Debates of the Senate (Hansard)
Debates of the Senate (Hansard)
2nd Session, 36th Parliament,
Volume 138, Issue 64
Thursday, June 8, 2000
The Honourable Rose-Marie Losier-Cool, Speaker pro tempore
Table of Contents
- ROUTINE PROCEEDINGS
- QUESTION PERIOD
- ORDERS OF THE DAY
THE SENATE
Thursday, June 8, 2000
The Senate met at 2:00 p.m., the Speaker pro tempore in the Chair.Prayers.
ROUTINE PROCEEDINGS
Modernization of Benefits and Obligations Bill
Report of Committee
Hon. Lorna Milne, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented the following report:The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the third time?Thursday, June 8, 2000
The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its
SIXTH REPORT
Your Committee, to which was referred Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, has, in obedience to the Order of Reference of Tuesday, May 9, 2000, examined the said Bill and now reports the same without amendment.Respectfully submitted,
LORNA MILNE
Chair
On motion of Senator Hays, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.
[Translation]
Cape Breton Development Corporation Divestiture Authorization and Dissolution Bill
First Reading
The Hon. the Speaker pro tempore informed the Senate that a message had been received from the House of Commons with Bill C-11, to authorize the divestiture of the assets of, and to dissolve, the Cape Breton Development Corporation, to amend the Cape Breton Development Corporation Act and to make consequential amendments to other Acts.Bill read first time.
The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the second time?
On motion of Senator Hays, bill placed on the Orders of the Day for second reading two days hence.
[English]
Income Tax Act
Excise Tax Act
Budget Implementation Act, 1999
Bill to Amend—First Reading
The Hon. the Speaker pro tempore informed the Senate that a message had been received from the House of Commons with Bill C-25, to amend the Income Tax Act, the Excise Tax Act and the Budget Implementation Act, 1999.Bill read first time.
The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the second time?
On motion of Senator Hays, bill placed on the Orders of the Day for second reading two days hence.
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Canada-Europe Parliamentary Association
Report of Canadian Delegation to Meeting Held from January 18 to 29, 2000 Tabled
Hon. Lorna Milne: Honourable senators, I have the honour to table the report of the Canada-Europe Parliamentary Association which represented Canada at the meetings of the Committee on Economic Affairs and Development and the First Part of the 2000 Session of the Council of Europe Parliamentary Assembly in London, England, and Strasbourg, France, on January 18 to 29, 2000.Report of Canadian Delegation to Meeting Held from March 18 to 25, 2000 Tabled
Hon. Lorna Milne: Honourable senators, I have the honour to table the report of the Canada-Europe Parliamentary Association which represented Canada at the 24th European Parliament/Canada Inter-Parliamentary meeting in Brussels, Belgium, from March 18 to 25, 2000.Report of Canadian Delegation to Meeting Held from March 29 to 31, 2000 and April 3 to 7, 2000 Tabled
Hon. Lorna Milne: Honourable senators, I have the honour to table the report of the Canada-Europe Parliamentary Association which represented Canada in the meetings of the Committee on Economic Affairs and Development and the Second Part of the 2000 Session of the Council of Europe Parliamentary Assembly in Paris, France, on March 29 to 31, 2000, and in Strasbourg, France, from April 3 to 7, 2000.Special Senate Committee on Bill C-20
Notice of Motion to Authorize Special Committee to Meet During Sitting of the Senate
Hon. Joan Fraser: Honourable senators, with leave of the Senate and notwithstanding rule 58(1)(a), I move:That the Special Senate Committee on Bill C-20 have permission to sit on Monday, June 12, even though the Senate may then be sitting, and that rule 95(4) be suspended in relation thereto.
The Hon. the Speaker pro tempore: Honourable senators, is leave granted?
Some Hon. Senators: No.
Hon. Noël A. Kinsella (Deputy Leader of the Government): This matter was not discussed in the steering committee.
The Hon. the Speaker pro tempore: Honourable Senator Fraser, do you wish to give notice for the next sitting?
Senator Fraser: Since the times would conflict, I will just wait upon the disposition of this matter by the leadership on the two sides of the chamber.
Census Records
Presentation of Petition
Hon. Lorna Milne: Honourable senators, I rise to present a petition signed by 283 Canadians as well six Americans who are researching their family roots in Canada. Their petition calls upon Parliament to take whatever steps necessary to retroactively amend the confidentiality and privacy clauses of the Statistics Act since 1906 and to allow release to the public after a reasonable period of time of post-1901 census reports, starting with the 1906 census.QUESTION PERIOD
Agriculture and Agri-Food
Nova Scotia—Infestation of Brown Spruce Longhorn Beetle
Hon. J. Michael Forrestall: Honourable senators, my question is for the Leader of the Government in the Senate. We learned today that the brown spruce longhorn beetle infestation in Point Pleasant Park, Halifax, has now escaped the peninsula and is alive and well across the Northwest Arm. That means potential disaster. Should a change in the wind direction take place, this infestation could strike at a major core of the boreal resources of Nova Scotia. Should it do that, it is not far from New Brunswick, and then New Brunswick is not far from Quebec.The federal government has been asked to do a few things, the first of which is to expand the quarantine zone. Has the minister been briefed and apprised of this matter? If so, is there an apparent government attitude?
Second, is there any new program or initiative that the federal government may be contemplating or have in place to assist Nova Scotia in confining the longhorn beetle infestation?
Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I thank the Honourable Senator Forrestall for that question. It is a very serious issue and one that has received the very dedicated and intensive attention of all three levels of government.
I requested a full briefing on the situation and received it the day before yesterday. There is no question that the federal government, under its jurisdiction to impose the quarantine, will have the responsibility to take action to deal with the quarantined area quickly and effectively.
The department is now devoting resources to doing a complete survey of the extent of the infestation at Point Pleasant Park and clearly attempting to determine whether that infestation exists outside the park.
As the honourable senator indicated, there has been one instance of identification of the beetle not on the park premises itself but some distance from the park. That is a matter of serious concern, and the surveying will involve the surrounding forest as well. That is proceeding as quickly as possible.
Dealing with the infestation will take some planning because it is not necessarily the best thing to rush in and cut down all the infested trees as quickly as possible. There are complications in doing that. One does not wish to take any action that might provoke the spread of these beetles. I understand they have the capacity to fly some considerable distance, which is being taken into account. All of the resources are being brought to bear on this problem, and a plan is being developed in consultation with the public. They will be kept well informed at every step along the way.
It is safe to say that additional, unusual and financial resources must be brought to bear on this particular problem.
Senator Forrestall: I appreciate the minister's response. Is there a time parameter? As he has said, there is some degree of urgency with respect to this matter. Are we looking at a number of days or weeks before a determination can be made as to what action will be taken outside of the park?
Senator Boudreau: For a full survey to be done effectively, we are probably talking about a couple of weeks. In terms of the plan of action, that may or may not occur right away because there may be various options to consider.
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For example, I understand the beetle is dormant during the winter, and this would be the preferred time to cut the trees and dispose of them. However, immediate action may not be taken in that respect. It is important to complete the intensive survey as quickly as possible. I am assured that that will be done.
Senator Forrestall: Honourable senators, can the Leader of the Government in the Senate tell us whether there is any danger to human health?
As well, are major companies that cut stumpage from provincial acres, such as Irving and Scott, involved in this undertaking?
Senator Boudreau: Honourable senators, in response to the first question, it is my information that the beetle does not pose any danger to human health.
In response to the second question, there has been contact with the private sector, although I am not certain which companies were contacted. Those private sector companies have indicated their cooperation. As a matter of fact, they are prepared to supply human and other resources to assist with the comprehensive survey that I mentioned earlier. This will ensure that we complete an assessment of the extent of the infestation and form an appropriate plan as quickly as possible.
The program is being undertaken under the auspices of the federal government, which runs the quarantine program. The federal government will have the responsibility for formulating a plan and taking action. The federal government is being assisted by the provincial government, municipal governments and private sector companies in this effort.
Senator Forrestall: Honourable senators, which level of government takes the lead on this?
Senator Boudreau: The federal Department of Agriculture and Agri-food clearly takes the lead on this matter and will continue to do so.
