Tuesday, May 1, 2001
The Senate met at 2 p.m., the Speaker in the Chair.
Hon. Gerald J. Comeau: Honourable senators, equalization programs were introduced in Canada to avoid creating two types of provinces — the rich provinces and the poor provinces. In fact, the Constitution of Canada intends that equalization programs should allow all provinces to deliver a comparable level of services with comparable tax rates.
The economy of Nova Scotia has improved at least in recent years, thanks in large part to offshore energy development pioneered by the Buchanan government. Unfortunately, a cap was placed on equalization in 1982, creating the situation whereby poorer provinces will never be able to catch up. The cap contributes to a widening of disparities between the have and have-not provinces, and leads to a two- tiered system of essential services across Canada. The rich provinces can lower taxation rates, offer better health services to their citizens and incentives to business, while the poorer provinces get increasingly behind and our bright young graduates move to prosperous provinces.
Honourable senators, our provincial government seeks allies here in Ottawa to help gain equity for our citizens. Unfortunately, the very people in the position to help their province, the Liberal members from Atlantic Canada, are again failing in their duties. Atlantic Canadian NDP members, to their credit, are helping us, but the Liberal members fight and undermine our efforts. The minister responsible for Nova Scotia toes the party line because he does not want to lose his cabinet post, while his understudy, Geoff Regan, must keep his nose clean to get a cabinet post, if ever Paul Martin is anointed leader of the Liberal Party.
Mr. Regan is particularly irritating because he is resurrecting old political battles from the 1970s to justify his lack of support for Atlantic Canadian equity. This is as bad as the 100 some odd members from Ontario with their stereotypical perceptions of Atlantic Canadians. In one of his recent media diatribes, Mr. Regan blamed the debt monkey on our collective backs for making us poor. Not to despair, though; he indicated that he would find a creative way to remove the monkey.
Honourable senators, I suggest it is not a monkey that is holding us back, but a guerrilla, who is ambushing our efforts to help our region. Because of cabinet solidarity, the Nova Scotia minister may be excused for not fighting on behalf of Nova Scotians, but Mr. Regan and the other Liberal backbenchers do not have that excuse. A cabinet post is not worth the cost. Duty to your region comes first. Remember the election of 1997 and what can happen if one places cabinet post aspirations above duty to constituents.
Welcoming Comments Upon Return to Chamber
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I wish to welcome back Senator Norman Atkins. It is wonderful to see him back in this chamber and looking in such good health. We hope he will continue in good health, which will even allow him to give us a hard time now and then.
Senator Atkins: Starting today.
Sackville—Cavalier DRIVE School Heritage Fair
Hon. Jane Cordy: Honourable senators, on Friday, April 27, 2001, I had the great pleasure of visiting Cavalier Drive School in Sackville, Nova Scotia. The school was hosting its second heritage fair. Students from grades 4 to 9 presented heritage projects, either as individuals or as groups. A heritage fair is similar to a science fair but the focus is on Canadian history.
I was extremely impressed by the quality of work done by the students. The effort these young people put into their projects was evident, not only by the visual appeal but by the knowledge they displayed. I had a wonderful time viewing projects and talking to the students about their work. These students are well aware of their Canadian history.
The projects ranged from topics such as Lucy Maud Montgomery to the Acadians, to former Prime Ministers Pierre Trudeau and Sir John A. Macdonald, and to Canadians who served in the Vietnam War. It was a delight to see the enthusiasm demonstrated by the students, who were pleased to share their knowledge with their families and the visitors who came to their heritage fair.
The quality of the students' work was most impressive. In addition to the students' projects on display, local historical and cultural groups were invited to share and celebrate their work at the heritage fair. Heritage workshops were also held for the students at the school on such topics as town criers, the legislative library and Nova Scotia's sports heroes.
The tremendous success of this heritage fair is due in no small part to Stephen Davidson and Maritza Adelaar, teachers at the school, who were the coordinators for this event. Heritage fairs are sponsored and promoted by the same people who produce television's Heritage Minutes, which is a private agency dedicated to the promotion and celebration of Canada's heritage.
Matt Francis was the overall winner at the Cavalier Drive Heritage Fair. He will represent the Halifax Regional School Board at the National Heritage Fair, which will be held in Kamloops, British Columbia.
Honourable senators, I congratulate Mrs. Joan MacMullin and her staff at Cavalier Drive School, who provided the opportunity for their students to be involved in such an exciting event. The enthusiasm and hard work of the staff is reflected in the success of the heritage fair, both for the students and the community.
Hon. Marjory LeBreton: Honourable senators, a few weeks ago I spoke in this chamber about ethics, honesty and integrity. We agonize over the growing public cynicism about politics and politicians. Is it any wonder that people should feel this way? May I remind honourable senators of those words in the famous original Liberal Red Book:
...the Conservatives made a practice of choosing political friends when making the thousands of appointments to boards, commissions, and agencies that the Cabinet is required by the law to carry out.
They went on to say that they would appoint more women, people of different ethnic backgrounds, and merit would be the only criteria. Therefore, what are we to think when we read a report in Saturday's Montreal Gazette on the massive infusion of Liberals who are now earning $89,000 a year as members of the Immigration and Refugee Board?
For the record, I have never suggested that political affiliation should prevent an individual from being appointed to serve in government, but the question here is ethics.
Honourable senators, can you imagine the eight column headlines, the outrage of the Liberals or the stampede of public opinion if the spouse of any Progressive Conservative in this chamber or the other place were to receive such a lucrative appointment? The question is not one of spousal independence or competence, but rather one of ethics, hypocrisy, duplicity and, above all, accountability. We despair of the public view that politicians cannot be trusted.
Honourable senators, in another career, I can just see one of our colleagues opposite penning an editorial full of indignation and condemnation over this issue.
The Hon. the Speaker: I should like to draw the attention of honourable senators to the presence in the gallery of members of the Japan-Canada Diet Friendship Group led by Mr. Hosei Norota.
On behalf of all hourourable senators, I bid you welcome to the Senate of Canada.
Student Loan Program
Hon. Norman K. Atkins: Honourable senators, I wish to begin by saying it is great to be back in this chamber once again. I thank my colleagues for their kind wishes and especially Dr. Keon for his incredible skill.
This is my first statement in this new Parliament. I wish to return to an issue that I raised a number of times in the last Parliament, the problems in the Student Loan Program as it is presently conceived and run by the Government of Canada.
In March of this year, Statistics Canada produced a report entitled, "The Assets and Debts of Canadians: An Overview of the Results of the Survey of Financial Security." This survey contained two parts that are of great interest to some of us who are concerned about the state of post-secondary education in Canada. On a positive note, the survey reveals that, with regard to earning capacity, those Canadians with post-secondary degrees dominate the territory above the median wealth line. There is a definitive link between the accumulation of wealth and possessing bachelor's, master's or doctoral degrees. This seems to conclusively prove the argument that many of us have made that the key to success in our economy is higher education.
Another part of the survey is disturbing as it reveals that more of those who pursue post-secondary education are having to do so through the use of student loans and are graduating with crippling debt loads. Over 30 per cent of Canadians under the age of 25 are either still accumulating debt through student loans or struggling to pay them off. When we move to the next numerical group, those between 25 and 34, those still dealing with the repayment of student debt remains high, over 22 per cent.
Not only is there a disproportionate number of young Canadians having to accumulate and then repay this debt in order to achieve a post-secondary education, but the amounts owed are great. The Statistics Canada survey illustrates that the largest debt burden in Canada is borne by young people and especially those with children. Those who fall into this category owe $53 for every $100 of assets, largely because of student loans.
These statistics illustrate how difficult it is for young Canadians starting out to achieve some degree of financial stability as a result of the large accumulation of student loan debt. We must devise a better way to deal with the costs of obtaining a post-secondary degree. If we do not address this reality soon, we will soon be faced with a situation where only those with wealthy families will be able to attend colleges and universities. The promise of being competitive and succeeding in the global economy will be restricted to the wealthy in our society. The promise of access to post-secondary education in Canada for all those who qualify academically will be broken.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, with leave of the Senate, and notwithstanding rule 58(1)(h), I move:
That when the Senate adjourns today, it do stand adjourned until tomorrow, Wednesday, May 2, 2001, at 1:30 p.m.
The Hon. the Speaker: Honourable senators, is leave granted?
Hon. Senators: Agreed.
Motion agreed to.
Canadian Delegation to Meeting from March 15 to 17, 2001—Report Tabled
Hon. Rose-Marie Losier-Cool: Honourable senators, pursuant to rule 23(6), I have the honour to table, in both official languages, the report of the Canadian delegation to l'Assemblée parlementaire de la Francophonie and the related financial report.
This report relates to the meeting of the APF Committee on Cooperation and Development, which was held in Valle d'Aosta, Italy, from March 15 to 17, 2001.
Canadian Delegation to Meeting from March 26 to 28, 2001—Report Tabled
Hon. Pierre De Bané: Honourable senators, pursuant to rule 23(6), I have the honour to table, in both official languages, the report of the Canadian delegation to l'Assemblée parlementaire de la Francophonie and the related financial report.
This report relates to the meeting of the APF Parliamentary Affairs Committee, which was held in Luxembourg from March 26 to 28, 2001.
Notice of Motion to Authorize Committee to Hear Minister of Transport on Busing Regulation
Hon. Lise Bacon: Honourable senators, I give notice that, at the next sitting of the Senate, I shall move:
That the Standing Senate Committee on Transport and Communications be authorized to hear the Minister of Transport in order to receive a briefing on busing regulation.
That the committee report no later than September 30, 2001.
Notice of Motion to Authorize Committee to Permit Electronic Coverage
Hon. A. Raynell Andreychuk: Honourable senators, I give notice that, at the next sitting of the Senate, I shall move:
That the Standing Senate Committee on Human Rights be authorized to permit coverage by electronic media of its public proceedings with the least possible disruption of its hearings.
Notice of Motion to Authorize Committee to Engage Services
Hon. A. Raynell Andreychuk: Honourable senators, I give notice that, at the next sitting of the Senate, I shall move:
That the Standing Senate Committee on Human Rights have power to engage the services of such counsel and technical, clerical and other personnel as may be necessary for the purpose of its examination and consideration of such bills, subject matters of bills and estimates as are referred to it.
Presentation of Petition
Hon. Lorna Milne: Honourable senators, I promised last week that we would be hearing from Alberta this week. I am delighted to have the honour to present 2,115 signatures from Canadians in the province of Alberta — mainly from Calgary but some from Lethbridge, Barnwell and Edmonton — who are researching their ancestry. They petition as follows:
Your petitioners call upon Parliament to take whatever steps necessary to retroactively amend Confidentiality-Privacy clauses of Statistics Acts since 1906, to allow release to the Public after a reasonable period of time, of Post 1901 Census reports starting with the 1906 Census.
These signatures, honourable senators, are in addition to the 6,092 I have presented in this calendar year. I have now presented 8,207 signatures to this Parliament and petitions with over 6,000 signatures to the Thirty-sixth Parliament, all calling for immediate action on this very important matter of Canadian history.
Hon. Marjory LeBreton: Honourable senators, my question is directed to the Leader of the Government in the Senate and is with regard to the Immigration and Refugee Board. As reported in the Montreal Gazette on Saturday last, Professor François Crépeau of the Université du Québec is reported as saying:
These appointments —
— meaning those to the Immigration and Refugee Board —
— are problematic because board members owe their positions to politics — not to competence...
He went on to say:
People are being appointed who just aren't competent to do the job.
In the same article, Professor Fernand Gauthier from the Université de Montréal said:
It's become a branch of the Liberal Party now.
Would the Leader of the Government in the Senate, in her position as a member of cabinet, appeal to the Minister of Immigration to appoint people who are competent? I am not questioning the competency of every member of the board. I am simply reporting what these professors have said. People serving on the Immigration and Refugee Board deal with very sensitive and critical issues for people seeking entry to Canada.
Hon. Sharon Carstairs (Leader of the Government): I thank the honourable senator for her question. The reality is that appointments to the IRB are competency-based. The individuals are in fact tested. They must pass the qualifications, and they do so. They are all honourable appointees.
Senator LeBreton: Honourable senators, I thank the Leader for that answer. There are two professors in the province of Quebec, from two highly respected educational institutions, who disagree. Since the Leader of the Government has said that they must pass specific tests and abide by certain criteria to be named to this very important board — at a very good salary, I might add — would she table the guidelines and the tests that candidates must undergo?
Senator Carstairs: Honourable senators, I do not question the competency of the two professors. Frankly, I am somewhat skeptical of their questioning the competency of individuals who have applied and have been accepted to represent this extremely important — as the senator herself has said — appeal board within our immigration and refugee system.
With regard to any other details on guidelines, I will undertake to see whether that information is available. If it is, I will make it available to the honourable senator.
Senator LeBreton: Honourable senators, further to this whole issue of appointments, as I said in my statement, I have never questioned the right of people to serve the government because of political affiliation. However, there is currently a feeling in the country, and certainly around Ottawa, that the government can do whatever it likes. Surely, the Leader of the Government in the Senate will acknowledge that public trust and accountability is sorely lacking in this area, as in others. There does not seem to be any recourse for people to have any say in any of these processes at all.
Can the Leader of the Government in the Senate defend this government, which has been so critical of other governments in the past? The government is so hypocritical because it is obvious that the feeling of the Liberal government is that it can do whatever it wants while everyone else must live by another set of standards.
Senator Carstairs: Honourable senators, it is very interesting that the senator takes that position. She clearly got her information from an article in the Montreal Gazette. I will quote from that article as follows:
Not all local IRB members have Liberal pasts. A few, including former Tory MP Charles DeBlois, have ties to the Conservatives.
Senator LeBreton: Are we not lucky, honourable senators, to have one out of 32. The issue is not the appointments per se. The issue is accountability and ethics. As parliamentarians, we must look at what is going on here and ask ourselves whether it is any wonder that people want nothing to do with politics or politicians.
Senator Carstairs: Honourable senators, obviously many of us have a lot to do with politicians and the political process and we believe in that process. The senator says, "Oh, wonderful, one out of 32." Perhaps she should look at the results in the last Quebec election.
Criteria for Appointments
Hon. Terry Stratton: Honourable senators, as the minister is aware, I tabled Bill S-20 in the Senate not too long ago. That bill proposes that a Senate Committee of the Whole vet some of these appointments.
In order to show that government is becoming more open and transparent, would it not be advisable to make public the criteria for these positions so that those who are interested and believe that they have the required credentials can apply? People want a public process. Could that not happen?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, the bill that the senator has tabled is under debate. I found the intervention of Senator Banks very interesting. In reply to the second reading speech of Senator Stratton, Senator Banks, a very newly appointed member of this chamber, said that he would not want to see in this place the kind of investigatory hearings that take place in the United States, with their very personal attacks upon appointees.
My understanding is that a process is already in place. MPs can examine any appointment they choose. Unfortunately, they rarely take advantage of their authority to do so.
Senator Stratton: Honourable senators, my concern and that of the public is that the process is not transparent, which is the fundamental issue. Would it not benefit all to have that process more transparent? We could advertise positions. We could try something innovative whereby individuals of any political stripe who have the required credentials could apply.
Senator Carstairs: I am not sure that the honourable senator completely understands the process that exists now. Many of these appointments are listed in the Canada Gazette. They are a call for public applications.
Senator Stratton: If that is the case, I would appreciate the Leader of the Government sending me those that are advertised, those that are made public.
Senator Carstairs: If the honourable senator will give me several days to do it, I would be pleased to do so.
Census Questionnaire—Omission of Acadians as Cultural Group
Hon. Gerald J. Comeau: Honourable senators, in the latest census, in the question on ethic origin, a number of cultural groups were proposed, but it seems that the Acadians were left out. We must not forget that the Acadians were the first settlers in Canada, after the Aboriginal peoples, of course. What can be done to prevent a repetition of this omission in the next census?
Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I thank the honourable senator for his question. My understanding of the census data — he has the form and I have not yet seen it — is that it was a self-identification process. I do not know why the Acadian people, including myself, have been left out, but I will certainly raise that question with the appropriate minister.
Senator Comeau: Honourable senators, the Acadians do not see themselves as French Canadians. They see themselves as Canadians, but French-speaking Canadians. Can the minister ensure that this distinction is made clear to the officials?
Senator Carstairs: I thank the honourable senator for his question. He is quite correct that there is a distinction between those who identify as Acadians and someone who speaks French. Unfortunately, I can identify myself as Acadian but certainly could not identify myself as someone who speaks French and, therefore, not as a French Canadian. I can assure the honourable senator that I will make the distinction very clear.
