Debates of the Senate (Hansard)
Debates of the Senate (Hansard)
2nd Session, 37th Parliament,
Volume 140, Issue 80
Wednesday, October 1, 2003
The Honourable Dan Hays, Speaker
- SENATORS' STATEMENTS
- ROUTINE PROCEEDINGS
- QUESTION PERIOD
- ORDERS OF THE DAY
THE SENATE
Wednesday, October 1, 2003
The Senate met at 1:30 p.m., the Speaker in the Chair.
Prayers.
SENATORS' STATEMENTS
Fetal Alcohol Syndrome
Hon. Yves Morin: Honourable senators, a new child is a sign of promise and hope for the future. However, for the 3,000 Canadian babies born each year with fetal alcohol syndrome, this hope is blunted by a lifetime of challenges. Developmental delays, learning disabilities, behaviour problems and physical abnormalities are their legacy, simply because their mothers chose to drink alcohol while they were pregnant.
Fetal alcohol syndrome is found throughout the country but it is five times more prevalent in Aboriginal and northern communities. It takes a huge social and emotional toll, and it is estimated that each person with fetal alcohol syndrome will cost upwards of $1.5 million over their lifetime for specialized health care, education and social programs.
What is both heartbreaking and frustrating is that fetal alcohol syndrome is entirely preventable. The Canadian Institute of Health Research supports a number of projects aimed at ending the cycle of fetal alcohol syndrome, and improving the lives of those already affected by it.
[Translation]
Honourable senators, the Institute of Neurosciences, Mental Health and Addiction, under the able direction of Dr. Rémy Quirion, has undertaken the funding of a major research program into fetal alcohol syndrome, its causes, incidence and treatment. The research team is headed by Dr. James Brien of Queen's University, and involves researchers from four other Canadian universities.
[English]
The CIHR Institute of Aboriginal Peoples' Health, under the able leadership of Dr. Jeff Reading, has made child and youth health — including fetal alcohol syndrome — one of its strategic priorities for research. It brings together Aboriginal communities and health researchers such as McMaster University's Dr. Stuart MacLeod and his colleagues who are working with mothers to develop a fetal alcohol syndrome prevention strategy.
Honourable senators, September 9 was Fetal Alcohol Syndrome Awareness Day in Canada. Let us mark the occasion by making a determination to end this tragic scourge. Awareness programs and good prenatal support, backed by evidence generated from research, can put an end to fetal alcohol syndrome, but the battle needs the support of us all.
National Defence
Canadian Forces Parliamentary Program
Hon. Gerry St. Germain: Honourable senators, last year, I enrolled in the Canadian Forces Parliamentary Program, specifically the air force portion thereof. Last June, I spent a week at the Greenwood Air Force Base in Greenwood, Nova Scotia.
This is such a worthwhile program that I thought it appropriate to share with honourable senators a comment on the experience and, more important, to urge that each of you consider participating in the training program. There can be no doubt that the experience will expose you, as senators, to the truth of their operational environment, and the formidable devotion that our men and women put into maintaining our nation's security.
Honourable senators, it is truly incredible to see first-hand the dedication and professionalism that our men and women in the Royal Canadian Air Force display as they carry out their duties in serving Canada. Even under the most challenging of times and circumstances, they never fail to rise to the occasion for which they have proudly volunteered.
Excluding the reserves, the force's strength has been depleted some 30,000 over the last 10 years, such that it now stands at 62,150. This year's budget is $13.07 billion, from an overall planned spending of $175.94 billion. This amount does not allow our forces to do the jobs that have been asked of them; and now the government has seemingly ordered another cut to their operations' budget. Give with one hand and take back with the other. That is unacceptable.
From Bosnia to Afghanistan, ice storms to forest fires, and now hurricane cleanup, Canada's Armed Forces are under-funded and overstretched. This is not just my observation; it was also reported in the September 15, 2003 issue of the respected British publication, Jane's Defence Weekly.
The time has come when governments must recognize, as all Canadians realize, the importance of our military. We must provide them with the necessary tools so that they may better meet our needs when called upon to serve in times of defending freedom or in times of disaster.
Criminal Code
Cruelty to Animals Bill—Article from NewsNorth Tabled
Hon. Charlie Watt: Honourable senators, I would ask unanimous consent of the Senate to table and deliver to senators' desks an article published in the September 8, 2003 edition of NewsNorth entitled: "Man Survives Polar Bear Attack" together with my covering letter. If I could have the agreement of honourable senators to that tabling, I would appreciate it.
The Hon. the Speaker: Is leave granted for the tabling of a document by Senator Watt?
Hon. Senators: Agreed.
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ROUTINE PROCEEDINGS
Parliamentary Delegation to India
Report Tabled
Hon. Dan Hays: Honourable senators, with leave of the Senate, I have the honour to table the report of the parliamentary delegation that travelled to India from November 17 to 23, 2002, at the invitation of Shri Bhairon Singh Shekhawat, Vice-President and Chairman of the Rajya Sabha, the Indian upper house, and Shri Manohar Joshi, Speaker of the Lok Sabha, the lower house of the Parliament of the Republic of India.
Hon. Rose-Marie Losier-Cool (The Hon. the Acting Speaker): Is leave granted, honourable senators?
Hon. Senators: Agreed.
[Translation]
Study on Operation of Official Languages Act and Relevant Regulations, Directives and Reports
Report of Official Languages Committee Tabled
Hon. Rose-Marie Losier-Cool: Honourable senators, I have the honour to table the fourth report of the Standing Senate Committee on Official Languages, entitled: "Official Languages: 2002-2003 Perspective."
The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?
On motion of Senator Losier-Cool, report placed on the Orders of the Day for consideration at the next sitting of the Senate.
[English]
QUESTION PERIOD
Foreign Affairs
Saudi Arabia—Maltreatment of Incarcerated Canadian Citizen
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, last evening, Peter Mansbridge on the CBC News program conducted an exclusive interview with William Sampson, the Canadian who was tortured by officials of the Kingdom of Saudi Arabia. It was very poignant. The testimony that Mr. Sampson gave on that television interview, which is one in a series of interviews, continues this evening.
With reference to my question of a few days ago, is the minister able to advise whether the Government of Canada will file a formal communication against the Kingdom of Saudi Arabia for a violation of the provisions of the convention against torture?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I must tell the honourable senator that I have no new information for him with respect to the Bill Sampson case.
Treasury Board
Working Group on Whistle-Blowing Policy
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, rather than asking the freshman senator from Ottawa Centre a question, which of course I cannot do, I will turn to the Auditor General's comments of yesterday.
The Auditor General stated that whistle-blowing mechanisms are perceived as ineffective or non-existent within the Office of the Privacy Commissioner. In addition, the President of the Treasury Board said, "The TBS commissioned a survey of employees of the Office of the Privacy Commissioner regarding their awareness of the internal disclosure policy in an effort to determine why they did not use it to disclose wrongdoing at the Office of the Privacy Commissioner. Information sessions are being organized." The Auditor General pointed out that anyone who dared question or displease the former commissioner, whose appointment was opposed by many of my colleagues on this side, or his inner circle were "banished from the commissioner's floor, excluded from meetings they should have attended, not allowed to put their names on reports and moved to other positions. In one case, the employee's work was contracted out."
