments to the Election Act, which limit the amount that third parties can spend during election campaigns and which impose certain requirements on those who first publish or report on election opinion surveys.

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I do not have time in the eight minutes remaining to me to take you through the details of the decision, but I would like to quote a few salient paragraphs from Justice Brenner's decision. In paragraph 40, he concluded by saying the following:

I accept the evidence of Professor Johnston under cross-examination who testified that advertising by parties in the election campaign matters. I conclude that spending, particularly well crafted spending by candidates or political parties in election campaigns likely can have an effect on voter intention. However, I also conclude that, unlike party and candidate advertising, there is no evidence which would allow me to conclude that third party advertising or spending has an impact on voter intentions.

Senator Hays and other honourable senators have relied heavily on some Supreme Court of Canada dicta in the Libman case. Justice Brenner clearly distinguished Libman in paragraphs 96 to 110 of his decision. At paragraph 103, for instance, he said:

A lower court is not bound to a previous Supreme Court of Canada authority in circumstances where the lower court is satisfied that evidence contrary to the evidence upon which the purportedly binding authority was based is available in the case at bar.

The essence of the problem, honourable senators, is this: The Lortie commission, of which Senator Pépin and I were members, commissioned through Professor Peter Aucoin a series of research papers designed to show the effects that third-party advertising can have on an election campaign. In the Libman case, the courts relied on the Lortie commission's findings and Professor Aucoin's testimony at trial with respect to the impact of third-party spending. The Lortie commission and Professor Aucoin in turn relied on Professor Hiebert's research paper on the subject in which she relied on Professor Johnston's preliminary findings following his study of the 1988 elections. It is clear from the evidence that the Lortie commission itself relied on Professor Johnston's preliminary findings.

Here is the significant turning point: Professor Johnston no longer stands behind those preliminary findings. Accordingly, the conclusions of the Lortie commission on this issue can no longer be said to be based upon empirical findings. As well, of course, Professor Johnston's later publication entitled "Letting the People Decide," was not available to the court in the Libman case. Justice Brenner said that the case before him had a different set of facts from what was before the court in the Libman case. Hence, in his view, the Supreme Court of Canada's decision in Libman is not dispositive of the issues before him.

Justice Brenner made the following finding:

Professor Peter Aucoin is a professor of political science at Dalhousie University. He was also qualified as an expert in the field of political science. He testified for the AGBC. Professor Aucoin was the research director for the Royal Commission on Electoral Reform and Party Financing (the "Lortie Commission"). He also gave expert evidence at the trial in Libman.
Professor Aucoin testified that the Lortie Commission's third party spending recommendations were premised on the belief that third party advertising had an effect on voter intentions and it relied on the Johnston 1990 memo for that conclusion. Both Professor Aucoin and Professor Frederick Fletcher, who was also qualified as an expert witness and who testified for the AGBC, agreed that Letting the People Decide is the most sophisticated study of its kind to date. They agree that Professor Johnston's conclusion from that study was either that third party spending had no effect or that at least no effect had been demonstrated.

I accept the evidence of Professor Johnston under cross-examination who testified that advertising by parties in election campaigns matters. I conclude that spending, particularly well crafted spending by candidates or political parties in election campaigns likely can have an effect on voter intention. However I also conclude that, unlike party and candidate advertising, there is no evidence which would allow me to conclude that third party advertising or spending has an impact on voter intentions. Professor Aucoin examined indicators such as party turnovers, voter turnout and similar indicia of competition. He determined that Canadian federal elections had been fair over the past 20 or 30 years during a period of time where there was effectively no restriction on third party spending.

In summary the experts who testified at trial agreed that there is no empirical study or evidence that third party spending has ever impacted on a referendum campaign or an election campaign in Canada. They also agreed that the only empirical studies or evidence on this subject demonstrate that third party spending either has no impact or at the very least that no impact can be demonstrated. In the result I find that there is no empirical evidence that third party spending during election campaigns has in the past affected voter intention in Canada.

Honourable senators, every democracy has its own peculiar way of dealing with third-party advertising. In France, no political advertising is allowed by anyone in newspapers, nor on television or radio during the electoral periods. In Great Britain, third parties can only advertise in newspapers during national elections. They are forbidden, as are regular parties, from advertising on the radio or television. In Germany, third-party advertising is almost non-existent, apparently by common consent. In the United States, of course, there are virtually no limits on third-party or soft-money spending.

Somewhere in here is the happy median which Canada should adopt. By "happy median" I mean a policy which has fairness as its central tenet.

Motion in Amendment

Hon. Donald H. Oliver: Honourable senators, I therefore move, seconded by Senator Murray:

That Bill C-2 be not now read a third time but that it be amended, in clause 350, on page 144, by replacing line 6 with the following:

"(2) Not more than $4,000 of the total".

Senator Kinsella: Good motion!

Some Hon. Senators: Hear, hear!

The Hon. the Speaker pro tempore: It was moved by Senator Oliver seconded by Senator Murray:

That Bill C-2 be not now read a third time but that it be amended, in clause 350, on page 144, by replacing line 6 with the following:

"(2) Not more than $4,000 of the total..".

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Hon. the Speaker pro tempore: Is the house ready for the question?

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, I should like to speak to the amendment, if I may.

I listened carefully to Senator Oliver and his well-organized and well-researched presentation which, essentially, is in support of an amendment to Bill C-2, respecting the election of members of the House of Commons. I do not want anyone to be confused. One senator opposite thinks I might have the wrong bill, but I am quite sure I have the right one. When I am finished, I am sure you will all agree that this amendment is not one which should be supported.

Honourable senators, I listened to Senator Oliver's amendment with care. I shall try to be as brief as I can be. It is an oversimplification, but I think that the foundation for the amendment is —

Senator Kinsella: Solid!

Senator Hays: — the case of Pacific Press, a Division of Southam Inc. v. British Columbia, a judgment of Justice Brenner on February 9.

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This judgment seems to be based on a very important finding. Without having read the case, I will admit, but with Senator Oliver's very thorough and comprehensive description of the judgment, its basis and the quote from Justice Brenner, it is founded on a finding that third-party advertising has no impact on voting intentions. In its most logical conclusion, that would support an amendment eliminating any spending limits, which is, of course, the case we have now in that the previous restrictions on spending have been struck down as they were contained in the previous act we are now revising.

In any event, I am very pleased that Senator Oliver agrees that spending limits are appropriate. His thrust is to make them more generous than as provided in this bill.

The other side of this issue is, of course, the Libman case, which is based on a different premise. If the Supreme Court of Canada — the higher court, I note — was of the view that third-party spending or third-party advertising had no impact on voting intention, I suspect that their judgment would have been in accord with that premise. I am not sure what it would have been, but I observe that Canada's highest court has made a judgment I believe premised on the fact that third-party spending does have an impact and, accordingly, that there should be some limit.

Of course, Senator Oliver agrees. It is just that we are not in agreement on the limit. The bill says $3,000 per riding, and Senator Oliver says $4,000 per riding.

Just to go over the basis for the rationale of the limit in the act, I would to make reference to Libman. The court has used the words "highly laudable objective" in terms of providing for spending limits.

Having supported the idea of spending limits — and I have given my reasons why — the Libman case would have a different result than the Southam case. Based on the finding of whether third-party spending affects voting intention, the court accepts that spending limits are appropriate and states that, for spending limits to be fully effective, such expenses should include not only those incurred by political parties and candidates but also those incurred by independents, individuals and groups unrelated to the parties and candidates.

The highest court has said that the question then becomes one of balancing the interests between the parties and third parties in terms of the appropriateness of the spending limit of $3,000, as provided for in clause 350(2) of Bill C-2. I am advised in my briefings on this bill that this determination is based on what other political parties spend and what is appropriate in terms of a balanced approach. In limiting third-party spending, we must bear in mind many third parties may be spending on an election, as well as the political parties who are spending as parties and whose individual candidates are spending as such in the various ridings.

With reference once again to the Libman case in support of the provisions of Bill C-2, while we recognize their right to participate in the electoral process, independent individuals and groups cannot be subject to the same financial rules as candidates or political parties and be allowed the same spending limits. Although what they have to say is important, it is the candidates and political parties who are running for election. Limits on independent spending must therefore be lower than those imposed on candidates or political parties, otherwise, because of third parties numbers, the impact of such spending on one of the candidates for political parties to the detriment of the others could be disproportionate.

The court did not decide the issue but, in looking at Bill C-2 and the evidence that was heard by the committee, we observed that the national limit is $150,000. I shall start with that because the $3,000 or $4,000, as Senator Oliver would prefer, is a function of that limit. The $150,000 national limit would provide for national expression by allowing third parties to place ads in national and local print media.

The limit, it seems to me, in the view of the drafters of this bill and as provided for in the bill — and I support it fully — is that this is the appropriate amount in terms of achieving a balance. A $3,000 limit would be a considerable amount given of how much is spent by candidates in a riding in an election year on average. In the 1997 election, the average actual expenditure on advertising by candidates was $13,600, as was presented to the committee by the Chief Electoral Officer.

I put it to you, honourable senators, that the total amount, if divided by 301, would not be very much. However, third parties are prone to targeting ridings. The $3,000 amount is certainly within the amount that balances what candidates have to spend during election with the amount that they face in terms of third parties dealing with an issue or dealing with their party, bearing in mind that they might be facing two or three third-party spenders in the riding.

I would urge honourable senators not to support the amendment proposed by Senator Oliver. I believe the evidence he presented on the Lortie commission report and how that has evolved is very helpful, but the major distinction is one that has a court basically ignoring the effect of third-party spending and one — and it is the higher court — not ignoring it, indicating that the legislature is entirely within its power. In fact, it has a responsibility to look at third-party spending. The product of that exercise and the legislative result is Bill C-2.

I do not intend to talk now about other matters relating to Bill C-2 because there may be an opportunity later if there are other amendments. I shall confine my remarks to the principal issues raised by Senator Oliver, which culminate in his amendment increasing between one quarter and one third the amount that a third party may spend in a given riding.

Honourable senators, I add a personal observation, though it may be unnecessary and unwise to do so. If there is no impact by third parties spending in an election or on an issue in a referendum and if that is Professor Aucoin's view — and I believe he is quoted in the book by Mr. Fletcher, Letting the People Decide —I am very puzzled as to how that conclusion could be drawn. The fact that third parties do spend is empirical evidence that they believe, at least in their own minds, that their spending does have an impact. Perhaps it is just a matter of perception but, as we all know, perceptions are important.

