Court File No.: CV-18-00605134-00CP ONTARIO

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Court File No.: CV-18-00605134-00CP

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MICKY GRANGER

Plaintiff

- and -

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO

Defendant

Proceeding under the Class Proceedings Act, 1992

MOTION RECORD OF THE PLAINTIFF (CERTIFICATION) (Returnable November 27 & 28, 2019)

VOLUME II of II

March 18, 2019 GOLDBLATT PARTNERS LLP 20 Dundas Street West, Suite 1039 Toronto ON M5G 2C2

Jody Brown LS# 58844D Tel: 416-979-4251 / Fax: 416-591-7333 Email: [email protected]

Geetha Philipupillai LS# 74741S Tel.: 416-979-4252 / Fax: 416-591-7333 Email: [email protected]

Lawyers for the Plaintiff -

TO: HER MAJESTY THE QUEEN IN RIGHT - OF THE PROVINCE OF ONTARIO Crown Law Office – Civil Law 720 Bay Street, 8th Floor Toronto, ON, M5G 2K1

Amy Leamen LS#: 49351R Tel: 416.326.4153 / Fax: 416.326.4181

Lawyers for the Defendant

TABLE OF CONTENTS

TAB DESCRIPTION PG #

1. Notice of Motion (Returnable November 27 and 28, 2019) 1

A. Appendix “A” – List of Common Issues 6

2. Affidavit of Micky Granger (Unsworn) 8

3. Affidavit of Tanya Atherfold-Desilva sworn March 18, 2019 12

A. Exhibit “A”: Office of the Independent Police Review Director – 20 Systemic Review Report dated July 2016

B. Exhibit “B”: Office of the Independent Police Review Director - 126 Executive Summary and Recommendations dated July 2016

C. Exhibit “C”: Office of the Independent Police Review Director – Terms of 142 Reference as of March 2019

D. Exhibit “D”: Affidavit of David D.J. Truax sworn August 30, 2016 146

E. Exhibit “E”: Centre of Forensic Investigators & Submitters Technical 155 Information Sheets effective April 2, 2015

F. Exhibit “F”: Centre of Forensic Sciences, Technical Information Sheet, 159 DNA Information effective September 18, 2017

G. Exhibit “G”: Centre of Forensic Sciences, Investigators & Submitters, 171 Biology Report Guide effective November 13, 2018

H. Exhibit “H”: House of Commons Debates – Official Report (Hansard) 182 dated Thursday, September 25, 1997

I. Exhibit “I”: House of Commons Debates - Official Report (Hansard) 266 dated Friday, March 27, 1998

VOLUME II OF II

J. Exhibit “J”: House of Commons Debates – Official Report (Hansard) 332 dated Tuesday, May 12, 1998

K. Exhibit “K”: House of Commons Debates – Official Report (Hansard) 436 dated Tuesday, September 29, 1998.

i v

TAB DESCRIPTION - PG # L. Exhibit “L”: Public Protection, Privacy and the Search for Balance: A 512 Statutory Review of the DNA Identification Act, Final Report, dated June 2010

M. Exhibit “M”: BILL C-3: THE DNA IDENTIFICATION ACT, Prepared 611 by Marilyn Pilon, Law and Government Division, 14 October 1997, Revised 22 May 1998

N. Exhibit “N”: Annual Report of the Privacy Commissioner 1998-99 619

O. Exhibit “O”: Proposed Litigation Plan 729

333

CONTENTS (Table of Contents appears at back of this issue.)

All parliamentary publications are available on the ``Parliamentary Internet Parlementaire'' at the following address: http://www.parl.gc.ca 334