Does the government seriously believe that it needs a survey to find out why people did not come forward? Does it seriously believe that information sessions would do anything in a climate where people feared reprisals?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, it is clear that the whistle-blowing provisions that were put into place only a few years ago have not worked effectively in that particular office. In that, there is no doubt. That is exactly why a working group has been put together, featuring such notables as Dr. Kenneth Kernaghan, Professor of Political Science and Management at Brock University, who will be the chair; Madam Hélène Beauchemin, President of HKBP Inc., a specialty firm focusing on professional and personal development; Mr. Denis Desautels, Director of the Centre on Governance at the University of Ottawa and a former Auditor General of Canada; Mr. Merdon Hosking, President of the Association of Public Services Financial Administrators, and Dr. Edward Keyserlingk, the Public Services Integrity Officer. Those five individuals have been asked to report no later than the end of January 2004 and to make recommendations as to what should be done with respect to whistle-blowing legislation or, alternatively, if, in their judgment an alternative process is made, what they would foresee as being the best way to deal with these issues so we do not have any more public servants intimidated, as they apparently were in the Office of the Privacy Commissioner.
Senator Kinsella: Honourable senators, let me thank the minister for her answer. I will use the occasion to suggest to anyone who occupies that seat in the future that the Honourable Leader of the Government has set an excellent example of how questions should be answered in this place.
Knowing the interest of all honourable senators to set in place the right mechanism for whistle-blowing, does the minister agree or does the government agree, in principle, that we do need whistle-blowing legislation as promised by the Prime Minister in his letter way back in 1993?
Senator Carstairs: Honourable senators, the government has put this group together. We will not tie its hands by telling it what its final conclusions must be. Given such a distinguished group of Canadians, I welcome their report and hope that we will get it in a very timely fashion, even before the end of January.
National Defence
Budget—Request to Find Savings
Hon. Norman K. Atkins: Honourable senators, my question is for the Leader of the Government in the Senate. The federal government confirmed yesterday that DND would have to find $200 million — that is the largest amount from any department — to contribute to the government's efforts to meet new initiatives and cover unexpected costs.
The President of the Treasury Board stated Monday that reallocated money from the various departments will be used to contribute to the following Canadian priorities: families and communities, health care, education, the environment, SARS, mad cow disease, the cod fishery and the reconstruction of Iraq.
It was stated in this chamber a few weeks ago that DND's portion of the reallocation of money would stay within the department. Is that still the case for the entire $200 million? If so, can the minister tell this chamber whether the reallocation money will be used to contribute to the $237 million that the defence department recently learned it will have to pay for the Afghanistan mission?
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Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I can assure the honourable senator that in the Supplementary Estimates tabled last week, $193 million worth of new money is to go to the Department of National Defence for the Afghanistan mission.
Senator Atkins: Honourable senators, except for CIDA money, the Treasury Board has yet to provide specific details on where each department's reallocation of funds will be going. Can the minister tell us when that information will be available regarding the DND money?
Senator Carstairs: Honourable senators, the question that the honourable senator has asked is a specific one and very much a part of the Supplementary Estimates review that is going on at the present time with the Standing Senate Committee on National Finance. Members of that committee are looking at the Supplementary Estimates, and I would hope that they would get some full answers from Treasury Board officials on just that question asked by the honourable senator.
Fisheries and Oceans
Pacific Salmon Commission—United States' Funding
Hon. Pat Carney: Honourable senators, my question is directed to the Leader of the Government in the Senate, and I have given her notice of this question.
The Pacific Salmon Commission was established by treaty between Canada and the United States in 1985 by our Conservative government to conserve, manage and share between the two countries Pacific salmon, including the valuable and endangered Fraser River sockeye. That agreement was renewed in 1999.
The bilateral commission is based in Vancouver and is supposed to be financed equally by Canada and the United States under the treaty. During the current salmon season, the U.S. has failed to come up with its share, amounting to about $1.5 million in Canadian dollars, and commission staff face layoffs and closure of the commission offices as the Canadian share of funds is being depleted. Although the U.S. state department now promises to find $600,000, less than half its share, to keep the commission's doors open, that amount is insufficient to maintain the work of the commission beyond the end of December.
The Canadian government has been strangely silent on this issue. What is the government doing to ensure that the Americans pay their full share of the costs to maintain the work of this treaty-sanctioned commission?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, let me begin by thanking the honourable senator for giving me notice of this question because, as she noted, my health was not at its 100 per cent best yesterday, so I appreciated that very much.
First, Canada has made its full contribution for the year to the Pacific Salmon Commission. The United States, apparently, will be shortly providing the partial funding that the honourable senator talked of in her question, and the department is cautiously optimistic that the United States will overcome its funding difficulties and restore full funding of its share before the end of the year.
My understanding is that there is enough now to keep everything in full operation until the end of December, so if the additional monies come forward — and certainly that has been the assurance that we have been given — then this organization should be fully funded at that time.
Senator Carney: Honourable senators, I should point out that the commission's year is different from the calendar year, so that the amount of $600,000 would not be sufficient to pay the Americans' share. That is the whole point. I thank the minister for her answer, nonetheless.
The 1999 agreement increased the share of the catch that goes to the U.S. fishermen and decreased the share going to the Canadian commercial fleet. Yet, in addition to this year's shortfall, the U.S. made no commitment to fund its share of the Pacific Salmon Commission next year. In other words, Canada is subsidizing American fishermen to fish, while the Canadian fishermen are banned from fishing salmon.
What is the Canadian government doing to ensure that the U.S. will honour its international commitment to pay its share of managing and conserving this international resource, or will Canadian taxpayers have to pick up the tab for the Americans again? I would like to know what steps the Canadian government is taking. Has it sent a diplomatic note, or reminded them of their treaty obligations? Cautiously optimistic is better than pessimistic, but it is not enough, in my view, to allay the concerns of the fishing communities involved.
Senator Carstairs: Honourable senators, I can tell the honourable senator that a conference call was held as recently as September 25, and that is where the optimism stems from. There is every hope on our side that the United States will honour its full obligation.
Senator Carney: Can the minister find out what those steps are? Hope is not enough to fill the nets of Canadian fishermen or to preserve our salmon.
Senator Carstairs: Honourable senators, we are dealing with two nations here. Clearly, there was a conference call between the commissioners. The Canadian commissioners stated their position clearly, that they believed the United States should honour its responsibilities here.
All I can tell the honourable senator is that we know they will be shortly providing partial funding. That partial funding will certainly keep the organization functioning for the next few months, and the Minister of Fisheries and Oceans is cautiously optimistic that we will overcome the remaining funding difficulties that exist.
Health
Additional Funding to Provinces
Hon. Wilbert J. Keon: Honourable senators, my question is for the Leader of the Government in the Senate. Finance Minister John Manley has said that it is unlikely that the federal government will be able to provide the additional $2 billion in health care funding that the provinces were promised, due to the economic fallout of SARS, mad cow disease, the B.C. forest fires and the blackout. Last February, the federal government promised to make the payment if the federal surplus was greater than $3 billion. The finance minister says that the next report is likely to show a zero budget surplus for the 2002-03 fiscal year.
My question for the Leader of the Government in the Senate is this: Will there be consultation with the provinces before a final decision to withdraw the funding is made by the federal government?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, as the honourable senator knows, the amount of money was predicated on the financial forecast for Canada, and the good news out of July is that the GDP grew by 0.6 per cent, more than anticipated, and the quarterly growth now appears to be at 3 per cent, when there were some forecasts that it would slide considerably below 3 per cent. The news is good.
It would appear, with that news, that there might indeed be a surplus. However, the whole of the health accord decisions was based on the agreement by provinces and the federal government that there would indeed be a surplus, and that they would get their amount from that surplus.
Senator Keon: Honourable senators, should there not be a surplus, does the minister think there would be any adjustment whatsoever, or would there be no cash flow from the federal government to the provinces?
Senator Carstairs: That is a hypothetical question, honourable senators. I do not know whether or not there will be a surplus. Judging by the announcement yesterday of the GDP for August, things look better than they did even a short month before that.