Census Questionnaire—Canadian Linguistic Duality
Hon. Jean-Claude Rivest: Honourable senators, my question is for the Leader of the Government in the Senate. Senator Comeau's question is very important. The census questionnaire does not make it possible to follow the demographic evolution of the various cultural groups, including the francophone communities, including the Acadians. More specifically, it does not allow for an evaluation of the proportion of anglophones and francophones in Canada.
This question was raised on many occasions at the Standing Joint Committee on Official Languages. Unfortunately, the scientists at Statistics Canada did not take this into account. It is very important in terms of the defence and promotion of Canada's linguistic duality, beyond the other ethnic groups, which, of course, are part of the Canadian reality. It is vital to know how many Canadians see themselves as French Canadians and how many see themselves as English Canadians. This has even greater significance in connection with the evolution of the Acadian community.
Hon. Sharon Carstairs (Leader of the Government): I would ask Senator Rivest to give me some specific examples of where he thinks questions could be changed to result in the kind of identification for which he is asking. If he will do that, I assure him that I will take it forward to the appropriate minister.
United States Southern California Preparatory Conference for World Conference Against Racism—List of Participants
Hon. Donald H. Oliver: Honourable senators, my question is for the Leader of the Government in the Senate. It relates to a news release from Canadian Heritage. It reads:
Led by the Honourable Hedy Fry, Secretary of State (Multiculturalism) (Status of Women), a delegation of distinguished Canadians representing the film industry, broadcast media, regulators, academics and community groups will be working with their U.S. counterparts as part of the United States Southern California Preparatory Conference for the World Conference Against Racism.
Would the Leader of the Government be kind enough to provide us with the names of the individuals who are assisting the Honourable Hedy Fry and the organizations they represent, the number of visible minorities in the delegation, and the provinces or territories from which they come?
Hon. Sharon Carstairs (Leader of the Government): I thank the honourable senator for his question. I will try to obtain that information for him as soon as possible.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I have four delayed answers. The first is in response to the question of Senator Oliver, raised on March 27, 2001, regarding Air Canada; the second is in response to a question raised by Senator Gauthier, on March 29, 2001, regarding the maintenance of established linguistic rights; the third is in response to a question raised by Senator Forrestall, on April 5, 2001, regarding the replacement of Sea King helicopters; and the fourth is in response to a question raised by Senator Spivak, on April 5, 2001, regarding the regulatory process for genetically modified wheat.
Air Canada-Discussions with Canadian Airlines Pilots on Seniority—Effect on Safety
(Response to question raised by Hon. Donald H. Oliver on March 27, 2001)
Transport Canada is providing the necessary regulatory safety oversight to ensure that all requirements for a safe transition are met by the new merged air carrier.
The criteria used for the merging of the Air Canada and Canadian Airlines pilots' seniority lists has been the subject of arbitration which began in September 2000, with the hearing portion completed in early February 2001.
The ruling was announced March 31, 2001, and is binding without appeal from either pilot association.
Air Canada is placing a high priority on mitigating any emotional stress which may result from the ruling. Air Canada Managers, Human Relations, as well as stress counselors and representatives from both pilot associations, were present in the flight operations areas on March 30 — April 2, 2001. Plans are to reduce the extra management presence as circumstances deem appropriate.
As well, pairing of pilots from the two groups will not be scheduled until at least the summer. This has been addressed in the approved Integration Plan and will not proceed unless all procedural and human factors issues on the flight deck have been adequately addressed.
Transport Canada has supported the process by having Air Carrier Inspectors on site at the various Flight Operations areas in Toronto and Vancouver. Transport Canada will liaise closely with Air Canada management and take whatever action is necessary to reduce the risk to safety, including, if necessary, the grounding of flights.
Federal Court Decision—Maintenance of Established Linguistic Rights
(Response to question raised by Hon. Jean-Robert Gauthier on March 29, 2001)
The Federal Court-Trial Division released its decision at the end of business day on March 23, 2001. It is a very lengthy and complex decision. Legal counsel at the Department of Justice are presently reviewing the decision and considering the options of the Attorney General of Canada. The Attorney General of Canada is not in a position to comment further at this time. A decision on whether or not to appeal the decision must however be made by April 23, 2001.
It is important to note that the Court did not order the Department of Justice to amend the Contraventions Act. Rather, it ordered that the Department take the necessary measures, whether legislative, regulatory or otherwise, to ensure the respect of the language rights provided by sections 530 and 530.1 of the Criminal Code and Part IV of the Official Languages Act. Amending the Act would therefore be only one of a number of options.
Replacement of Sea King Helicopters—Changes to Procurement Process
(Response to question raised by Hon. J. Michael Forrestall on April 5, 2001)
With respect to the Government's procurement process for the 28 new Maritime Helicopters, no new process is being established, nor has the Government excluded commonality savings from an approach that has been, and will continue to be, based upon fairness, openness and transparency.
This Government has not changed its Maritime Helicopter Project procurement strategy. Shortly after announcing the Project in August 2000, the Government released a Letter of Interest that outlined the Government's procurement strategy and confirmed that the project would involve two separate competitions. The first will pertain to the basic helicopter airframe and the second to the mission system and system integration. With respect to system integration, it will be the responsibility of the winning contractor of the mission system to modify the helicopter selected by the Government and to produce a fully integrated Maritime Helicopter. Long-term in-service support will also be an element of both competitions, thus ensuring that prospective suppliers will take long-term responsibility for any equipment they will sell.
Concerning the issue of commonality savings, if there are economies and efficiencies to be realized in having the same helicopter airframe and long-term in-service support for both the Search and Rescue as well as the Maritime helicopters, then this will be reflected in the respective bid prices submitted by the prime contractors. For example, the requirement for up to 20 years of maintenance and support with any bid will enable companies that have already sold their product to Canada to build into their bid price any benefits associated with having a common fleet. So, in fact, by its very nature, the Government's Maritime Helicopter procurement process facilitates the inclusion of commonality savings in the bidding process. At the same time, it must be remembered that the Search and Rescue Helicopter role and the Maritime Helicopter role are different and, hence, require different mission equipment.
Regulatory Process for Genetically Modified Wheat
(Response to question raised by Hon. Mira Spivak on April 5, 2001)
Before a GM wheat variety can be considered for registration, it must be assessed by the Canadian Food Inspection Agency (CFIA) for environmental and livestock feed safety and by Health Canada for human food safety. To date no application has been made by Monsanto for any safety assessments for GM wheat.
The current variety registration process is science-based and does not involve consideration of approvals in foreign markets (market acceptance).
The Prairie Registration Recommending Committee for Grain, which is responsible for testing and recommending new varieties, has provision for considering market risks for wheat, but to date has never used it where a variety did not have approval in foreign markets.
In order to be registered, GM wheat varieties must meet, over three years of testing, scientific criteria for agronomic performance, disease reactions, and quality traits.
Since variety registration testing has not yet been initiated, it is highly unlikely a GM wheat variety will be eligible for registration before 2005.
The Hon. the Speaker: Honourable senators, I should like to introduce the new pages who are here from the House of Commons.
On my right, I introduce Shannon Headland, who is studying political science at the Faculty of Social Sciences of the University of Ottawa. Shannon is from Pointe-Claire, Quebec. Welcome.
Héloïse Robinson is a student at the Faculty of Arts of the University of Ottawa. She is from Victoria, British Columbia.
Bill to Amend—Third Reading
On the Order:
Resuming debate on the motion of the Honourable Senator Wiebe, seconded by the Honourable Senator Corbin, for the third reading of Bill S-17, to amend the Patent Act.
Hon. David Tkachuk: Honourable senators, I am speaking to Bill S-17, not as spokesman for the bill but as chairman of the committee that studied the bill. Senator Lynch-Staunton will speak after me and address some of the issues, but I thought I would spend a minute on the process itself.
We had a good debate on the bill in committee. There was a spirited exchange between Senator Lynch-Staunton and, of course, Minister Brian Tobin. I urge everyone to read it. It is kind of fun. A few memories were brought up by Senator Lynch- Staunton that, I must say, the minister took with humour rather than defence. He is now an ally of our former position.
The last time patent legislation was amended, there was quite a debate that included big business and big politics. We were told that Bill S-17 was introduced first in the Senate for certain reasons. This bill amends the Patent Act to comply with the WTO ruling against stockpiling. This bill must pass before the end of August to prevent the WTO from imposing sanctions on Canada, which would affect many businesses, not just those in the area of pharmaceutical drugs.
Both sides were heard on the issue of generic drugs and drug protection for the patent holders. There was a perplexing part in the process.
There was some unanimity. I will not speak for some Liberal members, but some demonstrated sympathy for the position of the senators on our side. Senator Lynch-Staunton suggested that observations and recommendations be attached to the committee report, which we would have agreed to do, but for some reason, the clerk said that that was out of order. We argued on our part that recommendations were not out of order, that we have done it before many times. Many of you sit on committees that have attached recommendations to a bill which were later adopted at third reading in the Senate chamber. The advice given to our chairman was it was out of order. He ruled it out of order.
The Liberals passed the bill without the recommendations we talked about, but it was an issue I wanted to bring to your attention. We have used the word "recommend" before in an observation report. Our clerk gave us a document saying that it becomes an order of the Senate. Apparently, it makes the Officers of the Senate very uncomfortable, and if we look at what happens in other jurisdictions, perhaps we should not use the word "recommend." My view was if we all agree in committee to use that word and it comes to the Senate, the Senate itself can decide whether or not it wants to use it. It is not up to the committee members to decide. We could use the word "recommend," and the Senate then could decide to adopt or reject it. It would be an order of the Senate if senators so wished, or attached as an appendix if they wished to comply with the discomfort of the clerks.
In our case, the wrong advice was taken, perhaps not given, but certainly wrong advice was taken. We could have made recommendations that would have assisted us in showing our displeasure at what was not in the bill, rather than simply what was in the bill.
Honourable senators, I bring the matter to your attention because we will all have to deal with it in other Senate committee reports when we want to use that word, whether or not to accept the ruling. I will continue to insist that we set our own precedents and not follow the House of Lords or the Parliament of Australia. Perhaps we should set the precedent to use that word.
Hon. John Lynch-Staunton (Leader of the Opposition): Honourable senators, as Senator Tkachuk implied, the contents of this bill need little discussion as they are the result of the fact that the World Trade Organization has upheld the challenges to certain features of our Patent Act by the European Union and the United States. The Minister of Industry, when testifying before the Banking Committee, urged the Senate to move the bill along as expeditiously as possible, as Canada is in the forefront of countries that abide by their international obligations.
I agree, as I agreed in 1992, when a similar bill, Bill C-91, resulting from agreements under the GATT and the FTA, was laid before Parliament. The arguments used by Minister Tobin were the same then, and the government of the day was urging swift passage because of international obligations. The opposition, however, led by a number who are today senior members of the Liberal government, not the least the Minister of Industry, led an extraordinarily vicious charge against the bill, accusing Conservatives of being tools of the pharmaceutical industry and of legislating astronomical increases in drug prices. I am sure I am not the only one who was here at the time who recalls one senator, just prior to the vote on Bill C-91, accusing all those in favour of it of being beholden to its beneficiaries. It was not one of Parliament's more illustrious moments.
That senator retired unrepentant. The Minister of Industry before the committee did admit to a less than objective assessment of Bill C-91, to say the least. I commend him for that, as I do his commending Prime Minister Mulroney for initiating the FTA and the NAFTA, which he now fully supports.
Mr. Tobin obviously agrees with the "Liberal New Testament," which instructs all aspirants: "Repent, ye, for the leadership of the kingdom is at hand."
I want to spend a few minutes on the observations in the committee's report as they result from testimony on the nature of the industry and regulations governing it, which should be of wider concern than they appear to be.
I can think of no industry, certainly in Canada, whose members are not so much rivals as entrenched enemies, whose lack of respect for one another is nothing short of appalling. On the one hand are the pharmaceutical companies that innovate and create products that alleviate pain, save and prolong lives. On the other are the generics that pluck the most profitable of the original products, copy them and put them on the market at prices substantially below those of the original once the patents have expired. One considers the other a parasite. The other speaks of unconscionable profiteering. Canadians have reason, faced with such allegations, to be suspicious of how a drug policy may be established in this country.
If one assumes that patent protection were eternal, then the monopoly thus created would lead to perpetually high prices. This is true of any invention, not just drugs, of course. Patent protection is intended to allow the innovator not only to recoup the investment but also to profit from it. A limited patent protection is imposed in order that one not take unfair advantage of the innovation. Such a policy is in effect in every so-called advanced country and is well accepted and understood in Canada with the glaring exemption of the drug industry.
What the hearings brought out is that the regulations governing the industry allow drugs to be protected longer than the legislation intended or specifies, and passage of this bill will not change this contradiction unless the regulations are amended appropriately.
Bill S-17 is consistent with what is known as, and here I quote from the department's briefing book:
...the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) forms Annex 1C of the World Trade Organization Agreement (WTO) to which Canada is a signatory. Article 33 of TRIPS requires that WTO members provide a minimum term of patent protection of 20 years from the filing date.
Bill S-17 imposes the required 20-year protection, yet the regulations presently in force allow pharmaceutical companies, and only pharmaceuticals of all products protected by the same act, to extend protection by another two years. If an application for the generic equivalent of a patented drug is challenged in court as infringing another patent added to the same drug, the Minister of Health cannot issue what is known as a notice of compliance for up to two years, while the court challenge may take even longer to settle. The result is the equivalent of patent protection beyond the 20 years imposed by the legislator by delaying the entry of its generic equivalent.
Witnesses from the pharmaceuticals and from the generics were not very helpful in explaining the reasoning behind this exceptional regulation as each sees it in white and black. No regulation, no innovation, claims the first; regulation means higher costs and financial setbacks, claims the second. Such stands before the committee were of little assistance in getting a balanced appreciation of the controversy. Nonetheless, the committee did come to the following conclusion, which is part of its observations:
In general, it is the Committee's view that courts are fully capable of determining appropriate procedures, which should not differ substantially from one industry to another. Regulatory interference carries a risk that an unfair advantage may inadvertently be provided to one side or the other.
The report goes on:
Given the testimony suggesting that the cost and volume of related litigation was high, that a significant majority of the cases were ultimately lost by the patent holders, and that the patent holders gain an unintended benefit from the delay created, modifications of the regulations could be in order.
In his testimony, the minister said:
The intention should be to give 20 years of patent protection. The intention should be to avoid things which would allow abuse unnecessarily and, in an unearned way, to extend the period of patent protection. This I would agree with.
Finally, I wish to point out how the committee unanimously supported the minister by ending its report as follows:
The Committee, therefore, strongly urges —
Honourable senators will notice that the word is not "recommends," following the instructions of the chairman, but "strongly urges":
— that the Minister, in a future review of the legislation and regulations in question, ensure that they do not provide any of the parties implicated in patent protection with an advantage unintended by Parliament.
In addition, the Committee strongly urges any future proposed changes to regulations made under the Patent Act be tabled in both Houses of Parliament and automatically referred to appropriate committees for study and report within 30 sitting days of their being referred to Committee.
This is not the first time, as honourable senators know too well, that regulations have been gazetted and have not necessarily reflected the intent of the legislator, who in voting this bill will confirm that patent protection for drugs has to be, should be, and, by law, is to be limited to 20 years. If there is an argument for a longer period, let it be argued openly and Parliament can act accordingly. Otherwise, as the committee has done, let us urge for a revision of the regulations, keeping in mind that while corporate profitability is not to be ignored — far from it — consumer interests, particularly in the field of health, must always be paramount and, hopefully, the final determinant.
The Hon. the Speaker: Honourable senators, is the chamber ready for the question?
Hon. Senators: Agreed.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Motion agreed to and bill read third time and passed.
Bill to Amend—Third Reading—Debate Adjourned
Hon. Michael Kirby moved the third reading of Bill S-11, to amend the Canada Business Corporations Act and the Canada Cooperatives Act and to amend other Acts.
Hon. Donald H. Oliver: Honourable senators, I am prepared to make my remarks today. However, because of negotiations, I would prefer to make my remarks tomorrow.
On motion of Senator Oliver, debate adjourned.
On the Order:
Resuming debate on the motion of the Honourable Senator Rompkey, P.C., seconded by the Honourable Senator Hervieux-Payette, P.C., for the second reading of Bill C-13, to amend the Excise Tax Act.
Hon. C. William Doody: Honourable senators, I have just a few comments to make on the bill that is now before us. Senator Rompkey explained in great detail on Thursday last that this bill is simply a collection of more or less technical amendments to the Excise Tax Act. It is a bureaucrats' bill put together for and on behalf of the officials of the Department of Finance.
There is some small tax relief in this bill. For instance, I am sure the good taxpayers of Canada will be thrilled to hear there is some tax relief on air conditioners installed in automobiles and new heavy automobiles. However, I am sure the various changes proposed in the bill to the GST/HST can be examined in detail and explained at length by those who will appear before the Senate committee to which Bill C-13 is referred.