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We must also consider the perceptions of candidates seeking office and the parties who sponsor them. They may run candidates in a field where third parties have an unlimited right to spend simply because someone formed an opinion that spending has no impact and the B.C. Supreme Court agreed. That is a very unsatisfying perception for one out on the hustings.

Senator Oliver probably agrees, or he would have worded his amendment to eliminate all spending. He did not do that. His measure is much less encompassing. There is not a great deal of difference between the two amounts.

I urge honourable senators to support Bill C-2 as currently drafted, including clause 350 as currently structured with a limit of $3,000 per riding.

Honourable senators, I may have an opportunity to comment further later. I recommend to honourable senators that we not support the amendment proposed by Senator Oliver.

Senator Oliver: Honourable senators, I wonder if Senator Hays would entertain a question?

Senator Hays: Yes.

Senator Oliver: The cases of Roach, Somerville and Pacific Press, among others, have all been found by Canadian courts to be unconstitutional because they infringe the rights afforded Canadians under the Canadian Charter of Rights and Freedoms. Can the honourable senator tell this chamber what material changes in language are made in Bill C-2 to prevent it from being struck down for the same reasons and on the same grounds as Roach, Somerville and Pacific Press?

Senator Hays: Honourable senators, that is a good question. I have a good answer. Roach, Somerville and some of the other cases, perhaps all of them, are decisions of the Alberta Court of Appeal. It is not so much the wording of the clause in Bill C-2 that matters as the judgments of the Supreme Court of Canada made subsequent to those findings.

It is also interesting to note that those decisions at the appellate level were not taken to the Supreme Court of Canada. One might speculate that, had they been appealed, different decisions might have been handed down. Those decisions found unconstitutionality not in the cases but in provisions of previous election acts. The obiter dicta of Libman is the most important difference between then and now.

Senator Oliver: Honourable senators, Libman was expressly distinguished by Justice Brenner in the Pacific Press case.

Senator Hays: Honourable senators, if I could treat that as a question, Justice Brenner was required to distinguish it. The honourable senator explained why he distinguished it.

If I understood the honourable senator correctly, the judge relied on Fletcher and Johnston and Aucoin in saying that third-party advertising has no impact on voting intention. That is an oversimplification, I know, but that is the main basis. That was not so in my view nor, as I explained earlier, in the position of the Supreme Court of Canada.

On motion of Senator Atkins, 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, 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. Jean-Robert Gauthier: Honourable senators, I rise as a senator for Ontario and a Franco-Ontarian by birth to take part in today's debate on Bill C-20, commonly known as the clarity bill.

Coming up shortly to 30 years as an MP and senator, I am well aware of the respective responsibilities of the two Houses comprising the Canadian Parliament: the House of Commons and the Senate.

I have always worked to defend the rights of official language minorities in this country. In my own way, I have made a contribution to the implementation of measures aimed at ensuring that all Canadians have the right to live and to educate their children in the official language of their choice anywhere in this country.

In creating the Senate, the Fathers of Confederation wanted to ensure equitable representation for the regions of the new country of Canada within the Canadian Parliament, as a counterbalance to the representation in the House of Commons, which was, as you know, to reflect demographic concentrations. That is why it was decided that an equal number of senators would come from the four regions of the country as designated in 1867.

Historically, the Senate was also intended to assume responsibility for defending the minorities of this country. The Senate's dual role as guardian of regional interests and of minority rights has been confirmed in two decisions by the Supreme Court of Canada, in 1980 and in 1981.

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It is in that dual role of defender of Canada's francophone minorities and representative of the minority in Ontario that I speak today on a matter dear to my heart, one which has been of concern to me ever since I started in politics.

Bill C-20 on the clarity of a potential referendum question on the secession of Quebec and of the results of such a referendum is the response by the Government of Canada to the opinion of the Supreme Court of Canada in the Quebec Secession reference. The government put three clear questions to the Supreme Court, which replied clearly. I am not indifferent to the arguments put forward by the Supreme Court in its August 20, 1998 opinion and I think that this opinion could serve in any move to secede within the country. What concerns me is the effect of any secession within my country, which I would hope is indivisible, but, primarily, it is the secession of Quebec and its consequences on the francophone minorities of the country.

I say right off that I believe, as the Minister of Intergovernmental Affairs put it so well in his brief to the committee studying the bill, that:

It is reasonable for the Government of Canada to not consider negotiating secession unless a clear question on the secession was first put;
It is reasonable for it to not undertake to negotiate the break-up of the country on the basis of an uncertain majority; and
It is reasonable as well for the Government of Canada to be unable to negotiate secession other than in a legal context, in this case by complying with the opinion of the Supreme Court of Canada in its entirety.

I should like to raise two points I consider very important with respect to the bill as passed in the House of Commons on March 15: first, the cameo role of the Senate in the referendum process and, second, the lack of importance accorded the linguistic minorities in this country.

On the first point, Bill C-20 accords the House of Commons alone the right to decide on the clarity of the question and of the results of some future referendum on the secession of Quebec. It excludes the Senate from any decision. There is talk of consultation, but we know what that means.

However, such an approach goes against Canada's bicameral parliamentarism, which recognizes the obligation to consider the majority consent of both Houses of Parliament, the House of Commons and the Senate, before binding the Canadian government in law. In fact, Bill C-20 reads as follows, just after the whereases and just before clause 1:

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts...

That statement, coming just before the clauses of the bill, confirms that, in the Canadian parliamentary system, any measure that legally binds the Canadian government must get the consent of the two Houses of Parliament, that is the Senate and the House of Commons.

It seems that the drafters of Bill C-20 gave a very restrictive interpretation to the expression "political actors," which is used a few times by the Supreme Court in its opinion on the reference relating to the secession of Quebec. Paragraph 153 of the reference reads as follows:

...it will be for the political actors to determine what constitutes a clear majority on a clear question in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle.

The Canadian Constitution provides that there are political actors in both Houses of Parliament, since a majority of the members of these two Houses must vote in favour of any decision that binds the Canadian government. If it passes this bill, the Senate will exclude itself from the referendum process, when it has a role to fulfil as protector of the regions and of the minorities. What would happen if, during a referendum campaign, the Supreme Court ruled that the House of Commons cannot, alone, bind the Canadian government regarding the referendum question or its outcome? One can imagine the impasse that this would create. If it was the intention of the drafters of Bill C-20 to reduce the role of the Senate, then a formal constitutional amendment was required, as provided under the Canadian Constitution.

In my view, Bill C-20 assigns to the Senate a mere consultative role by stipulating in paragraphs 1(5) and 2(3) that:

The House of Commons shall take into account...any formal statements or resolutions by the Senate.

Such a provision places the Senate on a list of minor players who could give their opinion on the question and whom the House of Commons will have to consider, a list which includes the political parties of the secessionist province, the government or legislative assembly of any province or territory of Canada, and representatives of the aboriginal peoples of Canada. Recently, the government officially guaranteed representatives of the aboriginal peoples that they would be invited to the negotiating table, if there were a clear question and a clear answer. Obviously, I have no objection to aboriginals being invited. Why did it occur to no one that there were francophones in every province of this country who expect to be defended by someone? By whom? The majority in the House of Commons? There is nothing to guarantee that that majority will continue to be reasonable and understanding. There is nothing to guarantee that the majority in the House of Commons will be sympathetic to the francophone minority or to the French fact in Canada.

This is an important issue for me. I think that the bill should be amended in committee to include Canada's linguistic communities represented perhaps by the group known as Alliance Québec and the Fédération des communautés francophones et acadienne, which is working on behalf of all French-speaking Canadians living in other provinces.

In my view, Bill C-20 assigns to the Senate a mere consultative role, but we shall not be there to protect the interests of the regions or of minorities. Bill C-20 excludes us.

My second point, honourable senators, concerns the lack of reference, once again, to linguistic minorities in Bill C-20. Demands from aboriginal peoples enabled Mr. Fontaine to obtain a guarantee from the government for First Nation representatives to be invited to the negotiating table. I still wonder what the fate of Canada's francophone and Acadian communities will be, if Quebec secedes. Would their fate not be equally affected and should their input not also be taken into consideration in the entire Quebec referendum process? As we know, French-Canadians constitute a minority in Canada, a minority that is largely concentrated in Quebec. There are 6.5 million French-speaking Canadians living in Quebec and there are another million francophones outside Quebec. I do not need to draw a picture to illustrate our locations: we are 500,000 strong in Ontario and 275,000 in New Brunswick, in Acadia.

(1540)

In my opinion, Quebec is essential to the survival of the Canadian francophonie. If Quebec broke away from Canada, what would happen to the French fact outside Quebec? I ask this question honestly. What would happen to the Acadians? What would happen to the francophones living in Alberta or Saskatchewan? They think that their country is indivisible, as I do, and believe they have the right to raise their children, their families, anywhere in this country in the language of their choice.

Honourable senators, there are 6.7 million Canadians in this country whose mother tongue is French, 5.7 million of them in Quebec, which leaves about 1 million more in the other provinces and territories of this country. In relative weight, according to 1996 statistics, 86 per cent of Canada's francophones live in Quebec and 14 per cent elsewhere in Canada. Do these one million francophones not deserve to have Parliament ask their opinion on the potential secession of Quebec and take it into consideration?

I ask this as a Franco-Ontarian senator. There are two of us, Senator Poulin and myself, appointed to represent, here in the Senate, the francophone minority of my province, Ontario. I was born here, I was raised here, and I shall keep on living here for a little while longer, perhaps.

Honourable senators, I shall use an expression that was used in 1982. I was told I should be reasonable; I am. Section 1 of the Constitution Act, 1982, provides that rights and freedoms are subject to reasonable limits. If I am to be reasonable, why am I told in section 23, and I quote:

...the number...is sufficient...

The provisions in clauses 1 and 23 are incompatible, and I believe, honourable senators, that this is unacceptable nonsense. The blind, the disabled, the deaf are not counted. Canadians are simply given rights in a Constitution, which, I acknowledge, is important for us. For heaven's sake, stop counting us. It makes no sense.