Veterans Affairs
Remembrance Day Wreath Program
Hon. Michael A. Meighen: Honourable senators, the Minister of Veterans Affairs, the Hon. Rey Pagtakhan, confirmed this week that Veterans Affairs will this year begin rationing the number of wreaths distributed on Remembrance Day. The practice, as honourable senators are aware, has been to send a wreath to each branch of the Royal Canadian Legion, but now, according to newspaper reports, Ottawa will send a single wreath to each MP's constituency, and I note in passing that that relates to members of Parliament, not to senators. Many MPs have more than one legion in their constituencies, and will thus need to phone Veterans Affairs by the beginning of next week in order to order more wreaths.
My question is this: Can the minister tell us the reason for this extraordinary decision, or is it just part of the same philosophy that gives Veterans Independence Program benefits to some widows, but not to all?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, the decision that has been made with respect to the single wreath is based on the decision that that is what the majority of MPs want, and that they are able to make a request for additional wreaths should they need them.
In terms of the comment about the decision applying to only MPs, I can assure the honourable senator that a message went over this morning to the effect that I consider senators also to be members of Parliament.
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Senator Meighen: I am sure we all share the view of the Leader of the Government in the Senate in that regard, and we thank her for making that clear once again.
By way of supplementary, could the leader share with us what the needs are that Mr. Pagtakhan referred to, how this approach better meets them, and specifically whether the project partners — whatever they are and whoever they are — were notified of this change of policy, and when?
Senator Carstairs: Honourable senators, I do not have that information. I do not know who the project partners are and I do not know if they were notified. I will attempt to get that information for the honourable senator.
Senator Meighen: I should like to thank the leader for that answer, and perhaps while the minister is at it, she could find out what is a "project partner." I have never heard that term but, then again, there is a lot of modern speak I have not heard that seems to be flowing out.
Finally, while making those inquiries, perhaps the minister could inquire as to whether the change was driven by representations from the project partners, or did it come from the Department of Veterans Affairs?
Senator Carstairs: I will be pleased to find out who is calling the tune, be it the department or these project partners, whoever they may be.
Citizenship and Immigration
Refugee Claim by Mr. Ernst Zundel
Hon. David Tkachuk: Honourable senators, in February of this year, well-known Holocaust denier, Ernst Zundel, was deported to Canada from the United States. The federal government issued a national security certificate against him in May in order to send him back to Germany where he is wanted on hate crime charges. He is currently the subject of a detention review hearing that will determine if he should be released from jail pending the assessment of his national security risk status. The review will resume, I believe, on December 10.
Why is a detention review hearing held for a person who has been accused by the federal government of being a national security risk? If the government believes a person is dangerous enough to be deported from Canada, why is such a person permitted a hearing that may allow him or her to be released from custody?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, we have certain laws in this country and everyone who resides in this country is entitled to access to those laws. As the honourable senator knows, Mr. Zundel had earlier asked for release. That release was denied. We will need to await what occurs on December 10, but as much as the honourable senator and I may, on occasion, not like the way in which the law is applied to every single individual in this nation, that is what makes this country particularly special.
Senator Tkachuk: Can the Leader of the Government in the Senate tell us how much longer the federal government believes these proceedings will take?
Senator Carstairs: There is no way of evaluating exactly the length of time that these proceedings will take. The normal course of operations is being followed.
Office of Privacy Commissioner
Auditor General's Report—Financial Reporting
Hon. Terry Stratton: Honourable senators, the Auditor General's report dealt with the widespread mismanagement of public funds and the abuse of public authority by the Office of the Privacy Commissioner. Among the areas raised was financial reporting. According to the Auditor General, those who prepared the financial statements of the Office of the Privacy Commissioner for the fiscal year ending March 31, 2003, knowingly omitted about $234,000 of accounts payable at year- end. The false financial statements were submitted in June of 2003.
The report goes on to state that the financial officers had the responsibility to ensure the accurate accounting of spending and that the financial statements were presented fairly. According to the Auditor General, these individuals "failed to fulfill these most basic responsibilities." Within the general public, this act would most surely be considered by the proper authorities as fiscal fraud, and pursued accordingly.
Could the Leader of the Government in the Senate please inform this house if legal proceedings have been initiated against the persons who prepared the Privacy Commissioner's financial statement for the fiscal year ending in March of 2003?
Hon. Sharon Carstairs (Leader of the Government): I can tell the honourable senator that there may be as many as 12 investigations ongoing by the RCMP.
Senator Stratton: I must ask a supplementary question before I go into the next question, and I will tie the two together.
I would ask the Leader of the Government if she means that there are 12 RCMP investigations with respect to the Privacy Commissioner. Perhaps the leader might want to answer that question with this other supplemental question, if she could, please.
The financial inconsistency does not stop at the falsification of financial statements. This, in part, may be the minister's answer to the 12 investigations. The Auditor General indicated that several other cases of misuse of public funds had been referred to the RCMP for investigation. Among them is the improper cash-out of vacation time. The report states:
From June 2001 to May 2003, the former Commissioner cashed out vacation leave balances six times, receiving payments totalling about $56,000.
These payments were made for vacation time that had already been taken but not reported. The report goes on to state:
In our opinion, that practice was not justified and accordingly those payments were inappropriate.
Also among them are the improper payments to the former commissioner that amounted to nothing more than personal loans on public accounts. According to the Auditor General's report:
...two $15,000 payments to the former Commissioner (May 2002 and April 2003) were neither justified with supporting evidence nor issued in accordance with the Treasury Board's policy on standing advances...
It goes on to say:
...we believe that they are improper payments and contravened section 26 and section 33 of the Financial Administration Act.
Could the Leader of the Government in the Senate tell us how the former Privacy Commissioner managed to use public funds at his leisure, without consequence? What sanctions, if any, will be brought against the former Privacy Commissioner for this financial scandal?
Senator Carstairs: As the honourable senator indicates, the report of the Auditor General yesterday was scathing; there is no question about that. With reference to the investigations, I understand that there are 12 in total, not just 12 against one particular individual.
The Public Service of Canada does not tolerate wrongdoing, and those who have been found to have violated the value and ethics code for the public service or other laws and policies are subject to discipline, up to and including termination, and they are subject to criminal charges should the RCMP decide that, in fact, such criminal charges should be laid. The Treasury Board has indicated that it will cooperate fully, as one would expect, with the RCMP and those investigations are beginning now.
Senator Stratton: I have one final question, if I may, with respect to this matter. The problem that we are having is that we seem to go from one issue to another with respect to this kind of thing, and it is casting a pall over the entire civil service, which we all like to hold in high regard. I believe honourable senators on both sides of this chamber agree with that sentiment. However, that leads me to the question that if this is the case with respect to the Privacy Commissioner, are there other investigations ongoing in other departments, as a result of what has occurred with respect to the Office of the Privacy Commissioner, to ensure that this is an isolated case?
Honourable senators, I do not want a witch hunt, and I am not asking for a witch hunt here, but for goodness sake the last thing we need is for this incident to keep spinning, because it hurts everyone. The people who are hurt the most are the bureaucrats, and the people in this chamber are hurt as well.
Are there other, ongoing investigations to ensure that this kind of behaviour has not gone beyond — and will not go beyond — the Office of the Privacy Commissioner?
Senator Carstairs: I would be very surprised, honourable senators, if each and every deputy minister of government did not take that Auditor General's report very seriously and make sure that their departments do not have similar horror stories, because to do otherwise would not indicate the professionalism that you and I would both agree is very much in the realm of our public service.
I believe the difficulty is particularly acute, however, within the terms of an officer of Parliament. These are our officers, and I think that perhaps we have failed to be as vigilant as we might have been with respect to our officers of Parliament.
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Honourable senators, we have seen scandals in the past. It is difficult for government — and here I speak of small "g" government, the cabinet, the Prime Minister — when it decides to take strong steps against an officer of Parliament. That officer of Parliament, rightly, is our officer of Parliament. That is why I made the suggestion yesterday in this chamber, and one that I hope honourable senators will seriously consider, that as the other place has established an operations committee, perhaps we should consider a similar committee or add to the mandate of the Standing Senate Committee on National Finance, which I would prefer.