6819

HOUSE OF COMMONS

Tuesday, May 12, 1998

The House met at 10 a.m. [Text] ______

Prayers Question No. 56—Mr. John Cummins: ______With regard to the arrangement between the Department of Fisheries and Oceans and the sport fishing lodges in 1995 to provide daily catch data to the department ROUTINE PROCEEDINGS through the offices of the Sport Fishing Institute of British Columbia (SFI): (a) catch by anglers from sport fishing lodges accounted for approximately what part or portion of the total chinook sport catch; (b) what was the nature of this arrangement; D (1005) (c) when was this arrangement negotiated; (d) When did the arrangement become [Translation] operational; (e) why was it necessary (the Fisheries Act requires the lodges to provide the data to the DFO directly); (f) were there problems in the fishery in 1995 GOVERNMENT RESPONSE TO PETITIONS that made it important to have accurate catch data on a daily or weekly basis; (g) what were the nature of these problems; (h) what management actions were Mr. Peter Adams (Parliamentary Secretary to Leader of the undertaken to deal with these problems; (i) in addressing any of the problems Government in the House of Commons, Lib.): Mr. Speaker, identified above did DFO fisheries scientists find the catch data provided through pursuant to Standing Order 36(8), I have the honour to table, in SFI to be accurate, timely and useful; (j) in addressing any of the problems identified both official languages, the government’s response to two peti- above did DFO fisheries managers find the catch data provided through SFI tions. accurate, timely and useful; (k) when was the catch data received through SFI from the Oak Bay Marine Group lodge M.V. Marabell; (l) was the catch data in (k) * * * received in a form and at a time as required by the Fisheries Act; (m) was the catch data in (k) received in a form and at a time so as to allow the department to use it to [English] effectively manage the fishery; (n) how did the data in (k) compare to what would COMMITTEES OF THE HOUSE have been received if it had been given on-the-grounds to the department as originally requested and as required by the Fisheries Act; (o) when was the catch PUBLIC ACCOUNTS data received through SFI from the Oak Bay Marine Group lodge King Salmon Resort; (p) was the catch data in (o) received in a form and at a time as required by Mr. Ivan Grose (Oshawa, Lib.): Mr. Speaker, I have the honour the Fisheries Act; (q) was the catch data in (l) received in a form and at a time so as to to present the 9th and 10th reports of the Standing Committee on allow the department to use it to effectively manage the fishery; (r) how did the data Public Accounts respecting chapters 25 and 29 of the December in (o) compare to what would have been received if it had been given 1997 report of the auditor general. on-the-grounds to the department as originally requested and as required by the Fisheries Act; (s) when catch data requests were made by Fishery Officers or agents Pursuant to Standing Order 109 of the House of Commons the of the department to the King Salmon Resort on July 29, August 2 and August 7, committee requests the government to table comprehensive re- 1995, what was requested, for what time period, what information was eventually sponses to these reports. supplied, and when was the data required so as to meet the operational or management needs of the department; (t) when catch data requests were made by * * * Fishery Officers or agents of the department to the M.V. Marabell on August 1 and August 6, 1995, what was requested, for what time period, what information was CENTENNIAL FLAME RESEARCH AWARD eventually supplied, and when was the data required so as to meet the operational or Mr. Reg Alcock (Winnipeg South, Lib.): Mr. Speaker, pursuant management needs of the department; (u) were any charges laid for the failure of the to subsection 7(1) of the Centennial Flame Research Award Act I lodges to provide the catch data to the department on a timely basis by way of SFI have the honour to present, in both official languages, the report of and if not why not; (v) what were the names of the lodges who refused to provide the catch data directly to the department, and what were the names of the lodges who the 1996 recipient of the Centennial Flame Research Award. provided the catch data to the department via SFI in an accurate and timely basis and * * * in a proper form; and (w) what effect did the lack of catch information from the sport fishing lodges have on local fishery managers and did it compromise their ability to [Translation] ensure that target levels or caps were not exceeded? QUESTIONS ON THE ORDER PAPER Mr. Peter Adams (Parliamentary Secretary to Leader of the Hon. David Anderson (Minister of Fisheries and Oceans, Government in the House of Commons, Lib.): Mr. Speaker, Lib.): (a) Approximately 60% of the north coast sport catch is Question No. 56 will be answered today. taken by lodge clients. 335