ORDERS OF THE DAY
Citizenship of Canada Bill
Second Reading—Debate Continued
On the Order:Resuming debate on the motion of the Honourable Senator Finestone, P.C., seconded by the Honourable Senator Gauthier, for the second reading of Bill C-16, respecting Canadian citizenship.
Hon. Lois M. Wilson: Honourable senators, Senator Andreychuk, who will speak to this bill next Tuesday, has generously allowed me to voice my concerns today.
I have concerns about Bill C-16 that I hope the appropriate Senate committee will take seriously when reviewing it. I am concerned that the report by the Inter-American Commission on Human Rights, to which Canada adheres, was not taken into account before the bill was approved by the House of Commons. The report speaks most clearly to the citizenship issue underlying the right to nationality for everyone under Canada's jurisdiction. My biggest concern is that the legislation does not ensure a person a nationality.
The report by the Inter-American Commission on Human Rights is by far the most comprehensive international statement in existence about the rights of refugees and asylum seekers. The commission's report raises concern about a general weakness in the legal system with regard to protecting international rights. For a refugee or stateless person, access to effective judicial protection is an interference with the right to nationality. The removal of citizenship for such a person might well result in statelessness. There is also the danger of a new citizen having their citizenship taken away without adequate court protection, appeal, or due process. If the new citizen happens to be a refugee, this is very serious.
My other concerns with the bill are as follows: Clause 21(1) speaks of the new power reposed in the Governor General to refuse citizenship on the grounds of "public interest." This is a rather vague and arbitrary power and runs the risk of people being denied citizenship on the basis of prejudice, bias, or political unacceptability. The power to withhold citizenship should not be exercised on such an arbitrary basis. At the very least, some criteria for public interest should be defined.
Another contentious feature of the bill is clause 22(3), according to which governmental decisions would not be "subject to appeal or review by any court." At the very least, there ought to be recourse to the courts in order to ensure that these governmental decisions stay within the boundaries of statutory authority. It is true that the bill allows access to the Federal Court for review, but this is not an appeal, nor is it reasonable to suppose that the court can guarantee the international right of nationality.
Even if it might be acceptable to make the acquisition of citizenship difficult, it is not acceptable to make the revocation of citizenship easy. Clause 17(1)(b) would authorize revocation if it is determined that "on a balance of probabilities" citizenship has been obtained by various forms of deception. Heretofore, the trend has been to require either beyond a reasonable doubt — not appropriate in these circumstances — or a high degree of probability of such deception. In view of what is so often entailed in the move from one country to another, and in view of the vulnerability that revocation of citizenship would produce, the provision "on a balance of probabilities" should be rejected. It should require more than a mere balance of probabilities to deprive persons of the rights and remedies that otherwise would be theirs.
There are both high and low levels of probability. If there is about 51 per cent probability, for example, that a person has lied, that is a low level of probability and should stand to be given the benefit of the doubt. A high level of probability should be the norm for revocation, in my view, not a balance of probabilities.
There is a danger of the loss of citizenship for refugees unless there are good safeguards for "use of false identity," for example. The use of false identity at some point is very common among refugees and the 1951 convention relating to the status of refugees expressly requires, in article 31, that refugees should not be penalized for the illegal manner in which they entered the country of refuge.
These are some of the concerns I have about this bill. I raise them to draw attention to the text where I think the bill might be substantially improved.
Hon. A. Raynell Andreychuk: Honourable senators, I had indicated that I would be speaking to this bill today. However, in light of a critical statement on this bill on Tuesday, I attempted to get some clarification from the Library of Parliament, the applicable department, and others. I have as yet been unsuccessful in doing so. Therefore, I ask that this order be put over until Tuesday that I may receive clarification before speaking to it.
The Hon. the Speaker pro tempore: Is it agreed, honourable senators?
Hon. Senators: Agreed.
On motion of Senator Andreychuk, debate adjourned.
Canada Labour Code
Bill to Amend—Motion to Declare Null and Void—Point of Order—Debate Adjourned to Await Speaker's Ruling
Hon. Dan Hays (Deputy Leader of the Government), pursuant to notice of June 7, 2000, moved:That, notwithstanding Rules 63(1) and 63(2), the proceedings on Bill C-12, An Act to amend the Canada Labour Code (Part II) in respect of occupational health and safety, to make technical amendments to the Canada Labour Code (Part I) and to make consequential amendments to other Acts, which took place on Thursday, June 1, 2000, be declared null and void; and
That the Standing Committee on Privileges, Standing Rules and Orders review and make recommendations concerning the procedure described in Erskine May's Parliamentary Practice, Twenty-second Edition, at p. 545, as follows: "If a bill is carried to the other House by mistake, or if any other serious error is discovered, a message is sent to have the bill returned or the error otherwise rectified."
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I rise on a point of order. I argue that the motion put forward by the Deputy Leader of the Government is out of order. His citation of rules 63(1) and 63(2) is completely inappropriate. It is certainly not the way to deal with the problem raised on Thursday, June 1, in relation to Bill C-12.
Honourable senators will remember that Bill C-12 was tabled in the Senate for first reading as a government bill. A few days later, the Deputy Government Leader advised us that the bill that was tabled is materially not the same bill as was passed by the House of Commons.
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There is at least one amendment made at report stage in the House which is missing from the version received here. This is what Erskine May Parliamentary Practice refers to at page 545 of the twenty-second edition as a "serious error." This matter is not addressed either in rule 63(1) or 63(2), nor may it be corrected by a process falling under either subsection of rule 63.
The commentaries on this rule, which has been part of standing rules since 1915, are quite clear. Let me quote Bourinot's Parliamentary Procedure, fourth edition, which states clearly when rule 63 can be used:
When a question has been once sufficiently considered the Senate will not agree to its renewal. In 1880, a senator rose and gave the usual notice of proposed resolutions, but objection was at once taken on the ground that the matter had been already disposed of otherwise. The Senate finally resolved that "the notice should not be received by the clerk," inasmuch as the subject-matter thereof "had already been considered during the present session and referred to the Committee on Contingent Accounts."
Rule 63(1) deals with a principle that was enshrined in the procedure of the British House of Commons by resolution in 1604, which stated:
...that a question being once made and carried in the affirmative or negative cannot be questioned again, but must stand as a judgment of the House.
Furthermore, in 1610, the British House of Commons extended this principle to the passage of bills, "That no Bill of the same substance be brought in the same session."
Rule 63(1) goes one step further and does provide that two similar matters in the same session could occur, but only if, and I quote:
...the order, resolution, or other decision on such question has been rescinded as hereinafter provided.
Section (2) of rule 63 provides a formula for such rescission to take place.
That rule, which Senator Hays has included in his motion and which he wants applied in this case, is not applicable to the situation at hand, and it is completely inappropriate to suggest that this is a method to deal with the problem which now confronts the government in relation to Bill C-12. We are not dealing here with a motion that is the same in substance as a question that has been resolved in the affirmative or negative. We are dealing with a situation described by Erskine May under the heading "Bills sent by mistake." In its twenty-second edition, page 545, it sets out for all of us the route that must be followed in order to rectify the situation. I quote:
If a bill is carried to the other House by mistake, or if any other serious error is discovered, a message is sent to have the bill returned or the error otherwise rectified.
It is beyond me why the notice of motion by the Deputy Leader of the Government requests that the Rules Committee review and make recommendations concerning this procedure. The problem is quite clear. The House of Commons, from where the bill came, must send a message to have the bill returned, and then, if they so wish, send us a correct one.
I have a number of precedents here which I think are worth quoting, because this is an unusual situation. I wish it had been a unique one, but we had the same problem less than one month ago.
The earliest precedent for the rule cited by Erskine May actually occurred before the rule came into being. In 1844, the House of Lords, having received from the House of Commons a bill entitled, "An Act to amend and consolidate the laws relating to merchant seamen and for keeping a register of seamen," made amendments and returned it to the House of Commons. The House of Commons agreed to the amendments, but it was discovered that one of the amendments was not transmitted to the House for approval. A conference was held between the two Houses to attempt to determine what was to be done, as the Commons had agreed to the bill as amended by the Lords and passed the bill as amended, except for the missing amendment.
