Journals of the Senate
50 Elizabeth II, A.D. 2001, Canada
Journals of the Senate
1st Session, 37th Parliament
Issue 73
Tuesday, November 27, 2001
2:00 p.m.
The Honourable Daniel Hays, Speaker
The Members convened were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Austin, Bacon, Banks, Beaudoin, Biron, Bolduc, Callbeck, Carney, Carstairs, Chalifoux, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Day, De Bané, Doody, Eyton, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Gustafson, Hays, Hervieux-Payette, Hubley, Johnson, Joyal, Kelleher, Kenny, Keon, Kinsella, Kirby, Kolber, Kroft, LaPierre, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Mahovlich, Milne, Moore, Morin, Murray, Nolin, Oliver, Pearson, Phalen, Poulin (Charette), Poy, Prud'homme, Rivest, Robertson, Robichaud, Roche, Rompkey, Sibbeston, Sparrow, Spivak, St. Germain, Stollery, Stratton, Taylor, Tkachuk, Tunney, Watt, Wiebe, Wilson
The Members in attendance to business were:
The Honourable Senators
Adams, Andreychuk, Angus, Atkins, Austin, Bacon, Banks, Beaudoin, Biron, Bolduc, Callbeck, Carney, Carstairs, Chalifoux, Christensen, Cochrane, Comeau, Cook, Cools, Corbin, Cordy, Day, De Bané, Doody, Eyton, Fairbairn, Ferretti Barth, Finnerty, Fitzpatrick, Forrestall, Fraser, Furey, Gauthier, Gill, Grafstein, Graham, Gustafson, Hays, Hervieux-Payette, Hubley, Johnson, Joyal, Kelleher, Kenny, Keon, Kinsella, Kirby, Kolber, Kroft, LaPierre, Lawson, LeBreton, Léger, Losier-Cool, Lynch-Staunton, Mahovlich, Milne, Moore, Morin, Murray, Nolin, Oliver, Pearson, Phalen, Poulin (Charette), Poy, Prud'homme, Rivest, Robertson, Robichaud, Roche, Rompkey, *Setlakwe, Sibbeston, Sparrow, Spivak, St. Germain, Stollery, Stratton, Taylor, Tkachuk, Tunney, Watt, Wiebe, Wilson
PRAYERS
SENATORS' STATEMENTS
Pursuant to Rule 43(7), the Honourable Senator Cools gave notice that she would raise a question of privilege in respect of statements made by a Senator during Senators' Statements on Thursday, November 22, 2001, which statements were widely reported in the national newspapers on November 23, 2001, including the Ottawa Citizen, the Edmonton Journal, and the Vancouver Sun, which statements purport to link Senators and a Senate debate sponsored by herself on Bill S-9, An Act to remove certain doubts regarding the meaning of marriage, to the terrible murder of a homosexual man, Mr. Aaron Webster, in Vancouver's Stanley Park, which connection is not only tasteless but is also disrespectful of Senators and the Senate.
Some Honourable Senators made statements.
DAILY ROUTINE OF BUSINESS
Presentation of Reports from Standing or Special Committees
The Honourable Senator Bacon presented the following:
TUESDAY, November 27, 2001
The Standing Senate Committee on Transport and Communications has the honour to present its
EIGHTH REPORT
Your Committee, to which was referred Bill C-34, An Act to establish the Transportation Appeal Tribunal of Canada and to make consequential amendments to other Acts, has, in obedience to the Order of Reference of Tuesday, November 6, 2001, examined the said Bill and now reports the same without amendment, but with observations which are appended to this report.
Respectfully submitted,
LISE BACON
Chair
APPENDIX TO REPORT
The Committee considers the bill to establish the Transportation Appeal Tribunal Appeal Tribunal of Canada (the proposed tribunal) to be an advance in efforts by the government to achieve a higher level of compliance with safety regulations and, hence, to improve safety. The use of administrative penalties (such as those included in Bill C-34), which can be appealed to an administrative tribunal, have been shown to achieve better compliance.
The Committee has a concern, however, similar to that raised after its review of Bill C-14 the Canada Shipping Act. It appears that a person who has been assessed an administrative penalty and appealed it, and who was not satisfied with the ruling of the appeal tribunal, will not in all cases have recourse to the courts to have his grievance heard. The grounds for appeal to a Federal Court will be narrow, such as whether the tribunal had acted within its jurisdiction, or with appropriateness. The penalty may not be appealed on the merits of the case.