6820 COMMONS DEBATES May 12, 1998

Routine Proceedings (b) The arrangement made between the Department of Fisheries (r) The catch data would be the same. and Oceans, DFO, Queen Charlotte Island, QCI, lodge operators and the Sport Fishing Institute of British Columbia, SFI, was that (s) i) Information resquested: Number, sex, size, weight, species, the SFI would collect and collate catch information from the lodges product form, and other particulars of fish caught, processed, or on QCI and provide the information to DFO. transported by King Salmon Resort-Rivers Inlet, its clients and employees; and the time, and place all fish were caught and (c) August 1, 1995. retained and the person and vessel which caught and retained the fish. The August 7 request was for the lodge to comply with the (d) On August 1, 1995 and the first report to DFO was August 8, August 2 request. 1995. (ii) Time period: No specific time indicated as it was believed the information would be for the entire 1995 season. (e) Lodge operators were concerned about the confidentiality of weekly catch information from individual lodges and wanted only (iii) Information provided: In the form as required of the a summary to be released. charterboat sport fish log book program.

(f) Yes, a recreational catch ceiling had been imposed in (iv) The information was to be provided during the season. statistical areas 1 and 2. Weekly information was required to track the catch. (t) (i) Information resquested: Number, sex, size, weight, species, product form, and other particulars of fish caught, processed, (g) The catch ceiling was established to keep the north coast or transported by M.V. Marabell, its clients and employees; and the recreational harvest of west coast of Vancouver Island chinook at a time, and place all fish were caught and retained and the person and level to achieve conservation goals. vessel which caught and retained the fish. The August 9 request was for the lodge to comply with the August 1 request. (h) The recreational catch limit for chinook in statistical areas 1 and 2 was reduced from 2 per day and 4 possession to 1 per day and (ii) Time period: No specific time indicated as it was believed 2 possession on July 19, 1995. the information would be for the 1995 season.

(i/j) The catch data were provided as requested, and sufficient for (iii) Information provided: In the form as required of the both scientists and managers. The SFI was prompted on occasion to charterboat sport fish log book program. provide the data. Independent checks were done on the data provided and there was nothing to suggest the data were inaccurate. (iv) The information was to be provided during the season. (u) No charges were laid for failure of the lodges to provide (k) November 1995; the M.V. Marabell left QCI the second week catch data to DFO on a timely basis by way of the SFI because of July, before the agreement with SFI. catch data were received on August 8, 1995

(l) The information was not received during the summer of 1995 (v) All QCI lodges refused to give data directly to DFO and gave and was provided through SFI in November 1995 in a useable catch data to SFI. form. (w) The lack of catch data on a timely basis from sport fish (m) The catch data were not useful for in-season management. lodges had a samll impact on the department’s ability to manage the QCI sport fishery in season to within the established chinook (n) The catch data provided are considered accurate. The catch catchcap. In the absence of this information fish managers antici- by guests of the M.V. Marabell form a very small portion of the pated catch levels based on previous data and other catch data. It total catch. did not compromise their ability to ensure the total catch was below the established ceiling. (o) The catch data for King Salmon Resort in Rivers Inlet were [Translation] received directly from Oak Bay Marine Group in November 1995. The agreement with the SFI was to supply catch data from only Mr. Peter Adams: Mr. Speaker, I suggest that the remaining QCI lodges. questions be allowed to stand. (p) The information was not received during the summer of 1995 [English] and was provided through SFI in November 1995 in a useable form. Mr. Mark Muise (West Nova, PC): Mr. Speaker, I rise on a point of order. Question No. 21 has been on the Order Paper since (q) Catch data from Rivers Inlet lodges are not used for October 3, 1997 and the parliamentary secretary has repeatedly in-season management. promised the House that he will make inquiries. I am wondering if 336

May 12, 1998 COMMONS DEBATES 6821

Government Orders those inquiries have been made and, if so, when we could expect an Some hon. members: Agreed. answer to Question No. 21. Some hon. members: No. Mr. Peter Adams: Mr. Speaker, I have noted the member’s request. As he will have noted in the last two days we have begun to The Deputy Speaker: All those in favour of the motion will clear a considerable backlog and a number of the questions that please say yea. have been asked have in fact been responded to. Some hon. members: Yea. I will undertake to look into Question No. 21 once again. The Deputy Speaker: All those opposed will please say nay. Mr. John Cummins (Delta—South Richmond, Ref.): Mr. Speaker, I rise on a point of order. I appreciate the answer to Some hon. members: Nay. Question No. 56 this morning. The Deputy Speaker: In my opinion the nays have it. However, Question No. 33 was asked on October 28. I am still waiting for a response. It involves a special relationship between And more than five members having risen: the minister of fisheries and the Oak Bay Marine Group and I can The Deputy Speaker: Call in the members. understand the reluctance of the minister to reply to that given the fact that the charges were dropped against the Oak Bay Marine Mr. Ken Epp: Mr. Speaker, I rise on a point of order. Group. The Deputy Speaker: I am afraid it is too late for a point of I was wondering when I could expect an answer to that question. order. The hon. member can raise his point of order when the members have come in, before the vote is taken. Mr. Peter Adams: Mr. Speaker, as the member has noted, he has received a reply to some of the questions and I was glad to be able D (1055) to table those replies. I will look into any other questions he has as soon as possible. [Translation]