The Speaker of House of Commons stated, as is reported in the Journals, that:
...he was not aware of any precedent directly applicable to the present case, but he considered that it would establish a most inconvenient and dangerous one if the House were now to entertain the amendment which had been unfortunately omitted from the Merchant Seamen Bill...
It was eventually decided that the Lords would not insist on the amendment.
More recent precedents illustrate the use of the rule set out in Erskine May. For example, in 1946, the United Nations Bill was passed by the House of Lords and sent to the House of Commons in a defective state. In order to resolve the situation, a message was sent by the Lords requesting the House of Commons to return the bill, "the same having been taken to the Commons by mistake." The House of Commons ordered "that the bill be returned to the Lords, as desired by their Lordships; and that the Clerk do deliver the same."
In 1950, a message was sent by the House of Commons to the House of Lords requesting the return of the City of London Bill, and this was done by the Lords.
In 1970, a similar situation occurred in dealing with the Administration of Justice Bill, and I quote from the Journals:
...a message was sent to the Lords to request that they will be pleased to return to this House the Administration of Justice Bill, because an Amendment which the Commons have made to the Bill was not communicated to the Lords.
The same process was followed in 1974 and there are other examples in 1980, 1984 and 1985. I would be pleased to get copies of those records to Her Honour for assessment.
Honourable senators, this institution has built an enviable record of dealing with legislation in a detailed manner. We are recognized for our thoroughness and the way in which we achieve that standard. We should do everything possible to maintain our reputation for excellence in relation to the scrutiny of legislation.
I submit that the proper, in fact, the only method by which the problem raised by the proceedings around Bill C-12 may be rectified is through the receipt by the Senate of a message from the House of Commons to return the bill. We should not be simply consenting to the withdrawal of this bill and the introduction of a new bill with all the amendments incorporated.
I could have raised this argument on May 11 when Bill C-22 was found not to be the version passed by the other place, but I agreed to the Senate attending to the matter on its own on the assumption that it was a unique case. I regret now having done so, as a more rigid reaction by the Senate at that time might have made the House of Commons a little more careful in its drafting practices before sending bills on.
In any event, the process set out in the notice of motion of the Deputy Leader is not appropriate and not applicable to the situation before us. I request, with respect, a ruling that the Deputy Leader's motion is out of order, and that it is simply not the way to deal with the situation.
All the authorities are clear: It is for the House of Commons to advise the Senate of any bill sent by mistake. It is for the House of Commons to ask for its return. It is for the House of Commons to send the correct version.
It is not for the Senate to interpret and try to correct mistakes made by the other place.
Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, I, not surprisingly, disagree with Senator Lynch-Staunton's argument that the only way to remedy the problem we face is to follow the procedure suggested in Erskine May, which he eloquently argued and presented.
There are other ways, and one of the other ways is the way that I have proposed, and that is to debate and vote on the notice of motion that I have put.
I do not have the same pages of Erskine May as Senator Lynch-Staunton. I have been working on the basis of a quotation that I sought and have used. I do not have the precise paragraph, but it is found on page 545. It is one that deals with parchment errors. It says:
If a bill is carried to the other House by mistake, or if any other serious error is discovered, a message is sent to have the bill returned or the error otherwise rectified.
There is a footnote. I am not sure, but this may well be the same situation that Senator Lynch-Staunton quoted.
In fact, I made reference to this when I sought leave to have the proceeding that was before us, namely, first reading of Bill C-12, declared null and void, which I equate to being rescinded.
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I have done some additional inquiring and a bit of research, and I came up with the motion that is before us on the Order Paper.
I should like to make a few comments in the context of what is the purpose behind our rule, which is referred to in our Companion to the Rules of the Senate of Canada at page 189. It was then rule 64, now rule 63, I believe. It is referred to as the "same question rule." The rule refers to, I think, three things. It states:
A motion shall not be made which is the same in substance as any question which, during the same session, has been resolved in the affirmative or negative, unless the order, resolution, or other decision on such question has been rescinded as hereinafter provided.
In other words, it is an order, a resolution or other decision. In this case, I would argue that we have not made an order, passed a resolution or made a decision. What we have done, in accordance with the rules under the provision of our Order Paper called "Introduction and First Reading of Government Bills," is given first reading to a bill. I would equate it to a notice of motion. We do something with the bill when we reach second reading stage and we do something following debate. At that point, I think we do run directly into the "same question rule," but until such time as something has happened, I do not believe that rule is applicable, unless we want to make it applicable.
The first part of my argument, then, is that what we have done by introducing a bill and giving it first reading does not, strictly speaking, come within rule 63. Why have I referred to that rule in my notice of motion, then? It was out of an abundance of caution, honourable senators, so that there would be no confusion as to the fact that, among other things, we are not going to have reference to that particular rule.
I will not quote the rules as they apply to introducing and giving first reading to bills. Once we receive a bill from the other place, it is introduced and given first reading, and it sits there until we do something with it. In this case, we have done nothing with Bill C-12. I think the process that I am suggesting we follow by dealing with the resolution is good in that we have an opportunity to debate the matter. I do not see much reason for debate.
Honourable senators, what has happened here is obvious. We received an incorrect parchment, and the other place has sent us another parchment. I would much rather they had followed the procedure suggested in Erskine May and asked for a return of the parchment, corrected it and given it back to us. I am not sure what happens in this place when a request like that is received. I suspect we probably would have to pass a resolution to comply with their request.
In any event, that is one way of dealing with the matter, but, as I said at the very beginning of my comments, not the only way. The other way, the one that I proposed, has been used a number of times.
Honourable senators, I have here a memorandum that was requested by Senator Connolly when he was government leader. I will table this document. In that memorandum dated August, 1967, and updated in 1996, there are a number of examples where the procedure I am recommending has been used.
Perhaps I can proceed backward in time. The page numbers I will cite are from the Journals of the Senate for the particular years to which I will refer. In 1994-96, at page 977, an order referring a bill to a certain committee was rescinded and the bill was referred to another committee.
In 1991-93, at pages 203 and 355, a motion to rescind the adoption of the first report of the Rules Committee of June 18, 1991, changing the rules was debated and eventually dropped from the Orders of the Day. That is an example of this procedure.
In 1986-88, at page 2736, an order for second reading of a bill and referral to committee — not unlike this circumstance — was rescinded and the bill was withdrawn.
For the same years, at page 3284, an order respecting the division of Bill C-103, together with proceedings concerning the committee report and third reading of Part I of the bill, was rescinded.
There are many examples, honourable senators. The oldest one that I will refer to is from 1920, at page 412, where the action of the Senate to adopt the sixth report of the Internal Economy Committee was rescinded.
Honourable senators, for the reasons stated, I believe that the motion I have put is entirely in order. It is one of the ways for this chamber to make a decision on whether to declare null and void a proceeding — in other words, the first reading of a bill. Of course, the purpose for the motion is to have that introduction and first reading declared null and void, and to clear the Order Paper so that the other version of Bill C-12, the correct version, can be given first reading and proceed in accordance with our rules.
A question was put yesterday as to how we know which is the correct bill. I can say we know that is the correct version in the same way we know that these are the correct versions when we receive them. We receive thousands of bills that are correct. Occasionally there is an error and occasionally — unfortunately, fairly frequently in the context of Bill C-22 and Bill C-12 — we have discovered errors or errors have been discovered in the other place. Corrections have been made by simply sending us the corrected version of the bill.
Honourable senators, this is something that does happen. We make errors. It could well be a bill going the other way. In any event, the error has been made. There is more than one way of dealing with it and correcting the error. The way I proposed is entirely within our rules and entirely consistent with precedents that have been used in this place in the past. I would submit on this point of order that the motion is in order and that we should be able to proceed with it.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I would hope that the Speaker, when examining the point of order raised by Senator Lynch-Staunton, will first and foremost attend to the attempt by my honourable friend the Deputy Leader of the Government yesterday, when he rose under rule 58 and quite improperly, in my opinion, chose to ignore what rule 58 states. I remind honourable senators that rule 58(2) provides that:
Where a Senator wishes to correct irregularities or mistakes in an order, resolution, or other vote of the Senate, the Senator shall give one day's notice, and a correction shall not be made unless at least two-thirds of the Senators present vote in favour of such correction.