Public Service CommissionTreasury Board
Auditor General's Report—Staffing Irregularities in Office of Privacy Commissioner
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, one of the most troubling parts of the report from the Auditor General was the fact that two years ago, the Public Service Commission did an audit of reported excesses in management practices in the Office of the Privacy Commissioner and, according to the Auditor General, did nothing about it or so little that it had no impact.
Also, Treasury Board had to know of the excesses that were taking place, particularly the Privacy Commissioner not abiding by its guidelines and directives, and also did nothing.
In the last week or so, we have received what I call motherhood press releases from both the Public Service Commission and Treasury Board saying that they will introduce corrections, appoint this or that, have supervisory officers and so forth and so on. Why did they not do that immediately after finding out what was going on in that office?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, the information that I was given was that on the basis of routine interactions that would take place regularly with the Office of the Privacy Commissioner, there was nothing to indicate the depth of the problems that were outlined by the Auditor General.
The Auditor General has been provided with documents that indicate that the secretariat and the Treasury Board provided directions to the OPC on several occasions. The secretariat was engaged in a review of financial resource requirements for the office in light of the overspending, but the overspending was not, in and of itself, an indication of rampant financial mismanagement.
Senator Lynch-Staunton: Honourable senators, perhaps the minister will answer my next question. Page 11 of the Auditor General's report states:
48. The Public Service Commission failed to respond decisively when it learned about staffing irregularities at the Office of the Privacy Commissioner.
How can this situation have been allowed to fester when the most responsible agency just ignored the matter?
Senator Carstairs: Honourable senators, I do not have information from the Public Service Commission, but I can say that the Treasury Board Secretariat was aware that all of the executives in the OPC had been awarded the maximum amount of performance pay under the performance management program but did not learn until this summer that there were no performance agreements in place to support these payments. By that time, the Auditor General had already been called in and was doing her very thorough and careful investigation.
Visitors in the Gallery
The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in our gallery of the Honourable Dr. Linda Baboolal, President of the Parliament of Trinidad and Tobago. She is accompanied by her colleague, Senator Ramesh Deosaran and the High Commissioner to Canada, His Excellency Arnold Alvin Piggott.
Welcome to the Senate of Canada.
ORDERS OF THE DAY
Criminal Code
Bill to Amend—Message from Commons—Debate Adjourned
The Senate proceeded to consideration of the Message from the House of Commons concerning Bill C-10B, to amend the Criminal Code (cruelty to animals).
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I move:
That, with respect to the House of Commons message to the Senate dated September 29, 2003 regarding Bill C-10B:
(i) The Senate do not insist on its amendment numbered 2;
(ii) the Senate do not insist on its modified version of amendment numbered 3 to which the House of Commons disagreed;
(iii) the Senate do not insist on its modified version of amendment numbered 4, but it do concur in the amendment made by the House of Commons to amendment numbered 4; and
That a Message be sent to the House of Commons to acquaint that House accordingly.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Point of Order
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I rise on a point of order. The item that is before this house is the consideration of the message from the House of Commons concerning this bill. How can we address a motion to take a certain step if we have not even considered the message? The motion is somewhat premature.
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, the motion is not premature. As of yesterday, we have a message from the House of Commons. I have moved a motion so that we can debate the message as well as the motion put before us. I will speak to this matter as soon as we have dealt with this point of order.
Senator Kinsella: Honourable senators, let us look at the Order Paper. What is before us is the message. We have agreed that we will take the message under consideration. Before we do this, the Leader of the Government in the Senate has said, "Let us not insist upon our message." We have not even considered the message yet, unless we all operate by a process of reasoning that is contrary to the proposition that nothing is in the intellect that was not first in the senses. In classical terms, we used to say nihil est in intellectu quod non prius fuerit in sensu, something that the people of Hampton, New Brunswick, hardly cease speaking about.
Honourable senators, the motion might be in order after we consider it, but the house order that we are dealing with right now is consideration of the message. Surely we should hear what the minister has to say about the message. Having heard that, we should hear from other honourable senators. Then, if an honourable senator wants to make a motion based upon our consideration, that is fine. However, this is all quite a priori.
[Translation]
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I really do not see where there is a problem. We regularly consider bills to which honourable senators may speak without prior notice and introduce related amendments or motions.
Today we have a message from the House of Commons. The government is presenting a motion, which we shall subsequently consider. I do not see why we would not proceed in that manner.
[English]
Hon. Charlie Watt: Honourable senators, I wish to raise some concerns about the motion that was put forward. I have read the message we received from the House of Commons. I believe it is far from clear what the other place is saying. On one hand, they seem to appreciate and understand the clarification that was established by the Legal and Constitutional Affairs Committee.
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The Hon. the Speaker: I regret to interrupt Senator Watt. I want it to be clear that we are now discussing a point of order raised by Senator Kinsella.
Are you speaking on the point of order, or do you wish to speak to the matter before us, Senator Watt?
Senator Watt: I wanted to address the point of order.
The Hon. the Speaker: Please proceed.
Senator Watt: As the message we have received from the House of Commons is unclear, I concur with colleagues on the other side that it is premature to move a motion concurring with it.
Hon. Anne C. Cools: Honourable senators, I believe that a valid point of order has been placed before us. Yesterday, I insisted that the message be read into the record so that it would stand before us, because it was my understanding that it had been decided that the message from the House of Commons would be placed on the Orders of the Day for consideration today.
Perhaps we should start at the beginning and try to rediscover what "consideration" means, because we seem to have a tendency to begin at the beginning every time. To my mind, "consideration" would probably address all the discussion and debate in which a house and its members would engage in prior to reaching a decision. As a matter of fact, consideration could even conclude with no decision.
The question before us is the "consideration of the Message from the House of Commons concerning Bill C-10B, An Act to amend the Criminal Code (cruelty to animals)."
What I heard Senator Carstairs do is beyond premature. As a matter of fact, it is even pre-emptive because Senator Carstairs' initiative essentially asks the chamber to set aside debate, consideration and discussion on the message and to spring to a decision. That is not entirely proper. There should be consideration and debate on the message itself because we have not been told what the message is about. We have not been told of the underlying basis for the message. As a matter of fact, we have not even, so far, been able to glean an insight into the thinking and the reasoning behind the message. All that we know is that Senator Carstairs' motion asks us to conclude, essentially, that the Senate is a very lame duck that should not only collapse, abdicate and surrender its original position but should do so before even having a proper discussion on the message.
I have a hard time accepting that conclusion, honourable senators. The proper thing to do is for the Leader of the Government in the Senate and the government supporters to tell us, first, what was in the mind of the House of Commons when it sent us this message and then, having shared some basic information with senators, perhaps then we could engage in a healthy debate.
Honourable senators, consideration of this message is all the more important because it is, I am prepared to say, no message. It could be called many things, including an epistle or a lecture. A debate on this message is extremely important because it is the most lengthy message I have ever encountered.
Honourable senators, I believe that Senator Carstairs' initiative is pre-emptive and premature. I believe that it would be better for her to hold her motion so that in debate we could have a bit of suspense with regard to what the government really intends to do. Just for once perhaps we may be able to have a surprise or two.
However you cut it, honourable senators, this motion is not in order at this time because it attempts to silence the debate, to arrest, direct and force the debate to a particular conclusion, which conclusion many of us may come to at a later time, but now is not the time.
Speaker's Ruling
The Hon. the Speaker: I wish to thank all senators for their comments on the point of order as to whether the motion put by Senator Carstairs is appropriate at this time with respect to debate on the message received from the House yesterday on Bill C-10B.