I also want to say that it is reasonable for the Parliament of Canada to receive and accept recommendations by members of the francophone and native communities of this country. Good grief! We are going to continue to live here and we shall not break up my country in order to threaten this Canadian experience! This experience of bringing two different linguistic communities with their different histories together under one roof is one of the first in the world.

I hope that a referendum will never be held, but if one were and it threatened the future of my country, I would want someone to stand up and speak on behalf of the official language minorities. These minorities have struggled to retain their culture, their heritage and their constitutional right to speak English or French.

I shall conclude, honourable senators, by saying that I shall not fight Bill C-20. I shall abstain. I shall try to convince the members of the special committee struck to study Bill C-20 to pass an amendment permitting the country's official language minorities to have their say, should a province secede.

The Hon. the Speaker pro tempore: Honourable senators, the time allowed is up. Is leave granted to continue the debate?

Hon. Senators: Agreed.

Hon. Lowell Murray: By way of a question for my friend, the honourable senator, I would simply like to put forward a clarification on the role of the First Nations in the negotiations on the secession of a province. I believe I heard the honourable senator say that the government had made a commitment to give the First Nations of Quebec a place at the negotiating table.

Unless I am mistaken, Chief Fontaine proposed three amendments. The government approved the two amendments requiring the House of Commons to take into account any formal statements or resolutions by the representatives of the aboriginal peoples of Canada in considering the clarity of a referendum question and whether there was a clear majority.

With respect to the issue of a place at the negotiating table, unless I am mistaken, the government explicitly rejected an amendment along these lines. The aboriginal peoples of Quebec have not been guaranteed a place at the negotiating table.

[English]

Senator Gauthier: I am surely not an expert on what was said between Mr. Fontaine and the government. What I have been reading and hearing is mostly from the press. If my understanding is correct, Senator Murray is accurate in his interpretation. However, if the native people of Canada and the First Nations are to be involved in the clarity of the question, why are the language minorities not also involved in the same process?

Senator Murray: I should have said that I agree completely with that point.

[Translation]

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Would Senator Gauthier care to give his views on the very important issue of the protection of linguistic minorities, which is one of the primary roles of the Senate of Canada? It is understandable that the House of Commons plays another role, given the dynamics of politics — an election must be held every four years.

Does Senator Gauthier agree that it is very important that senators be able to find a solution to an oversight in the present bill? We must enhance the role of the Senate of Canada and exercise our responsibilities and our obligations with respect to the protection of linguistic minorities.

[English]

(1550)

Senator Gauthier: Honourable senators, I am not asking that our role be increased. I just want it to be maintained as it has been since 1867. That is to say that, as a senator, whether they like it or not, I am a political actor, just as the Supreme Court of Canada has said.

Hon. Senators: Hear, hear!

Senator Gauthier: Honourable senators, perhaps I should not say what I am about to say. However, I strongly believe that my purpose here is not to try to please everyone all the time in order to get elected. I am here to do something important in Canada, that is, to apply the fundamental respect of minority rights which we have enshrined in our Constitution.

Hon. Senators: Hear, hear!

[Translation]

Hon. Fernand Roberge: Honourable senators, I take this opportunity to congratulate Senator Gauthier on his excellent speech.

Honourable senators, several of my colleagues here have pointed out the dangerous inaccuracies and inconsistencies found in Bill C-20, which is said to bring clarity to the interpretation of a future Quebec referendum.

I shall restrict my comments to a few remarks on the political context and consequences of this unfortunate and ill-advised initiative.

Since 1993, Prime Minister Chrétien has constantly been repeating that Canadians are no longer interested in constitutional debates, and I agree with him on that point.

Polls regularly show that even the indépendantistes are not interested in another referendum battle.

The new generation of Quebecers in particular wants to turn the page on the endless and sterile debates their elders have held for over 30 years.

Why then are we being asked today to support a parliamentary measure whose only immediate results will be to provoke those who are in favour of separation, to seriously perturb many federalists and, in the longer term, to help a separatist government achieve its objectives?

Like all Quebecers who were at least 18 in 1980, and I think that includes everyone here, I experienced two referendums on Quebec's future in a span of 15 years. This is more than enough for one generation.

The last referendum was won by the federalist forces by a very narrow margin. It was won much more because of Jean Charest's powers of persuasion than because of the Prime Minister's.

Now, barely five years later, the same government that led us to the brink wants to force us to engage in an abstract debate on the mechanics of another referendum.

I recall very clearly the commitments made by Prime Minister Chrétien immediately after the 1995 referendum, in particular his statement in Verdun on October 24:

...any change in Quebec's areas of constitutional jurisdiction would be made only with the consent of Quebecers.

I do not, however, recall Prime Minister Chrétien promising that he would get a bill passed which would, to all intents and purposes, put Quebec democracy under guardianship.

That is what the bill we are being asked to pass today would do. How did we get to this point?

The government claims — and this is reflected in the very title of the bill before us — that the Supreme Court imposed a "requirement for clarity" on it. What we are in fact dealing with here is:

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.

I shall pass on the term "secession," which does not appear in either the platform of the Parti Québécois or the standard indépendantiste vocabulary — and most particularly never in any referendum ballot.

I shall merely remind honourable senators of the wise words of Senator Rivest:

Everyone needs to clearly understand that, independent of the existence or non-existence of this bill, whether we like it or not, whether we pass it or not, if there is another referendum in Quebec...it will be on article 1 of the Parti Québécois platform, which calls for the sovereignty of Quebec coupled with an association or partnership with Canada. This bill tells Canadians that partnership cannot be mentioned, because the referendum question would not be clear.

If the court was obliged to address a question that virtually no one had asked, it is because the government of Mr. Chrétien asked it to do so, in September 1996, a little more than a year after the referendum, when all Canadians, particularly Quebecers, were hoping for constitutional peace.

The government put three questions to the Supreme Court:

First, under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
Second, does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
Third, in the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

The court answered these questions to the best of its ability, and the government drew the conclusion that it had to give effect to the opinion of the court through a bill. However, is that what the court wanted?

No one, in my opinion, is in a better position than the person who headed the Supreme Court when it decided on these questions in order to enlighten us. Here is what the former chief justice Antonio Lamer said in January 2000, only four days after his retirement, in an interview in Le Devoir:

A distinction must be made between a decision and an opinion. The reference on the secession of Quebec, like all references, is simply an opinion. Neither Quebec nor Canada is obliged to act on our opinion.

We are a long way from a "requirement." The real "requirement," in fact, is the one Mr. Chrétien and his Minister of Intergovernmental Affairs, Stéphane Dion, imposed on the Supreme Court, and to which we in turn are being subjected. This "requirement" is political: it is neither legal nor constitutional. The requirement is mentioned in the bill, not in the opinion of the court.

The "clarity" the court attempts to provide and on which Bill C-20 draws is diffuse, to say the least. Here is what the court said on the subject of potential negotiations on secession:

It would be for the democratically elected leadership of the various participants to resolve their differences.

One will have guessed Bill C-20 does not define a "clear majority" and a "clear answer."

What is all too clear, unfortunately, is that if a referendum were held on Quebec's separation, the question would be examined by the Parliament of Canada within a specific and limited period, and it would even take precedence over another proposal to improve the Canadian federation, which is also not a "requirement" from the court, but a government decision.

This is not the least of the absurdities found in Bill C-20. The period and the process involved with respect to separation would not apply if, for example, a province — and why not Quebec someday? — were to hold a referendum on improvements to the Canadian federation.

In other words, Bill C-20 puts separation on a fast track, while putting the renewal of our federation on a shelf.

Therefore, the real beneficiary of this bill is, unfortunately, none other than the leader of the separatist forces, Quebec Premier Lucien Bouchard. He himself realized his luck when the government decided to drag the Supreme Court into the political arena. Here is what Mr. Bouchard said in August 1998 regarding the Supreme Court opinion:

The federal justices are saying and repeating that after a yes vote, Canada will have an obligation to negotiate with Quebec. That obligation eliminates the uncertainty that existed in the minds of many Quebecers because of the refusal of the federalists to negotiate. These Quebecers are now reassured: their yes vote will force Canada to negotiate.

[English]

The sad result of Bill C-20 was made only too clear yesterday morning in an article published in The Globe and Mail in which Quebec's Intergovernmental Affairs Minister, Joseph Facal, was quoted. The headline reads, "Clarity Act helps sovereigntist cause, Quebec minister says." In the article, Mr. Facal is quoted as having said that the bill could be a secret legal weapon for the separatist cause.

[Translation]

Such is the sad result of the government's action. Mr. Bouchard and his ministers are pleased to see that the conditions to achieve independence are now theoretically easier, because of the policy adopted by the Canadian government.

Mr. Bouchard also said recently that the so-called "winning conditions" he was waiting for to hold another referendum are now all there. Was Bill C-20 the last "winning condition"?

It so happens that Mr. Bouchard made that statement in Paris. That is certainly not a coincidence. We all know that Mr. Bouchard counts a lot on being recognized by the international community, and particularly France, to justify any future action to take Quebec out of the Canadian federation.

The fact is that Mr. Bouchard will soon be in a position to reassure foreign officials that Quebec's separation is no longer illegal. There will be an act of Parliament, which will facilitate negotiations. Some result! Bill C-20 gives more clarity to the separatists' project.

(1600)

Mr. Chrétien is obviously very proud of having come up with the idea of Bill C-20. He even views this initiative as one of the great successes of his government, but, whether the senators across the way like it or not, Mr. Chrétien will not be Prime Minister of Canada forever. His legacy will live on, however, and Bill C-20 will tie the hands of all his successors. Let us not forget that there will still be separatists in Quebec.

Certain senators scoffed at the Right Honourable Joe Clark when he made the following statement before the House of Commons committee:

Without Bill C-20, the Government of Canada could consult, delay, negotiate, hold its own national referendum, and employ all the other instruments of ingenuity and ambiguity by which previous governments in previous crises have kept this country together.

Today, I ask these same senators to remember what Prime Minister Trudeau did when René Lévesque's government decided to hold a referendum on sovereignty-association in 1980. Did he rush to introduce a bill in the Parliament of Canada setting out the process for negotiating sovereignty-association? No. Here is what Mr. Trudeau said at the time:

I do not have a mandate to negotiate separation.

Bill C-20 does not give us clarity. It takes away our flexibility. There will now be a special law of Parliament setting out a specific timetable and procedure for secession. Bill C-20 makes one thing clear: Thanks to the Parliament of Canada, the road to the breakup of Canada has been mapped out.