I would ask that Her Honour give attention to the import of the two-thirds vote that is required under rule 58(2) and its application because notice of the motion that is before us today was made yesterday pursuant to rule 58.
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My second argument is that when one looks at the rules that the honourable senator wishes us to ignore, namely, rules 63(1) and (2), rule 63(2) of our Rules of the Senate of Canada states:
An order, resolution, or other decision of the Senate may be rescinded on five days' notice if at least two-thirds of the Senators present vote in favour of its rescission.
What is being attempted here — and it should be a matter of alarm for all honourable senators — is the use of a majority of 50 per cent plus one to trump the rule which stipulates in certain circumstances we must have a majority of 66 per cent. The point is that what we had here was an order, and the term "order" is explicit in rule 63(2).
Obviously, the logic of attempting to use a 50 per cent plus one majority to trump a required 66 per cent majority is clear. We have the enriched majority to provide for certain kinds of protection. The protection is the protection of the minority, and that is why the rules are there.
At page 364, Erskine May has an interesting passage that Her Honour will find quite germane to this matter. It states:
The reason why motions for open rescission are so rare and the rules of procedure carefully guard against the indirect rescission of votes, is that both Houses instinctively realise that parliamentary government requires the majority to abide by a decision regularly come to, however unexpected, and that it is unfair to resort to methods, whether direct or indirect, to reverse such a decision. The practice, resulting from this feeling, is essentially a safeguard for the rights of the minority, and a contrary practice is not normally resorted to...
Honourable senators, it will be important that the Speaker's ruling on the point of order raised give us guidance as to the test or the measure of the majority that would be required to be met in these instances. To help in that regard, reference has been made to some sources in procedural literature. I simply wish to add that if we look at what our friends to the south often follow in Robert's Rules of Order, on the matter of the suspension of rules, it is clear that a two-thirds majority is the norm in this kind of circumstance where the rules of standing orders are being attempted to be overcome.
Hon. Anne C. Cools: Honourable senators, I missed a substantial part of the debate. First, perhaps I should clarify what we are speaking about. The question before us is a point of order in respect of a motion of the Honourable Senator Hays.
As I look at Senator Hays' motion, the wording begins "That, notwithstanding Rules 63(1) and 63(2)" and ends with the words "to have the bill returned or the error otherwise rectified." At first blush, I should like to say that this is not a motion. There are two distinct motions combined in this motion. The first part, in respect of declaring a previous proceeding of the Senate to be null and void, is one distinct proposition or motion. That is followed by a separate and distinct — and I would say unrelated — proposition, namely, that there be a reference to the Standing Committee on Privileges, Standing Rules and Orders in respect of page 545 of Erskine May Parliamentary Practice.
From what I can see, we have two motions here feigning to be one. In reality, this motion is two distinct propositions that bear no relationship to each other and are not joined. The motion states that "the proceedings on Bill C-12...be declared null and void." That first proposition is seeking a totally different authority from the second one. The second one is purely a reference to a committee to study a few words or a statement from Erskine May. The first proposition is the substantial one. However, the two should not be in the same motion, since the requirements are quite different for the two of them.
The second proposition is straightforward, because it asks the committee to study a particular question. The first one is the more difficult proposition, because it asks the Senate to overturn its previous judgment. It asks the Senate to overturn first reading of the bill.
I should now like to speak to that whole question of overturning a first reading of a bill.
Honourable senators, there is no mistake that the Senate gave first reading to the bill, which passed this place. It may be a mistake, but someone introduced the bill and put it before us. The Senate has given a judgment. That is crystal clear.
The question then becomes: Having given a judgment or an opinion on a bill, how does the Senate then go about overturning its own judgment and substituting a new judgment? It seems to me, honourable senators, that there is a procedure described in rules 63(1) and 63(2) for doing that sort of thing. It is simply not good enough to say that notwithstanding that process, one overturns the other. We have a very serious question before us, which is to overturn and to rescind a previous judgment. That should be factored into this picture.
If we were to drop down to the second part of that motion, which is an entirely different proposition, Erskine May's words, cited in the second paragraph, state:
(1500)If a bill is carried by the other House by mistake, or if any other serious error is discovered, a message is sent to have the bill returned or the error otherwise rectified.
I submit that that particular passage as contained in this particular articulation is not helpful whatsoever. I submit it is not relevant. It seems to me that that particular passage from Erskine May speaks to the essential question of the House of Commons having discovered that it has made a mistake. Therefore, they ask, by message, to have the bill returned to them. The particular passage in no way addresses the question of what happens when the bill has been passed. For example, let us say the bill had passed third reading. In this instance, we are talking about first reading. Suppose it had been second or third reading. At the end of the process, could the Senate actually say, "Oops, a mistake has been made. Let us send it back"? I think not. The substantial question before us is that, for whatever reason, a bill with certain imperfections has come before us and, imperfections and all, the bill has received first reading. Whatever inadequacies, whatever flaws, whatever imperfections, it has happened.
What we are dealing with here is the whole question of overturning a decision, in this instance a first reading that has been rendered in this place. Honourable senators, it seems to me that it takes a little more than a simple motion to overturn a previous decision of that magnitude.
I am pleased to see that, somehow or other, this mishap has happened for some very sound or unquestionable reasons. There is no intention to deceive or mislead the Senate. However you sum it up, the fact of the matter is that first reading has carried in this place and the bill was adopted in this place at first reading.
I think it would be just and proper if we could wrap our minds around the real question, which is: How does the Senate overturn its own judgment of a few days previous? That is the real question that Her Honour is being asked to consider.
The Senate already has prescribed a procedure as to how it should overturn its own motions. That procedure is described in rule 63. That is the substantial question before us. It seems to me that we could proceed in a very straightforward way by giving the proper notice of the proper motion and fulfil the rules of the Senate as they have been prescribed.
The final point I should like to bring forward is that we keep hearing the word "mistake." It seems to me that once this place has made a judgment in a reading, it is not a mistake; it is the judgment of this place. It may be a wrong judgment or a bad judgment. What the Senate has to do is to say that it was a wrong or a bad judgment and then seek to overturn the Senate's own judgment in the properly prescribed and proscribed manner.
My remarks are extemporaneous because I missed a part of the debate. However, the motion contains two separate and unrelated propositions. The second is not relevant to the first. The first is the substantive issue. The funny thing about the first proposition, as I said, which is not related to the second proposition, is that the first proposition is attempting to overturn a judgment by itself overturning the rules of the Senate. That is a very serious matter.
Honourable senators, at some point in time, we will have to try to figure out exactly when rules are rules. At this point in time, I no longer know when the rules are the rules. One simply cannot keep waiving and changing the rules minute by minute, because it creates uncertainty and unpredictability.
Honourable senators, I hope I have been clear. I did not have an opportunity to hear what Senator Hays said. I missed most of what Senator Lynch-Staunton said. Very clearly, this motion is not adequate to the task.
Hon. John G. Bryden: Honourable senators, I wish to intervene on this matter to try to represent the people who are being impacted by this very important discussion that is now going on. I cannot talk about the bill because I do not want to do anything to prejudice it.
With all due respect, honourable senators, we are dealing with this bill in a highly technical and procedural way in that the discussion is about an issue that has occurred twice. I have been here for almost six years. There have been only two occasions that something like this has occurred. If it had happened twice, once four years ago and once two weeks ago, we would have said, "Well, everyone makes mistakes."
The substance of the bill deals with the safety of workers in the workplace. It deals with the right of workers to refuse to do dangerous work. One of the most important issues is that a pregnant woman have the right to refuse a work situation, whether in front of a computer screen or whatever, until such time as it is declared by a medical professional that it is safe for her to be there.
These are the real things with which both Houses of Parliament deal. Those of us who have dealt with labour-management situations, as Senator Kinsella has, know how difficult it is to bring parties to the point we have now reached. They have been trying to get here since 1995. Because I am the sponsor of the bill, if we ever get to deal with it, I receive calls from people saying, "How is it going? We want to ensure that it gets done before there is any interference with it." I assume that they will be following the proceedings in this place. Most likely they are aware that a comparable situation occurred not long ago. By the good offices of the people who understand these technicalities and so on, a decision was made, by agreement, to allow the situation to be corrected in the interests of proceeding forward.