Our concern remains, but has been tempered somewhat by our closer review of the workings of the existing Civil Aviation Tribunal (the existing tribunal) and its fifteen years of operation. The existing tribunal appears to have achieved an enviable record of working expeditiously and efficiently, and in a non-legalistic way which has made it more open and responsive to all parties.
At the same time, the existing tribunal appears to have maintained a level of independence and impartiality which has allowed it to operate in a manner that respects the principles of fairness and natural justice. No evidence shows that industry feels it has not had adequate recourse when it felt it had been penalized unjustifiably. In addition, there are a number of (six) applications for judicial review before the Federal Court currently, demonstrating that this means of recourse is regarded as useful and is used.
The Committee believes that, with adequate reassurance that the concerns noted above in regard to appeals can be met, the bill may go forward as written. The reassurance needed is that the proposed appeal tribunal will be able to operate with the same level of independence as the existing tribunal has operated. For this to occur will require recognition by the Minister and his officials, especially those in the modes which will newly come under the tribunal, that this independence is crucial to its successful operation. The Committee believes that with this recognition, the new tribunal will be able to operate in a manner that assures fairness and natural justice, and that any shortcomings will be adequately dealt with by the Federal Court.
Therefore, the Committee urges the Minister formally to restate the government's commitment to the independence of the new tribunal and to direct his officials to take all necessary action to assure that the new tribunal will be able to operate in like manner to the existing tribunal. To ensure that this is achieved, we request the Minister to report back to this Committee two years after the new tribunal receives its first appeal in the rail or marine modes and inform the Committee of the number of appeals received, the number decided upon and the number for which application has been made to the Federal Court for judicial review. At that time, the Committee will examine how the new Tribunal has functioned and, if the Committee finds that the process is lengthy or costly, the Committee will consider recommending that the Panel of the Tribunal be given the power to alter or revoke decisions of the Minister.
In conclusion, the Committee urges the Minister take action noted above to ensure that the new tribunal closely emulates the existing tribunal (which it will replace) in its high level of operating efficiency, its procedural fairness, and its positive effect on transportation safety.
The Honourable Senator Gill moved, seconded by the Honourable Senator Fraser, that the Bill be placed on the Orders of the Day for a third reading at the next sitting.
The question being put on the motion, it was adopted.
The Honourable Senator Taylor, Chair of the Standing Senate Committee on Energy, the Environment and Natural Resources, presented its Eighth Report (Bill S-18, An Act to Amend the Food and Drugs Act (clean drinking water)) without amendment.
The Honourable Senator Taylor moved, seconded by the Honourable Senator Chalifoux, that the Bill be placed on the Orders of the Day for a third reading at the next sitting.
The question being put on the motion, it was adopted.
The Honourable Senator Kolber presented the following:
TUESDAY, November 27, 2001
The Standing Senate Committee on Banking Trade and Commerce has the honour to present its
ELEVENTH REPORT
Your Committee, to which was referred Bill C-31, An Act to Amend the Export Development Act and to make consequential amendments to others Acts, has, in obedience to the Order of Reference of Tuesday, November 20, 2001, examined the said Bill and now reports the same without amendment, but with observations, which are appended to this report.
Respectfully submitted,
E. LEO KOLBER
Chairman
APPENDIX TO REPORT
MINORITY OBSERVATIONS ON BILL C-31
Certain members of the Committee have concerns with some clauses of Bill C-31, which are as follows:
CLAUSE 3
The most controversial aspects of this Bill revolve around environmental issues, in light of projects that have received Export Development Corporation (EDC) financing in the past. In Bill C-31, the EDC establishes its own environmental review framework. Although the Committee is satisfied with the EDC self-regulating its projects for their environmental soundness as long as there are clear definitions to follow and as long as there is proper oversight. However, a minority of members note that nowhere in this bill is the word ``environment'' defined. The minority's concerns would be alleviated if ``environment'' were defined in the Bill in a manner similar to that found in the Canadian Environmental Assessment Act.
Therefore, a minority of the Committee strongly urges the government to add the definition of environment to the bill.
CLAUSE 9
In the opinion of some members, Clause 9 sets out a non-binding environmental assessment process for the EDC to follow. Although the Senate Banking Committee agreed to this rather than making the EDC subject to the CEAA, it was with the understanding that there would be an accompanying framework of accountability established. This could easily be achieved by ensuring that environmental directives of the Board are statutory instruments for the purposes of the Statutory Instruments Act. This would allow for a review of those directives by Parliament.