A number of senators before me were critical of the meagre role Bill C-20 assigned to the Senate in a circumstance as serious as the possible breakup of the country. I wish to remind senators that the historic role of the Senate, as defined by the Fathers of Confederation and exercised by the generations of men and women from various parties who preceded us here, is to stand up for the rights of the provinces and of minorities. And now that the government is claiming to be able to meddle in the conduct of a provincial referendum, this role has never been more important. As Senator Lynch-Staunton quite rightly pointed out:

Not only, however, is Bill C-20 giving the House of Commons the right to disallow a vote of a provincial legislature, even a unanimous one, but also it allows a majority popular vote in a referendum to be nullified.

According to the time frame proposed by Bill C-20, the Parliament of Canada would discuss the validity of the question — before judging the validity of the response — at the very time that Quebecers would be involved in the referendum process. What, in the logic of Bill C-20, will the members of Parliament from Quebec in the government party be doing during the referendum? Will they be refusing to make a decision because they are too busy looking at the question? Will they vote even if they do not approve of the question? Will they suggest that their federalist fellow citizens abstain? Lucien Bouchard would never go that far.

According to Bill C-20, the government is committed to taking our opinions and resolutions into account, as it will those of the provinces. This concession, condescending as it is, and reductionist as far as our constitutional responsibilities are concerned, is not even in line with the Supreme Court opinion, which states in paragraph 153:

It will be for the political actors to determine what constitutes "a clear majority on a clear question"...

As far as Mr. Chrétien is concerned, there is but one category of actors: those sitting in the House of Commons.

This arrogant, disdainful attitude, which we have seen too often in the past, had an echo here in this house when the Leader of the Government, referring to the Quebecers who voted in the 1980 referendum, used these ill-chosen words:

I am not sure all of them understood the consequences of their vote.

The Leader of the Government is not a Quebecer. He did not have the opportunity of voting in 1980. I would remind him that at that time Quebecers rejected the proposal of the Lévesque government demanding the mandate to negotiate sovereignty association. Does the Leader of the Government in the Senate believe that Quebecers voted in favour of maintaining the federal link because they did not know what they were doing?

Why then did Mr. Trudeau and the other federalist leaders of the day emphasize — rightfully — the wisdom of the decision made by the people of Quebec? Why did Mr. Trudeau say a few days before the vote that a yes would be interpreted as a vote in favour of change? Does the leader think that Mr. Trudeau did not know what he was doing?

Honourable senators, I voted no in 1980 and 1995. Both times, I understood very well the consequences of my vote.

Mr. Chrétien, they say — and this is quite understandable — has apparently begun to think about his political legacy to Canadians. He himself said to party faithful recently that Bill C-20 would be one of his great achievements, the pièce de résistance. However, historians will see Bill C-20 in a broader political context than does the Prime Minister. In Canada's recent history, we see that Prime Minister Mulroney managed to twice create a consensus involving the federal government and all the provinces of Canada around the Meech Lake Accord, which was an attempt to rework the unity of Canada's constitutional family.

In the face of this task, I recall that Mr. Mulroney used to like to quote the wise words of Robert Stanfield who said that nothing was easier in Canada than to unite nine provinces against a tenth, but that it was extremely difficult to unite them all.

Certain senators will say that is old history. I respectfully submit that, had the Meech Lake Accord been passed, there might not be a Bloc Québécois in the Commons. Lucien Bouchard would perhaps not be the Premier of Quebec, and we would not be studying today such a clumsy attempt at defending national unity as Bill C-20, which is applauded in almost all Canadian provinces except Quebec, and not only by the voice of a sovereigntist premier.

The leader of the Quebec Liberal Party, Jean Charest, the person who will have to lead the federalist troops in Quebec should there be another referendum in the near future, also opposes Bill C-20. The former leader of the Quebec Liberal Party, Claude Ryan, the person who headed the no forces in 1980, also opposes Bill C-20. We should take their opinion into account, too. It is worth just as much certainly as that of the other political actors, who have never lived through a referendum on the independence of their province and will likely never have to.

I am not trying to rewrite history, but I cited the Meech Lake precedent for one very simple reason, and that is to remind honourable senators that impetuous action lacking in inspiration — such as the one by those who scuttled this generous initiative — can have unforeseen consequences that can go on for a long time.

Fortunately Bill C-20 has not had the same impact on the Quebec public as the Meech Lake Accord. This bill is symptomatic of an outdated, narrow and short-term vision of federal-provincial relations, whereas the Meech Lake Accord was first and foremost based on a desire to come together that won over Quebec.

I ask all those who intend to support Bill C-20 to remember how deeply wounded Quebecers were by the failure of the Meech Lake Accord and the harm it did to national unity. Will Bill C-20 help close this wound or is there a chance it might further alienate a number of Quebecers? All the honourable senators, especially those from Quebec, should give this some serious thought.

On motion of Senator Nolin, for Senator Pitfield, debate adjourned.

[English]

Special Senate Committee on Bill C-20

Motion to Appoint—Point of Order—Debate Adjourned to Await Speaker's Ruling

Hon. Dan Hays (Deputy Leader of the Government), pursuant to notice of May 2, 2000, moved:

That a special committee of the Senate be appointed to consider, after second reading, the 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;
That, notwithstanding Rule 85(1)(b), the committee be comprised of fifteen 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.

Point of Order

Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I rise on a point of order. While I have no difficulty in this motion having been made, my point of order concerns the timing of the moving of such a motion. It is my contention that it is premature to move this motion at this time, as it anticipates a decision of this chamber. That is, it anticipates that this chamber will actually give second reading approval to the bill.

(1610)

Our practice in this chamber, honourable senators, is quite clear when dealing with legislation. We have a motion for second reading of a bill, and when second reading is completed and the second reading motion has been affirmed, then another motion is put forward to send the bill to the appropriate committee. This is in keeping with the seriousness attached to giving a bill second reading. Let me quote from Beauchesne's, 6th edition, page 199, paragraph 659:

The second reading is the most important stage through which the bill is required to pass; for its whole principle is then at issue and is affirmed or denied by a vote of the House.

In Bill C-20, senators will know, because of the extensive debate on this bill so far, there is serious doubt among a great number of senators as to whether this bill should even receive second reading. It has been pointed out that this is no ordinary bill. Senators on both sides of the chamber have even questioned whether there is an appropriate legal foundation upon which this bill can rest. Certainly, many senators are ready to vote against it when a vote on second reading of Bill C-20 is called, as they are against its very principle. Therefore, I believe it is not in order for us to be discussing a committee to which this bill is to be sent, whether standing or special, prior to it receiving second reading and at a time when we are debating whether we approve of the principle of the bill and whether it should receive second reading.

Furthermore, Beauchesne's, the new House of Commons Procedure and Practice, Edition 2000, and Erskine May speak at length of the order of reference to be given on special committees or, in the case of the British house, select committees. Let me quote from Erskine May, page 633, the chapter entitled "Select Committees in the House of Commons," under the heading "Scope of Deliberations or Inquiries, Orders of reference," which states:

When a select committee is appointed to consider or inquire into a matter, the scope of its deliberations or inquiries is defined by the order by which the committee is appointed (termed the order of reference), and the deliberation or inquiries of the committee must be confined within the limits so imposed. But when a bill is committed, or referred, to a select committee, the bill itself is the order of reference, and the inquiries and deliberations of the committee must be confined to the bill and amendments relevant to its subject matter.

Beauchesne's reiterates this in the 6th edition, page 233, paragraph 831(2), which states:

A committee is bound by, and is not at liberty to depart from, the Order of Reference. In the case of a committee upon a bill, the bill committed to it is itself the Order of Reference to the committee, which may only report it with or without amendment to the House.

Finally, the new procedural text from the House of Commons, entitled House of Commons Procedure and Practice, states quite simply, at page 854, that:

When a bill is referred to a committee, the bill itself constitutes the order of reference.

It is quite clear, then, that when a committee considers a bill, whether it is a standing or special committee, the order of reference is the bill and the timing is such that the bill must have received second reading and a motion must have been put forward and been passed and been referred to committee in order for that committee to receive its order of reference, which, in our case, is Bill C-20.

Therefore, honourable senators, I believe it is clearly premature and anticipatory of a decision of the chamber and not in order for us to take up this motion at this time to establish a special committee until such time as a second reading motion has been dealt with, at which time, if the motion carries, then the bill, which becomes the order of reference of the committee, is then and only then ready to be sent to committee. Then and only then, as is our practice on all bills, is it appropriate to decide, after second reading is completed, to which committee it should be sent. If a new committee should be established to receive it, then let us debate that issue at that time, not at a time that prejudges or anticipates a decision of the chamber which may or may not be taken. I quite realize that there are circumstances where bills are sent to committee before second reading, but that is not the route chosen by the government in this case.

Finally, I wish to refer to the rule of anticipation, which is described in some detail in the three procedural texts to which I have already referred. This rule does not appear in either the House of Commons or the Senate rules, but that does not necessarily mean that it cannot be referred to and, perhaps, applied.

As explained at page 476 in the House of Commons Procedure and Practice, the rule is dependent upon the principle that forbids the same question from being raised twice in the same session; however, what is important for us here is a discussion in Beauchesne's at paragraph 513(2), where it is stated:

In applying the anticipation rule, preference is given to the discussions which lead to the most effective result, which has established a descending scale of values for discussions, such as bills which have priority over motions, which in turn have priority over amendments.

Later, paragraph 514(2) states:

Debate on a government motion effectively blocks debate on a notice of motion for the consideration of the report of a committee which deals with essentially the same subject.

Erskine May, page 335, states:

A bill or other order of the day is more effective than a motion; a substantive motion more effective than a motion for the adjournment of the House or an amendment, and a motion for the adjournment is more effective than a supplementary question.

All this to say that I contend that this is a useful rule which should be applied in the case before us. If applied to our situation, a motion for second reading of a government bill would take precedence over a motion to establish a special committee to examine the bill. Therefore, in the words of Beauchesne's, debate on this government motion for second reading of a government bill effectively blocks debate on the motion to establish a special committee because it anticipates a decision of this chamber that may never come.