Thus, honourable senators, with the exception of the new residential rental property rebate, the amendments contained in this bill do not have significant revenue costs. In other words, the GST is not significantly changed, and this rebate will only save the taxpayers of Canada some $15 million this year.
Therein, honourable senators, lies the puzzle. When this bill reached my desk, I eagerly opened it, reading it very carefully. I fully expected the current government to leap on this golden opportunity, if not to abolish the terrible GST, then at least to lower it materially. The government could even outline a schedule of reductions leading to its elimination, say, in five years hence. However, there is nothing like that at all in this bill.
We who sat in this chamber when the GST was introduced remember full well the reception the tax received from honourable senators opposite. There was the rage, the rhetoric and the passion. There was hour after hour of mind-numbing filibuster, countless pages of Hansard filled with readings from the Ottawa telephone directory, the bells, the whistles, the shouts, the kazoos — on and on it went. However, the majority party in this place now has a legitimate and reasonable opportunity to put their money where their kazoos were.
What do they offer us, honourable senators? They offer the Canadian taxpayers tax relief on automobile air conditioners. At the very least, I expected an amendment removing the tax on books and other reading material.
I remember well, as do many of us, Senator Fairbairn's poignant and very moving plea on behalf of the Canadian literacy cause. Her proposed amendment at that time would have exempted reading matter. Perhaps she will reintroduce her amendment at second reading, or in committee, or even at the third reading stage of this bill's progress through this place. There is time to bring such an amendment forward and time to bring forward the other amendments about which honourable members opposite were so enthusiastic just a few years ago.
It is not as if Liberal senators can be accused of opposing their own party's position on this matter. Their own leader, Mr. Chrétien, promised to rescind the bill if elected — and he has been elected again twice. The Minister of Finance himself, Mr. Martin, once told the House of Commons that the GST is "a stupid, inept and incompetent tax." As a candidate for the Liberal leadership, he said, "I am committed to scrapping the GST and replacing it with an alternative." Perhaps the honourable minister might want to appear before our committee to explain and outline his proposed alternative.
In any event, honourable senators, I will not take up too much time. I want to leave plenty of opportunity for my friends opposite to bring forward the amendments that they so ardently and passionately advocated a few years back. I promise them my undying and enthusiastic support for any amendment they bring forward.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Motion agreed to and bill read second time.
Referred to Committee
The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?
On motion of Senator Robichaud, bill referred to the Standing Senate Committee on Banking, Trade and Commerce.
Second Reading—Order Stands
On the Order:
Resuming debate on the motion of the Honourable Senator Sibbeston, seconded by the Honourable Senator Chalifoux, for the second reading of Bill C-4, to establish a foundation to fund sustainable development technology.
The Hon. the Speaker: Honourable senators, the Honourable Senator Cochrane has the floor.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I thought that Senator Cochrane was going to address Bill C-4. I would not want her to miss this opportunity to speak. I am sure that honourable senators would like to hear what Senator Cochrane, who just joined us, has to say concerning this bill.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, my colleague Senator Cochrane will speak on this bill in due course. I would suggest that we continue with the Orders of the Day and revert back to this item.
The Hon. the Speaker: To be clear, this matter will be returned to either for adjournment or to be spoken to later under Government Business. Is that agreed, honourable senators?
Hon. Senators: Agreed.
Bill to Amend—Second Reading—Debate Adjourned
Hon. Jerahmiel S. Grafstein moved the second reading of Bill C- 12, to amend the Judges Act and to amend another Act in consequence.
He said: Honourable senators, I am pleased to be able to introduce debate on second reading of Bill C-12, to amend the Judges Act and to amend another act in consequence thereof. This bill encapsulates amendments to the Judges Act to ensure fair and appropriate compensation for the federally appointed judiciary in Canada. The purpose of this bill is to legislate commitments made by the government in its response to the report of the 1999 Judicial Compensation Benefits Commission.
The independence of the judiciary is a self-evident characteristic of a free and democratic nation. Peace, order and good government, indeed responsible government, as mandated by our Constitution cannot be realized without judicial independence.
Our 1867 Constitution implicitly incorporated the common-law traditions of Britain. As the late Mr. Justice Bora Laskin, former Justice of the Supreme Court, reminded us in 1969 in a series of lectures called the "British Tradition in Canadian Law," the appointment of judges was originally in the hands of British authorities as a matter of Royal Prerogative. With Confederation, the appointing powers of superior, county and district courts of the provinces were vested by section 96 of the Constitution in the federal government. Removal also was in the hands of the federal government via a Governor General's address to both Houses of Parliament under section 99. By the 1960 constitutional amendment, the theoretical lifetime appointment was changed to compulsory retirement for judges at the age of 75.
Honourable senators should recall the complex and tangled British history of judicial independence. In 1649, Cromwell's Commonwealth abolished the monarchy, abolished the House of Lords and ensured that the judiciary reflected the will of the executive. Yet, by 1688, the Act of Settlement introduced what some historians have called the glorious and, I might add, bloodless revolution — the Restoration. With the Act of Settlement and subsequent acts, the monarchy was restored, the House of Lords was restored and the independence of the judiciary was finally settled.
It was from these historic strands that the great Blackstone divined and articulated the blessings of our mixed form of governance wherein the executive, resting in Parliament, was to be balanced and checked by the legislative powers of each House of Parliament, both the Senate and the Commons, and each other. The separation of judicial powers by an independent judiciary acted as a further check and balance. All this was to work in our mixed form of governance.
As the late Justice Laskin pointed out:
There are two features of judicial provisions of the Canadian Constitution which have uniqueness. First, there is the provision that the judges...are to be federally appointed and paid, although the courts themselves are to be constituted and organized by the respective Provinces.
The second "unique aspect" was the conference of power upon Parliament to establish courts for the better administration of laws. In Canada, unlike other jurisdictions and other nations, federal judges could judge both federal and provincial law.
Honourable senators will recall the division between courts in the United States. Federal courts deal with federal law and state courts deal with state law. That is not the case in Canada.
The Supreme Court of Canada Act was established in 1875. In 1913, His Majesty George V bestowed the title "honourable" on judges. Judges, like senators, could be called "honourable." After 1949, following the 1931 Statute of Westminster and section 101 of the British North America Act, the exercise of ultimate criminal and civil appellate jurisdiction was finally in the hands of the Supreme Court of Canada. The Privy Council of the British Parliament, as Canada's final appellate authority, was supplanted then by our Supreme Court of Canada.
In the 1960s, the Supreme Court of Canada, in a series of decisions, slowly changed the principle of stare decisis with respect to its own decisions. In effect, it said that it would not be bound by its own decisions. With the advent of the 1982 Charter, the courts' roles have changed. The contest between parliamentary supremacy and judicial activism was joined.
Honourable senators, there is in this country a raging, visceral debate currently among legal scholars, the legal profession, Parliament, various segments of the public and judges as to the proper circumference of judicial action when it comes to the interpretation of the Constitution. Where should judges draw their own line? Some opine for greater generosity of interpretation and others for judicial restraint. As for me, I believe that judicial independence is the consideration for judicial restraint and judicial responsibility.
Judicial activism can have both negative and positive perceptions, negative and positive side effects. Activism is not only in the eye of the beholder, as some judicial commentators may have suggested.
Honourable senators, let me give you several quotes from judges that indicate the range of opinion on this very important question — that is, the role of Parliament as opposed to the role of judges.
I will turn first to an article written by Justice Bertha Wilson that appeared in the University of Toronto Faculty of Law Review in 1986. She referred to a 1976 decision of the Supreme Court that was pre-Charter. I quote what Mr. Justice Dickson said on page 233 of the Supreme Court case of Harrison v. Carswell.
The duty of a court, as I envisage it, is to proceed in the discharge of its adjudicative function in a reasoned way from principled decision and established concepts. I do not for a moment doubt the power of the Court to act creatively — it has done so on countless occasions but; manifestly one must ask — what are the limits of judicial functions?
Later in that decision, he said:
If there is to be any change in this statute law...it would seem to me that such a change must be made by the enacting institution, the Legislature, which is representative of the people and designed to manifest the political will, and not by the Court.
That is what Mr. Justice Dixon said in 1976.
Madam Justice Wilson, in an article in 1986, gave her view of the same issue. Remember, this is post-Charter. There is a difference.
The enactment of the Constitution Act, 1982, particularly sections 1, 24, and 52, seems effectively to remove the rationale for judicial restraint by casting the judiciary in a clearly interventionist role. We can no longer rely on the doctrine of supremacy of Parliament as the reason for staying our hand.
She says the following later in the same reference at page 259 of the same article:
Judicial protection of individual and minority rights vis- à-vis the majority clearly requires a distinct segregation of the courts from the majoratarian machinery of the legislatures and the Parliament.
A further article by then Madam Justice McLachlin, before she became Chief Justice, appeared in the Alberta Law Review in 1991.
I will not take it out of context, but it is important to read both articles and it is important to point this out, from page 554:
Finally, unlike the American situation, Canadian Legislatures retain ultimate control over most issues by virtue of the override provision. Section 33 of the Charter gives the Legislatures the right to override the Court's rulings on all but a few Charter rights, subject to the condition that overriding legislation be reviewed within five years. While it may be politically difficult for Legislatures to rely on the override provision, the fact remains that it provides protection if it is perceived that the Court has stepped out of line. Thus, judicial intervention in Canada may not be seen by Legislatures as threatening their supremacy in the same way that has occurred in the United States.
Honourable senators, obviously within the confines of this bill we will not settle this issue. We need more parliamentary debate about the rationale and the limits for judicial activism. Parliament is at fault. Legislation that lacks clarity is an invitation to judicial activism. That in turn degrades the principle of parliamentary supremacy. So the fault, honourable senators, may lie with ourselves.
Prime Minister Chrétien succinctly captured one aspect of an independent judiciary when he stated recently:
For no matter how well the laws are written, there can be no justice without a fair trial overseen by a competent, independent, impartial and effective judiciary. A judiciary that applies the law equally for all citizens, regardless of gender, social status, religious belief, or political opinion.
Now who can disagree with that?
The three constitutionally required elements of judicial independence are security of tenure, independence of administrative matters relating to the judicial function, and financial security. It is directly in support of the principle of judicial independence that section 100 of the Constitution entrusted the fixing of judicial salaries, allowances and pensions to Parliament in 1867.
A brief history of the evolution of the Judges Act provisions relating to compensation I think would be helpful to the Senate. The first legislation establishing judges' salaries was enacted immediately after Confederation in 1868. Since that date, Parliament has been regularly presented with proposals relating to judicial remuneration. Provision has been made from time to time for various allowances as well.
In 1981, the Judges Act was amended to provide for yearly adjustments to salaries, also known as statutory indexing, in order to take into account changes in the cost of living.
As with salaries, pension arrangements have also evolved through legislative amendment since Confederation. Between Confederation and 1960, a judge was entitled to a pension of two- thirds of a salary after 15 years of service with no minimum age requirement. In 1960, certain minimum age requirements were imposed and these requirements have been adjusted from time to time since then.
You will recall, honourable senators, that in 1960 that was a constitutional amendment.
For example, in 1998, Parliament introduced what is known as the "modified Rule of 80"; that is a full pension with a minimum of 15 years of service when age and years of service totalled 80.
Another important change was made in 1975 when judges were required for the first time to contribute to the cost of their annuities in the amount of 7 per cent.
An important process change was implemented through the Judges Act in 1981. Until then, judicial compensation had been reviewed by ad hoc advisory committees which were established from time to time and reported to the Minister of Justice.
In 1981, recognizing the importance of receiving objective advice with respect to judicial financial security, Parliament established a Judicial Compensation Commission to inquire into and make non-binding — I repeat, non-binding — recommendations with respect to the adequacy of salaries, pensions, and allowances.
In 1998, Parliament further amended this process in order to further enhance the commission's independence and objectivity, in support of the well-established principle of judicial independence.
A more important element of this enhanced process is the set of statutory criteria which guides the commission in the formulation of its recommendations. Need I remind honourable senators that those criteria were introduced as a result of an amendment proposed in the Senate and agreed to by the House of Commons.
You can applaud yourselves, honourable senators. It was a great stroke on behalf of judicial independence, and perhaps the judges should be reminded from time to time about how the Senate acts as a safeguard of judicial independence.
Of course, it must be remembered that the commission's recommendations are not binding. It is on Parliament that the Constitution has conferred the exclusive authority and the responsibility for establishing judicial compensation. However, where Parliament decides to reject or modify the commission's recommendations, it is legally and constitutionally required — I believe it is so stated in the law — to explain publicly a reasonable justification for this decision, this variance.
Through Bill C-12, the government is proposing implementation of most of the recommendations of the Judicial Compensation and Benefits Commission, including proposed salary increases and some modest improvements to pensions and allowances. In light of all the factors considered by this independent commission, including trends in both the public and private sectors, the government is of the view that the proposals in Bill C-12 fall within the range of what is reasonable and adequate to meet the constitutional principle of financial security and the implicit constitutional principle of judicial independence.
That said, the government is not prepared to implement all the commission's recommendations. Specifically, the government will defer a proposal that would increase the number of supernumerary or part-time judges pending the outcome of important consultations with the provinces and the territories.
Under the Constitution, while the federal government is responsible for the appointment of judges, it is the provinces that are responsible for the administration of the courts in each province, aside from the territories.
In addition, the government has not accepted the commission's recommendation with respect to legal fees as the commission's proposal does not establish reasonable limits for these expenditures. Instead, the government proposes a statutory formula designed to provide for a reasonable contribution to the costs of the participation of the judiciary while at the same time limiting their scope.
The Government of Canada, honourable senators, is committed to the principle of judicial independence as it is a fundamental precondition to ensuring the vitality of the rule of law in our democratic system of government. The government, as Parliament, can do no other. Moreover, it is our constitutional duty to ensure the economic health and viability of the appropriate checks and balances in the separation of powers and to facilitate peace, order and good government through our Constitution.
We have to ensure that the judiciary is economically healthy and viable in order to fulfil its function.
In conclusion, Canadians agree that Canada is blessed with a judiciary renowned for its learned competence, its professional commitment, its independence, its impartiality and its integrity.
It is precisely to safeguard the principle of judicial independence that the government has brought forward Bill C-12 and recommends it to the Senate for consideration.
Hon. Lowell Murray: May I ask a question?
The Hon. the Speaker pro tempore: Senator Grafstein, will you accept questions?
Senator Grafstein: Always.
Senator Murray: As the sponsor of the bill, Senator Grafstein has given us a very complete account of its provisions. He has combined that with a highly interesting editorial comment of his own which I presume he would acknowledge is his own and not necessarily that of the Minister of Justice. However that may be, I should like Senator Grafstein to address — perhaps after some thought, at third reading — exactly where he thinks former Justice Bertha Wilson is wrong in her interpretation of the situation as it exists post the 1982 Charter.
Second, I was quite interested in the senator's comments on how Parliament should deal with bills about which there seems to be a question of constitutionality. He will recall, as I do, more than one bill coming here which gave rise to very substantive debate in this chamber as to the constitutionality of the bill.
I can recall, as he will, more than one bill that went through second reading and went to committee where we had a veritable parade of legal and constitutional experts testifying and the weight of their testimony was that the bill was, in one respect or another, unconstitutional. Nevertheless, we went ahead and passed the bill in at least one case based on this argument:
It is not for us to determine whether a bill is constitutional; that is the job of the Supreme Court.
The honourable senator will know that the Minister of Justice must certify the bill before it leaves the cabinet process. The Minister of Justice gives it his imprimatur for consistency with the Charter of Rights. A similar process existed with former Prime Minister Diefenbaker's Bill of Rights: The Minister of Justice was required to sign off on the bill in respect of its consistency with the Bill of Rights.
The Minister of Justice will not advise us and will not discuss these matters with us. Her position has always been to advise the Crown, not Parliament. Is there a way in which we, honourable senators, might interpose ourselves? Is there a process whereby, if we have serious questions as to constitutionality, we could require the Minister of Justice to attend to try to put our concerns to rest?
Honourable senators, my colleague may not want to deal with these matters today, but he will have another opportunity to do so at third reading.
Senator Grafstein: Senator Murray raises important questions, and he is quite correct in that the speech is mine, and the legislation is the government's. I do not want the Minister of Justice to take the credit for my speech in the Senate. Perhaps honourable senators were able to define the differences between my own personal view and the views of the government. I support the legislation wholeheartedly for all the reasons that I suggested.
The honourable senator has raised the most difficult question that confronts this Senate from time to time, and that is: How far are we as senators required to articulate or define carefully crafted definitions in legislation to ensure that Parliament is supreme, as opposed to leaving it in the hands of the judges to make that determination?