The Deputy Speaker: Shall the remaining questions stand? (The House divided on the motion, which was agreed to on the Some hon. members: Agreed. following division:) (Division No. 137) ______YEAS

Members GOVERNMENT ORDERS Adams Alcock Anderson Assad Assadourian Baker [English] Bakopanos Beaumier Bélanger Bellemare Bevilacqua Bonin Bonwick Boudria CANADA LABOUR CODE Bradshaw Brown Bryden Bulte Byrne Caccia BILL C-19—TIME ALLOCATION MOTION Calder Cannis Caplan Carroll Catterall Cauchon Hon. Don Boudria (Leader of the Government in the House Chamberlain Chan Charbonneau Clouthier of Commons, Lib.) moved: Coderre Cohen Collenette Comuzzi That in relation to Bill C-19, an act to amend the Canada Labour Code (Part I) and Copps Cullen the Corporations and Labour Unions Returns Act and to make consequential DeVillers Dhaliwal amendments to other acts, not more than one further sitting day shall be allotted to Dion Discepola the consideration of the report stage of the bill and one sitting day shall be allotted to Dromisky Duhamel the third reading stage of the said bill and, fifteen minutes before the expiry of the Easter Eggleton Finestone Finlay time provided for government business on the day allotted to the consideration of the Folco Fontana report stage and on the day allotted to the third reading stage of the said bill, any Fry Gagliano proceedings before the House shall be interrupted, if required for the purpose of this Gallaway Godfrey Order, and in turn every question necessary for the disposal of the stage of the bill Goodale Graham then under consideration shall be put forthwith and successively without further Gray (Windsor West) Grose Harb Harvard debate or amendment. Hubbard Jackson Jennings Jordan D (1010 ) Karetak-Lindell Keyes Kilgour (Edmonton Southeast) Knutson Lastewka Lee The Deputy Speaker: Is it the pleasure of the House to adopt the Leung Lincoln Longfield MacAulay motion? Malhi Maloney 337

6822 COMMONS DEBATES May 12, 1998

Government Orders

Manley Marleau Turp Vautour Martin (LaSalle—Émard) Massé Venne Wasylycia-Leis McCormick McGuire Wayne White (Langley—Abbotsford) McKay (Scarborough East) McLellan (Edmonton West) White (North Vancouver) —105 McWhinney Mills (Broadview—Greenwood) Minna Mitchell PAIRED MEMBERS Murray Myers Nault Normand O’Reilly Pagtakhan Paradis Parrish Augustine Axworthy (Winnipeg South Centre) Patry Peric Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Pettigrew Phinney Canuel Drouin Pickard (Kent—Essex) Pillitteri Fournier Godin (Châteauguay) Pratt Proud Marchi O’Brien (Labrador) Provenzano Redman Perron Peterson Reed Richardson Picard (Drummond) Saada Tremblay (Lac-Saint-Jean) Robillard Rock Scott (Fredericton) Sekora Serré Shepherd The Deputy Speaker: I declare the motion carried. Speller St. Denis Steckle Stewart (Brant) Stewart (Northumberland) St-Julien [English] Szabo Telegdi Thibeault Torsney Ur Valeri REPORT STAGE Vanclief Whelan Wilfert Wood —128 The House resumed from May 8 consideration of Bill C-19, an act to amend the Canada Labour Code (Part I) and the Corporations NAYS and Labour Unions Returns Act and to make consequential amendments to other acts, as reported (with amendment) from the Members committee; and of Motions Nos. 9 and 28.