Honourable senators, for these reasons, I believe it is out of order for us to begin debate on Senator Hays' motion until such time as we have completed the second reading debate on Bill C-20, and the chamber, then having agreed to Bill C-20, can determine whether a special committee or any other committee should receive the bill — but not at this time.

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, perhaps I should add a few words. I have not had the benefit of an opportunity to review the texts on which we rely. However, I listened as carefully as could I to Senator Lynch-Staunton. His point of order is based on the motion to strike a committee prejudging a more important decision of the Senate, namely, the decision of the Senate as to whether to give second reading to Bill C-20, which is referred to in my motion.

I have only a passing familiarity with the question of anticipation. I think Senator Lynch-Staunton had a motion that stood on the Order Paper and, because it anticipated something that was a condition precedent to the matter with which the motion dealt, it stood and was not appropriate to be debated until the matter which was a condition precedent had been disposed of.

We are, I believe, nearing the end of second reading debate on Bill C-20. This matter might have stood as a motion longer than it did. However, I moved the motion, and I believe it is incumbent upon me to give some reasons for debate on the matter proceeding. I suspect the Speaker pro tempore will take this point of order under advisement and that we shall receive a ruling later.

I assume that Senator Lynch-Staunton's objection presupposes that the motion would be passed and would, in some way, affect, fetter or compromise the Senate in its dealing with the second reading decision on Bill C-20.

(1620)

I think there is a very strong and persuasive argument to be made that that is not the case, and I shall make my argument lacking my Beauchesne's and rules and so on, nor any way to find my way through them on short notice. This particular motion, if passed, would not prevent or fetter in any way the Senate from making a decision as to whether Bill C-20 is or is not given second reading. If we defeat Bill C-20 at second reading stage, this motion would become an irrelevant, redundant motion which would have no effect. It would automatically fall off the Order Paper at that point.

My argument is that this is not a situation where the anticipation is of such a nature that it would in any way affect the deliberations of the Senate. If we vote for the creation of the committee and subsequently vote against Bill C-20, the bill will not be referable to any committee, never mind a special committee.

Our only purpose in dealing with this matter now is so that we the special committee will be prepared to deal with the matter. This motion is debatable, and the question of creating a special committee is up to the chamber to decide. Assuming that we do deal with this motion — and I think that is the circumstance about which Senator Lynch-Staunton is complaining — that would in no way affect the Senate's ability to debate Bill C-20 at second reading stage.

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, the fundamental point that has been addressed so far speaks to the principle of anticipation. We have received some guidance from Senator Lynch-Staunton on that from Beauchesne and some of the other procedural authors. For the benefit of the chair, which will be examining this matter, I would suggest that consideration be given to page 144 of the standing rules of the House of Lords in the United Kingdom.

I would much rather comment on the substance of the motion rather than on the time frame that has been addressed so far. This motion is to appoint a special committee of the Senate to deal with this matter as opposed to a standing committee, as is the normal practice. We need not go to the more removed considerations, namely, the principles in the procedural literature; we can go to our rules.

I wish to draw the attention of honourable senators to our rule 4(3)(e):

"Special Committee" means a select committee, other than a standing committee, appointed to consider certain matters and to report thereon to the Senate;

The next paragraph gives us the definition of "standing committees," such as the Standing Senate Committee on Legal and Constitutional Affairs. A "standing committee," according to our rules, means:

a select committee appointed to consider and to report to the Senate on matters falling within the duties specifically assigned to it by these rules...

That is the important point: as specifically assigned to the standing committee by these rules.

What is specifically assigned to the Standing Senate Committee on Legal and Constitutional Affairs by our rules? Rule 86(1)(k) provides that:

The Senate Committee on Legal and Constitutional Affairs, composed of twelve members, four of whom shall constitute a quorum, to which shall be referred...bills...

Honourable senators, we are dealing with a bill — a bill that relates to constitutional matters. In the text of Bill C-20 there is a provision that at some point in time a constitutional amendment has to be dealt with in the process of its passage. It is clear that this bill, which has in its very text matters dealing with constitutional amendment, falls clearly within the mandate of the Standing Senate Committee on Legal and Constitutional Affairs because of the mandatory nature of that paragraph on page 92 of our rules.

Therefore, honourable senators, on the substance of the matter that is before us, this is quite inappropriate. This is no ordinary matter. This is a bill. It is very specific. Our rules say that specific matters must be referred to standing committees.

Honourable senators, that is the procedural argument. It is clear in our rules, and I think Her Honour need not go beyond that. I would rather not throw aside the veil to debate the motivation as to why this bill would go to a special committee as opposed to the Standing Senate Committee on Legal and Constitutional Affairs.

Hon. Lowell Murray: Honourable senators, I think it would be helpful to simply remind colleagues that as recently as Tuesday of this week, the Chair took a very firm position on the proper sequence of events to be followed with regard to legislation and the referral of legislation to committees. Colleagues will recall that Senator Lynch-Staunton, the Leader of the Opposition, had attempted to bring forward a motion to instruct the committee that might eventually be formed on this very bill. Her Honour found the motion out of order in the first place because it was a mandatory rather than a permissive instruction. However, Her Honour also pointed out that Senator Lynch-Staunton's motion was out of order because of its timing. I quote from the ruling to be found at page 1200 of the Debates of the Senate where Her Honour stated:

...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.

I must say that on the basis of that very firm ruling as to the proper sequence of events that should be followed with regard to legislation and its referral to committees, I cannot for the life of me see how the Chair could find Senator Hays' motion, anticipating as it does an affirmative decision at second reading of this bill, in order. At a minimum, I think Senator Hays would have to obtain leave to proceed with such a motion prior to second reading of this bill.

(1630)

Senator Hays: Honourable senators, I should like to comment further, now that additional comment has been made.

On this matter of order, I think Senator Kinsella has dealt more with the substance of the motion rather than its orderliness in terms of our rules that provide for the reference of bills to certain standing committees. I think his point is that where we have a standing committee that, pursuant to the rules, has a mandate to deal with a particular piece of legislation, that should end the discussion.

My comment is more on the substance of the motion than on whether it is a matter of order, although it could be construed as a matter of order. Thus, I should not let this opportunity to comment pass.

We have done this before, honourable senators. Of course, precedents are not necessarily correct; however, they establish a way of doing things, if you will, a custom or practice. We have in the past referred bills to special committees. In that regard I mention Bill C-110, which was introduced in the Thirty-fifth Parliament and which dealt with the extension of a constitutional veto to the five regions. That was done at a time when our present rules were in place.

In the 1980s, there are also examples of special committees receiving legislation, although I do not know in which Parliaments. There was Bill C-21 on unemployment insurance and Bill C-22 on drug patents, both of which, under the rules, could have been sent to a particular committee for consideration after second reading but, in fact, were referred to special committees.

Senator Murray raises some interesting points that arise from the ruling of the Speaker pro tempore earlier this week, but I do not think they have application here. That ruling dealt with the difference between a permissive and a mandatory instruction to a committee. As I read the ruling, and as I listened to it being read in this chamber, there are certain mandatory instructions that are in order, such as an instruction to split a bill, something with which we have had experience.

Senator Murray: The last two paragraphs, senator.

Senator Hays: However, permissive instructions, generally, are not in order. Thus, it really comes down to what definition we give to "anticipation." If we deal with something that anticipates a particular decision of the chamber through a vote, then I do not think it is in order, and I would not argue against it. I do not think that a motion to strike a committee to review a bill, if passed, anticipates or precludes the Senate in any way from any of its rights. I draw attention to the wording of the motion, which states "if" the bill is passed "after second reading." If it did not say that, perhaps there would be an argument. However, the motion clearly states that the bill would be referred to a special committee after second reading. If it does not receive second reading, it will not be referred.

Senator Lynch-Staunton: It presumes.

Senator Hays: I thank Senator Lynch-Staunton for the prompt. I do not think it presumes; I think it simply prepares the way for a bill. Hopefully, it will streamline the management of the business of our chamber, as it does not in any way interfere with the decision that the Senate will take at second reading.

Senator Kinsella: Honourable senators, it would be helpful if Senator Hays could advise the house whether, in the case of Bill C-110 and the other cases to which he has referred, the decisions taken at the time by the Senate to refer the measures in question to special committees as opposed to standing committees was done by unanimous consent of the house or by a majority decision.

Senator Hays: Given the fractious nature of this place, it is hard to imagine it being done by unanimous consent. The truth is I do not know whether it was done by unanimous consent.

As to orderliness, whether it was done with unanimous consent or not, it was done.

Senator Murray: After second reading, surely.

Senator Hays: I do not know the answer to Senator Murray's inquiry either. He may be right.

In any event, I am still obliged, and I feel comfortable in arguing my position.

Senator Murray: We are glad you are comfortable.

Senator Hays: I am glad that the honourable senator is glad that I am glad.

The rules that Senator Lynch-Staunton used as the basis for his question concerning orderliness of this motion relate to matters that are not a problem in this case. As I have explained, the committee has relevance only after second reading; and by creating the committee in anticipation of the possibility of receiving the bill, there is no interference with the rights and privileges of senators or the Senate in dealing with the bill at second reading.

Hon. Anne C. Cools: Honourable senators, I have been listening fairly attentively to the discussion. First, I would like to thank Senator Lynch-Staunton for bringing forward his point of order. I am a little surprised because I have an interest in this bill and this special committee. Thus, I have been preparing myself to speak against this motion regarding the special committee, because I belong to that group of people who believes that the Standing Senate Committee on Legal and Constitutional Affairs is perfectly competent to study the bill and that no special committee is required.

In addition, I have a profound interest. I have grown a little weary of the tedium of organizing bills to go around me, something which is burdening me. I shall begin to relieve myself of that burden by talking about it. As such, I have been preparing myself to speak against the motion for a special committee. I have worked for years to become a member of the Standing Senate Committee on Legal and Constitutional Affairs, and I do not like the fact that persons may be attempting to steer a bill around me. We are not on the substance of the motion.

Senator Murray: Surely not.

Senator Cools: On the business of the point of order, I have a couple of questions. It seems to me that Senator Lynch-Staunton has a point. It also seems to me that if Senator Hays had not moved his motion today, perhaps there would be no problem because the motion as written clearly anticipates and expects an affirmative vote at second reading. I had not noticed that and I thank Senator Lynch-Staunton for bringing it to my attention. Obviously, someone has been a bit tardy in the drawing up of the motion. Perhaps the question may be settled, for example, by Senator Hays withdrawing it and bringing forward a motion that is better drafted. There is another solution, which of course is to vote it down, which I think is unlikely. However, I think it would be poor parliamentary form for the Senate to be voting on poorly drafted motions.