It will be difficult for some of these people to understand why then and why not now. I can anticipate the arguments. There comes a point when we must stick by our procedures and adhere to the rules. However, to the best of my knowledge, this is not an epidemic. As I say, in six years this so-called unprecedented incident has occurred but twice.
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Surely, in the ingenuity of the leadership on both sides of this house, and indeed, the Speaker's office, it is possible to warn the other place that this type of oversight has occurred twice in a short period of time and we will not tolerate this continuing.
In the interests of advancing what are significant and substantive concerns that have been worked on so hard by ordinary people in the workplace, is it possible to resolve the problem between the two Houses by finding some other ingenious way of dealing with it and proceed by agreement?
Hon. J. Bernard Boudreau (Leader of the Government): Honourable senators, I enter this debate for a limited purpose. I have been impressed by the arguments put forward by Senator Lynch-Staunton in his normal, elegant and well-reasoned fashion. The honourable senator makes the point that the best way of handling this may be the way that he proposes. As Senator Lynch-Staunton put his points forward, I have found myself from time to time nodding virtually in agreement.
Of course, the issue is not what is the best way to do this. The issue is whether the method proposed by the Deputy Leader of the Government is legitimate. Is it one of the methods that can be used? I would certainly support him in that and say that of course it is. Whether or not it is the best method, the one we should look to in other circumstances, quite frankly, with respect to the decision to be taken by the Speaker, I say is irrelevant.
Honourable senators, my point relates to the argument made by the Deputy Leader of the Opposition. He indicated his objection to a principle point of the suggestion that we use a rule that requires a simple majority to pre-empt a rule that requires a two-thirds majority. I believe that was the point made by the honourable senator in his objection to the approach put forward by the Deputy Leader of the Government.
In connection with that, I should like to bring to the floor, for the Table and for Her Honour, section 36 of the Constitution Act, 1867. I will read that, if I may. Section 36 reads as follows:
Questions arising in the Senate shall be decided by a Majority of Voices...
I do not know how that impacts on such of our rules that may require something other than a majority under the Constitution, but for whatever purpose it may be helpful, I bring it to the argument.
Hon. Jean-Robert Gauthier: Honourable senators, if I enter the debate, it is because I believe most of us are thoroughly confused at this time. As far as I understand the issue, we are dealing with a bill that was read the first time. Bills are read three times in this house. The first reading gives the authority to print the bill. No vote on the question will change that issue. Reading the bill at first reading only means we do not pronounce ourselves, commit ourselves or take decisions. Honourable senators just say, yes, we authorize the printing of the bill and its circulation to the members of this house.
If I am wrong, I want the Deputy Leader of the Government to tell me that I am wrong. If I am not wrong, then what the heck is going on here? We are making a big issue that is obstructing an important bill, which, to me, should be adopted by this house because it deals with workers in this country. Let us not dilly-dally. Whether or not we need two thirds, 50 plus one, or whether or not it is two motions, I do not care very much. I want to see action taken on this bill. If the concern arises at first reading of the bill, the mistake lies with the other place. We all recognize that. Let us go on and proceed with the suggestion made by the Deputy Leader of the Government.
I know there are other methods. I am quite aware of what is in Erskine May. I could go on for half an hour about the solutions available at this stage, but I feel that the proposal made by the Deputy Leader of the Government is a good one, and we should adopt that proposal.
Senator Lynch-Staunton: If I may make a few closing comments, at least closing on my part. When a bill comes here, it is already printed. It is not like the House of Commons. We proceed immediately to second reading. If Senator Gauthier will allow a correction, our procedure is different.
We should not be discussing the nature of the bill now. I do not know the bill that well. I am told by colleagues who do know it that it is a very good bill, and we should get on with it. I agree with that. If we are to follow the government leader's proposal and do it in the best way we think is suitable, then we might as well throw the authorities and the procedure books away, and just go day by day whimsically. Either we follow basic rules or we do not.
An error was made in sending the bill over here. Who caused the error is irrelevant. It is up to those who made the error to recognize their mistake, to advise us accordingly, and to take the necessary steps to send over the proper bill. It is as simple as that. It is not for the government leader or deputy leader to take the responsibility of tabling a bill on behalf of the government and take the responsibility for its accuracy. It is for the House itself, by message, to say, "Sorry, we sent you the wrong one, here is a correct one." It is not for members of the Senate to do so on behalf of the government, even if they are spokesmen for the government here. I think the responsibility that Senator Hays wants to take upon himself is one he should not. If the honourable senator takes responsibility now, if his motion is adopted, he is, in effect, guaranteeing the accuracy of bills that are prepared by others. That is not his job.
Honourable senators, what we are trying to do with this point of order, is ensure that the bills that come here are complete and correct. The only people who can guarantee that are those who are responsible for sending the bills, and no one else, and certainly not someone in this place.
Senator Hays: I should like to claim the right to make a few final comments. First, with respect to Senator Kinsella's statement, he went on to refer to section 58(2), which requires an extraordinary majority. I refer to section 58(1) as the basis for my motion, namely a day's notice for a motion to suspend the rules. I refer to rule 63, which I think is the most constricting or potentially the largest hurdle to cross.
I believe all of the arguments I made with respect to section 63(1) apply mutatis mutandis to rule 58(2). I repeat, the reference in both is to an order, resolution or other vote of the Senate in the case of section 58(2) and, in the case of section 63, an order, resolution or decision on the question.
Honourable senators, I should like to associate myself, in the strongest possible way, with Senator Gauthier's comments and read the relevant rule from the Rules of the Senate, rule 73(2), which states:
Immediately after its introduction a bill shall be read a first time and printed.
That is similar to the House. Nothing more happens. We move a motion, as a matter of our custom, that it will be given consideration at the earliest time, that is two days hence in the case of a bill.
Honourable senators, I am not asking to interfere with that motion. The Senate has done nothing at this point. We have received a bill from the House. It has been introduced and given first reading. Procedurally, that sets the pathway for the bill to be dealt with. It is like a notice of motion. It is not a situation where we must apply, as Senator Lynch-Staunton submits, and as supported by Senator Cools, the rule on the same question. I do not think that is necessary. We are not trying to do the same thing twice. We have done nothing at this point with Bill C-12. That is the problem.
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With respect to Senator Lynch-Staunton's point on following the rules, he is right that we should follow the rules, but this is a rare occurrence, and we do not have a clear provision in our rules to deal with this situation. That is why my motion contains a provision that we refer the matter, with the quote from Erskine May, to the Standing Committee on Privileges, Standing Rules and Orders for the purpose of clarifying our rules.
This is not the first time this has happened, honourable senators. In a similar circumstance, the Standing Senate Committee on Banking, Trade and Commerce made the same recommendation. We have not yet heard from the Rules Committee on that matter.
I request the permission of the Senate to table the memorandum from which I quoted, dated January 29, 1982, and revised August 7, 1996, regarding motions or orders rescinded since 1915. The Senate has rescinded an order some 16 times. I am arguing that first reading is less than an order.
In tabling this document, since honourable senators have not had an opportunity to read it, I will note that virtually all of the orders that were rescinded were motions moved with leave. They were not passed with leave. In one case, for example, the motion was passed on division with a voice vote.
When we give leave to abridge the time from the giving of a notice of motion to dealing with the motion, that is all we do. It has nothing to do with the motion itself. The motion may be passed with leave, but normally the motion is put as a question and dealt with in that way. I make that comment in anticipation of there being some identification of leave not only to proceed but to do that for which the motion calls.
As I have said, Senator Lynch-Staunton's points are very good, outlining a way in which this problem could be resolved. It is difficult for us to do that at this time because, as I understand it, the clerk of the other place requires a motion or resolution to be passed, and we may well have to do the same here.
That is a lengthy procedure, and I referred to Senator Bryden's comments about timeliness. I think we should follow this other pathway to dealing with the problem we are encountering at this moment with Bill C-12.
Honourable senators, I request leave to table the memorandum I identified earlier.
The Hon. the Speaker pro tempore: Is leave granted to table the document?
Hon. Senators: Agreed.