We normally put matters before the chamber by way of motion. The fact that the motion urges a conclusion on the Senate does not mean that the Senate will reach that conclusion. Accordingly, I see no problem procedurally in beginning the debate on the message by way of motion. I do not believe I require time to consider this point of order.
I draw to the attention of honourable senators our Hansard of June 10 of this year, at page 915, where we received a message on this same bill. We proceeded to debate that message by way of motion. Accordingly, I rule that it is appropriate to consider again our response to the message from the House of Commons by way of motion.
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, this afternoon I begin a debate that I expect will be fulsome and will engage a number of members of this chamber on the process of Bill C-10B. I want to go into some of its history and why I have moved the motion before you this afternoon.
Recall, honourable senators, that we have had Bill C-10 in its united form, if you will, for almost a year. This bill has been before the Senate of Canada since October 2002. The Senate adopted five amendments and gave third reading to this bill on May 29 of this year.
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Honourable senators, clearly, through our study in October, November, December, February, March, April and May, we had considerable debate on this particular piece of legislation. As I have indicated, we proposed five amendments. We sent those amendments over to the House of Commons. The House of Commons agreed with two of the five amendments. The Commons agreed in principle with the third amendment, relating to colour of right. However, it is fair to say that the House of Commons adopted a different draft of that amendment. The Commons disagreed only with the two remaining amendments, with respect to Aboriginal hunting practices and the combining of two offence provisions. Effectively, this left three items outstanding, although there was, I think, substantial agreement on them.
In June, after deliberation in committee and in this chamber, the Senate effectively disagreed with the House of Commons on all three points; although, again, there was substantial agreement on the colour of right issue. Thus they were sent back to the House of Commons.
What we have before us today is a message from the House of Commons saying that, no, the House of Commons does not agree with our proposal that these three amendments continue to be altered. They have a different attitude about it and they are insisting on their amendments.
Honourable senators, it is important for us to understand just what these amendments are. Amendment number 2 would effectively combine the two offences of killing without lawful excuse and of causing unnecessary pain. The government, supported by the House of Commons, does not support this amendment. They believe that this amendment will give rise to confusion, particularly because the two offences deal with two different kinds of conduct, the elements of each offence are quite different, and the phrase "unnecessary death" has no pedigree in criminal law and therefore it is not clear just how it would be interpreted. Therefore, they have taken the position that the two offences should remain clearly separate in the law.
Amendment number 3 would create a specific reference to Aboriginal hunting practices and section 35 of the Constitution Act, 1982. At best, the government feels that this amendment is unnecessary, since the Criminal Code is an ordinary statute and could not possibly abrogate or derogate from the rights of Aboriginal persons under section 35 of the Constitution. The Constitution is supreme. A simple act of Parliament cannot do something contrary to the Constitution; otherwise, it would be declared to be unconstitutional.
Honourable senators, the issue of non-derogation clauses is a complex one. As all honourable senators in this chamber know, last June I introduced a motion that the Standing Senate Committee on Legal and Constitutional Affairs study the whole issue of non-derogation clauses. Unfortunately, that is still before us. We have not moved the matter to that committee, which I know is more than willing to speak and address the issue.
Why did I think that study was necessary? Honourable senators, we now have in the statute books of Canada four different versions of non-derogation clauses — four! The amendment represents a fifth. I believe it is much more important that we find a solution, through study and consultation, that everyone can support. That is why I moved that motion. We want a global solution. We do not want to adopt a different non-derogation clause for each bill where the issue arises. In my view, to do so would be a disservice to our Aboriginal people, because it creates confusion. What exactly does this non-derogation clause mean? If we can keep changing its meaning in piece after piece of legislation, then does it have any meaning? It is important for us to study this issue thoroughly. I believe that the Senate is the best place in which to do that study.
Amendment number 4 is one on which there has been substantial agreement, because there has been agreement on including an explicit reference to the common law colour of right defence. The Commons has agreed that this should be done. However, the Commons had concerns, and continues to have concerns, about the way in which the Senate amendment was drafted.
The Standing Senate Committee on Legal and Constitutional Affairs accepted the drafting approach of the Commons. The utility of the Commons' approach is that by incorporating common law defences by reference to the existing section 429(2), there is no risk of losing the decades of settled jurisprudence that has been established under that section. However, our committee made an amendment to the House of Commons draft by removing the phrase "to the extent that they are relevant." The government believes that this phrase is an important element. The defences in subsection 429(2) of the Criminal Code apply to a variety of different offences, not just animal cruelty. The phrase "to the extent that they are relevant" would clearly show Parliament's intention that the current manner of applying those defences to animal cruelty offences should not change. In effect, it preserves the status quo.
To put it in a different perspective, I ask: Why should an accused person have access to a defence that is not relevant to the alleged offence?
The message we received yesterday indicates that the Commons is effectively insisting on all three points, consistent with its message of June 2, 2003. The message contains an elaborate explanation of the reasons for its disagreements with the Senate, many of which I have touched upon.
Point of Order
Hon. Anne C. Cools: Honourable senators, I rise on a point of order. I have been listening carefully to the words of the Leader of the Government, and simultaneously — because the question before us now is her motion — the motion is that the Senate do not insist on its amendment, which is in three parts, and that a message be sent to the House of Commons to acquaint that House accordingly. As I have been listening to the honourable senator, I have been consulting Beauchesne's Parliamentary Rules and Forms on the method of chambers expressing disagreement and of the chambers talking to each other. It has occurred to me that this motion is out of order, for a substantive set of reasons unrelated to what we were talking about earlier.
To frame the point that I should like to make, perhaps I could refer honourable senators to Beauchesne's Parliamentary Rules and Forms, fifth edition; in particular, paragraph 814. There must be great confusion, because either we are in debate on the message itself or on the motion in a substantive way about not insisting on amendments.
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Honourable senators, I refer you to Beauchesne's fifth edition, at page 241, "House Consideration of Senate Amendments." Paragraph 814 states:
When the House of Commons does not agree to the Senate amendments, it adopts a motion which states reasons for its disagreement.
The House did that. Paragraph 814 continues:
This is communicated to the Senate. If the Senators persist in their amendments, they send a message informing the House of this fact.
Honourable senators, the Senate made amendments and sent a message to the Commons. The Commons sent a message back, and then, in turn, the Senate sent a message back. In other words, senators insisted. Paragraph 814 continues with the following critical words:
Upon this, the House either accepts the amendments or adopts a motion requesting a conference to which each House appoints Members; and a date is fixed for their meeting. Should they again disagree, the House may accept the amendments or the Senate may withdraw them, but when neither of these courses is followed, no further action is taken on the bill.
There is something very wrong in how the House of Commons is proceeding today on this issue. The Senate made amendments and the House looked at them and sent back their opinion of them. The Senate looked at those amendments again and sent back the message: "We do insist." After the senators sent the message to the House that they insist, then, I repeat, according to Beauchesne's fifth edition, paragraph 814:
Upon this, the House either accepts the amendments or adopts a motion requesting a conference to which each House appoints Members; and a date is fixed for their meeting. Should they again disagree, the House may accept the amendments or the Senate may withdraw them, but when neither of these courses is followed, no further action is taken on the bill.
Honourable senators, neither the House of Commons nor the Leader of the Government in the Senate is following the course of action that is outlined in Beauchesne's fifth edition.
There is a great deal to be said about this message, and I would sustain an argument to be raised, perhaps, at a later time. The message deeply violates the privileges of the Senate and was neither scripted in parliamentary language nor written as a message from one chamber of Parliament to the other. I will give honourable senators an example: The first sentence of the message from the House of Commons states:
That a message be sent to the Senate to acquaint their Honours that, with respect to Bill C-10B, An Act to amend the Criminal Code (cruelty to animals), this House continues to disagree with the Senate's insistence on amendment numbered 2...