(1640)

Let us see what is missing in this motion. It states:

That a special committee of the Senate be appointed to consider, after second reading, the 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;

It does not say "after a vote at second reading stage." It does not say "at the conclusion of the voting at second reading stage," and it does not say "if and when the bill has passed second reading." It very clearly says "after second reading." This statement, as written, clearly anticipates an affirmative vote. It definitely anticipates a conclusion that the Senate has yet to make. Perhaps whoever drafted this motion did not fully anticipate that Senator Hays would be moving it so quickly. Perhaps it was intended to sit on the Order Paper for several days and to be moved at the appropriate time.

There is another flaw in the motion, honourable senators. We must understand that every motion of this chamber becomes an order of this chamber. Any order of this chamber can demand obedience. Therefore, one must be very careful with these motions because a motion poorly drawn like this can become an order to vote a certain way at second reading, which I am sure is not what Senator Hays intended.

The second deficiency in this motion, as I can see, is that it says "Bill C-20" and then continues with the words "to give effect to the requirement for clarity," et cetera. This is very interesting. It does not say that Bill C-20 is "an act to give effect." That is a second flaw in the motion. In actual fact, this motion could be asking the committee to consider giving effect to the requirement for clarity itself. It does not say "an act."

Obviously someone saw it — and I see Mr. O'Brien smiling — but the document that I am reading from is Debates of the Senate of May 2, 2000, and I am absolutely certain. Honourable senators can check my reference, page 1175, under Routine Proceedings, Special Senate Committee on Bill C-20, Notice of Motion to Appoint. The Honourable Dan Hays states:

Honourable senators, I give notice that, on Tuesday next, I shall move:

The text of the motion is written out exactly as it is read, and to be quite sure that I am not mistaken, it reads:

That a special committee of the Senate be appointed to consider, after second reading, Bill C-20, to give effect to...

The words "an act" are not in this particular document. Senator Hays may want to look at that later on.

I am reading from Debates of the Senate, which are carved in stone. What I am reading from is absolutely accurate. Senator Hays will need to rise on the floor of the chamber and get a correction at some point in time, but this is carved in stone for the time being.

Honourable senators, I should like to move on. As I said before, I had not looked at this matter that carefully because my attention was drawn to the fact that I would be opposing that motion because I am getting tired of being overlooked. However, that is a different point.

We must be very sensitive, in a way, because the situation seems to be very peculiar. If we are not careful, we shall go from bad to worse. First, the court told us there was no law on secession. Therefore, we are told that Bill C-20 has come. Next we are told there is no committee, so we need a special committee. A motion for a special committee has been brought. Now we are told there is no motion for a special committee. It seems to me that at some point in time we must deal with the fact that we are involved in a set of tortuous contortions, and at some point the government will need to look at this with some seriousness and find out why we seem to be going from mishap to misadventure.

Honourable senators, I should like to raise a couple of issues. This chamber had no knowledge of such a committee or such a motion until last Tuesday. Last Tuesday, Senator Hays rose and gave notice. In point of fact, the honourable senator has not had the opportunity to speak to his motion. Yet, I observe that there are newspaper reports about the committee and the chairman of the committee as though the committee has met and as though the committee has a chairman.

Honourable senators, this chamber has no knowledge of a committee. No committee has been constituted, yet the newspapers tell us that the committee has a chair.

I should like to share with honourable senators two newspaper reports, one being from the Montreal Gazette of Wednesday, April 19, which is two weeks, at least, before Senator Hays rose in this chamber to give notice that he was planning to move a motion. The article is headed "Liberal Senator Fraser to head clarity bill review." It is an article by David Gamble, and it states:

Ottawa — Liberal Senator Joan Fraser will be appointed chairman of the special Senate committee to review the federal referendum clarity bill next month, government sources say.

This chamber has no knowledge of this matter.

Then today, May 4, 2000, in Le Devoir, there is a Canadian Press article by Huguette Young, with Senator Joan Fraser's name appearing in the headline of the article, entitled "Joan Fraser ne voit pas de rôle à jouer pour les sénateurs." The translation is: "Joan Fraser sees no role for senators."

Again, no committee chairman has been selected by the committee and no committee has been constituted, but we have commentary from a chairman. I have been a senator for many years, and I have never seen or heard of such a thing. I should expect, therefore, that this kind of anticipatory commentary could be dealt with because there is no committee, there are no committee members, there is no committee chairman, and due process really should be followed.

Senator Kinsella: Does The Gazette have a copy of the committee report?

Senator Cools: I do not know, but the translation of the Le Devoir Canadian Press article reads:

Ottawa — Senator Joan Fraser, Chair of the new Senate Special Committee on Bill C-20, considers it entirely legitimate that only the House of Commons be called upon to express an opinion on the clarity of a referendum question on secession by a province.

Then the article goes on at some length with a few quotations.

I repeat, this Senate chamber has no knowledge yet of a committee, no committee has been constituted, and no Chair exists. That is more than a motion, a result. A committee vote and committee considerations have been anticipated.

I had really paid no attention, as I said, to the scripting of the motion itself because my mind was preoccupied with the substance of the motion. I should like to support Senator Hays in some comments of his a few moments ago, when he was referring to the Constitution of other special committees in this Senate chamber over the past many years. I had some pretty strong roles in one of those committees, being the committee that studied Bill C-21 in 1989. I do not think that we tell any tales out of school because it is a record under the leadership of former Senator MacEachen of which I am very proud and feel very privileged to have served. We, the Liberals, were the majority in opposition and there were special committees, quite frankly, because Liberals said there ought to be. I should like to say to the opposition across the way that we did some very good work.

(1650)

Some of you will remember the UI battle. Senator Murray will remember that Senator MacEachen sent that committee down to his neck of the woods. We went to Canso, and we won the political battle that day, though perhaps not the legal battle.

That is a part of the Liberal track record of which we should be very proud. I know I am very proud to have been associated with it.

Finally, Senator Murray raised the Speaker's Ruling of some days ago. Her Honour ruled on the motion by Senator John Lynch-Staunton to instruct the committee to amend Bill C-20 to rank the Senate equally with the House of Commons, or something to that effect.

In terms of the jurisprudence being built up in this chamber and by her ruling of some days ago, I should not say that Her Honour has bound herself, but she has certainly committed herself to the line of thinking that this particular motion is anticipating a result and a conclusion.

I leave it in Her Honour's hands. Based on the precedent set in her ruling, it would appear that Senator Lynch-Staunton's point of order is very much in order. His arguments should prevail if one follows the line of reasoning of Her Honour's ruling.

Having said that, honourable senators, it would be my intention to return to the subject matter of the appointment of a special committee.

Hon. Joan Fraser: Honourable senators, I shall try not to be long, but some of Senator Cools' remarks may have indicated to honourable senators that I have said or done something that would cast in doubt my respect for this chamber. I do not believe I have done any such thing.

In regard to the first article to which Senator Cools referred from the Montreal Gazette, written some time ago by David Gamble, I should point out that I did not speak to Mr. Gamble. He did try reach me, as a professional reporter should do, but I was at pains not to speak to him, even to say that I had no comment. I just did not talk to him. I do not know his sources for that article.

The second article was written by Huguette Young of la Presse canadienne, and appeared in this morning's copy of Le Devoir. I was at pains in my discussion with Ms Young to be clear that the committee had not yet been created and to be clear that it is the task of the committee to choose its chair. I said that, if the committee were created, I would be a candidate for that position. I did not assume that I would, in fact, be named to that position by the committee.

I also was at some pains to repeatedly stress that Senate committees take their work very seriously; that they do thorough reviews of legislation; and that I would not wish to pre-judge in any way the work of that committee. When she asked me about my personal opinions, which were on record because they were uttered in this chamber, I attempted to give her a faithful rendition of what I had said in this chamber, but I was at pains to say that, in that case, I had been speaking as an individual senator, not as a member and certainly not as a chair of a committee.

Senator Cools: Honourable senators, I appreciate Senator Fraser's comments. I have no problem with them whatsoever, but we were speaking to two different points. She was speaking to the point of clarifying her own position, which is fitting and just. Perhaps she should write some letters to clarify that.

I, however, was speaking to the very important and narrow point that this chamber has not yet constituted a committee; that no committee has met; that no members have been appointed to a committee; and no chairman has been elected by a committee. That is a very important matter to many of us.

As I said before, I have never seen this before. I have great respect for Senator Fraser, and this is not a personal matter, but this is the first time that I have ever seen such a situation where there is an element of anticipation. It seems to me appropriate to let the process take its proper time and to let it happen.

Senator Hays: Honourable senators, I do not intend to repeat anything other than to say that we seem to be discussing, in some sense, the substance of the motion which would be more properly addressed when are dealing with the motion. We shall get to that motion if and when we give second reading to Bill C-20. If we do not, the motion will be irrelevant. That is why the motion does not anticipate anything that the Senate has the right to determine.

I now have an answer to the question asked by Senator Kinsella. I know that Her Honour will check this, but when Bill C-110 was referred to a special committee of the Senate, the motion to create that special committee was put to the house and adopted, on division. It was not done by unanimous agreement. As I recall, Senator Kinsella chaired that committee.

Senator Murray: Was it after second reading?

Senator Hays: I do not know the answer to that question. I suspect, since it is not in my notes, that that could well be the case.

I draw attention, as well, to our rule 93:

The Senate may appoint such special committees as it deems advisable and may set the terms of reference and indicate the powers to be exercised and the duties to be undertaken by any such committee.

That rule does not have a condition precedent as to when it can be used. Those are my concluding comments, although, perhaps, I may be given the right to comment further at a later stage.

Senator Cools: Honourable senators, the motion seems to be missing one or two words.

This situation is remarkably straightforward. I do not believe Senator Hays intended any disorderliness. Two or three words could be scripted into the motion. The most sensible solution is for Senator Hays to withdraw this motion and bring forward a new motion. That can be done quite easily.

Senator Lynch-Staunton: At the right time.

Senator Cools: No, he can bring forward a new motion immediately, a motion which is not missing the few critical words.