Abbott Ablonczy D (1100 ) Alarie Anders Asselin Axworthy (Saskatoon—Rosetown—Biggar) Bailey Bellehumeur Hon. Don Boudria (Leader of the Government in the House Benoit Bergeron of Commons, Lib.): Mr. Speaker, I am pleased to participate in the Bigras Breitkreuz (Yorkton—Melville) Brien Brison debate on Bill C-19. Cadman Casey Casson Chrétien (Frontenac—Mégantic) This debate has not been shut down. The proof that it has not Crête Cummins Dalphond-Guiral Davies been shut down is that a moment ago the opposition concluded that de Savoye Desjarlais there was nothing further to say about the issue because it was not Desrochers Dockrill Doyle Dubé (Lévis) putting up more speakers. Dubé (Madawaska—Restigouche) Duceppe Dumas Duncan The point I am getting to, as the House will easily recognize, is Earle Elley Epp Forseth that we are not shutting the debate down. While I am speaking I am Gagnon Gauthier actually extending the debate and giving further opportunity for Gilmour Girard-Bujold Gouk Grey (Edmonton North) hon. members to participate. Guay Guimond Hart Harvey I am sure the Chair has recognized this fully. We will be able to Herron Hill (Macleod) Hill (Prince George—Peace River) Hilstrom participate constructively, explaining all the good reasons why the Hoeppner Johnston amendments proposed by some hon. members in the opposition are Jones Keddy (South Shore) Kenney (Calgary-Sud-Est) Kerpan unnecessary and superfluous in some cases. The bill as presented Konrad Lalonde by my hon. colleague, the Minister of Labour, is the appropriate Laurin Lebel Lefebvre Lill one. Loubier Lowther Lunn MacKay (Pictou—Antigonish—Guysborough) Just so the House fully understands this bill and the amendments Mancini Manning Marceau Marchand that are proposed, this bill actually made its way through the House Martin (Winnipeg Centre) McNally of Commons in the last parliament. It then went on to the other Mercier Meredith Mills (Red Deer) Morrison place. Unfortunately the consideration of the bill was not com- Muise Nunziata pleted at the time of the last election and because of that the bill Obhrai Pankiw must start back anew. Penson Power Price Ramsay Reynolds Riis The bill was started again, was fully considered, went through Ritz Rocheleau Sauvageau Schmidt second reading and then went to committee. In committee the bill Scott (Skeena) Solberg was unfortunately stalled by the opposition. As a matter of fact, St-Hilaire Stoffer opposition members filibustered the bill and we had to obtain the Strahl Thompson (Charlotte) Thompson (Wild Rose) Tremblay (Rimouski—Mitis) good services of many members of the government who stayed in 338

May 12, 1998 COMMONS DEBATES 6823

Government Orders the committee hours and hours listening to speeches from mem- We on this side would like to debate the bill. If the government bers. House leader has nothing further to say that is useful, maybe he should sit down. Mr. Jay Hill: Mr. Speaker, I rise on a point of order. If I am not The Deputy Speaker: I am sure the government House leader is mistaken, I believe right now we are supposed to be debating making efforts to come to the point of the amendments before the Group No. 3 amendments at report stage of this very important bill, House in Group No. 3, as all hon. members strive to do in their not talking about what happened in the last parliament. remarks on any bill.

The Deputy Speaker: The hon. member is absolutely correct The Chair is trying to be lenient to ensure that members are but I assumed the government House leader was trying to draw a relevant in their remarks. I know we are looking forward to the parallel between what happened in the last parliament and this bill, government House leader’s specific comments on these clauses. which I assume he will do very promptly in order to avoid a repeat of this point of order. Hon. Don Boudria: Mr. Speaker, I know there are only a couple of minutes left so I will attempt to summarize very briefly my Hon. Don Boudria: Mr. Speaker, I think I have just demon- comments on the bill and on the amendments. I recognize the strated how the opposition again is not listening. In fact, I was amendments have to do with successor rights. describing the events in committee two weeks ago on this bill. It was not in the last parliament but two weeks ago that his own The point I was making to the House is that the opposition has colleagues were filibustering on this bill. consumed all this time and— An hon. member: Get back to the amendments. The strange thing about it is that the amendments which are deemed to be necessary by the opposition at this point were not Hon. Don Boudria: That is what I am going to say right now if even introduced in committee after all the debate. the hon. member will pay attention.