I have news for the person who drafted this particular message: The House of Commons cannot continue to disagree with the Senate's insistence. The Senate has insisted; and that means it insists. The House may continue to disagree with the amendments in a substantive way but they cannot simply continue to disagree with the insistence. The entire document is written in an odd and unparliamentary way.
I would give honourable senators another example at subparagraph (1) of the message: "This House does not agree with the amendment numbered 2..." Parliamentarians would know that Parliamentary messages between the two Houses are always written in the positive, such that the messages words "This House does not agree," should read "This House disagrees." This kind of language is found throughout this particular document. It is even dubious whether this document was actually scripted by someone in Parliament.
Honourable senators, when the Senate insists on an amendment, the proper procedure is for the Commons, the House in possession of the message, to adopt a motion requesting a conference of members of both Houses. That is the proper procedure. There are prescribed steps that should be followed when the two Houses of Parliament come to a disagreement and those steps should be followed, rather than a simple motion to ask the Senate to abandon all that it has said and agreed upon.
The House is out of order in this instance. The minister or other member of the House of Commons should move a motion requesting a conference of members of both Houses. The procedure thus far has been highly unusual and improper.
[Translation]
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, for a number of reasons, it is difficult to understand how this could be considered a point of order. Rather, we are questioning the decision that everything was in order and that we should proceed.
We received the message yesterday from the House of Commons. The House of Commons is independent of this house, and we cannot tell them what they should do. The message was received, read and placed on the Orders of the Day. If there was a problem with this message, we should have raised it yesterday. The message was accepted and it is before us. The motion was in order and had to do with the message now before us. The decision was made that we should proceed. How can we then try to delay debate? This point of order is quite simply frivolous, honourable senators.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, the issue before us is the amendment, not the message.
If the issue were the message presented by Senator Cools, the comment would be appropriate. The issue is not the message before us, but the amendment. Is rule 59(8) involved? This rule covers situations where notice is necessary.
59. Notice is not required for:
(8) Consideration forthwith or at a future sitting of Commons amendments [...];
In the current situation, there is no Commons amendment. In reality, the House of Commons has rejected the amendments proposed by the Senate. The question then arises: Must there be notice? Without notice, honourable senators have no way of knowing what is on the table before they come into this chamber. That is the problem.
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We came to the house intending to have a debate on the content of the message from the House of Commons. The Leader of the Government is proposing something else. That is the issue before us. We did not receive a notice. The Leader of the Government did not resolve the issue of whether notice was required or not.
I see in the Rules of the Senate that notice is required under certain circumstances. Rule 59(8) stipulates that:
59. Notice is not required for:
(8) Consideration forthwith or at a future sitting of Commons amendments to a public bill;
However, the message from the House of Commons contains no amendment. That means the message does not come under the category of notice not being required. Therefore notice is required; otherwise, we would arrive at the House without knowing what is on the Orders of the Day.
Speaker's Ruling
[English]
The Hon. the Speaker: Honourable senators, I think I have heard enough for me to deal with Senator Cools' point as spoken to by Senators Robichaud and Kinsella. I thank the honourable senators for their intervention.
In effect, Senator Cools is making the point that the only way to deal with this matter would be to follow the procedures that she described from Beauchesne's, fifth edition, which relate to conferences. This is not a new matter to us in this place. We have established practices; I am not sure of the date of the fifth edition, but we are using the sixth edition of Beauchesne's at the present time, and I would like to use that as the authority. I think it is important, given the matter raised by the Honourable Senator Cools, to read the relevant provisions in Beauchesne's sixth edition. I am quoting at page 216, paragraph 743:
When the House of Commons does not agree to the Senate amendments, it adopts a motion which states reasons for its disagreement. This is communicated to the Senate by a written Message. If the Senators persist in their amendments, they send a Message informing the House of this fact. The House may adopt the amendments, or return them to the Senate with a further Message.
I emphasize these next words.
This may occur a number of times.
I will end there and let honourable senators read it for themselves.
I will quote as well from another text that we use — Marleau and Montpetit — quoting from the only edition that has been published to my knowledge, at page 675, under the heading, "Passage of Senate amendments (if any) by the House of Commons." In the last paragraph, before the heading "Conference Between the Houses," it states:
It —
— the Senate —
— may decide to accept the decision of the House, to reject that decision and insist that its amendments be maintained, or to amend what the House has proposed. Regardless of what the Senate decides, it sends another message to the House to inform it of the decision. Communication between the two Houses goes on in this way until they ultimately agree on a text.
There are provisions for conferencing that are available to the two Houses. However, there is also the procedure available to the two Houses that we are following: that is, sending messages back and forth until such time as we agree.
Accordingly, I find nothing out of order with the way in which we are proceeding, particularly nothing in the sense that the only alternative to us now would be to use our conferencing procedures.
As to the question of notice, Senator Kinsella's reading of the rule is correct. This matter could have proceeded yesterday; there is no notice required. We are proceeding today. I rule that the debate can continue.
Hon. Sharon Carstairs (Leader of the Government): I thank honourable senators for being able to keep their train of thought with the interruptions that have gone on. I am not sure that I have entirely maintained mine, but I will give it my very best shot.
What is clear is that the Commons has now disagreed with the Senate for the second time with respect to these three amendments that we have under discussion this afternoon as a result of their message. I personally believe that the Senate can take pride in the fact that, effectively, the Commons has agreed to three out of our five amendments. They had decided not to insist on changes to those three, in essence. The result would be a bill that finally becomes law, having been substantially improved, in my view, by the Senate of Canada. Clearly, this is the outcome preferred by the government, and that is why I am moving this message today.
The Senate has the power, if it wishes, to insist on all three of its amendments. However, I believe that the Commons will not change its mind; and should the Senate choose this option, it would result in effectively forcing this bill to die, yet again, on another Order Paper. Honourable senators, that would be a tragedy, in my view.
There is no one in this Senate who would argue that the penalties against individuals who are cruel to animals should not be increased. I do not think there is anyone here who does not agree that we should prevent cruelty to animals in every instance that we can do so. Let us remember that that is the purpose of this bill.
Honourable senators, the Senate makes an important contribution to the legislative process in Canada. This bill is the very illustration of this fact. The Senate often amends bills and the Commons usually accepts those amendments. We all know that the Senate has even defeated substantial government bills in the past. This rarely happens, but clearly the Senate has been given the constitutional authority to do so for good reason. I do not believe that this is a bill that the Senate wants to defeat. I believe it is a bill that the Senate wishes to pass.
It is also rare in this chamber to insist on our amendments, but we have done so in this case. I think it is important to bear in mind that it is equally rare for the House of Commons to disagree with Senate amendments, and even more exceptional for the Commons to insist.
I believe that senators have only two options: We can pass this bill, including the three amendments that senators have fought so hard to achieve, or we can insist on the amendments that have not yet been reconciled, and take the significant risk that this bill will not become law. In that case, all of our good efforts, and the efforts of all the senators who worked so hard in this committee, will have been wasted. Honourable senators, I believe it is time to pass this bill.
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[Translation]
Hon. Aurélien Gill: Honourable senators, with all due respect for the Leader of the Government in the Senate, I would like some clarification. We all agree that we oppose cruelty to animals. There is not much resistance to this principle.
However, if this legislation affects a way of life, if it casts doubt on a people's customs, then it deserves some serious consideration. I want to mention another debate. Is it possible in Canada for the First Nations to feel as if they are included and their rights protected to the same extent as any other citizen of this country? Everyone agrees that, each time legislation affecting the First Nations is introduced, we always come second, and our rights as Aboriginals are always violated. I know that this is not ill will, that the country has to function and that, often, the legislation in question is very positive. But the First Nations must always pay the price of implementing such legislation. When will it end?