Senator Hays: Honourable senators, in terms of the suggestion that I should withdraw the motion, I doubt very much that I would receive consent to do so.

Senator Kinsella: From what side?

Senator Hays: That is a good point. As time goes on, I shall have the opportunity to make further contributions to the debate based on the rules. Unfortunately, not knowing the point of order would be raised, I did not do that before today's sitting.

About the rule of anticipation, Beauchesne's says that the moving of a motion was formerly subject to the ancient rule of anticipation which is no longer strictly observed. While the rule of anticipation is part of the Standing Orders of the British House of Commons, it has never been so in the Canadian House of Commons. Furthermore, references to attempts made to apply this British rule to Canadian practice are not very conclusive.

Senator Kinsella: From what edition is the honourable senator reading?

Senator Hays: I am not reading directly from Beauchesne but from a footnote which references Beauchesne. Let me accept personal responsibility for that.

(1700)

The other point that I would make is that I believe texts provide that the rule of anticipation becomes operative only when one of two similar motions on the same Order Paper is proceeded with. From the comments I made earlier, that is obviously not the case here.

No, I do not intend to withdraw the motion.

The Hon. the Speaker pro tempore: Do any other senators wish to speak?

[Translation]

Honourable senators, I thank you for your comments, which will certainly give me some food for thought.

[English]

At this time, I shall reserve my decision, take advice, and discuss the matter with His Honour upon his return next week.

Criminal Code

Bill to Amend—Second Reading

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 Cools).

Hon. Anne C. Cools: Honourable senators —

The Hon. the Speaker pro tempore: I would inform the Honourable Senator Cools that if she speaks now, her speech will have the effect of closing the debate on the motion for second reading of Bill S-9.

Senator Cools: Honourable senators, this matter has been thoroughly canvassed in this chamber on several occasions. I thank Senator Kinsella for speaking to it several days ago. It is my intention to allow the question to be put so that the bill can be referred to committee.

This is an important and pressing social policy question which is the abuse of process within child custody and access disputes where one parent, usually the mother, falsely accuses the other parent, usually the father, of sexually abusing their own children.

I have done much work in this regard. In my last speech some months ago when I opened the second reading debate, and I believe that was Thursday, February 17, of this year, I placed on the record 49 adjudicated cases of decisions where judges had made findings that such accusations were false. I view this issue as a national crisis of epic proportions.

I do not know how many of you have taken the time to read some of these judgments, but sifting through them is a painstaking, tedious process. I have been collecting these cases for many years, and I know there are many more cases to collect.

I should like to now place three more adjudicated cases on the record so that, before the bill is referred to committee there will be 52 adjudicated cases available. These are cases where judges have reviewed the evidence and rendered judgments.

Often when case names comprise initials, it is a sign that minors are involved. When one reads these cases it may sound as though one is reading Greek or some other foreign language.

The first case is by Judge Fisher , 1995, A.L.J.R. v. H.C.G.R. The second case is by Justice Macleod, 1993, Jeanson v. Gonzalez. The third case is a decision by Mr. Justice Flurry, 1996, S.W.C. v. T.L.C.

I would like to put a few quotations on the record. In the case of A.L.J.R. v. H.C.G.R., a case in the Ontario Court of Justice, Provincial Division, in Milton, Ontario, with Provincial Judge Fisher, the judge wrote at paragraph 17, Quicklaw:

From the evidence that I have read, however, I believe Dr. Hurst's report. I find that the father committed no physical or sexual abuse and that the mother programmed her child to give fictitious complaints.

At paragraphs 19 and 20, he continues:

She is not now a candidate for parenting because of the emotional abuse that she has inflicted, not only on her child but herself.
I hope that those interested in this matter have had the opportunity of reading Dr. Hurst's monitoring of a visit between the father and D.R. It is touching. An expert is telling us that there is a close, loving relationship between the father and his daughter.

At paragraph 23 the judge continues:

When, in the past, I have read evidence of alleged abuse, I have decided to err on the side of caution and order supervised access. Judges often do this. I confess to have been taken in by the mother's evidence. However, it appears in making such an order that I simply erred. It is to be hoped that this order corrects that error.

Honourable senators, I put that particular citation by that judge on the record because I thought that was a real mark of character for the judge to admit that he had made such a mistake, and that he was hoping that his correction of the order would correct the error that he had made. That was an extremely fine statement to make.

The next case that I would like to place on the record was also heard in the Ontario Court of Justice, General Division, in Welland, Ontario, by Mr. Justice Fleury, S.W.C. v. T.L.C. In this case, again, at paragraphs 9 and 10, the judge says the following:

There is no doubt that whenever allegations are made regarding sexual abuse of very young children by one of the parents, this throws a major wrinkle in the custody determination process. It is very hard for any judge to ignore such allegations. This kind of abuse has a potential for such long-term trauma that one must take all necessary steps to ensure that a child is not exposed to an individual who would be disposed to engage in such conduct. I am satisfied in this case that these allegations are completely without foundation.
...Why were such groundless accusations made? Although it is difficult to understand how an individual as intelligent and as educated as the wife is, could have prompted her daughter to say such things, I have come to the collusion on a balance of probabilities that she in fact did this. She was so concerned about her husband's claim for custody that she decided to resort to this kind of malicious and devious way of improving her chances of success.

The third and final case — and these again are adjudicated cases with legal findings — is the case of Jeanson v. Gonzalez, Ontario Court of Justice, General Division, Kingston, Ontario, Mr. Justice MacLeod, at paragraph 22, writes:

Her affidavits were absolutely scandalous and outrageous in light of their content. She misrepresented the facts of this case to the Children's Aid Society, to the medical profession, and to her own psychiatrist, if any of their reports are a summary of what she told them. She has caused both Mr. Gonzalez and Mr. Jeanson to have extensive legal costs in this matter.

Honourable senators, I forgot to say that this was a case of two relationships and two sets of accusations.

She has caused both Mr. Gonzalez and Mr. Jeanson to have extensive legal costs in this matter. Mrs. Watts has been found previously in contempt of court and it should be noted that during the middle of my delivery of these Reasons she walked out of the court-room without hearing them to their conclusion.
While Mrs. Watts is now seeing a psychiatrist, to help her deal with her personal problems and to come to terms with her present circumstances, I do not see any evidence that she has dealt with her circumstances to any sufficient degree and in fact, as I have said repeatedly, her agenda remains the same, to frustrate and obstruct the access by further court applications, each and every time that she can, by both Mr. Gonzalez and Mr. Jeansen in hopes that the two fathers will literally give up and return custody of the two children to her.

(1710)

Honourable senators, in conclusion, I should like to say that this entire area is such a heart of darkness and is really needing some light to be shed on it and some very dutiful study and consideration.

I have spoken to hundreds of people who have been so falsely accused. These are not a list of the accusations that I present here; these are the cases where findings have been made. Thus, I submit to honourable senators that on any kind of ratio that one would want to evolve for basic written arithmetic, these actual findings would be a very small percentage of accusations that have been made.

I thank honourable senators on both sides of the chamber who have been supportive of this particular issue and senators in the past who are no longer here, such as Senator Wood, Senator Phillips and others.

Motion agreed to and bill read second time.

Referred to Committee

The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the third time?

On motion of Senator Cools, bill referred to the Standing Senate Committee on Legal and Constitutional Affairs.

Statistics Act
National Archives of Canada Act

Bill to Amend—Second Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Milne, seconded by the Honourable Senator Chalifoux, for the second reading of Bill S-15, to amend the Statistics Act and the National Archives of Canada Act (census records).—(Honourable Senator LeBreton).

Hon. Joan Fraser: Honourable senators, I should like to say a few words about Bill S-15, if you will bear with me. I shall bear in mind that the hour is late.

I should like first to congratulate Senator Milne for her indefatigable work in this valuable cause. When she began with an inquiry in the last session of Parliament, I think some of us thought that she was talking about something fairly obscure, something that was of interest to a few Canadians, but not really of general importance. Now we know better.

This bill addresses what threatens to create a serious gap in Canada's historical record — the policy of Statistics Canada that individual census records from all censuses from 1911 on must remain secret in perpetuity. Statistics Canada believes that this policy is grounded in law and in a promise made by Sir Wilfrid Laurier in 1906. Given that belief, Statistics Canada is correct in refusing to make the individual census returns available to researchers, unless instructed to do otherwise by Parliament.

There is room for some argument about whether Statistics Canada's belief is correct. I was particularly interested to read a brief by Gordon A. Watts, of Port Coquitlam, B.C., that was submitted to the Minister of Industry's expert panel on the release of historic census records. Mr. Watts has done a careful search of all the parliamentary debates in 1905 and 1906 relating to statistics and the census. He has been unable to discover any place where Sir Wilfrid in fact made this famous promise to Canadians. Indeed, Mr. Watts says there was no debate at all about privacy, confidentiality or secrecy relating to information regarding identifiable individuals — no debate at all. There was a major debate in 1905 about the new act respecting the census and statistics, but it did not, he says, touch upon secrecy.

What actually happened, apparently, was that secrecy was imposed at that time not by legislation or by a prime ministerial commitment to Parliament but by regulation. The regulations were drawn up by the then minister of agriculture, Sydney Fisher and, under the terms of the act, acquired the force of law. As is so often the case now, as then, there was no debate in Parliament about these regulations.

In a later revision of the actual legislation in 1918, they were incorporated into the law itself, presumably because by that time they had become accustomed to practice. Indeed, in practice, the Dominion census had been providing confidentiality for individual returns ever since Confederation, which in 1905 was still fairly recent history, well within the lifetime of most parliamentarians. However, the question of perpetuity does not seem to have been addressed, and that is what concerns us today.

[Translation]

In fact, Mr. Watts suggests that the famous secrecy surrounding individual records may have been imposed almost by accident or, in any case, as a simple corollary to the rule that corporate records had to be protected, because companies obviously did not want their competitors to have access to details about their operations. I cannot say what Minister Fisher had in mind when these regulations were adopted. However, we can easily conclude, upon reading the instructions given to the employees of what was to become Statistics Canada, that the fundamental point was to reassure Canadians that their records could not be used by other government departments. We could not then and we cannot now use these records for income tax purposes, military service, immigration and so on. This is of course essential for any census in a free and democratic society.

However, to say that we can never use these records, even generations later, for legitimate research purposes, seems to me to be going rather far, too far.