Hon. Eymard G. Corbin: Surely, honourable senators, we will be given sufficient time to examine that document. As one who has rights and likes to exercise them, I am hopeful that we are not rushing into a request for a ruling without having had appropriate time to examine all of the evidence that is being put before us.
Senator Kinsella: Honourable senators, I associate myself with the comments of Senator Bryden. This is very important. We are dealing here with a point of order on the methodology proposed by Senator Hays, which we find totally inappropriate. We did indeed accommodate work through the usual channels the last time this happened. The issue before us is how messages pass back and forth between the two Houses of Parliament. Let us assume that we expunge, by whatever methodology, the first reading of the bill before us. What then happens? We need a message from the House of Commons with the parchment containing "the correct bill." Therefore, action is required in the other place, not here. I agree with Senator Bryden. I think the only way in which this matter can be resolved is for the House of Commons to send a new message with a new parchment to this place. We can find the methodology to expunge what is currently before us.
Senator Hays: Honourable senators, as Her Honour said yesterday, we have received the corrected parchment. It could not be read because a bill was already sent and received. It cannot be dealt with by us because we have already given first reading to a bill, a process that we are asking be found null and void in order that the parchment we have received can be given first reading.
As I have said, we receive these parchments all the time. They have been incorrect on two occasions of which I am aware. On all other occasions, as far as I know, they have been correct.
Senator Cools: Honourable senators, I wish to point out that in my remarks I made no comment on the substance of the bill because the substance of the bill is not before us in this discussion. I believe that most of us are quite supportive of the substance of the bill and should like it to move ahead.
Further to what Senator Corbin said about rushing into various procedures, if a decision is required of this place to overturn a previous decision, that involves each and every member of the Senate. It involves the rights and privileges of each and every member to express an opinion and to vote on that particular question.
Often, much here is dismissed as simple technicalities. First reading is not simply the printing of the bill. First reading is the resolution of this place that senators have read the bill and are resolved that it proceed to the next stage.
Senator Hays is saying that the Senate must now resolve that senators did not read the bill and did not agree that it should proceed to second reading. It becomes even more clear that we are not nullifying or voiding a procedure but rather overturning a previous judgment.
The Senate is being asked to agree, by motion, that its previous judgment was the wrong judgment, and that is the issue before us. We are dealing with a rescission of a Senate judgment.
Senator Boudreau referred to a section of the BNA Act as part of the guidance to Her Honour and to the Speaker. I would remind honourable senators that the Speaker of the Senate has no proper role in constitutional and substantial questions. As honourable senators know, I believe these questions should be resolved by senators without reference to the Chair.
The only question to be answered is whether this motion satisfies the requirements needed for the Senate to arrive at a conclusion opposite to that at which it originally arrived. How does the Senate go about doing that? The mistake that was made was not that of the Senate. The mistake made was that the Senate adopted a bill at first reading it may not have wished to adopt.
I should like to make it quite clear that I am supportive of the substance of the bill. However, senators should pay much more attention to procedural issues.
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Senator Hays: I hesitate, but I guess I should answer the arguments against me.
Senator Cools' point is well put as it is and is helpful, as Senator Cools always is, but I must disagree. When we give first reading to a bill, we do it in accordance with the rule that I quoted. It is read a first time and printed.
If it were read and we had knowledge of it, we would not wait two days to start debate. The reason we wait two days is so that we can study the bill and be prepared to go on to the next stage. At first reading, no stage has been moved to and nothing has occurred.
In terms of Senator Corbin's point about taking quite a bit of time here, I doubt that Her Honour will rule from the Chair. Assuming she does not, we probably will not return to this matter until Tuesday. I would ask the cooperation of honourable senators to do the reading, get a copy of the document I tabled or other references so that hopefully we can proceed with this item when we sit next week, simply because, as Senator Bryden has
pointed out, this is an important bill and it deserves our earliest attention. I would hope we would all agree, as Senator Cools agreed, that we should do that.
The Hon. the Speaker pro tempore: Honourable senators, again I want to thank you for all your valuable comments and arguments. I will take the matter under advisement and provide a ruling at the next sitting of the Senate.
Debate adjourned to await Speaker's ruling.
State of Domestic and International Financial System
Export Development Act—Interim Report of Banking, Trade and Commerce Committee on Study Adopted
The Senate proceeded to consideration of the fourth report (interim) of the Standing Senate Committee on Banking, Trade and Commerce entitled: "Export Development Act," tabled in the Senate on March 28, 2000.—(Honourable Senator Kolber).Hon. E. Leo Kolber moved the adoption of the report.
He said: Honourable senators, the Export Development Corporation is reviewed every so often, and we have just completed that review and have tabled our report.
In 1993, the government passed amendments to the Export Development Act that substantially expanded the powers of the Export Development Corporation. Section 25 of the revised act required that a review of EDC be undertaken five years after the amendments took effect and every 10 years thereafter.
On July 21, 1999, the report on the review of EDC, prepared by the law firm of Gowling, Strathy & Henderson, was tabled in the House of Commons and referred to the Standing Senate Committee on Banking, Trade and Commerce as well as the House Standing Committee on Foreign Affairs and International Trade.
Not wishing to duplicate the thorough job done by the House Standing Committee, the Senate Banking Committee focused on a few key issues, most prominently the lack of private sector involvement in the medium-term financing of Canadian exporters.
It is my view, and I believe that of the entire committee, that this is a serious issue facing Canadian exporters today. This issue revolves around recommendation 14 of the Gowling report, which states:
The government should make a program available to the banks on Canada Account which would provide guarantees for Consensus loans. The cost of establishing and operating this program would be charged to the banks in the form of risk-based Consensus compliant guarantee fees. The program would only be established if a sufficient number of banks were prepared to subscribe to it.
The House committee concluded the issue be studied further. Our committee heard from the banks, who favoured the Gowling recommendation, and the EDC, which had first opposed it, but then agreed to take part in further study.
While it has done a brisk business supporting Canadian exporters, the EDC has not done as well in enhancing the participation of Canadian financial institutions such as banks, insurance companies and factors, in the financing of exporters.
Testimony heard by the committee clearly suggested that the banks particularly could expand Canada's export capacity for SMEs, which are small- and medium-sized enterprises.
Ultimately, the committee did not feel that further study was warranted, particularly in the fact that new legislation was about to come down the pike on the whole matter all over again.
The committee's view on this matter was simple. The more institutions competing to provide financing to Canadian exporters, the better for exporters and Canada as a whole.
As Guy David, the leader of the Gowling review team, testified before the committee:
Canada is far too dependent on trade for its economic well-being to place excessive reliance on a single financial institution.
Being in agreement with this philosophy, the committee recommended that the government establish a guarantee facility that levels the playing field while not compromising the EDC's ability to serve exporters. Clearly, the paramount concern for the committee was to ensure that Canadian exporters were provided with the best possible assistance to allow them to compete in the international marketplace. I believe the work done by all members of the Banking Committee on this study will achieve this goal.
Finally, I would be remiss if I did not touch on one other issue. The committee also received written submissions from civil society groups. Canadians are rightly proud of the importance we all place on values such as human rights and respect for the environment. We expect our institutions, including the EDC, to respect these values.
The committee notes that the EDC continues to address these concerns through its Environmental Review Framework and its Code of Business Ethics, and that the EDC is formulating disclosure guidelines to provide greater transparency in its actions. The committee does not want to suggest that the EDC is failing to meet its civil society obligations, nor do we wish to suggest measures that would make it more difficult and costly to meet its commercial objectives. However, the committee felt it important that these principles be acknowledged, understood and reflected in the activities of the EDC.
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and report adopted.
Taxation of Capital Gains—Interim Report of Banking, Trade and Commerce Committee on Study Adopted
The Senate proceeded to consideration of the fifth report (interim) of the Standing Senate Committee on Banking, Trade and Commerce entitled: "The Taxation of Capital Gains," tabled in the Senate on May 3, 2000.—(Honourable Senator Kolber).Hon. E. Leo Kolber moved the adoption of the report.
He said: Honourable senators, last fall, the Standing Senate Committee on Banking, Trade and Commerce began a study of the capital gains tax in Canada. There were two factors that gave impetus to this study.