Therefore, a minority of the Committee strongly urges the government to reconsider the applicability of the Statutory Instruments Act by amending Clause 9(3). This would alleviate its concern that there is a lack of accountability, while still maintaining a relatively self-regulating structure that is to the benefit of EDC's commercial objectives.
CLAUSE 12
The first part of clause 12 creates a new section, 24.1, in the Act. This section exempts the EDC from the Canadian Environmental Assessment Act. While the Committee agreed with this proposal when it conducted its review of the EDC, the addition of section 24.2, which would make it a criminal offence to use the name of the corporation or its initials without the consent of the corporation, concerns some members of the Committee.
We are told that the intent of section 24.2 is to prevent fraud. This, however, is far from explicit in the text of the bill. Indeed the bill is drafted in such a way that it criminalizes the use of the corporation's name or acronym for any purpose without the explicit permission of the EDC. This would interfere both in compliance with provincial securities regulations, which require a business to disclose its liabilities to the EDC when issuing a prospectus, and with the ability of third parties to comment on activities carried out by the EDC. Furthermore, testimony by witnesses drew the Committee's attention to the fact that EDC has already written a letter directing a particular organization to stop using their initials on a website that is critical of the EDC's environmental record. Finally, there are many corporations and businesses that currently have the initials ``EDC'' in their professional names, for example, EDC Facilities, Management and Consulting of Windsor Ontario.
Adequate civil remedies already exist in law for instances where a name or acronym is fraudulently used. There is no justification for the criminal sanctions outlined in this bill.
A minority of the Committee therefore recommends that the government clarify this clause so that the wording clearly reflects the stated intent of preventing fraudulent use of the corporations name or initials. The minority would appreciate a letter stating that the sole intent is to prevent fraudulent use of the EDC name, and that section 24.2 would not be used to achieve any other objective.
The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Hervieux-Payette, P.C., that the Bill be placed on the Orders of the Day for a third reading at the next sitting.
The question being put on the motion, it was adopted.
ANSWERS TO WRITTEN QUESTIONS
Pursuant to Rule 25(2), the Honourable Senator Robichaud, P.C., tabled the following:
Reply to Question No. 17, dated June 5, 2001, appearing on the Order Paper in the name of the Honourable Senator LeBreton, respecting the APEC Inquiry.—Sessional Paper No. 1/37-581S.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Bills
Order No. 1 was called and postponed until the next sitting.
Resuming debate on the motion of the Honourable Senator Adams, seconded by the Honourable Senator Watt, for the second reading of Bill C-33, An Act respecting the water resources of Nunavut and the Nunavut Surface Rights Tribunal and to make consequential amendments to other Acts.
After debate,
The question being put on the motion, it was adopted.
The Bill was then read the second time.
The Honourable Senator Adams moved, seconded by the Honourable Senator Watt, that the Bill be referred to the Standing Senate Committee on Energy, the Environment and Natural Resources.
The question being put on the motion, it was adopted.
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With leave,
The Senate reverted to Notices of Motions.
With leave of the Senate,
The Honourable Senator Stollery moved, seconded by the Honourable Senator Cordy:
That the Standing Senate Committee on Foreign Affairs have power to sit at 5:00 p.m. today even though the Senate may then be sitting, and that Rule 95(4) be suspended in relation thereto.
The question being put on the motion, it was adopted.
ORDERS OF THE DAY
GOVERNMENT BUSINESS
Reports of Committees
Resuming debate on the motion of the Honourable Senator Milne, seconded by the Honourable Senator Rompkey, P.C., for the adoption of the Tenth Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-7, An Act in respect of criminal justice for young persons and to amend and repeal other Acts, with amendments) presented in the Senate on November 8, 2001.
After debate,
The Honourable Senator Nolin moved, seconded by the Honourable Senator Andreychuk, that further debate on the motion be adjourned until the next sitting.
The question being put on the motion, it was adopted.
OTHER BUSINESS
Senate Public Bills
Orders No. 1 to 3 were called and postponed until the next sitting.
Reports of Committees
Order No. 1 was called and postponed until the next sitting.
Resuming debate on consideration of the Ninth Report of the Standing Senate Committee on National Finance (study on the role of the government in the financing of deferred maintenance costs in Canada's post-secondary institutions), tabled in the Senate on October 30, 2001.