Honourable senators, I have spoken with judges, and it comes as no surprise that the more open the process is, the greater the invitation becomes. It is a matter of where you draw the line. The first duty and responsibility of the Senate is to satisfy itself that no piece of legislation passes this house, by whatever means, unless both Houses of Parliament are satisfied that the bill meets compliance with the Constitution. That is the primary responsibility of the Senate in respect of legislation.
It is more difficult by the Charter, and during the constitutional debates, we were warned that this would open up judicial activism. However, this fact is not new.
In the course of preparing the research for Bill C-12, I examined the American experience, which was interesting. It can be carefully summed up by the contesting views of two Supreme Court Judges of the United States, when in Marberry v. Madiso Chief Justice Marshall made it clear that the court could determine whether legislation passed by the American Congress was contrary to the Constitution. It took about 30 or 40 years after the Constitution to establish that principle; and it was done by common law. The debate then began, and it continues today in the United States, as to whether you should be a strict constructionist, as it applies to the Constitution, or should the judges impute their own determinations in the quantity or quality of a particular bill.
Honourable senators, our tradition is different from that of the United States, and I went to some lengths to determine that fact. We have a separation of power, but it is judicial power. Legislative power remains supreme in only one place, Parliament — the House of Commons and the Senate. Legislative power is not in the executive. The executive proposes, and then it is a matter for Parliament to deal with that proposal. That is the essence of our duties and responsibilities, honourable senators, in my reading of our constitutional responsibility.
I say to judges, "Do not go on a frolic of your own. We will give you judicial independence and we will defend it, because that is our tradition. We will give you economic viability to ensure that you have a good life and can benefit from that. However, the consideration for that is judicial restraint." Judges must not import their own particular views and try to supplant the view of Parliament: the view of the people as represented by the two Houses of Parliament.
Honourable senators, that is the notional theory and, in practice, it is difficult to uphold. Last week there was a decision precisely on this point, that is, whether a judge can take it upon himself or herself to determine that a law is, in effect, contrary to legislation. That is an onerous duty. I am of the Laskin school, the Blackstone school, and that is, if a judge is given the power of judicial independence, free of restraint and free of public attack — unlike the judges in the United States, some of whom are elected — then that judicial power must be exercised with great restraint. A judge must be very careful and prudent.
That is the best judgment I can make in this matter. If other honourable senators have a differing view on this, it may be useful to have this debate at third reading.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, Senator Grafstein alluded to the principle of Parliamentary supremacy. I recall the debate in the early 1980s in respect of the extent to which Parliamentary supremacy could be affected by a constitutionally entrenched Charter of Rights and Freedoms. We took comfort in the fact that, when the United Kingdom became party to the European Convention on Human Rights, that act effectively placed a limit on the principle of Parliamentary Supremacy for the mother of all parliaments.
Given this post-Charter reality that is ours in Canada today, all honourable senators are uncomfortable when the judiciary is subjected to attack because of "judicial activism." However, the reverse of that is constitutionalism, or constitutional "legislativism." Would you not agree, honourable senators, that the onus is more upon the legislative branch in a Charter environment to submit every legislative proposal to careful constitutional compliance scrutiny? That may be seen as the legislative branch becoming a judiciary, and that is precisely what must occur in this new environment, just as the judiciary becomes active or legislative.
Therefore, honourable senators, if some are surprised because the courts are described as being active, then why are they not equally surprised by legislative branches that focus on the Constitution. In effect, perhaps we ought not to be surprised, but rather to understand that as our new duty in the Charter environment.
Senator Grafstein: Honourable senators, the impetus for international human rights legislation around the world was precisely because those countries that required human rights legislation did not have their own rights firmly established in a Constitution. They did not have an independent judiciary. Thus, we have imposed a kind of international law upon ourselves, as well as others, to induce that type of democratic behaviour. In Canada, by doing that, it does not relieve us of our responsibility under the Constitution, which is that we have the exclusive right to legislate — to make law. The judges have the exclusive right to interpret the law. There is a difference.
Honourable senators, that is difficult, and the only way to debate that is by specific example. If my colleagues and I have different views, at the end of the day the question is: Is it an interpretive issue, or is it a legislative issue? We happen to be exclusively obligated under the Constitution to make law. The interpretive power belongs to the courts. Therefore, Senator Kinsella is right: We should not pass a piece of legislation unless we are satisfied individually and collectively that it meets the Constitution.
Returning to Senator Murray's point about opinions, there are opinions, and then there are opinions. The Department of Justice must have an independent opinion that every piece of legislation that comes through this place is constitutionally appropriate. That is an opinion given to the Minister of Justice in her capacity as the chief law officer of the Crown. Honourable senators have an independent role to challenge that view enunciated by the minister to determine whether the view is correct.
Senator Murray: The government will never engage us in that.
Senator Grafstein: I understand that, but I am not frustrated in that exercise. To my mind, that is our responsibility. We have staff and funds and can certainly come to an independent determination and satisfactory opinion about every piece of legislation.
I am interested in the minister's view and am satisfied in large measure that the minister has satisfied the requirements for meeting the constitutional requirement. However, from time to time we have a difference of opinion. As it turns out, that happens only in a small number of pieces of legislation. Yet it has been those pieces of legislation that have turned out to be the most controversial and have taken the time of the house.
I conclude that the system is not bad. However, it is not fair to criticize judges if we do not take our own legislative responsibilities seriously.
Senator Kinsella: My question to Senator Grafstein focuses not on the role of interpreting that the judiciary exercises, but rather the remedies they apply, having interpreted a matter. In particular, I am concerned about the remedy of reading into legislation that which either is not there or is given added weight, particularly something that the legislators had expressly rejected but is some how accepted after a reading of the debates of a given assembly.
Senator Grafstein: Again, that is Parliament's fault. The Constitution lays out principles. The Charter outlines our basic rights. When we have a piece of legislation, it is up to both Houses of Parliament to ensure that those rights are carefully delineated. When we leave open questions, that extends an invitation to the courts to do what they do.
Part of the problem is that the Constitution sets out basic principles and rights, but does not establish how those rights would interact with other rights within a piece of legislation. No right is absolute. There are some limits to every right that are eventually played out in a piece of legislation. The government proposes legislation. It is our job to determine its correctness. Again, it is easy to say, but more difficult to do.
Hon. Anne C. Cools: Honourable senators, I am interested in what Senator Grafstein has been saying. I am fascinated by some of the exchanges. The thrust of what Senator Grafstein has been saying is that Parliament must take its responsibilities seriously, with which I think we all would agree. In addition, I understood him to say that Parliament must be especially loyal to the Constitution and Parliament must be especially diligent in ensuring that the Constitution is adhered to as closely as possible.
Senator Grafstein was speaking to us about Bill C-12, the object of which is to give a pay increase, or to arrange the salaries of the judges. I have in front of me the BNA Act, and I am looking in particular at the sections on the judicature to which Senator Grafstein alluded. In particular, I am looking at section 100. Section 100 says, in part:
100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts...shall be fixed and provided by the Parliament of Canada.
This particular section of the BNA Act has a long history that can be traced to the struggle in the English courts.
My question to Senator Grafstein is this: Is he convinced that the bill before us is an example of a salary being fixed by Parliament? Would it not be truer to say that the salary has already been fixed elsewhere and is only being provided by Parliament? Would that not be a more accurate description of that section of the BNA Act?
The individuals who brought this section of the BNA Act into existence were proficient. This concept has a long history in Canada that few people seem to know or care about. These issues go back to the Act of Union and the rebellions in Upper and Lower Canada. This was a peculiarly Canadian phenomenon that sought settlement in this section of the BNA.
Is Senator Grafstein able to say that, in Bill C-12, we are fixing and providing the salaries of judges?
Senator Grafstein: I believe, in a fair reading of the bill, we are fulfilling our constitutional responsibilities under section 100; that is, fixing and providing the salaries as pointed out in that section. When we convene in committee, I believe I will be able to point out to the satisfaction of the senator that that is the case.
Hon. Serge Joyal: Honourable senators, I should like to make two comments following on Senator Murray's intervention. First, I wish to mention that Senator Murray was, to a point, partially right when he said that the Minister of Justice must certify that a bill conforms to the Bill of Rights or the Charter. That section of the Canadian Bill of Rights deals only with the House of Commons; it does not deal with the Senate.
In other words, when a bill is introduced in the Senate, the Minister of Justice is not under any obligation to certify that the bill is in conformity with the Bill of Rights or the Charter. That is illustrated in the bill I have introduced. Bill S-8, in clause 5, aims specifically to include the Senate as one of the two chambers that must be informed by the Minister of Justice that a bill is in conformity with the principles enshrined in the Bill of Rights or the Charter.
Senator Murray: Does that obligation run to private members' bills as well as government bills?
Senator Joyal: The obligation pertains only to government bills. When we debate Bill S-8, we will have an opportunity to discuss the status differences of the chambers in relation to that obligation.
I also wish to draw to the attention of Senator Grafstein the issue of what kind of authority should be given to a certification given by the Minister of Justice that a proposed bill is in conformity with the Bill of Rights or Charter of Rights. Let me give an example that we experienced in the previous Parliament in the form of Bill C-40.
Clause 44 of Bill C-40, the extradition bill, dealt with the death penalty. The Minister of Justice appeared as a witness before the committee and we asked the minister that question. The Minister of Justice assured us that this clause of the bill was in conformity with the Charter. That was the opinion of the Department of Justice.
Two years later, on February 15 of this year, nine justices of the Supreme Court said that it was in violation of the right to life enshrined in the Charter — nine to zero, in other words. The Minister of Justice was, unfortunately, blatantly wrong.
Therefore, what is our position as parliamentarians? The certification illustrates a prima facie case that this is in conformity, but it does not relieve us of the obligation to go beyond.
Another example that we experienced in this chamber a year ago is Bill C-20, which excluded the Senate. Many senators on both sides argued that the exclusion of the Senate from that bill was unconstitutional. We were assured by Department of Justice representatives that it was constitutional. We all know that the issue is not settled. Perhaps one day it will be settled by the court, but simply because there is a bill and certification does not mean that the question closed. It is our duty as parliamentarians to listen to the experts brought forward by the government and various other witnesses who appear before committees and to make up our minds as to whether the bill is in good standing with the Charter or the Constitution.
That is a very important element, honourable senators. If we do not conduct that exercise, we open the doors to further scrutiny of the legislation by the court. We cannot have it both ways. If we do our duty, as senators and parliamentarians, of going beyond the given opinion and satisfying ourselves individually that something is in conformity with our interpretation of the Charter and the Constitution, then we can be assured that we have done our duty in all good conscience and knowledge on the basis of the information available. If we simply accept the certification of the Department of Justice and say that the matter is closed, on some issues we will miss the point and the court will remind us that we have failed in our duty.
Senator Murray: What is our remedy? Will we set up a system of law lords in this place, people who are learned in the law and in the Constitution, and take a vote among them as to the constitutionality of a particular measure that is before us? If so, then what? Will the rest of us decide to stop a measure right there and not pass it because we believe it contains an unconstitutional provision? Is that our role?
We also get into situations where a good number of senators or members of the other place say, "Stop right there; refer it to the Supreme Court of Canada for an opinion." I do not like that recourse. It seems to me that we are creating a third legislative body if we start routinely sending bills about which we have some doubt off to the judges for their opinion before we pass them.
Senator Grafstein: As I indicated, the underlying principle in the Constitution is peace, order and good government — common sense and good government. Good government means that we do not pass bills that open the door to citizens saying that their rights have been affected by the legislation, thus driving them to the courts. Good government requires that we have prima facie satisfied ourselves independently that the law we are passing is constitutionally satisfactory.
There is a curious section in the Constitution Act, 1867, that has never been fully delineated to me, that being section 18, which relates to the legislative power. I have always been interested in our power. Section 18 states, in part:
The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the Members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain...
In effect, all the powers of the Commons, represented by members of Parliament, were vested in the two Houses here. Therefore, getting back to the British tradition, if the House of Commons is satisfied, as the mother House of Parliament, the bill is constitutionally correct. They do not have a written constitution, but they are replete with laws. In fact, from time to time, the courts have dealt with the question of unconstitutionality in the House of Lords.
My view is that we are invested with full powers and our responsibility is peace, order and good government; that good government means good law and good law means that it must not be so imprecise that it is open to the citizens to apply to the courts to have their rights, which we are supposed to protect and define, upheld. It is a question of good governance, and it makes common sense.
Senator Kinsella: Would Senator Grafstein agree that the policy principle behind the certification by the minister under the Canadian Bill of Rights and the certification which is the practice under the Charter is to have the drafters sensitized to the reality that their minister will have to issue the certificate so that the drafters, in drafting, must keep the Charter and the Bill of Rights in mind, as well as, hopefully, our international obligations? It is not that there is any guarantee. This is an opinion that one gets from the Minister of Justice. Therefore, when the House of Commons and the Senate examine a legislative proposal, we are obligated to take into consideration the testing of this measure against the Charter and these other standards. There is no guarantee that we will be right because at the end of the day a tribunal, in exercising its interpretation responsibility, may interpret that this bill, which was adopted by the Senate, was contrary to the Charter.
The Hon. the Speaker: Honourable senators, before recognizing any other senator, I observe that the 45-minute time period for Senator Grafstein's speech, comments and questions has expired. Is leave being requested to extend the time?
Senator Grafstein: I am prepared to spend a few more minutes on this issue, but I do not want to interfere with the order of the house. We are scheduled to go into Committee of the Whole. All of these questions are quite appropriate to be asked in committee. I am prepared to respond in committee. They are also appropriate for third reading debate.
I am prepared to accept, as a question of practice and policy —
The Hon. the Speaker: I believe that Senator Grafstein is asking for leave to continue. Is leave granted, honourable senators?
Hon. Senators: Agreed.
Senator Grafstein: I will answer any other questions later.
When the Minister of Justice, the senior law officer of the Crown, seeks advice about a particular matter and satisfies herself as to the validity of that particular view, I do not think I need to interfere with that exercise of her power and her rights. However, that does not relieve me of my obligation as a parliamentarian and a senator to satisfy myself, upon studying the legislation, as to whether that view is correct. That is the difference that I have with Senator Kinsella's point of view.
I notice that other senators wish to ask questions. I am in the hands of the Senate. I am prepared to answer, but I do not wish to take the time of the Senate.
The Hon. the Speaker: The time has been extended for the speech of Senator Grafstein and any comments and questions thereon.
Senator Cools: Honourable senators, I should like to defend the Minister of Justice, Anne McLellan, in response to what Senator Joyal said in respect of capital punishment in the extradition bill. There are many instances when the minister is wrong, but in this particular instance she was right.
Perhaps this matter should have a fuller debate at some point in time, but perhaps we should not focus on the salaries of judges in Bill C-12. We must be sensitive to the fact that we cannot be seen to be supportive only of those decisions of judges that we like, and opposed only to those that we do not like. The fact of the matter is that the minister of the Crown was very much within her rights, and she was very right in the law. The fact is that the judges encroached and entrenched. If we were really attentive parliamentarians, we would be studying that matter closely. I believe in that particular decision, the court was playing the role of an activist.
Many of us felt very strongly about Bill C-20, the so-called Clarity Act. Here again, the criticism is a little peculiar. Yes, many of us asserted that bill was wrong and unconstitutional. We must be careful in today's community to say what we mean by "unconstitutional." I mean that it was against the law of Parliament and sometimes against the law of the prerogative. When some people say "unconstitutional," they mean it goes against the Charter. The fact of the matter is that Bill C-20 was brought to us as a bill supposedly in obedience to an opinion of the Supreme Court given to the Minister of Justice at the request of the Minister of Justice, Allan Rock at the time, in response to his questions on national unity and secession. It would seem to me, honourable senators, that if we want to avoid some of those problems, perhaps those questions should be answered by the Parliament of Canada and not be attempted to be answered by the Supreme Court of Canada.
Hon. Sheila Finestone: Honourable senators, I find this debate fascinating. I thought the debate would be addressing salaries for judges. I thought that is what this bill was about. It seems to be focussing on good laws and good governance and who has responsibility and the symbiotic relationship between the legislators and legislation and judges and justice issues, both in the Charter and in the Bill of Rights.
I believe we are about to receive the Commissioner of Human Rights. It struck me that the Human Rights Tribunal is an administrative tribunal that has had an important impact on the life and finances of our country, particularly with respect to the pay equity decision which cost our government about $3 billion. In my opinion, it was money well spent to correct a mistake.
The tribunal and the judges of the tribunal, who are administrative judges, are not included in this particular Judges Act. It strikes me that these judges are equally important in interpreting good governance and interpreting the rule of law. Would it be out of order to ask the honourable senator if they should have been included in the term? Does "judges" not also include administrative tribunal judges?