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First, in the spring of 1999, during hearings dealing with the availability of equity financing for small- and medium-sized enterprises known as SMEs, the committee heard from many witnesses that an increase in the exemption on capital gains and a reduction in the taxation rate on capital gains would help the Canadian economy.
By the way, we just came back from Chicago where we held hearings on venture capital. We heard from a group of American venture capitalists who told us, unequivocally, that if it were not for our silly capital gains posture, we would have much more venture capital in this country.
This would happen, the committee was told, because financing would become available from successful entrepreneurs who reinvest some of the profits that they earn into smaller companies with growth potential in their region. Indeed, we were told that, at the then current capital gains tax rates, there was an unfavourable risk-reward relationship in extending equity financing to SMEs. Investors would face the downside possibility of losing their entire investment, with limited tax benefits, while, on the upside, they must share a significant proportion of their return with the government. They are better off making investments in less-risky avenues where there exists a better risk-reward trade-off.
With respect to start-up situations, we were told the accepted figure is that two out of 10 succeed and that eight out of 10 fail. The U.S. venture capitalists thought it was more like two out of 20. Be that as it may, if there is a loss on eight out of 10 and money is made on two out of 10, and 40 per cent of that profit has to be given back, on the face of it, mathematically it does not seem like a good business.
Second, the Canadian economy, relatively small and open compared to other major industrial democracies, is intimately intertwined in the global economy. Moreover, in the real world of commerce, Canada has become more vulnerable to the business and economic conjuncture in the United States. In practical terms, this means that Canada is subject to the global competitive pressures in markets for goods and for services — which mirror our productivity performance, by the way — and we must also compete in the international market for capital and labour, particularly for entrepreneurial skills.
The committee believed that because of the international mobility of resources, Canadian tax policy, particularly relating to capital gains taxation, had to take careful account of developments among its trading partners. In particular, because the United States is so important to Canada, Canada's tax policy must be competitive with the Americans if both the Canadian economy and Canadian society are to flourish. Clearly, the ability of Canadians to find "good" jobs is a prerequisite to meeting this objective.
The evidence collected by the Banking Committee was summarized in our report tabled in this house last month. The committee heard from many distinguished experts on the subject, including several from offshore and, virtually without exception, they supported the major tenets underlying the rationale for the study. Moreover, they encouraged the government to face up to the reality of the marketplace and take onboard the idea of being competitive with the Americans. Indeed, there was a genuine belief among the witnesses that Canada's policies towards capital accumulation were misguided and that a change of substantial proportions was necessary.
We heard about the negative contribution of Canada's capital gains taxation policy on the relatively small number of start-up enterprises, its impact on the so-called brain drain, the impact on the high cost of capital relative to our competitors, and, importantly, the absence of a robust market in venture capital. The list could go on. The bottom line is that we had better change the way we manage our affairs.
We, as a committee, did not come forward with a great many recommendations. In fact, there was only one recommendation in the report: That the Canadian capital gains tax rate should quickly be lowered to match the rate in the United States, that international competitiveness be the criterion guiding the choice of a capital gains regime, and that the federal government must be prepared to lower the tax until that criterion is met.
I ask, what could be clearer? The committee has put forward a purposeful recommendation to benefit the economic and social development of the country. Lowering the capital gains tax is an investment in Canada's future. It helps to create an environment that is friendly to business, friendly to capital, friendly to the creation of good and enduring jobs, and tells the world that Canada is the place to invest.
What this means, in public policy terms, is that the last budget of the Minister of Finance did not go far enough, although the direction was obviously right. The current effective capital gains tax for persons was lowered from almost 40 per cent to about 33 per cent. However, the United States' rate is 20 per cent. Ireland's rate is 20 per cent. In the Netherlands, recently judged a very good place to do business, capital gains are exempt. In Germany, if you hold capital assets for over six months, they are also exempt.
Let us get on with governing in a way that provides a good environment for social and economic development. We want, first, better-sustained job and economic growth performance, and, second, to encourage greater risk taking and entrepreneurship. Without these elements of success, we will not be able to afford those policies that provide Canadians with a world-class social safety net.
Hon. Jerahmiel S. Grafstein: Honourable senators, I wish to commend Senator Kolber and the committee for an interesting, one-recommendation report. I am curious about a subject matter to which he referred but did not deal with in the recommendation — that is, the increasing capital pools in the hands of pension funds. If one takes a look at the accretion of power in economic terms in the last 10 years, there has been an accelerating rate of economic power in the hands of pension funds — capital power for capital investment. Was the chairman able to take a look at the investment practices of these pension funds and how much money they are, in fact, delegating to small business starts in Canada compared to other matters, and whether this is a sufficient flow of funds to small business from pension funds that are capital-exempt and are tax-exempt to help accelerate investment in Canada?
Senator Kolber: Actually, the amount of money, as I recall, from pension funds is quite small. The big sum of money — and it is a large proportion of the money available — is from the labour-sponsored funds. Perhaps that is what Senator Grafstein was referring to. The labour-sponsored funds, for example, have not been too successful. They also attract money by tax incentives from both levels of government.
The pool of capital, to answer the honourable senator's question directly, is really still very small.
Senator Grafstein: Does the honourable senator have any numbers?
Senator Kolber: I do not have them here, but I would be happy to get them and send them to the honourable senator.
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to and report adopted.
Energy, the Environment and Natural Resources
Motion to Authorize Committee to Meet During Sittings of the Senate Withdrawn
On the Order:Resuming debate on the motion of the Honourable Senator Spivak, seconded by the Honourable Senator Chalifoux:
That the Standing Senate Committee on Energy, the Environment, and Natural Resources have power to sit at 5:30 p.m. on Tuesday, June 6 and June 13, 2000, for the purpose of hearing witnesses on its study of Bill S-20, An Act to enable and assist the Canadian tobacco industry in attaining its objective of preventing the use of tobacco products by young persons in Canada, even though the Senate may then be sitting, and that Rule 95(4) be suspended in relation thereto.—(Honourable Senator Hays).
Hon. Dan Hays (Deputy Leader of the Government): Honourable senators, this order stands in my name. What would be achieved if the motion were passed is now irrelevant. I accordingly ask that the motion be withdrawn.
The Hon. the Speaker pro tempore: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Motion withdrawn.
Religious Freedom in China in Relation to United Nations International Covenants
Inquiry
On the Order:Resuming debate on the inquiry of the Honourable Senator Wilson calling the attention of the Senate to religious freedom in China, in relation to the UN international covenants.—(Honourable Senator Kinsella).
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I wish to participate in the debate on the inquiry brought forward by Senator Wilson calling our attention to the state of religious freedom in China, with particular reference to the United Nations international covenants, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.
On March 3 of this year, a matter of a few weeks ago, Her Excellency Mary Robinson, the former president of Ireland and current High Commissioner for Human Rights at the United Nations, expressed her concern that religious expression in China was suffering from government clampdowns and that those violations had negative effects on the practice of democracy in China. China was not particularly pleased with the High Commissioner's critique and argued that the Chinese people are satisfied with the freedoms that they now enjoy.
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In response to questions posed to the Government of Canada on February 15 of this year by myself and my colleague Senator Di Nino, the government stated that it is concerned with the negative treatment of Christians in China and was pursuing the matter through bilateral relations and dialogue with senior Chinese officials.
Honourable senators, we welcome that undertaking and statement of an undertaking by the government, and hopefully in the not-too-distant future we may have a report from the government on the specific steps that have been taken during the various bilateral relations and dialogue between Canada and China. To date, no specific action has been taken by the Canadian government on the specific matter of the limitation of religious freedoms in China.
This is of particular concern in light of Senator Wilson's inquiry because, as honourable senators realize, Canada has ratified, with the agreement of all of the provincial and territorial governments in Canada, the International Covenant on Civil and Political Rights. In that international human rights treaty, we remind ourselves that Article 2, Section 1 states that state parties to the covenant undertake to protect, among other rights, freedom of religion.
In that light, the federal government must enunciate a clear and unequivocal position on the Chinese government's campaign to silence unapproved religious and other various faith communities that are present in China.