[English]

Even if it is true that Parliament originally intended the records to remain secret forever, it is the job of each succeeding Parliament to reassess past policies in light of present needs. Parliament today has the right to change a decision made by Parliament in the past, even a decision made after lengthy and full debate. When the original decision in question was made by simple regulation, not debated at the time, there is even more reason to revisit it now, nearly a century later.

Senator Milne's bill offers a neat solution by having Statistics Canada transfer the individual returns to the national archives, which would, 92 years after each census, then make them available for research in proper archival terms. Ninety-two years is the period that was applied for the release of individual returns in all censuses before 1911, so it has the virtue of consistency. As I suggested here last year, however, I think we should perhaps consider lengthening that term slightly, now that so many people are living well into their nineties. I think it would be appropriate to have a 100-year term or perhaps even a little more. Clearly, we do not wish to invade the privacy of persons who are still alive.

The basic principle that these records should become available at some point is, in my view, indisputable. They are simply too important as historical records. They are useful for genealogists like Senator Milne, but also for historians, social scientists and even for some physical scientists such as biologists.

(1720)

The information they provide is literally irreplaceable, not available from other sources, or not available in this detailed, comprehensive form.

Other major countries have considered this dilemma, this need to reconcile the need for privacy with the need for good historical records, and they have concluded that, after a suitable period of secrecy, the individual returns should be made available. Australia and the United States, for example, have both reached that conclusion. I believe that Canada should do likewise.

The expert panel is expected to report by the end of this month. I hope it will make appropriate recommendations to end this policy of perpetual secrecy, and if it does make those recommendations, perhaps the government will act accordingly and rapidly. If not, however, Senator Milne's bill is here to ensure that the right thing will in fact be done, and I am more than pleased to support it.

On motion of Senator Kinsella, for Senator Johnson, debate adjourned.

Question of Privilege

The Hon. the Speaker pro tempore: Honourable senators, we shall now proceed to the question of privilege raised by Senator Tkachuk on May 3, 2000.

Hon. David Tkachuk: Honourable senators, I made my arguments yesterday on the question of privilege. I would, however, add a few remarks. I should especially like to quote Senator Andreychuk, who raised an issue much like this with respect to the leaked report of the Aboriginal Committee. She said:

Honourable senators, this leak is also a breach of privilege for all members of the Senate. To read recommendations in the newspaper is certainly not how we want to receive reports of the Senate. It is time that we did something about this state of affairs.

In the case of the report of the Standing Senate Committee on Banking, Trade and Commerce with respect to taxation of capital gains, the final report was the one that was quoted in the Financial Post. It was not, as in some other cases, a draft copy where there are many made and distributed, but the final report, which had a limited distribution. We are unable to tell the Senate exactly what that distribution was at this time because it was brought to our attention, of course, on Wednesday morning when the article appeared in the paper and Senator Kolber was preparing to present this report on Tuesday next.

With the permission of the Senate, I should like to table a copy of the Financial Post business section where it was reported. It is dated Wednesday, May 2, 2000. The headline is, "Senate report urges capital gains tax cut," which I believe will give the evidence needed to prove that this report was leaked and was given out by someone to people other than the members of this chamber.

The Hon. the Speaker pro tempore: Honourable senators, is permission granted to table the report?

Hon. Senators: Agreed.

Senator Tkachuk: Honourable senators, if Her Honour finds that a prima facie case has been made, I shall then move a motion referring the matter to the Standing Committee on Privileges, Standing Rules and Orders.

Speaker's Ruling

The Hon. the Speaker pro tempore: Honourable senators, on the question of privilege, I thank Senator Tkachuk. Yesterday, when we reached the Orders of the Day, Senator Tkachuk obtained leave to raise a question of privilege under rule 43, even though he had not met the requirements of providing written notice to the clerk within the prescribed time prior to the Senate sitting.

Senator Tkachuk's question of privilege concerned the publication of information based on the fifth report of the Standing Senate Committee on Banking, Trade and Commerce. This information appeared in a newspaper yesterday, before the report was tabled in the Senate. In fact, according to the honourable senator, the committee decided to rush the tabling of the report as a consequence of the newspaper story.

Senator Austin then made some comments about the case. He noted that the journalist himself acknowledged that the report had not yet been submitted to the Senate. Citing paragraph 877(1) of Beauchesne's 6th edition, the senator expressed the belief that the circumstances of the case clearly demonstrate that there is a prima facie breach of privilege.

Shortly thereafter, discussion on this matter was halted when Senator Lynch-Staunton correctly pointed out that any review of the prima facie merits of the case should be postponed until after the Orders of the Day had been disposed of.

[Translation]

Today, additional arguments have been made. I want to thank all honourable senators who participated in the discussion. I have reflected on the recent rulings of the Speaker and the views expressed yesterday and today by Senator Tkachuk. I am prepared to make my ruling.

My obligation as the Speaker pro tempore is to consider only whether the evidence presented suggests that a breach of privilege is involved. My role is limited to determining whether there appears to be a prima facie case. It is not for me to decide whether there has in fact been a breach of the Senate's privileges. If, however, I do determine that there is a prima facie case, then the Senate must resolve how it will dispose of the matter. If the Senate also agrees that the issue might constitute a question of privilege, a motion is usually adopted to refer the matter to the Committee on Privileges, Standing Rules and Orders.

[English]

Based on several recent precedents, including the decision by the Speaker on October 13, 1999, and the case Senator Tkachuk mentioned dealing with the premature disclosure of a draft report of the Aboriginal Peoples Committee, and on the incontrovertible evidence provided by the journalist who wrote yesterday's newspaper story, I rule that a prime facie case of a question of privilege has been made. The matter should be put before the Senate for its determination.

Therefore, Senator Tkachuk may now proceed with his motion.

Referred to the Standing Committee on Privileges, Standing Rules and Orders

Hon. David Tkachuk: Honourable senators, I move:

That the question of privilege concerning the unauthorized release of the fifth report of the Standing Senate Committee on Banking, Trade and Commerce be referred to the Standing Committee on Privileges, Standing Rules and Orders.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to.

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Energy, the Environment and Natural Resources

Committee Authorized to Meet During Sitting of the Senate

Hon. Isobel Finnerty, for Senator Spivak, pursuant to notice of May 3, 2000, moved:

That the Standing Senate Committee on Energy, the Environment, and Natural Resources have power to sit at 5:00 p.m. on Tuesday, May 9, 2000, for the purpose of hearing witnesses on its special study, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Explain, please.

Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, perhaps Senator Finnerty could tell us why it is necessary, in the opinion of the committee, to sit when the Senate is sitting.

Senator Finnerty: Honourable senators, we had invited some witnesses to appear before the committee, but we have not been able to reach them. This will be a one-time only request. We will not be asking for permission to sit again when the Senate is sitting. However, we had these witnesses wait last week for an hour and one-half when the Senate was sitting, which was very unfortunate.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

Motion agreed to.

Adjournment

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

Hon Dan Hays (Deputy Leader of the Government): Honourable senators, with leave of the Senate and notwithstanding rule 58(1)(h), I move:

That when the Senate adjourns today, it do stand adjourned until Tuesday, May 9, 2000, at 2 p.m.

Motion agreed to.

The Senate adjourned until Tuesday, May 9, 2000, at 2 p.m.

Debates of the Senate (Hansard)

Debates of the Senate (Hansard)

2nd Session, 36th Parliament, Volume 138, Issue 52

Thursday, May 4, 2000 The Honourable Rose-Marie Losier-Cool, Speaker pro tempore

Table of Contents

THE SENATE

Thursday, May 4, 2000

SENATORS' STATEMENTS

The Right to Vote for Women of Quebec

Sixtieth Anniversary

National Defence

Iroquois Helo Detachment Commander's Situation Report

In Recognition of Naval Forces

A Naval Remembrance

United Nations

Funding Arrears

Africa Direct Mission to Canada

ROUTINE PROCEEDINGS

National Defence Act

Bill to Amend—Report of Committee

Payments in Lieu of Taxes Bill

Report of Committee

L'assemblée parlementaire de la francophonie

Report of the Canadian Delegation to Meeting in Libreville, Gabon Tabled

Foreign Affairs

Notice of Motion to Authorize Committee to Examine Performance Report of Department of Foreign Affairs and International Trade

Notice of Motion to Authorize Committee to Examine Emerging Developments in Russia and Ukraine

Agriculture and forestry

Notice of Motion to Authorize Committee to Meet During Sitting of the Senate

Prime Minister's Visit to Middle East and Persian Gulf

Notice of Inquiry

QUESTION PERIOD

National Defence

Airworthiness of Sea King Helicopters

Replacement of Sea King Helicopters

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

Possibility of Suspension of Anthrax Vaccination Program

Health

Approval Process of Pharmaceutical Products—Effect of Delays on Investment by Companies

Delayed Answer to Oral Question

Human Resources Development

Transitional Jobs Fund—Grants to PLI Environment Ltd.

Answers to Order Paper Questions Tabled

Human Resources Development—Grant to 10642 Newfoundland Limited

Human Resources Development—Grant to 9057-5093 Company

Human Resources Development—Grant to 904-30042 Comapny

Human Resources Development—Grant to 3393062 Canada Inc.

Human Resources Development—Grant to 9069-1049 Québec Inc.

Human Resources Development—Grant to 9037-1956 Québec Inc.

Human Resources Development—Grant to 3458121 Canada Inc.

Human Resources Development—Grant to 142968 Canada Ltée

Heritage—Visit of Minister to Newfoundland

National Capital Commission—A Place for Canadians, the Story of the National Capital Commission

ORDERS OF THE DAY

Canada Elections Bill

Third Reading—Debate Continued

Motion in Amendment

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

Special Senate Committee on Bill C-20

Motion to Appoint—Point of Order—Debate Adjourned to Await Speaker's Ruling

Point of Order

Criminal Code

Bill to Amend—Second Reading

Referred to Committee

Statistics ActNational Archives of Canada Act

Bill to Amend—Second Reading—Debate Continued

Question of Privilege

Speaker's Ruling

Referred to the Standing Committee on Privileges, Standing Rules and Orders

Energy, the Environment and Natural Resources

Committee Authorized to Meet During Sitting of the Senate

Adjournment

2nd Session, 36th Parliament,
Volume 138, Issue 52

Thursday, May 4, 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

Statistics Act
National Archives of Canada Act