Senator Grafstein: Absolutely not. Under the Constitution, it is absolutely clear that judges are our responsibility. The honourable senator raises an entirely different question, and that is the extent to which the executive, by legislation, can delegate responsibility to an independent tribunal. It is a different question and, in a way, it is comparing apples and oranges. If the honourable senator wishes to explore that question when the commission appears before us, then, so be it.
The honourable senator should read the Lord Hewitt treatise of 1929. He warned that Parliament was being eroded by excessive delegation of power to subordinate agencies. Again, as government becomes more complex and the role of Parliament becomes more difficult, more and more we see the parliamentary supremacy being eroded because we delegate complexity to agencies. That is a different issue, and honourable senators may join in a debate on that if it they wish to do so.
On motion of Senator Nolin, debate adjourned.
John Lynch-Staunton (Leader of the Opposition) moved the third reading of Bill S-14, respecting Sir John A. Macdonald Day and Sir Wilfrid Laurier Day.
Honourable senators, before I move third reading, I should like to point out to honourable senators that this bill attracted 15 senators to the Social Affairs Committee last week when it was being discussed. The committee was in competition with a royal event on the other side, so it was certainly very flattering that 15 senators found the time to discuss not only the bill itself, but also the state of Canadian history today.
The general feeling was that the bill, in its own way, will allow Canadians to get to know more about their history through these two great Canadians to whom the bill will dedicate a day to each. I trust that the House of Commons will follow suit. To show the non-partisan aspect of this bill, John Godfrey, the Liberal member for Don Valley West, has agreed to sponsor it in the other place. The Progressive Conservatives sponsored it here, it received unanimous approval in the committee, and Mr. Godfrey will, I hope, on the other side, be able to draw the same kind of support. I thank all honourable senators for the consideration they have given this bill. I now move third reading of the bill.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Motion agreed to and bill read third time and passed.
Third Reading—Debate Adjourned
Hon. Noël A. Kinsella (Deputy Leader of the Opposition) moved the third reading of Bill S-6, to assist in the prevention of wrongdoing in the Public Service by establishing a framework for education on ethical practices in the workplace, for dealing with allegations of wrongdoing and for protecting whistleblowers.
On motion of Senator Kinsella, debate adjourned.
Private Bill to Amend Act of Incorporation—Report of Committee—Debate Suspended
The Senate proceeded to consideration of the third report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill S-25, to amend the Act of incorporation of the Conference of Mennonites in Canada, with an amendment) presented in the Senate on April 26, 2001.—(Honourable Senator Milne).
Hon. Lorna Milne moved the adoption of the third report of the Standing Senate Committee on Legal and Constitutional Affairs on Bill S-25, to amend the act of incorporation of the Conference of Mennonites in Canada.
She said: Honourable senators, since there was an amendment made in committee to the bill, I do have some brief remarks.
This a straightforward bill that has been requested by the Conference of Mennonites in Canada. It merely brings up to date the 1947 act that incorporated the church, changes the name of the church to "Mennonite Church Canada" and allows the church to pursue all its goals, both domestic and international.
Honourable senators will note that one amendment to the bill has been suggested by the committee. The amendment that was requested by the church would reword the opening sections of the 1947 act to more clearly define what the church is, and make other clarifying amendments to the opening sections of the 1947 act.
I am pleased to report there was nothing controversial about anything in the bill or its preamble. I ask that the Senate adopt the unanimous report of the committee.
Chief Commissioner Received in Committee of the Whole
On the Order:
The Senate in Committee of the Whole in order to receive the Chief Commissioner of the Canadian Human Rights Commission, Ms Michelle Falardeau-Ramsay, for the purpose of discussing the work of that Office.
The Senate was accordingly adjourned during pleasure and put into Committee of the Whole, the Honourable Rose-Marie Losier-Cool in the Chair.
The Chairman: Honourable senators, before beginning, allow me to draw your attention to rule 83, which states:
When the Senate is put into Committee of the Whole every Senator shall sit in the place assigned to that Senator. A Senator who desires to speak shall rise and address the Chair.
Is it your pleasure, honourable senators, to depart from rule 83?
Hon. Senators: Agreed.
Senator Robichaud: Honourable senators, I move that Michelle Falardeau-Ramsay be invited to sit in the Senate chamber.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Ms Falardeau-Ramsay, on behalf of all senators, welcome! Do you have a preliminary statement to make? First, would you introduce your officials?
Ms Michelle Falardeau-Ramsay, Chief Commissioner of the Canadian Human Rights Commission: I should like to introduce the two people accompanying me. They are Charles Théroux, Director of the Commission's Executive Secretariat, and Michel Paré, acting Deputy Secretary General.
I am delighted and, indeed, I feel privileged to have the opportunity to talk to members of the Senate of Canada about our work at the Canadian Human Rights Commission. I will keep my comments short so that we can get to the discussion.
As you may know, the Canadian Human Rights Act bestows two key responsibilities upon the commission: one, to protect the rights of Canadians from discrimination based on the eleven prohibited grounds under the act; and, two, to promote respect for human rights to such things as information, education and training, as well as through partnerships in Canada and around the world.
Our third area of responsibility comes under the Employment Equity Act of 1995. The act centres on correcting conditions of disadvantage suffered by four designated groups: women, Aboriginal people, people with disabilities, and visible minorities.
Over the past number of years, the face of human rights complaints has changed. It has become more complex. Increasingly, complaints are argued in court, adding significantly to the time required to resolve them. In an effort to keep pace with these challenges, the commission undertook a comprehensive review and introduced a number of changes to improve both the efficiency and effectiveness of its complaints process. For example, we introduced mediation as a pilot project back in 1998. Because it demonstrated such positive results, we adopted pre-investigation mediation as part of our services. We also noticed oftentimes that the parties involved in a complaint were not respecting time limits for submitting defences and rebuttals. Although this is an issue not within our control, we are nonetheless determined to do our best to enforce reasonable time standards.
In addition, adjustments to the commission's meeting cycle have served to maximize both time- and decision-making requirements. On April 1 we introduced and publicized a series of new service standards. These were aimed at addressing time limit issues within the control of the commission staff, as well as enhancing the transparency of the complaints process. A separate intake unit to initiate the formal complaints process, a comprehensive training plan, and policies and procedures manuals all round out the revamping exercise, which is near completion.
I am pleased to tell you that we have already obtained very positive results. In 2000, for example, the commission closed more files than it had done in any other year since 1997. We also resolved a greater number of complaints in 2000, and reached more decisions than in the four previous years.
As one might realize, resolving individual complaints always requires a great deal of attention. However, as I mentioned earlier, we are seeing a change in the nature and the complexity of cases that come our way. A growing number of complaints bring to light discriminatory policies and practices of employers and suppliers of services: policies and practices that must be challenged.
As well, the Canadian Human Rights Act includes a certain number of provisions that have not yet been mentioned, such as the one authorizing the commission to carry out public inquiries on matters of systemic discrimination.
Even if we believe this to be a logical continuation of the work of the commission, we cannot use this more general approach to put an end to discrimination very readily, because of the increasing constraints upon us to manage our day-to-day operations within existing resources.
In fact, implementation of this provision is part of the series of recommendations made last year to the Minister of Justice by a committee to examine our legislation, under Justice Gerard La Forest. We are also developing partnerships with other organizations in order to promote human rights while making more efficient use of our resources.
Among the issues relating to human rights in Canada there is of course the right of Canadians to equal pay for equal work. This has received considerable attention in recent years. In February, the commission tabled a special report to Parliament on pay equity.
Its main message to parliamentarians was that the provisions governing this basic human right have led us to a dead end and need to be corrected. I believe, moreover, that the report entitled "Time for Action" is a good summary of our position. The commission is in favour of broad and uniform application of wage parity within a proactive system comprising implementation phases and deadlines for employers to achieve equity.
Instead of the present piecemeal approach, we beg the government to adopt approaches that are uniform and can encourage cooperation between management and unions, reduce or even eliminate the necessity of filing complaints, achieve pay equity far sooner and provide the means of maintaining it.
As I mentioned at the beginning of my speech, our third sphere of responsibilities has to do with the Employment Equity Act. Generally speaking, employers cooperate and take the necessary action to comply with the legislation, even if they do not always do so as quickly and fully as we would have liked. There is no doubt that the representation of women has improved considerably over the past 13 years. The results achieved in the case of Aboriginal peoples are limited, being better in the public than the private sector. The situation of Canadians with disabilities, however, is far from satisfactory.
On the whole, people with disabilities are the least well represented among the four designated groups. In 1987, the disabled accounted for 1.6 per cent of the workforce in the private sector. In 1999, this figure had climbed to only 2.4 per cent, although their rate of availability stood at 6.5 per cent. The public sector statistics are hardly better.
Under the legislation, the commission has certain powers it can use to tackle problems. Thus, it can force employers to set recruitment objectives in order to increase the number of disabled employees and reach targets within a reasonable time frame.
As for visible minorities, their representation in the federal public service dropped in 2000, having gone from 5.9 per cent in 1999 to 5.5 per cent last year, although their availability rate was over 10 per cent.
Both the public and private sectors have a long way to go to improve the representation of these groups in their ranks. As you know, the government is soon expected to announce a review of the Employment Equity Act, which is in its forth year. In anticipation of this review, the commission is launching an independent evaluation of its audit program, the results of which it hopes to have later this year.
Societies around the world are increasingly recognizing that this discrimination and the denial of human rights harms each of us, not just those being discriminated against. It denies any society an enormous amount of human potential. Undoubtedly, this was among Canada's motivations when it signed two fundamental international human rights instruments several years ago. I am referring to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Of the countries that have ratified these instruments, not all nations have incorporated the principles they espouse into domestic law. Canada is not among those countries that have done so. This, coupled with an absence of any independent monitoring of our compliance with international human rights treaties, makes the level of Canada's commitment difficult to measure.
Justice La Forest expressed similar concerns in his report to the Minister of Justice last year. Among his recommendations for change to our legislation, he suggests that, given its independence from government, the commission would suit the role of monitoring Canada's performance under those instruments. We agree and hope to receive shortly the minister's response to the panel's report.
In the meantime, the work we are doing at the international level with global partners is helping to address the special needs and responsibilities of independent national institutions in the promotion and protection of human rights. For example, we recently collaborated with our partners in the Americas to create a network of national human rights institutions of the Americas. This network will provide a platform for national human rights bodies to identify common interests, share experiences and expertise and help one another help the people we serve. Among other things, it may be used as a catalyst for mobilizing public opinion through the Americas to encourage government accountability for human rights protection and promotion.
I hope my remarks have given a clear, albeit brief, snapshot of our role and mandate, as well as the general health of human rights here at home.
I want to take this opportunity to thank the Senate for providing me the opportunity to discuss these important matters with honourable senators. If there are any questions, I would be more than pleased to answer them.
The Chairman: Thank you, Ms Falardeau-Ramsay, for this preliminary presentation.
Senator Andreychuk: I want to commend you and your staff, Ms Falardeau-Ramsay, on the hard work that you do. I know the issues of human rights are limitless, and you have done an admirable job of trying to attack certain issues in a more consistent way than in the past. The fruit of your labour is showing.
I also want to bring to your attention that the Senate has just instituted a Standing Senate Committee on Human Rights, and I look forward as a senator on that committee to working closely with you on issues of human rights. This hopefully will be the first of many opportunities to cooperate.
I have two questions. They are rather broad, which will give you some time to reflect on how you wish to answer them.
The La Forest report pointed to a difficulty, which you have also pointed out in your report, that you must do much investigation, which is very time-consuming; therefore, there is the backlog. You seem to have addressed that backlog through mediation, and I am pleased to see that. In the minds of Canadians — and it is important for them that justice be perceived to be done as well as done — there is still the feeling that the commission investigates and then the commission sits as
a tribunal. Even though you have made an adequate separation, in the minds of people the commission is still not separated sufficiently to give them some level of confidence that they are being dealt with in an unbiased fashion, particularly when they do not win their point of view with the tribunal.
Do you think the time has come that those two roles should be separated more definitively? Perhaps the roles of advocacy, promotion and mediation could be part of your mandate and the tribunal could be a stand-alone tribunal elsewhere. I put that to you as one alternative.
The second question relates to your report and your comments about the international aspects of law. Canada signs treaties. It is often perceived that we do not implement them fully in the way we can, and we lose our leadership role in human rights issues.
I was pleased to note that you put in your report that Senator Wilson has led a parliamentary working group on human rights. I wish to point out that Member of Parliament Irwin Cotler has also taken a leadership role in that regard.
Ms Falardeau-Ramsay, how do you think you can strengthen the monitoring of our commitments internationally, as you have put in your report, through a change in the act? The Canadian Human Rights Act needs a clear linkage between international and national responsibilities. Can you give me some insight as to what you think those changes need to be so that we can bring together both the international and the national responsibilities?
Ms Falardeau-Ramsay: First, I wish to thank you very much for your kind words toward the commission and the work we do.
As far as your first question is concerned, our role is to investigate complaints and to do promotion and education of the public. When a case comes before the commission following investigation, the commission will decide whether to dismiss the case based on the evidence, send it to formal conciliation or send it to the tribunal stage.
Since 1998, a change in our legislation has made the tribunal as independent as possible from the commission. I say that because we had a decision from the Federal Court recently in the Bell Canada pay equity case, which is now being reviewed. It is one of numerous decisions we have had relating to the Bell Canada decision. The court decided that the tribunal did not appear to be as independent as it should be from the commission for two reasons. The first reason was that the chair of the tribunal was allowed to continue the term of the panel members, whose terms expire while they are hearing a case. The second reason was more directly related to the commission. The guidelines that deal with pay equity under section 11 of our legislation compel not only the commission but also the tribunal, which would mean the tribunal is not completely independent in applying its thinking to the process.
First, we have asked the court to make sure that the process whereby the tribunal chair reappoints or extends the term of a person for the remainder of a case does not create a bias or a conflict.
Second, we have asked the court of appeal to remove the term "binding." Therefore, the guidelines would exist, but they would no longer be binding. When I met with the Minister of Justice recently, I asked that the act be amended specifically on those two issues.
Senator Andreychuk: Have we come to a point where it would be in our interest to have a stand-alone tribunal?
Ms Falardeau-Ramsay: There is one.
Senator Andreychuk: It would not be within the Human Rights Commission.
Ms Falardeau-Ramsay: It is completely separate from the Human Rights Commission because of the McBain decision that came out many years ago. At that point, our law was amended and the tribunal is now a completely separate entity from the commission. No link exists whatsoever between the two organizations, and they are two different organizations.
Senator Andreychuk: You indicated that you wanted changes in the act to strengthen your ability to blend and monitor international obligations.
Ms Falardeau-Ramsay: The reporting is now done through a government department, which gathers information concerning what the provinces have done and puts it together in a report. Therefore, the difference would be that the reporting is done through an independent organization, as in Australia, for example, and other countries.
In those countries, independent human rights agencies report on how Canada has fulfilled its obligation of compliance with the various international instruments that have been ratified by Canada.
Senator Grafstein: I will try to be brief in my questions. I will try to do what Senator Andreychuk did and give you my three questions as precisely as I can.
First, what percentage of your commission's time is taken up with the federal Employment Pay Equity Act? We know that you became responsible for employer obligations in 1995. What percentage of the total time of the commission and the tribunal, if you could tell me, is taken up with that aspect of your work, because your mandate is broader than equity?
Second, could you briefly describe how the commission audits its own activities with respect to employment opportunities for women, visible minorities, persons with disabilities and Aboriginal people within your own commission? Who audits the auditor?
Third, I have a twist on Senator Andreychuk's question. Canada has been criticized unfairly that we have not ratified certain international conventions, particularly in connection with human rights. Please specify for us what area of human rights requires remediation by legislation in Canada so that we can address that particular problem as opposed to the general problem of ratification.
Ms Falardeau-Ramsay: First, you are right. Pay equity is far from being the only area in which we are active. We are active in the 11 grounds of discrimination that are mentioned in the legislation, plus employment equity, as I mentioned before. However, it is true that it occupies a large portion of our time and our resources.
To give you an example, we have 18 full-time lawyers at the commission. Six of these lawyers work full-time on pay equity cases. In addition, we are contracting outside in the order of approximately $250,000 a year to deal with pay equity.
It is taking an inordinate amount of our time and resources because not only are our lawyers busy with pay equity, but also our statisticians and the investigation people are active with pay equity cases. They are asked to appear as witnesses and to help prepare cases. It means, therefore, that for a relatively small amount of complaints, because those complaints represent only 8 per cent of the total amount of complaints that we receive, we spend an inordinate amount of resources, both human and financial.