Catholic Archbishop John Yang Shudao was jailed because he refused to renounce his loyalty to the Roman Catholic Church in Rome in favour of supporting the Communist Party's approved Catholic church and the China Patriot Catholic Association. Eight other bishops and many priests languish in jail as a result of this crackdown on religious freedom. This, I believe, for Canadians is not acceptable.
There is a tendency in some circles to attempt to justify the imprisonment of these men of the cloth by virtue of the assumption that religious rights detract from China's unique history or China's unique cultural experience. This sort of xenophobia, it seems to me, is an affront to the values that underpin the position of the Universal Declaration of Human Rights that all people have rights of belief and that such rights exist independent of governments, regimes, countries or leaders. It is difficult to understand how one can justify the political limitation of human rights based on the principles that those who practise foreign religions somehow seek to violate Chinese laws and codes of conduct.
Facing similar repression are followers of the spiritual group Falun Gong, about which comments have been raised and made in this chamber. The movement, which is a combination of Buddhism, Taoism and ancient Chinese healing practices, was ruled a criminal cult by the Chinese government. Over the years, thousands of Falun Gong practitioners have been jailed.
What is the Government of Canada prepared to do in order to voice its disapproval of China's persecution of the Falun Gong followers? Will it sponsor, for example, a China resolution of censure at the United Nations Commission on Human Rights, or will it impose trade sanctions until freedom of religion is permitted in the People's Republic of China?
In discussions with students of political science such as Valerie Schaeublin of the United States, we examined in some detail the 1999 Country Report on Human Rights Practices on China conducted by the United States State Department. That report states:
Unapproved religious groups, including Protestant and Catholic groups, continue to experience varying degrees of official interference, repression and persecution. The Government continued to enforce 1994 State Council regulations requiring all places of religious activity to register with the government and come under the supervision of official, "patriotic" religion organizations.
One might wonder, honourable senators, whether the federal government subscribes to the notion that this sort of control exercised over legitimate great religions of the world is not protecting community rights but, rather, those of a political party that fears freedom of religion would lead to its own demise.
The federal government has argued that:
By engaging in dialogue Canada is able to familiarize Chinese officials with international standards and approaches to human rights.
So long as Canada is willing to de-link China's human rights record from other forms of multilateral and bilateral economic relations, there is no real incentive for China to change its human rights practices.
One of the critical questions that arises in discussion of human rights is whether the Western concept of human rights is universally applicable, and from that flows the question of establishing a proper balance between the rights of the individual and the rights of the community. One needs to be careful if one goes down that avenue. If one takes the view that human rights can be considered subordinate to cultural issues, as China appears to be doing and as some have argued in this house, the practice of religious freedoms will certainly become problematic in China.
The belief that human rights are contextual, it seems to me, negates the universal nature of rights bestowed on each person by virtue of our humanity. Rights, in my view, are not contextual; they are universal and completely non-divisible.
I should like to call the attention of honourable senators to the International Covenant on Social, Economic and Cultural Rights, which has been part of our international treaty obligations since 1976 and which China has signed but not yet ratified. Article 5(1) of that treaty provides:
Nothing in the present Covenant may be interpreted as implying for any State group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant.
Section 2 of the same treaty continues:
No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the Covenant does not recognize such rights or that it recognizes them to a lesser extent.
Those rights include protection from persecution based on race, ethnicity, language or religious belief.
Some Asian leaders, such as Suharto, in the past have used the argument that human rights are culturally defined. They have used this argument to excuse and justify acts of atrocity against their own citizens. I would hope that members of this house and Canadians in general would reject an interpretation of human rights that attempts to justify the excesses of authoritarians above the rights of the common person.
Accepting the argument that rights can be subject to the context of the day demonstrates a fundamental misinterpretation and misunderstanding of what universal human rights are and what they ought to be.
Historical aberrations in Western society may appear to lend some support to the position that the West has ignored its own stated position on human rights, but it is a claim that is offensive and inaccurate. Past failures do not condone present and future complacency or leniency for those who would limit the rights of humanity.
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The great libertarian John Stuart Mill observed that policy should seek to provide "the greatest good for the greatest number," but this should not be taken to mean that the majority's tyranny of the minority is justified. Good for the many does not justify the oppression of the few.
It has been suggested that to debate Asian values versus Western values is to debate rights of communities versus the rights of individuals. One advocate of this argument is the Malaysian Prime Minister Mohamed Mahathir, who masterminded the false imprisonment of his former finance minister Anwar Ibrahim in the name of the collective interest. He invoked a made-up threat to collective rights in order to abrogate Anwar's individual rights.
This is a practice which, when seen in action, is clearly not supportable. At the extremes, one could argue that even basic necessities such as shelter would also be culturally defined rights.
The great Canadian known to many in this chamber, Professor John Humphery, believed that the Universal Declaration of Human Rights, which China has also signed, articulated rights that should not be subjected to any limitation, including that of culture and nationality. Although the famous Indian scholar R. Pannikar wrote that "Human rights are one window through which one envisages a just human order for its individuals," Pannikar and his academic contemporaries took the broader view that public affairs should be partially desecularized and organized such that affairs of state are conducted with respect for the contributions and character of all religions.
Clearly, this is not the case with the Chinese Communist Party government, which seeks to use arguments advocating multi-religious tolerance and participation to justify the exclusion of religions that do not toe the "party line." Although we must be sensitive to cultural differences, states should not be involved in controlling or defining religion.
What, then, is Canada's role in the scheme of things as we consider China's blatant abuse of the right to religious freedom? Is there a relationship between trade and human rights? Should there be? Is Canada eager to trade with human rights violators? Does the government take the view that China's cultural and historic attributes should shape our approach to human rights?
Will the Government of Canada intervene with the Chinese government in Beijing and seek the release of Archbishop John Yang Shudao, who was picked up by the Chinese security police in the city of Fuzhou? Does the federal government worry when religious leaders are placed under house arrest for not complying with state-defined religions and practising freedom of religion?
Does the Government of Canada approve or disapprove of China's abuse of the right of religious freedom? Does the Government of Canada approve or reject the Chinese government's recognition of only authorized religions?
In closing, honourable senators, I should like to reflect on a quote given by Thomas Jefferson during his first inaugural address:
Equal and exact justice to all men, of whatever state or persuasion, religious or political; peace, commerce, and honest friendship with all nations, entangling alliances with none....Freedom of religion; freedom of press, and freedom of person by juries impartially selected. These principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation. The wisdom of our sages and the blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civil instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety.
I ask honourable senators: To what extent are we prepared to protect human rights? If the government fails to recognize the importance of an issue as critical as human rights today, in what direction will this steer us in the future? Will the government examine this issue before it becomes too late?
The Hon. the Speaker pro tempore: Honourable senators, if no other senator wishes to speak, this order shall be considered debated.
Civil Justice System
Motion to Establish Special Senate Committee—Debate Adjourned
Hon. Anne C. Cools, pursuant to notice of March 29, 2000, moved:That a Special Committee be appointed to examine the civil justice system in Canada, including its operations, costs and availability to litigants, and the role of legal aid in the context of family law, with special emphasis on the impact of false allegations of child or spousal abuse within custody proceedings on both the administration of justice, and on the litigants and their immediate families;
That the Committee have the power to consult broadly, to examine relevant research studies, case law and literature;
That the Senate Special Committee on civil justice in Canada shall be composed of 5 senators, 3 of whom shall constitute a quorum;
That the Committee have the power to report from time to time, to send for persons, papers and records, and to print such papers and evidence as may be ordered by the Committee;
That the Committee have the power to sit during the adjournment of the Senate;
That the Committee have the power to retain the services of professional, technical and clerical staff, including legal counsel;
That the Committee have the power to adjourn from place to place within Canada;
That the Committee have the power to authorize television and radio broadcasting of any or all of its proceedings; and
That the Committee shall make its final report no later than 1 year from the date of its organization meeting.
On motion of Senator Hays, debate adjourned.
Adjournment
Leave having been given to revert to Government Notices of Motion:Hon. Dan Hays (Deputy Leader of the Government), with leave of the Senate and notwithstanding rule 58 (1)(h) moved:
That when the Senate adjourns today, it do stand adjourned until Tuesday, June 13, 2000, at 2 p.m.
The Senate adjourned until Tuesday, June 13, 2000, at 2 p.m.