After debate,
The Honourable Senator Callbeck moved, seconded by the Honourable Senator Bacon, that further debate on the consideration of the report be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Orders No. 3 and 4 were called and postponed until the next sitting.
Other
Orders No. 75 (motion), 33 (inquiry), 3 (motion), 32 (inquiry), 81, 73 (motions), 26 (inquiry), 74, 44 (motions), 8, 31 (inquiries), 54, 82 (motions), 13, 28 (inquiries), 41 and 80 (motions), were called and postponed until the next sitting.
Resuming debate on the inquiry of the Honourable Senator Callbeck calling the attention of the Senate to the status of legal aid in Canada and the difficulties experienced by many low-income Canadians in acquiring adequate legal assistance, for both criminal and civil matters.
After debate,
The Honourable Senator Milne moved, seconded by the Honourable Senator Pearson, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
Order No. 18 (inquiry) was called and postponed until the next sitting.
Resuming debate on the inquiry of the Honourable Senator Tunney calling the attention of the Senate to Canadian agricultural issues, specifically grain, dairy and hemp.
Debate concluded.
Orders No. 65 (motion), 7 and 6 (inquiries) were called and postponed until the next sitting.
Resuming debate on the inquiry of the Honourable Senator Andreychuk calling the attention of the Senate to issues surrounding rural Canada.
After debate,
The Honourable Senator Andreychuk moved, seconded by the Honourable Senator Johnson, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
QUESTION OF PRIVILEGE
Pursuant to Rule 43(8), the Senate proceeded to the consideration of the question of privilege of the Honourable Senator Cools in respect of statements made by a Senator during Senators' Statements on Thursday, November 22, 2001, which statements were widely reported in the national newspapers on November 23, 2001, including the Ottawa Citizen, the Edmonton Journal, and the Vancouver Sun, which statements purport to link Senators and a Senate debate sponsored by herself on Bill S-9, An Act to remove certain doubts regarding the meaning of marriage, to the terrible murder of a homosexual man, Mr. Aaron Webster, in Vancouver's Stanley Park, which connection is not only tasteless but is also disrespectful of Senators and the Senate.
After debate,
Pursuant to Rule 18(3), the Speaker will hear further argument.
INQUIRIES
The Honourable Senator Gauthier called the attention of the Senate to the important role of culture in Canada and the image that we project abroad.
After debate,
The Honourable Senator Gauthier moved, seconded by the Honourable Senator Gill, that further debate on the inquiry be adjourned until the next sitting.
The question being put on the motion, it was adopted.
REPORTS DEPOSITED WITH THE CLERK OF THE SENATE PURSUANT TO RULE 28(2):
Copy of Regulations amending the United Nations Suppression of Terrorism Regulations (SOR/2001-491 and SOR/201-492), pursuant to the United Nations Act, R.S.C. 1985, c. U-2, sbs. 4(1).—Sessional Paper No. 1/37-580.
ADJOURNMENT
The Honourable Senator Robichaud, P.C., moved, seconded by the Honourable Senator Graham, P.C.:
That the Senate do now adjourn.
The question being put on the motion, it was adopted.
(Accordingly, at 4:35 p.m. the Senate was continued until 1:30 p.m. tomorrow)
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Changes in Membership of Committees Pursuant to Rule 85(4)
Standing Senate Committee on Banking, Trade and Commerce
The names of the Honourable Senators Poulin, Hervieux-Payette and Gustafson substituted for those of the Honourable Senators Callbeck, Mahovlich and Meighen (November 22).
Standing Senate Committee on Agriculture and Forestry
The names of the Honourable Senators Wiebe and Chalifoux substituted for those of the Honourable Senators Fairbairn and Gill (November 22).
Standing Committee on Internal Economy, Budgets and Administration
The name of the Honourable Senator Atkins substituted for that of the Honourable Senator Stratton (November 22).
Standing Senate Committee on Human Rights
The names of the Honourable Senators Finestone and Joyal substituted for those of the Honourable Senators Lapointe and Poy (November 26).
Standing Senate Committee on Transport and Communications
The name of the Honourable Senator De Bané added to the membership (November 27).
Standing Senate Committee on Foreign Affairs
The name of the Honourable Senator Mahovlich substituted for that of the Honourable Senator Setlakwe (November 27).