Concerning who is monitoring the monitors, if I may use that expression, we have asked an independent expert to do the study at the commission. That person is the special adviser on employment equity to the president of Queen's University. Formerly, she was the person in charge of employment equity for the City of Toronto where she established this entire area. I could say that we were pleased to note that we were in fact meeting all the requirements of the legislation, plus having a bit more than full representation for the four designated groups.
The third part of your question dealt with which international instruments have not been adopted within our domestic law.
Senator Grafstein: That was not my question. I recognize that Canada has not ratified some international human rights conventions. Lay that aside. What is it within those conventions where Canada is falling below an international standard that might require remuneration? Absent ratification, are there areas within those agreements where Canada is falling below international standards? I think that Canada is getting a bad name when we say that we are not ratifying when I know full well that our standards are higher than many of those countries who ratify and do not fulfil those agreements. When some people are alleging that we are not fulfilling our international obligations, it gives Canada a bad name. Our standards are higher, yet people criticize us for not ratifying these international human rights conventions.
Within the confines of your concerns, is there an area of human rights, generally known, that comes under those international conventions that we should address to ensure that our standards are appropriate? Is there an area that we are not fulfilling?
Ms Falardeau-Ramsay: The first area that comes to mind is that of the social condition. You will remember that last year a bill that originated in the Senate recommended that our legislation be changed to include social condition as one of the grounds of discrimination. This is a ground of discrimination that is mentioned in the Covenant on Economic, Social and Cultural Rights, which Canada has ratified. It is not included in any legislation at the federal level. In fact, Canada has been rapped on the knuckles two or three times by the UN committee for not having incorporated into its domestic legislation those obligations that they undertook in compliance with that particular international instrument.
Senator Grafstein: I have heard that argument before, but when I look at social conditions in Canada and I then compare them to social conditions of those countries that are promoting this agenda, I must say that our social conditions are better than theirs. In effect, it is how you define social conditions. I remember that debate.
Absent a specific example of how we are falling behind an international standard, I think that Canada, in comparative terms, is a world leader in satisfactory social conditions. The UN says that we are best in the world, generally speaking. I reflect on that differently from the commissioner of the commission. You do not want us all to agree with you, do you?
Ms Falardeau-Ramsay: What would be the problem of incorporating social conditions in the legislation if we do meet them in our society? It would be a sign that we are taking seriously the obligations that we undertake when we ratify an international instrument. This would be a sign that we commit ourselves and intend to do something when we ratify an international instrument.
I agree with you that our social conditions are probably among the best in the world, if not the best, but it does not mean that they could not be better.
For example, we see people who cannot open bank accounts because they are on welfare and do not have documents to prove who they are. That is the type of thing that could be addressed with the inclusion of social condition. That was also recommended by the report of Mr. Justice La Forest.
Senator Beaudoin: My question concerns the commission's international activities. Former justice of the Supreme Court of Canada, Gerard La Forest, produced a report for the committee that reviewed the Canadian Human Rights Act. Recommendation Nos. 26 and 27 are to the effect that the commission should be authorized to reach agreements to cooperate with human rights organizations outside Canada.
If you agree with that proposal, why is it important to connect the Canadian Human Rights Commission with other organizations responsible for these rights? It seems to me that such cooperation is necessary, but what is your opinion on this issue?
Ms Falardeau-Ramsay: This year, even though we do not have an official mandate to that effect, we received an amount of $115,000 from the Treasury Board for international issues.
For the past number of years, we have had agreements with national institutions that protect and promote human rights. Funding for these agreements is provided by CIDA, the United Nations, the United Nations Commission on Human Rights, or the Department of Foreign Affairs. These agreements allow for the establishment of commissions.
We worked in Indonesia. Mr. Théroux, who is next to me, spent three years in that country to set up such commissions. This initiative was a great success, because those who had great credibility were involved in the settlement of the conflict in East Timor. That experience has taught us that we gain a lot more than what we give. We have learned a lot, whether it is on how to manage our own affairs, or on how to deal with deficiencies, racism and ethnic differences.
Those of our employees who take part in such programs gain a lot from them. Exchanges were organized with other commissions. For example, two years ago we organized an exchange with the Australian commission. Two or our employees traded the use of their homes and vehicles with their counterparts, so that the costs involved in this exchange were minimal. This gave them the opportunity to work with another commission for a year.
As for us, we had the good fortune of welcoming a person who dealt with deficiency issues. We gained a lot from the experience.
Senator Finestone: Welcome. I was delighted with your observation that you are sharing interest and action with another Commonwealth nation. That is a very creative idea, to exchange houses and facilities.
The Universal Declaration of Civil Rights and the whole question of civil and political rights preoccupies them as well as us.
If it is an international obligation, there are statements to the effect that privacy is a fundamental human right. Do you agree?
Do you agree that privacy is as much a human right as those rights written into the universal declaration and the declaration on civil and political rights.
Ms Falardeau-Ramsay: Yes, but, fortunately, in Canada we have the Office of the Privacy Commissioner to deal with privacy issues. However, you can be sure that we would deal with any discriminatory aspect that would be involved in privacy complaints.
We are ready at all times to cooperate with the Privacy Commissioner on any type of complaint involving human rights. That power is included in our legislation.
Senator Finestone: I pose the following question to you: In 1996 and 1997, we saw serious concern on behalf of Canadians regarding the rights of the disabled. Is the question of discrimination based on inherited traits or genetic traits?
According to disabled witnesses we heard across the country, that direction held the potential for terrible discrimination in employment, bank loans, and in rental housing.
The most private issues of a person's life can be detailed in genetic testing. Some test results do not remain private; they become part of insurance files, medical files, legal files, even bank loan and mortgage files.
In that discriminatory portrait which I have just painted, where would a person go to request that fairness be applied in pay levels or to request protection from discrimination based on genetic testing? Would that person go to you? Is the use of my personal DNA information an infringement on my privacy? Is that kind of personal information really at stake in the near future?
Ms Falardeau-Ramsay: I see now what you mean. That kind of issue would come directly under our jurisdiction because it would be considered as a perceived disability. A recent decision in the Supreme Court of Canada called Mercier c. la Ville de Montréal has helped us. There the court established that a perceived disability is as important as a disability. The court said that genetic testing results could be considered as a perceived disability.
Obviously, things would be much simpler if it were directly mentioned in the legislation. It would cut a couple of cases that would go up to the Supreme Court in order to ensure that this is what the Supreme Court meant. We would, therefore, welcome that type of amendment to the legislation. Along with other difficult issues such as euthanasia, these will be the issues that the Human Rights Commission will need to deal with in the not-too- distant future.
Also, it is important that we research in collaboration with other groups in that area to ensure that we will be prepared to deal with that type of case when it occurs. We do not have the resources now to do that.
Senator Finestone: From a biological underclass potential, the potential for discrimination exists because there is no legal definition that they have rights. Is that what you are saying, in essence? Where does the lack of clarity rest? Your mandate includes, as you responded to Senator Beaudoin, an interpretation of Canada's responsibilities under the universal declaration and under civil and political rights.
Ms Falardeau-Ramsay: Our mandate does not include that interpretation. Our jurisdiction relates strictly to the 11 grounds of discrimination mentioned in the legislation, plus the Employment Equity Act. That is all.
Senator Finestone: As regards the 11 grounds of discrimination, is it correct that genetic discrimination is a ground under the pseudonym "handicap"?
Ms Falardeau-Ramsay: It falls under the notion of deficiencies. "Disability" is defined as being any type of physical or mental disability. We always encounter cases of perceived disability. The Mercier case has clearly established as the law of the land that perceived disability is under our jurisdiction.
The court has gone a bit further in another jurisdiction. It is not really a decision, but rather it is their considered opinion that DNA testing and genetic testing would fall under the term "disability" in our legislation.
Senator Finestone: Therefore, the discrimination would fall under your investigation.
Ms Falardeau-Ramsay: Yes.
Senator Finestone: Does that suffice to start a campaign of understanding and promotion through education and information?
Ms Falardeau-Ramsay: We would be pleased to do that, but we do not have enough resources. Most of our resources are aimed at dealing with complaints. We have no control over the complaints, and our funding was drastically cut some years ago. We received a bit more money, but we have a new jurisdiction under the Employment Equity Act that absorbed that amount. Currently, only 2.3 per cent of our budget is slated for promotion and education.
Senator Finestone: That is disquieting. It is important that we take this information into account. You were criticized severely for not having fulfilled your mandate under the Canadian Human Rights Act to take a preventive and proactive approach that included education and training. The responsibility rests on the shoulders of the government for not providing the necessary funds, rather than on you for poor management, which is what I read in the report in some places.
Ms Falardeau-Ramsay: We are in a catch-22 situation. If we put less money toward complaints, we are criticized because the process takes too long and we are not doing our job properly.
I will give honourable senators an example of the cuts we faced. When I came to the commission as deputy chief commissioner, we had about 60 investigators. If I am not mistaken, we now have 26 investigators. That gives you an idea of why we must restrict our activities. To produce the same type of work, we were obliged to put most of our resources on the complaints-handling side of the system and to cut drastically on promotion and education. Even a couple of years ago, following the report from the Auditor General, we almost closed the areas of promotion and education because it was necessary to use the budget to deal with cases.
In that way, we become better at dealing with complaints on time, but then we cannot fulfil the second part of our mandate. If we spend money on information and education, then we must make cuts on the other side. We are in a situation where we will always be criticized.
Senator Finestone: You are damned if you do and you are damned if you do not.
Thank you. It is important for us to understand these facts.
Senator Kinsella: One of the original purposes of the creation of the Human Rights Commission, and indeed of all the provincial and territorial Human Rights Commissions, was to combat racism in Canada. It seems to me that it is not necessary to attempt to understand or evaluate the malady of racism in Canada that we would have to imagine the burning of crosses in Canada, but rather to simply turn on the computer and go on line.
I should like to raise with you, Chief Commissioner, the serious problem of racism on the Internet. Is that problem ever increasing in alarming proportions? Does your commission have a mandate to combat racism on the Internet? What will your commission do about it? What is the Government of Canada's responsibility?
This is a growing problem. How are we combating racism on the Internet?
Ms Falardeau-Ramsay: We have the honour of being the first country in which a complaint was presented to the commission concerning hate propaganda on the Internet — the Zundel case. That case is now finished, and we are expecting the decision from the tribunal. There have been many hoops in that case because it has gone to the Federal Court many times. The Federal Court established that we have jurisdiction in this area.
Some weeks ago, we received a complaint concerning hate propaganda on the Internet against gays and lesbians. I am certain that we will receive more and more of that type of complaint.
With expectations, we await the decision of the tribunal. From there we will build some interesting and important jurisprudence on this issue.
Senator Kinsella: In addition to the excellent work that the commission does in dealing with matters case by case and having human rights jurisprudence established as that proceeds, the enforcement of the act is in response to complaints. It is a complaints-driven system.
Does the Canadian Human Rights Act not include education or development provisions such that the commission can take proactive steps in combating racism in the Internet? For example, could the Government of Canada not use the cutting- edge technology of forced links Web pages showing an alternative view to the racist view being presented? Could the government assist schools and judicious parents who own their own computer systems by providing a method of screening what is their own property, in such a way that it would not interfere with freedom of expression but, rather, control the content of the computer systems that they own? What kinds of creative initiatives such as that can the commission undertake? To what extent is this a shared responsibility with the Department of Industry or with the Department of Canadian Heritage and, in particular, with the multi-culturalism secretariat?
Ms Falardeau-Ramsay: We would certainly be open to any partnership to deal with these concerns. It would be very important, first, to be in a position to do some research on these issues to determine how to best tackle the problem.
For example, we would be interested in having research done by the Canadian Race Relations Foundation on an issue such as that. That is a completely independent organization, and we could very well deal with them.
As I said to Senator Finestone, it is always a problem of resources. We put out fires. We deal with complaints. We have no choice but to do that first. We would fulfil our mandate in a much better way if we could do that type of work and provide solutions to the existing problems rather than dealing with problems after they have arisen, as in the Zundel case.
Senator Kinsella: I concur with you. There are software engineers who can create such software to combat racism. I hope you will use your good office to influence the ministry of Canadian Heritage and Industry Canada to do this.
Three times you have raised the issue of your resources. Has your budget been decreasing? Has the government been cutting your budget, or is it increasing it? We know that your responsibilities have been increased.
Ms Falardeau-Ramsay: Our base budget is $15.1 million. We received more money in the last two years, but it was earmarked for pay equity cases. It was, in fact, spent on pay equity cases and employment equity audits.
As far as complaints handling, our budget has not changed, and our budget has not changed for promotions in years. As I explained earlier, we had to put the money there because that is where it was needed. As I said in my presentation, we have increased as much as possible the efficiency and efficacy of the complaint process. We have tried to ensure that, where possible, cases are settled through mediation at the beginning to do away with the need for investigation.
Senator Kinsella: It is to be hoped that your appearance before this honourable house today and in the future will allow the Senate to recommend to the government that, if Canada is to assume a leadership role in these cutting-edge areas of human rights, genetics and the Internet, in which there is tremendous opportunity for contribution by Canada, you will need more resources.
Senator Pépin: I welcome you to the Senate. I remember the campaigns we both ran in various areas, including the status of women. This leads me to talk to you about pay equity. You say that there was mediation at the beginning and that, now, you would like the concept of pay equity to be broader, more uniform and to be achieved more quickly. What would you recommend in this regard so the process would occur more quickly, obviously, setting your budget problems aside?
Ms Falardeau-Ramsay: In the system as it stands, pay equity depends on the complaints we receive. As soon as you speak of complaints, you are speaking of potential litigation and time frames. You are talking as well about cases such as, for example, the famous case of the Treasury Board Secretariat v. the Public Service Alliance of Canada or of the case of Bell Canada v. Communications, Energy and Paperworkers Union of Canada, which, in fact, began in the late 1980s, therefore some 15 years before a solution was reached. That shows the system does not work.
The percentage of our resources that goes to pay equity is also incredible. These are not just our own resources, but those of organizations involved in these cases, as well.
We need a much more proactive system, one like the system used in employment equity; that is, a system in which obligations are imposed generally on all employers. They would therefore be imposed not just on employers against whom a complaint has been lodged, but on all employers, something that is not currently the case. At the moment, only those employers about whom a complaint has been made are subject to these obligations. If we had such a system, this alone would be something.
The system would also make it possible to take into account certain elements that are not considered at the moment. For the moment, it is possible there might be an implementation period that depends on the economic situation of the country in general. Instead of implementing pay equity immediately, it might be done over a period of six months or a year. What counts is that it be done quickly. The more quickly it is done, the less costly it will be. We would not have to pay interest on the amounts involved in the complaint, which can go back as much as 15 years. There is no doubt it would end up costing less.
The Minister of Labour has announced that a study would be carried out on pay equity. It is important not to lose sight of the fact that pay equity is not a matter of labour law but of human rights, discrimination, respect and dignity. It is not something to be negotiated as part of a collective agreement. Wage levels can be negotiated only after pay equity has been established.
Minimum wage is not negotiable, because it is the base. The same thing applies to pay equity. Pay equity is a base, and then there can be negotiation from there. It is very important not to lose sight of this, particularly when amendments to the statute are examined at by the Senate.
The definitions of pay equity should be far clearer and the standards far more precise. To give you some idea, the term "establishment" set off three years of dispute before the courts. If a word like that leads to three years of dispute, the methods to be established in order to ensure pay equity can involve the experts in years and years of wrangling. It would therefore be important for specific standards to be specified in the legislation.
Senator Pépin: The law needs to be very clear and proactive, in order to make your work easier.
Ms Falardeau-Ramsay: Absolutely.
Senator Pépin: You were saying just now that there were certain difficulties relating to budget and staff cuts. Are you nevertheless satisfied with the work of the commission as far as the promotion of human rights is concerned? Do you think you are able to do more in this area? Despite all the current difficulties, are there some areas you think you need to get involved in?
Ms Falardeau-Ramsay: We should definitely be doing more. We all know that information and education are the foundation of communication: the more we can inform and educate people, the better we will be able to prevent complaints to the commission.
I find it most unfortunate that we are in such a situation. Not only can we not inform and educate — which would be essential — we also cannot explore what the key areas of discrimination in coming years will be.
Not being able to prepare is, for me personally, very frustrating. On the one hand, you want to be able to carry out the role you have been trained for and, on the other hand, you are in a situation where this is impossible, because you are always having to put out fires.
Senator Pépin: I know that your difficulties are closely tied to finances. If you had the necessary funds, do you think you could move toward education and information?
Ms Falardeau-Ramsay: The first thing to promote would be training and education in connection with the existing law. We are already trying to do so, as much as we can with the resources we have, and often it has to be done through partnerships or with other organizations.