I understand that the system functions in a certain way. We must try to make things easier. If there is some sand in the gears, there will be problems. By drawing a parallel between the system and real life, or people's needs, can we not set some priorities, even if this means that the system will be affected? I know that the standard procedure has been followed.
I listened to the legal argument. I could not participate, because I am not a lawyer. If I want a canoe, I must build it, and it must take me somewhere. Parliament legislates. The legislation must respect the rights of citizens.
Will the Leader of the Government tell us what comes first? Is it the system or the people, including the First Nations, who are expecting just laws in this country?
[English]
Senator Carstairs: Honourable senators, there is no higher protection for Aboriginal people than section 35 of the Canada Act. Section 35 respects the rights of our Aboriginal peoples. There is no question about that. As I indicated in my remarks, no simple piece of legislation can do anything to take from Aboriginal people that which has been granted to them in the Constitution.
There are also provisions in this bill that permit such things as customary practice. In the bill itself, the customary practices of hunters and trappers and fishers, which includes our Aboriginal people, are protected.
I would suggest to all honourable senators gathered here today that Aboriginal people are not cruel to animals. They know of cruelty to animals. They know of cruelty perpetrated against animals. However, I do not think that as a people they practice cruelty to animals. There is no indication — at least nothing I have ever read — that would lead me to such a conclusion. I fail to understand the honourable senator's depth of concern.
[Translation]
Senator Gill: If the rights of Aboriginal people are guaranteed under the Constitution, why do they keep having to go before the courts? If the Constitution is good, why do they have to go to court to assert their rights and argue all sorts of cases?
[English]
Senator Carstairs: There is no question that, on occasion, the Aboriginal peoples have been forced to take their cases to court, which is unfortunate because it is a costly and time-consuming practice. We should do everything in our power to avoid putting our Aboriginal peoples in that position.
Honourable senators, I think the legislation is very clear. The customs and practices of Aboriginal people, of hunters and fishers and trappers generally, are protected. However, what will not be tolerated by Canadian society and what will not be tolerated by our Aboriginal peoples is unnecessary cruelty to animals that also live on and share our land.
Hon. Charlie Watt: Honourable senators, perhaps our leader would be prepared to answer some questions.
If customary practices had been recognized in this bill, I do not think we would be making these points so strenuously.
I understand what Senator Carstairs is describing. Our rights are entrenched in the Constitution, with which we have no quarrel. We begin to have a quarrel when an ordinary piece of legislation is put forward as a way to describe that. I can remember nothing stating the fact that customary practice is recognized in this particular bill. Could the honourable senator enlighten me as to the law that exists and, more important, where customary practice is recognized in this particular bill?
Senator Carstairs: Honourable senators, I will make that information available. I do not have it available to me right at this moment.
Hon. Herbert O. Sparrow: Honourable senators, I have a question for the Leader of the Government in the Senate. Going back to the introduction of Bill C-10 in the chamber and its referral to committee, the government had insisted on no changes to the animal cruelty provisions, except an increase in penalties. We accepted the bill on that basis, until we read it and heard witnesses, and so on, and it was shown that they had gone further than this aspect of just increasing penalties. We continued to use the argument that no one is in favour of cruelty to animals, which is true, be it the House of Commons, the government or anyone else.
Honourable senators, we are talking about not only the cruelty to animals, but we are actually forcing a cruelty on people who make their living trapping, hunting and fishing. The cruelty may be reflected upon them, not only on the animals we want to protect from cruelty.
Getting to my point, the Leader of the Government in the Senate is insisting that if this bill is not passed, it will be the fault of the Senate. Well, it will not be the fault of the Senate; it will be the fault, if any place, of the House of Commons. Do not tar us with the blame for defeating the bill. We are not defeating the bill. We have made proper amendments to the bill and support the amended bill. We cannot, in this chamber, give ammunition to other people and say that the blame will rest with the Senate. It is already resting with the House of Commons because they are the ones who are not accepting those amendments.
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Madam Leader, would you agree that it will not be the fault of the Senate if this bill is not passed with the amendments by the House of Commons?
Senator Carstairs: Honourable senators, as I indicated in my remarks, I believe the motion I have made today is appropriate. If we do not move forward with that motion, this bill is unlikely to become law, and I think that would be a great tragedy.
Senator Sparrow: I am sorry. The Honourable Leader of the Government in the Senate did not answer my question. Is she saying that the Senate would take the blame for that?
Senator Carstairs: What I have said, what I will repeat, even though the honourable senator does not like my answer, but nevertheless, this is my answer: If we do not move forward on this bill, the bill may be lost, and I think that would be a tragedy.
On motion of Senator Beaudoin, debate adjourned.
Visitors in the Gallery
The Hon. the Speaker: Honourable senators, I draw your attention to the presence in our gallery of His Excellency C. Fernandez De Cossio Dominguez, Ambassador to Canada from the Republic of Cuba. He is accompanied by Ms. Aleida Guevara, a paediatrician in Cuba and the daughter of Ernesto "Che" Guevara. She is accompanied by Ms. Irma González.
Welcome to the Senate of Canada.
Public Service Modernization Bill
Third Reading—Motion in Amendment—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Day, seconded by the Honourable Senator Harb, for the third reading of Bill C-25, to modernize employment and labour relations in the public service and to amend the Financial Administration Act and the Canadian Centre for Management Development Act and to make consequential amendments to other Acts,
And on the motion in amendment of the Honourable Senator Beaudoin, seconded by the Honourable Senator Comeau, that the Bill be not now read a third time but that it be amended in clause 12, on page 126, by replacing lines 8 to 12 with the following:
"30. (1) Appointments by the Commission to or from within the public service shall be free from political influence and shall be made on the basis of merit by competition or by such other process of personnel selection designed to establish the relative merit of candidates as the Commission considers is in the best interests of the public service.
(1.1) Despite subsection (1), an appointment may be made on the basis of individual merit in the circumstances prescribed by the regulations of the Commission.
(2) An appointment is made on the basis of individual".
Hon. Joseph A. Day: Honourable senators, I will speak briefly against the amendment that was proposed in this particular matter. It was proposed by the Honourable Senator Beaudoin, but as he indicated during his remarks, the amendment was based on his being convinced of this point by our former colleague the Honourable Senator Bolduc.
Honourable senators, to bring you back in focus, Bill C-25 deals with public service reorganization and, in particular, the focus on the human resources management in the public service. Honourable senators will recall that this issue of a need for amendment and a change with respect to the public service human resources management has been going on for approximately 35 years. Our current minister, Madam Robillard, has finally taken on this very important and long overdue task.
The bill before you, Bill C-25, deals with several aspects of human resources management, one aspect being a change with respect to education and continuing education within the public service, the creation of the Canada School of Public Service, which amends the Canadian Centre for Management Development Act and rolls it into this new school. The Public Service Employment Act is extensively amended, the Finance Administration Act is amended, and there is an extensive change with respect to labour relations in a new act entitled Public Service Labour Relations Act. All of those aspects are in this one bill, Bill C-25.
I will now bring honourable senators to the amendment. The amendment proposed by my honourable friend opposite is with respect to the Public Service Employment Act, section 30. If honourable senators look at the amendment, they will see that it has several aspects to it. It would appear, by reading the amendment only, that it is attempting to introduce the issue of merit. I want, first of all, honourable senators, to make it very clear that the issue of merit in the public service is the cornerstone. It is the essence of the Public Service Employment Act.
The amendment, in effect, is derogating from the attempt to enhance that principle, and that is part of the reason I am urging honourable senators not to support this amendment. Section 30 very clearly establishes that merit is the basis for staffing within the public service.