Last year, we worked in partnership with the Senate and NGOs in the context of a fair and a banquet to celebrate the contribution of persons with deficiencies in the workforce. We are very happy to make this sort of contribution when we can.
Recently, a video was produced in partnership with the Canadian Race Relations Foundation. In this project, we translated the texts. That is about all we could allow ourselves to do. This was not a huge task.
In such a situation, you follow everything that is going on, but you cannot initiate projects. So it is not your agenda that counts. What counts is that you try to take part in everything you can get involved in to do whatever you can in the field. Your priorities are not really put forward.
Senator Pépin: You have the leadership, but you lack the means.
Senator Cohen: Thank you, Madam Commissioner, for reminding the Senate of the social condition bill. As the person who tabled that bill, I would say, on the record, that that day was a very proud moment for the Senate. It was very gratifying to the Senate when the review panel actually validated the importance of that bill by outlining the need for social condition to be added to the prohibited grounds for discrimination.
In response to a question I raised in February, the government indicated that it needed more time to carefully review the report and consult with other federal departments.
In your opinion, can we expect the inclusion of social condition in the act soon, or will it just not go anywhere? Will we have to continue rapping Canada's knuckles, as you said before? Have you or your commission been contacted by the Department of Justice regarding the drafting of any legislation in this realm of social condition? To what extent has your department been able to use any of the new legislation or to implement some of the legislation under your present mandate?
Ms Falardeau-Ramsay: No, we have not been contacted by the Department of Justice on any of these issues. My guess is as good as yours on that. We do not know about the inclusion of social condition. In fact, when I met with the Minister of Justice approximately a month and a half ago, I asked when we could expect to get the report. The minister told me that they were still in consultation with government departments. I have no more inside knowledge than you do, so I have no idea.
It is very clear, and you mentioned the La Forest report, that social condition should be part of the legislation.
As for implementing some of the tools we already have in the act but cannot use, we find we are in the same situation as we are with information and promotion; that is, we do not have the money. For example, Mr. Justice La Forest recommended that we should exercise our power of holding public inquiries into certain areas because is it not only a means of changing some issues; it is also a means of educating the public. However, it takes money to do that.
We do a significant amount of consultation on some of our policies. We started to do that through the Internet. Obviously, that does not have the same impact as conducting an inquiry on a specific subject matter. As you know, the type of discrimination that we are dealing with is much more systemic discrimination than it was in the past. It is against more than the individual. An inquiry into some areas would be the best way to deal with that.
For the same reasons — and I am sorry to return to the same refrain — we do not have the money for this. We must deal with what is most pressing.
Senator Joyal: My first question relates to a reference that you made in your presentation to the 11 grounds of discrimination mentioned in section 3 of the act. These grounds are very specific. They include discrimination based on race, sex, religion, disability, et cetera.
Under a reform of the act, would it not be a good thing to have some sort of equality or protection right under the law that would be similar to section 15 of the Charter? The commission's mandate would then be much broader than merely covering those 11 grounds.
We all know that when a ground is mentioned, it is by definition restrictive. As some senators have pointed out, in the years to come — given the social, economic and scientific evolution — all sorts of circumstances will emerge and will, in some way, pose a challenge to the commission's mandate.
Should the inclusion of an equality or equal benefit right not be the fundamental amendment to make to the act? Could this be the best way to deal with the new scope of these rights?
Ms Falardeau-Ramsay: I would say that it is better to include this type of clause in an act than to have to amend the act every time. Take, for example, sexual orientation, which was the object of the most recent amendment. How many years did it take to amend the act to include this ground of discrimination? The Supreme Court had to hand down rulings before the act was amended. It is always a very long process.
You are absolutely right when you say that our society is not static, that it is constantly evolving. Therefore, the grounds of discrimination also change and we cannot, with specific but restrictive grounds, take into account that evolution in society.
Senator Joyal: In the meeting that you had with the Minister of Justice and to which you referred, did you discuss the redefinition of the scope of the act?
Ms Falardeau-Ramsay: We have yet to get an answer on what the Minister of Justice intends to do following the recommendations made in that report.
Senator Joyal: As regards the creation of a Standing Senate Committee on Human Rights, it seems to me that this is a major development in human rights promotion, education and, of course, respect. How do you hope to coordinate the efforts of the commission and that of the soon-to-be-created Senate committee?
Ms Falardeau-Ramsay: As far as I am concerned, this is excellent news. If the Senate creates a Standing Committee on Human Rights, you can rest assured that the commission is prepared to cooperate as much as possible with the work the committee does. This would be an excellent way for us to promote the commission's priorities and, at the same time, do promotion and education.
Senator Joyal: Would you go so far as to say that, in the amendments to be made to the Canadian Human Rights Act or in any future overhaul, a provision confirming the need to create a parliamentary committee on human rights would be desirable, as provided for in section 38 of the Official Languages Act, which specifically mentions the importance of a parliamentary committee to give effect to the commitments of the Government of Canada with respect to human rights?
Ms Falardeau-Ramsay: I would be in favour of such a provision. You are certainly aware that we are the poor relations when it comes to parliamentary committees. At present, there is a parliamentary committee to look at justice and human rights, but human rights often take a bit of a back seat to the often more visible legal issues.
There is also a parliamentary subcommittee on disabled persons, and part of its discussions are devoted to human rights. I am not saying that this is not an important part, but it is just a part.
I think that the provision you mentioned would be an excellent amendment. Just as for official languages, we are an agency of Parliament. I therefore think it would be natural for there to be a parliamentary committee that deals more specifically with human rights.
Senator Joyal: Would you be prepared to play a role equivalent to that played by the Auditor General of Canada on the Public Accounts Committee, that is, to be permanently available to the committee and to use your resources to help the committee so that, when it has decided on its agenda, it will be able to meet the objectives we would be obliged to meet under the legislation in the context of a redefined system?
Ms Falardeau-Ramsay: In the context of a redefined system, the only limit is our imagination and, of course, government resources.
If it were possible to create a similar system, Canadians would stand to gain.
Senator Joyal: My last question is on the importance of international instruments signed by Canada and not yet ratified.
Last week, thanks to an initiative by the committee co-chaired by the MP for Mount Royal and Senator Wilson, a professor from McGill University spoke to us of the importance of international instruments and their impact on Canadian law. And one of the recommendations in Mr. Justice La Forest's report was as follows:
We recommend that the Act have a preamble referring to the various international agreements that Canada has entered into that refer to equality and discrimination.
This strikes me as an extremely important recommendation that can, to some extent, compensate for the lack of ratification of certain international instruments due to the fact that jurisdiction over law is split between the provinces and the Canadian government.
It strikes me as very important that there not be any dissociation of Canada's obligations on the international level from the way they are assumed on the domestic level. In the Burns and Rafay decision which the Supreme Court brought down this past February, the mandatory force of these instruments was recognized even if in practice they have not been integrated into Canada's domestic law.
In other words, Canada cannot preach internationally that certain values and principles must be respected in connection with human rights, while acting in another way within its national boundaries.
How do you see the possibility of the Canadian legislators achieving this stage — one I feel is extremely important — so as to recognize within the Canadian Human Rights Act the importance of international instruments?
Ms Falardeau-Ramsay: I share your belief that it is extremely important — at least in the preamble to a law — to include a reference to international instruments that are the source of our legislation. Ours came into effect in 1977 following on the obligations assumed by Canada as a result of the ratification of international instruments.
It is very important to link these international instruments to a clause that is not restrictive. This would allow the legislation to evolve as our society evolves, and to put in place the means of ensuring that Canadians comply with it and enjoy the rights and obligations the government has assumed on their behalf by ratifying these international instruments.
I was extremely pleased to see such a recommendation in Mr. Justice La Forest's report. I hope that the government will act on it.
Senator Wilson: I should like to say how pleased I am that you are here, Commissioner. I am equally pleased that the committee reviewing the Canadian Human Rights Commission has recommended that the commission be charged with monitoring Canada's performance under international covenants and treaties. At the present time, no Canadian agency is charged with that responsibility. There is a high interest in human rights in Canada, but we have not yet developed the public instruments. I lay awake at night wondering if they do not give it to you, to whom will they give it and will they give it to anyone? You might want to respond in terms of what you think legislators can do if that should happen, that is, if no Canadian agency is charged with the job of monitoring.
Two years ago, practically to the day, Canada reported our performance to the UN committee charged with overseeing civil and political rights. They brought back some concluding observations to the UN which, in my view, are not so that we can prepare ourselves for Bangladesh so we look good but, rather, that we raise the benchmark for Canadians in terms of human rights. The representatives of the Canadian government who went to that meeting were commended by the UN for doing this. However, they promised a press release, the formation of a parliamentary committee to monitor progress, and distribution of concluding observations to all parliamentarians, none of which happened.
I made three phone calls to Heritage Canada to determine if they would do anything. Each time I was told that it was not the appropriate time, which I take to mean that they were not about to do anything.
What confidence might we place in the commission to do the critical job of monitoring? Where does it fall in your priorities? Of all the things that need to be done, provided you receive the resources, what priority would you place on monitoring and communicating, let alone looking at the cutting edge of things? We have not even caught up with the things that are pretty pedestrian, about which most Canadians do not know.
The second issue is that of resources. It is incumbent upon us to pay attention so that if the government hands you the job of monitoring, parliamentarians can ensure that you have the extra resources to do the job.
Ms Falardeau-Ramsay: First, I do not know of any institutions, agencies or departments that monitor. As you know, there is a reporting function. However, that is not the same thing as monitoring. I do not think there is any real monitoring at this time.
Obviously, that would be a very high priority for the commission. I say that because it is on that basis that Canada would be given a rating, if you will, as a country that recognizes, commits itself and abides by the obligations that it has undertaken in ratifying various international instruments.
Clearly, if we had the resources to do it and to do it properly, it would be very high on our list of priorities. It is like the bedrock on which we build.
Senator Wilson: In support of Senator Joyal's comments, I think a small but critical mass of parliamentarians would like to share some responsibility with the commission in that area.
Ms Falardeau-Ramsay: That is good.
Senator Stratton: Notwithstanding burning crosses, do you believe that racism is alive and well in Canada?
Ms Falardeau-Ramsay: Unfortunately, yes. A large number of complaints are based on race and ethnic origin. At the moment, if I am not mistaken, some 35 per cent of our cases are based on race, colour, and national or ethnic origin.
Very often, those cases are subtle, but they are, nonetheless, still based on those grounds. I am pleased to say that we no longer have those obvious cases where people would say, "It is because you are Black that you cannot do the job." In a way, however, it is worse now in that is almost like painting an impressionist painting. You need all kinds of small bits and pieces of evidence so that you can draw the portrait of what is happening. Approximately 10 years ago a case in front of the tribunal would last three days, whereas today it lasts 10 days. As a result of the way racism is practised, people are often not even aware that they are victims of discrimination in certain insidious ways. For example, in the NCAR cases we heard statements such as, "Well, you know, it is not a Canadian management style," or "These universities are good, but they are good for the continent." There were all kinds of innuendoes of this type. The kind of evidence you need to prepare a case takes much more time to find. That is the type of discrimination that is faced by people today.
However, occasionally much more direct types of discrimination are found at the provincial level when dealing with housing and those types of issues. We do not deal with those issues.
Senator Stratton: In your opinion, is it getting worse or is it getting better?
Ms Falardeau-Ramsay: That is a difficult question to answer. The number of cases we have had has been the same for a long time, That could be interpreted to mean that there are fewer cases because the population is larger. People are certainly more aware of their rights. It is difficult to say whether it is getting worse or better. I do not know the answer to that question.
Senator Stratton: I believe social conditions are virtually at the top of the agenda. We have people living in northern, isolated communities where young women, men and children virtually do not have a future because of the social condition. That is the worst form of racism, and I do not know how we can hold our heads up high in any international forum because that condition exists in this country.
Would it behoove you as the chair of the human rights commission to make that a top priority, whereby you would travel the country, communicate, raise the issue and continue to raise the issue? This problem is not going away. It seems to be getting worse. I come from a province where, in my view, it is getting worse.
I would like to see you out there virtually hitting politicians between the eyes to get their attention and to encourage them to deal with these issues more dramatically than they have been dealing with them. We are losing generation after generation. It is consistent.
Ms Falardeau-Ramsay: I agree with you. This is an issue that I raise wherever I go. Whenever I make a speech I try to include that topic. It is unconscionable that in a country like Canada we would have situations like that.
A couple of years ago we issued a report that was based on the situation of the Innu in Labrador. We will prepare a sequel to that because we want to know the situation today. Without trying to foresee the conclusion of the investigator, I would be surprised to learn that the situation is better now. As you say, it is important that we all push the issue that social conditions should be included in the Canadian Human Rights Act.
Senator Milne: Ms Falardeau-Ramsay, I was charged by Senator Pearson with asking you a question when you came today. Most of her concerns have been answered. You have covered the issues of how your increase in the budget has been eaten up by the increasing equity issues that you are facing and have been charged with. We have covered social condition, and we have covered hate on the Internet. We are coming down to the fact that your budget needs to be increased.
I read that you spend 2.7 per cent of your budget on promotion and education, which is a major part of your mandate. By my calculation, that adds up to approximately $400,000. That is all. You are not able to get the word out where it needs to go. You need more money. In addition to that, are there some changes in the structure of the commission itself, or in the legislation, that might help you in your approach to your entire mandate?
Ms Falardeau-Ramsay: Our act is now 20 years old. After 20 years, a statute that deals with social issues, such as the Canadian Human Rights Act, must require to be changed in one way or another. That is why we hope that there will be an answer to the report that was presented by the panel headed by Chief Justice La Forest. Our act could then be revamped so that the objectives that were set for the Canadian Human Rights Commission and the Canadian Human Rights Act can be better met by these changes.
Senator Milne: Are you telling me that everything you would like to see done is included in Chief Justice La Forest's report?
Ms Falardeau-Ramsay: Not necessarily. If the recommendations from Chief Justice La Forest's report are only put into practice in part, then it is almost of no use because we need to paint the entire picture. I would have no problem in sending all complainants directly to the tribunal, as long as they are well represented; otherwise, you have an imbalance of power. As an individual, you would be up against big organizations because most private enterprise under federal jurisdiction involves big organizations, with legal units of six or seven lawyers who will be in court to represent them. As well, we know that there are many legal units in various departments of the government.
You may have an unrepresented complainant. That would be dangerous. The federal government would need to establish and fund legal clinics specifically to do that. More education, promotion and research policy should be done to lower the number of complaints. If the number of complaints does not go down, you re-establish a backlog problem at the tribunal level instead of the commission.
That situation will need to be closely looked at as a whole when the response from the minister comes to Parliament. We must ensure that the system is viable and protects the individual. If systemic issues are important, and I agree that they are, individuals will always have a place to complain about the discrimination they feel. The only condition I would put on this issue is that we take it as a whole and not piecemeal.
Senator Milne: You would also seek more money.
Ms Falardeau-Ramsay: This system would cost a lot of money.
Senator Chalifoux: I have three concerns. First, my office did a small study on employment opportunities for Aboriginal people within the Public Service Commission and within the government and found that discrimination was running rampant. I should like to know what power you have in addressing that issue.
Second, if you are Aboriginal or live in a remote community, it is a fallacy that Canada is the best place in the world in which to live. The Third World conditions in this country are absolutely deplorable. I supported Senator Cohen's statements when she brought forward the concept of social condition. What is your position and what is happening in that regard?
Third, Aboriginal women, Aboriginal women prisoners, Aboriginal women in the military service and Aboriginal women with Bill C-31 status have no rights. When I got a call from the women prisoners in the Prince Albert penitentiary, they were afraid to say anything because of possible repercussions from their guards. I want to know how that issue can be addressed. Does the Indian Act still supersede the Human Rights Act?
Ms Falardeau-Ramsay: First, concerning the situation of the employment of Aboriginal people in government services, I agree with you. If we remove from the equation the Aboriginal people employed at Indian and Northern Affairs Canada, the situation is quite dismal. It is somewhat better than it was, but not very good. Through our audits under the Employment Equity Act, we hope to improve the situation. At present, we are auditing 35 government departments, if I remember correctly, which encompasses about 81 per cent of the employees. It is not always easy. Very often we must return a second time because even though employers, including the federal government, were given one year to prepare for an audit, in most cases nothing has been done. The 180 audits that we are involved with represent the equivalent of 291 in that we must go back because the work has not been done. Through employment equity, we hope to be able to do something. As I said in my presentation, we are in the process of looking at the results under the Employment Equity Act so that when the act is reviewed, we can make representations as to what can be improved there.
As far as the concept of social condition is concerned, I completely agree with you. I have visited some of the areas you mentioned. It is very important to improve the situation. I have been in Third World countries, and I can assure you that they have nothing to envy when you go to some reserves or look at the way some Aboriginal people live in urban areas. That something like this could happen in a country like Canada is almost unbelievable.