If honourable senators will recall, during my remarks some time ago on this bill in third reading, we discussed the 2001 Auditor General's report outlining that the public service staffing situation needed some work. That was before the bill was proposed. Subsequent to that, the Auditor General came before the committee and was pleased to see that this bill was being presented, that we were dealing with it and that it was a good step in the right direction. That is just so that honourable senators will recall the difficulty that existed in the past, and what this legislation is intended to correct.
The merit principle had gone to the courts so often over the past 40 years that the courts had set up all these various tests. The managers in their hiring process were doing one of two things. One way to deal with all of these court cases was to act, not as a manager in assessing the merit of the potential employee, but rather, trying to meet all the different little steps and rules that had been set up by these various court decisions. That was one way in which they were dealing with the situation, which got away from the basic principle of hiring on merit.
The other and very common practice that we have all heard about that became almost de rigueur was hiring on a temporary basis. To avoid all of these court cases and to avoid going through the normal employment process, the practice was to hire on a temporary or term position, and then, sometime after the person was in situ on that basis, to move him or her ahead.
That is the essence of what we are trying to get away from. That is the primary concern that the Auditor General had, and section 30 deals with that difficulty that has existed, by defining merit in section 2.
Now, if one looks at this amendment, the amendment will restrict the definition of merit that is in the bill only to individual merit, and that is one aspect of this amendment. Therefore, in normal hiring, the amendment will, in effect, bring back all of those court decisions. It will put the managers right back to where they were: not managers at all but clerks who were trying to make sure all of these various tests were met.
Some of the tests, honourable senators, that the courts had imposed through recent decisions told us how we must mark the examination that the employee takes, how we must mark each answer in a test with a separate pass mark. The court decisions have gone into that kind of minutiae, and that is what the managers were dealing with. We do not want to bring all that back again. Despite the good intentions of the Honourable Senator Beaudoin and our colleague the Honourable Senator Bolduc, that is exactly what this amendment would do, in part.
The other part is the introduction of the term "competition." Honourable senators, the other thrust of this legislation is to let the managers manage, and to put in place strong checks and balances to ensure that the managers meet their obligations and that they are not abusing their positions. We talked about the creation of a public service staffing tribunal with the authority to appoint from within and the role of the Public Service Commission for other appointments. That allows managers to manage.
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I am hopeful honourable senators will agree that this amendment talks about competition, because if managers are managing, sometimes they want to apply the principles that are outlined here, and we would expect them to do so. One of them is employment equity. Another is the Official Languages Act. If we move forward strictly with the notion of competition, we are back into the competition process and grading individuals who have taken the test, which does not give managers the opportunity to meet other requirements in order to create a proper balance on employment equity, visible minorities and language equity. However, if we give managers authority in those areas, we need a check on that authority. We must be able to take that authority away and to deal with those managers who abuse it.
Honourable senators, all of that is in this bill and all of that would be seriously jeopardized by this amendment. I therefore respectfully suggest that we vote against this amendment.
Hon. Lowell Murray: May I ask the honourable senator a question or two?
Senator Day: I would be happy to receive a question or two.
Senator Murray: Honourable senators, by way of preface, I am always bemused to hear practising lawyers complain about the "judicialization" of the system.
That being said, in lamenting the recourse to the courts and the role of the courts on these matters, is the honourable senator not arguing against the principle of competition? Is he not arguing against relative merit in general? What hope do we have that letting the managers manage will ever produce much by way of competition, given that over 40 per cent of positions, even under the present law, are decided without competition?
Second, has the honourable senator's attention been drawn in the last couple of days to the report by the Auditor General on the Public Service Commission and the Office of the Privacy Commissioner? Does he recall one of the speeches of Senator Bolduc warning that managers will design job descriptions specifically to suit the person they want to hire? The Auditor General's report disclosed that this has happened in the Office of the Privacy Commissioner. Does that fact not point to the need for an amendment to this legislation requiring that the concept of relative merit by way of competition be applied?
Senator Day: I thank the honourable senator for those questions. I always reply to jokes about lawyers and complaining about lawyers by reminding honourable senators that my first profession and continuing second profession is that of an engineer, so I always welcome and participate in discussions about lawyers.
With respect to the issue of competition, the important thing is to not oblige managers to enter into competitions regarding each staffing assignment, but to give them the flexibility to do so. In the event that managers do not have a good reason for using competition or using advertising to fill a position, that is one of the specific items under the abuse of authority into which the tribunal can look and, in fact, can cancel the appointment based on their authority.
With respect to the setting of standards and the recent report by the Auditor General, there have been several reports. There was also a report by the Public Service Commission, both reports coming out in the last couple of days. It is important to remember that we are dealing with the Office of the Privacy Commissioner. We are not dealing with the normal core public service, but rather with an officer of Parliament. The system does work in that a committee of the House of Commons started to look into this office thoroughly. We have a number of checks and balances in that regard, which include both Houses of Parliament.
As I understand the contemplated procedure with respect to the delegation of staffing, the Public Service Commission will be able to focus on auditing, as opposed to doing a lot of the other things, like education and many of the other hiring processes that it was involved in before. However, it will still be involved in setting certain standards and regulations that it expects to be followed, and it can run audits to check if they have been followed, which I believe is a good way to go.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, I cannot accept that because one is an officer of Parliament, one should be exempt from basic guidelines that affect the deputy head community. The Auditor General is the first one to maintain that she, along with other officers, come under that rubric and therefore should follow the guidelines that are applicable to them.
Where in the bill can we find guarantees or even a mention of the criteria to which the Honourable Senator Day has referred, which I fully support should be always in mind when employment is being considered, criteria such as gender, minority rights, handicaps and so forth? Where would one find that those criteria are included in the competition system and in the merit system?
Senator Day: Honourable senators, I now have to put on my lawyer's hat to see if I can find these criteria for my honourable friend. One clause of the bill that comes to mind immediately is clause 34(1) under the proposed Public Service Employment Act. It can be found at page 127 of the bill. It states:
For purposes of eligibility in any appointment process, other than an incumbent-based process —
— which refers to someone already in the system —
— the Commission may determine an area of selection by establishing geographic, organizational or occupational criteria, or by establishing, as a criterion, belonging to any of the designated groups within the meaning of section 3 of the Employment Equity Act.
I do not have the designated groups with me, but visible minorities would be one of them, I believe.
If the honourable senator wishes, I will look for that.
Senator Lynch-Staunton: No, I will look into it, thank you.
I feel that the amendment that Senator Beaudoin proposed yesterday does not contradict the clauses that he wishes to see amended, but reinforces them by confirming that certain criteria, which are now specified in the act, must be included in the evaluation of any candidate. One clause does talk about being free from patronage and does talk about merit. The proposed amendment maintains the essence of the clause and simply adds:
...or by such other process of personnel selection designed to establish the relative merit of candidates that the Commission considers is in the best interests of the public service.
To me that includes minorities, Aboriginals, the handicapped and others who need special consideration when it comes to being assessed as a candidate. That is why I am strongly in support of this amendment, because it reinforces what is already there and confirms exactly what Senator Day has been maintaining should be part of the competitive process and the final decision on any candidacy.
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Senator Day: Was that a question? I am not certain.
Senator Lynch-Staunton: My remarks were a suggestion that the honourable senator look again at his appreciation of this amendment and, after my argumentation, support Senator Beaudoin.
Senator Day: I appreciate the comments of the honourable senator.
On motion of Senator Kinsella, debate adjourned.
[Translation]
Business of the Senate
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, today is Wednesday and several committees must sit. We could, as we have done many times before in this chamber, allow all items on the Order Paper that have not been reached to stand in their place. This way, we could now proceed to the adjournment motion. Is there consent, honourable senators, to proceed in this fashion?
[English]
The Hon. the Speaker: Is it agreed, honourable senators, that we proceed to the adjournment motion, all other matters standing in their place?
Hon. Senators: Agreed.
The Senate adjourned until Thursday, October 2, 2003, at 1:30 p.m.