As to the third issue you raised concerning Aboriginal women, specifically Aboriginal women in jail, about two and a half years ago I visited women's penitentiaries in Canada because I wanted to know what was happening. Obviously, there are many problems. Those problems are such that a month and a half ago we received a complaint from the Elizabeth Fry Society about the situation of women, particularly Aboriginal women, in federal penitentiaries in Canada.
We will be dealing with that situation. We are looking at how we can investigate the issue because it is a difficult one to investigate. We want to investigate it so that we gather the most evidence possible. This point is very important.
As to your last point, section 67 of our legislation is still in effect, which means we cannot touch what is done under the Indian Act or any of its regulations. We deal with issues that are outside the Indian Act, but nothing that falls directly under the Indian Act. That is very sad.
Senator Graham: You have made a very interesting presentation and raised some compelling observations. Senator Milne referred to the percentage of your base budget of $15 million that is spent on education.
Senator Milne: Four hundred thousand dollars.
Senator Graham: You said 2.7 per cent.
Ms Falardeau-Ramsay: It is 2.7 per cent.
Senator Graham: How much of that amount is spent in the schools of our country?
Ms Falardeau-Ramsay: That is an interesting question. When we deal with schools, we do so through the provincial commissions. Education is under provincial jurisdiction, and we must be careful in the way we approach that type of education.
When I visit the various regions of Canada, I usually do it in conjunction with my provincial counterpart. We contact school boards, for example, to explain what is available for children on our Web site, and that type of thing. It is very difficult to pinpoint an amount that is spent on children in school.
Senator Robichaud: I move that the Chair of the Committee of the Whole now report progress and ask for leave to sit again.
The Chairman: Is that agreed, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker: Honourable senators, the sitting of the Senate is resumed.
Report of the Committee of the Whole
Hon. Rose-Marie Losier-Cool: Honourable senators, the Committee of the Whole, to which was referred the review of the work done by the Canadian Human Rights Commission, reports progress and asks for leave to sit again.
The Hon. the Speaker: When shall the committee be allowed to sit again?
Senator Losier-Cool: I move that the committee be allowed to sit again later this day.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Motion agreed to.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, it is now 6:00 p.m. and I move that we do not look at the clock.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Committees Authorized to Meet During Sitting of the Senate
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, with leave of the Senate and notwithstanding rule 58(1)(a), I move:
That all Senate committees sitting today have the power to sit during the sitting of the Senate, and that rule 95(4) be suspended in relation thereto.
The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?
Motion agreed to.
Chief Commissioner Received in Committee of the Whole
On the Order:
The Senate in Committee of the Whole in order to receive the Chief Commissioner of the Canadian Human Rights Commission, Ms Michelle Falardeau-Ramsay, for the purpose of discussing the work of that Office.
The Senate was accordingly adjourned during pleasure and put into Committee of the Whole on the question, the Honourable Rose-Marie Losier-Cool in the Chair.
The Chairman: I believe that Senator Graham was asking a question.
Senator Graham: As I was about to say, if racism is indeed rampant and discrimination evident in many areas of our society, it seems that one of the better places where you might spend part of your budget would be in education in our school systems and in our universities.
If your base budget is $15 million plus, and if you were given an increase in your budget, what would your priority be for the increased money? Would one of your priorities be in education?
Ms Falardeau-Ramsay: Of necessity, it would be used for promoting education. This is where we are failing.
You speak of universities. Last year, our priority in information and education was employers because 64 per cent of our complaints are employment-related. That means that we should be preaching more to employers. Preaching to the converted is not really the best thing.
I went around Canada speaking mostly to business students and law students at universities. They will probably be the employers of tomorrow. If we had enough resources, we could build on that type of education. We could, for example, develop modules of human rights that could be loaned to provincial commissions. The federal and provincial commissions could deliver information simultaneously at the school level and at the university level. There is a real need in this regard.
Senator Graham: I am sure that you would find much encouragement and support from the Senate with respect to providing further resources for education in our schools and in our universities. I commend you for your work.
I am pleased that the Senate has seen fit to establish the Standing Senate Committee on Human Rights. I hope that you, as chief commissioner, and your staff will work in close collaboration with the Senate committee in the future. We look forward to having you here again soon.
Ms Falardeau-Ramsay: Thank you very much. You can count on our cooperation and collaboration 100 per cent.
Senator Watt: First, I would like to recognize that you are wearing an Inukshuk pin. I believe that that stands well in the Arctic.
I will mainly cover issues related to the Arctic and the Subarctic. The Subarctic refers to northern Quebec and northern Labrador.
The Constitution should apply to every human being. I believe that the right to life also applies to Aboriginal people in this country. This is where I will be coming from when I point out certain deficiencies and inconsistencies in our dealings as Aboriginals with our southern partners.
At times, you wonder whether this is all related to discrimination, and at times you try to come to grips yourself with why such is not the case.
When you are living in the Arctic, you live so far away from so- called civilization that the two lifestyles are not even comparable. That reality is not always recognized by the authorities. I would say that attitude is pretty consistent throughout.
I have participated in the study of various bills. At times, those bills have not taken proper consideration, as some senators have already stressed, of the social factors and the economic factors of the people.
As you know, Commissioner, we are trying our best as a people who live in the Arctic to cope with the massive changes coming from the South to the North, changes that often hinder our normal way of life. Many of our people cannot cope; they are falling through the cracks. There are many suicides amongst the young people. Many of our young people, and even our elderly people, are alcoholics and drug addicts.
At times, we wonder how we can possibly deal with all the problems. I have listened to the debate here; I have listened to the answers you have provided and I feel a sense of hope. We need hope if we are to fulfil our right to life under the Constitution.
We have signed deals with the Crown from time to time. As the Inuit of Nunavik, we were the first to sign a modern-day treaty agreement. Up to now, our Government of Canada, rightly or wrongly, whether they realize it or not, is not living up to the treaty which was signed. Time and again, I get the feeling that the Department of Justice is trying to find some way of undoing what they have already done. What do you call that? Is that discrimination, or is that a simple lack of realization of the sensitivity of those matters? I would rather put it under the latter category. Maybe the government representatives just do not understand or realize how different our lifestyle is.
I do not know if my question can be answered here today, Commissioner. I hope one day it can be. I wish to return to a system of checks and balances between the North and the South. Until the day the people who live in the Arctic are given enabling legislation, until they have the authority to protect and to improve their own lives, until they have the authority to influence Canadian government legislation from time to time as need be, until they can force the government to address our critical issues, then our problems will not be resolved.
As Commissioner, you are an instrument for sensitizing our country's government and the general public, especially those who live in the South, although, perhaps, those who live in the North must also become more sensitive. You can help to narrow the gap so that there will be peace and understanding between the two races. We will not disappear, and those who live in the South will not disappear. Therefore, we must find a solution. Will you agree that one day an instrument must be found to deal with that precise problem?
Ms Falardeau-Ramsay: I do think so. It is interesting, because you are repeating the words of our former chief justice in one of his decisions when he said that we are here to stay, together, and so we had better find a way to live together.
I completely agree with you. That is what we should do. The commission is trying, mostly through its annual report, to foster the idea that there should be a way of ensuring that we can live together, in the North and in the South, in ways that are respectful of the dignity of human beings. If I did not have hope that something like that could happen, I would not be here today. I think it is very important.
I try to go to the North every year. I cannot go everywhere in one year, but I do try to go to Nunavut one year, to Nunavik another year, as well as to the Northwest Territories and the Yukon. I want to directly experience what is happening. I firmly believe that, if one stays in Ottawa in one's corner office, one cannot have a true idea of what is happening in the country. One must see it for oneself and meet the people. That is the only way. If more people would do that, the links between the South and the North would be improved.
Senator Watt: I have a suggestion you may wish to consider The Inuit of Nunavik are the highest taxpayers in this country. We have a very high cost of living, including a high cost of transportation. I understand that Ottawa will again be slashing the subsidy for telecommunications. If that is the case, that means we will again be paying more.
To give you an example, when I am at home, my $1 is worth only 50 cents in purchasing power. We pay taxes upon taxes for transportation and things of that nature. This is becoming a critical issue affecting the very survival of the people, let alone their social problems. Economically, we are just barely making it. In fact, some people are not making it. Luckily, the Inuit still uphold their tradition of sharing with neighbours. They share with their fellow Inuit. Without that, our people would be dying left and right.
I do not know whether that comes under your responsibility, but this is a critical issue which must be addressed immediately.
Ms Falardeau-Ramsay: I am also not sure if it would fall under our jurisdiction, but we could ask our staff to review the issue and see if we can do something. Perhaps we cannot. I cannot promise.
Senator Watt: I am prepared to make myself available to your resource people to provide some information and to see if anything can be done.
Senator Prud'homme: Ms Falardeau-Ramsay, I am very pleased to see you again. We took law together at university. I must say there were few brilliant women. There was you and Madam Chief Justice Lise Lemieux, who is currently under attack.
This means trouble for them. Her attackers are underestimating Madam la juge en chef du Québec. She can handle any attack from members of the other chamber. Having said that, I am honoured, therefore, to be able to meet with you.
You have made three points very well. First, changes such as we are seeing today are happy initiatives arising increasingly from the Senate. I would like to see such initiatives established in the House of Commons, because this is a lot more responsible than debates where people shout at each other. God knows I know whereof I speak, having been an MP for 30 years. I am not trying to teach the House of Commons a lesson, but I think these exchanges are much more healthy.
I consider Canada a human experience. There is no doubt this country is in constant flux, and this is why the questions put to you troubled me. When you are asked if, in your opinion, there is no more racism today than there was in our day, I imagine it is difficult to answer such a question.
In our day, Canada was very different. The more Canada opens up, the more different it will be and the more difficult it will be for people to adapt to the changes. Obviously, you need a certain amount of money for education, for making people more open- minded and preparing them for the changes. There has to be concrete action taken.
I hope no one will take offence. Sometimes, an example must be set. I will tell you about the Senate. If there is one place where there should be no discrimination, it is certainly in Senate appointments. We have another option. I have always said that the Senate should be representative of the total equality between men and women. I must say that much has been accomplished in this area.
I recall when I was an MP that there were only two female senators and one female MP. I am sending you the message that perhaps this is an area that should be looked into. I wonder whether the Senate should not be setting an example. There will soon be 15 vacant seats in the Senate. There are 12 right now, and we are going to lose three of our colleagues shortly — they will be taking mandatory retirement. That will leave 31 female senators. Some will say that this is amazing. Yes, but there could be more. I believe in complete equality, and the Senate can set an example.
It was only quite recently that a second woman joined the Banking, Trade and Commerce Committee, which has 13 members. A man has just joined the Social Affairs, Science and Technology Committee, which was previously composed of ten women and two men. Perhaps we need to search our souls. We need to look at ourselves. I would not want to insult anyone but thank God there are women working in the Senate. I amused myself noting that 60.5 per cent of the senators listening to your every word were women. Let nobody tell me that women are not capable of handling public administration and other equally important issues.
It is worrying to hear that there are racists in Canada. People are going to repeat this around the world. We are a human experiment in a country in complete upheaval. This is coming from everywhere. We have prepared neither hearts nor spirits for the rapid changes in our cities. We should probably become your advocates for more funding. I think that your commission is the best, not because we know each other or are friends. Men and women in politics are not necessarily the best people for this.
Ms Falardeau-Ramsay: It is always a pleasure to see you again. I agree with you completely. Considerable education and training are needed if people are to deal with changes, which are always very difficult to accept. People are always afraid of the unknown. People need information if they are not to be afraid.
Senator Poy: Commissioner, thank you for appearing before our committee today. I do not understand how complaints are made to the Human Rights Commission.
I will speak about the experiences of some of my constituents in Ontario. I understood that there was only one commission, and then I realized that there are many different commissions and that Ontario has its own commission. What kind of control or authority do you have over the provincial commissions?
Ms Falardeau-Ramsay: We have no authority at all over the provincial commissions. We are completely independent within our own sphere of jurisdiction. However, we cooperate with the other commissions. For example, people often call the Canadian Human Rights Commission first, which often happens because "Canadian" comes before "Ontario" in the phone book, and we realize that the issue is for the provincial jurisdiction. We will send them directly to the Ontario Human Rights Commission so that no time is wasted.
However, issues are often more complicated than that and need to be studied to determine whether they fall under provincial or federal jurisdiction. Often it takes time. We ask our lawyers to review the case and to provide an opinion as to the appropriate jurisdiction. If it is decided that the matter does not fall under federal jurisdiction, we send the case to the provincial body.
We can be reached quite easily by phone; we have 800 numbers and we can be called collect. It does not cost to call us. We can also be reached by mail, by e-mail or by visiting our offices. We have six regional offices across the country. However, our country is so large that someone who lives in Saskatoon would be required to travel to the Winnipeg office.
Senator Poy: Did you say that your authority does not supersede the provincial commissions?
Ms Falardeau-Ramsay: That is correct.
Senator Poy: The commissions are actually separate.
Ms Falardeau-Ramsay: Yes.
Senator Poy: What falls under your jurisdiction?
Ms Falardeau-Ramsay: Everything that is employment-related and service-related falls under federal jurisdiction. That means, by and large, the federal government and its various agencies and Crown corporations, as well as everything that relates to banking and to transportation between two provinces or internationally. For example, OC Transpo falls under our jurisdiction because it is between Quebec and Ontario. As well, the airlines, the long- distance bus companies, the trucking companies and everything that deals with communications — television and radio — fall under our jurisdiction. Other examples relate to areas that have been declared of indigenous interest to Canada, from wheat, to harbours, to airports, to atomic energy, et cetera. By and large, these subject areas fall under our jurisdiction.
Senator Poy: You mentioned the importance of education, and I agree with you. How closely do you work with the race relations foundation?
Ms Falardeau-Ramsay: As closely as we can. We have regular meetings in which we try to see how we can get our forces together in order to do something. We had a project last year dealing with racism, the end result of which will be a video to be distributed in schools across Canada. We are also in the process of looking at research together. We are trying to find ways of working together. At the commission, we believe profoundly in partnership. We find that the Canadian Race Relations Foundation is the ideal partner for the commission in all those areas.
Senator Poy: Education is provincial; your commission is federal. Would you be overstepping your bounds by going into education in the different provinces?
Ms Falardeau-Ramsay: We must be very careful. For example, in Saskatchewan, we have worked with the provincial commission in designing some material for schools concerning Aboriginal children. In most of the provinces, that is the way we deal with schools. I am prevented, when making my rounds, from speaking to high school students or primary school students. I try to contact the board of education to let them know what is at their disposal from the commission. It is a delicate subject. It is better to go through the provincial human rights commission.
The Chairman: Ms Falardeau-Ramsay, you already know of the Senate's interest in all matters relating to human rights. This has been confirmed today by the many questions and comments put to you. Your presentation has certainly given new life to our interest in this question of the future.
On behalf of all the honourable senators, I would like to thank you for your generous contribution. I also thank Mr. Théroux and Mr. Paré for being available.
Senator Robichaud: Honourable senators, I move that the Chairman of the Committee of the Whole now report that the Committee has completed its proceedings.
The Chairman: Is that agreed, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker: Honourable senators, the sitting is resumed.
Report of the Committee of the Whole
Hon. Rose-Marie Losier-Cool: Honourable senators, the Committee of the Whole, to which the study of the work of the Canadian Human Rights Commission was referred, asks me to report that the committee has completed its deliberations.
Private Bill to Amend Act of Incorporation—Report of Committee Adopted
On the Order:
Resuming debate on the consideration of the third report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill S-25, to amend the Act of incorporation of the Conference of Mennonites in Canada, with an amendment) presented in the Senate on April 26, 2001.
The Hon. the Speaker: Honourable senators, before going into the Committee of the Whole, we had left our business at a point where we were about to ask for an adjournment of the debate under Reports of Committee.
Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Put the question.
The Hon. the Speaker: Before I put the question, I should advise honourable senators that Senator Corbin had indicated that he might wish to speak.
Senator Kinsella: He can speak at third reading.
The Hon. the Speaker: It is moved by the Honourable Senator Milne, seconded by the Honourable Senator Finnerty, that this report be now adopted. Is it your pleasure, honourable senators, to adopt the motion?
Motion agreed to and report adopted.
The Hon. the Speaker: When shall this bill be read the third time?
On motion of Senator Robichaud, bill placed on the Orders of the Day for third reading at the next sitting of the Senate.
Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, in view of the late hour, I ask that all items appearing on the Order Paper remain in their present order until the next sitting of the Senate.
The Senate adjourned until Wednesday, May 2, 2001, at 1:30 p.m.