Mr. Jean Dubé: Mr. Speaker, I rise on a point of order. I think if The opposition is pretending that we did not give this enough the hon. member wants to make a speech he should not have cut off time for debate. There are two things wrong with that argument. debate. We should be debating this in the proper manner. One, the amendment in question that he is now describing was never put before the committee. It should have been put before the committee and there was lots of time for— The Deputy Speaker: I am afraid that is not a point of order. Mr. Ken Epp: Mr. Speaker, I rise on a point of order. This Hon. Don Boudria: Mr. Speaker, I notice that the hon. member member is far away from debating Group No. 3. He is talking about is not too familiar with the bill, and that is okay. He is also not very the vote that was held 15 minutes ago. He is talking about time familiar with the standing orders because he rose on a point of allocation. He should be talking about Group No. 3, specifically order which was not one. But that is okay. successor rights, which is what is of interest. We resent the fact that he, having invoked closure, prevents us from speaking to the—

The point I am making is that the government is fully interested The Deputy Speaker: Hon. members are raising points of order in constructive debate. We are going to have two more full days of in respect of relevance. Sitting here for a large part of this debate I debate on this bill. We are going to be considering it at report stage have heard a good deal of it. today. We can remain on the same grouping, move on to the next grouping and so on all day, which we will gladly do. At the end of We are on report stage amendments. Particularly after a time the day today we will be voting on all the amendments, then we allocation motion has been put it is not uncommon to have a fair bit will have a full day again at third reading stage. Finally, the bill of discussion on time allocation. I am reluctant to rule that out of will go to the other place where it will receive full consideration by order. I did hear the House leader refer to successor rights earlier in the hon. members of the other place who are going to give it all the his remarks and I know he has a great interest in the subject and in usual good work— the bill. Obviously his interest is so profound he has chosen to speak on the bill, which he is now doing.

D (1105 ) I hope hon. members would want to hear his remarks because I am sure that at some point they are going to be pithy in relation to Mr. Randy White: Mr. Speaker, I rise on a point of order. I have Group No. 3 amendments. been sitting here trying to understand what the government House leader is really talking about in Group No. 3 of the bill, which deals Hon. Don Boudria: Mr. Speaker, I conclude my remarks by with successor rights and not what the Liberal government wanted congratulating the Minister of Labour for the excellent work he has to do or did do. done in piloting the legislation. 339

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Government Orders I am sure I speak on behalf of all hon. members in also The successor rights clause is part of another one of these bills congratulating the parliamentary secretary who has done such a that give cabinet an awful lot of power to determine successor fantastic job of piloting the bill through the House and in rights. This is almost exclusively in the area of airport prescreening committee in the face of the filibuster put up almost exclusively security measures. There is a selection for us. The government of by the Reform Party, which does not want to see labour legislation the day picks a particular occupation, not just transport but in this advance in parliament. case airlines. Then it narrows it down further to just one part of the airline industry, the security industry. Then it narrows it down further to one part of security, airport prescreening. There is a We in the government and all Liberal MPs are very much special category in the bill that applies to those in airport pres- interested in good labour legislation and it is unfortunate that the creening and allows successor rights even when contracted out. hon. members across do not share the enthusiasm that we in the government have demonstrated. Although there may be a contract with an airport facility that involves prescreening security measures, this activity is the only With that, I support everything that has been done by the one covered under this labour code that has the special provisions Minister of Labour. I do not support the Reform amendments. After allocated to it. It does not talk about maintenance of airports, it all, we are generally reasonable people around here and we cannot does not talk about air traffic controllers, it does not talk about a lot support the Reform amendments which have not even been sub- of things. It talks about one thing. Who knows why that industry jected to the scrutiny of the committee. Reform MPs were only has been singled out as something that deserves successor rights. interested in filibustering. They did not even make the case in We do not think that part should be singled out. We think good committee for what they are proposing now. labour practices apply equally to all people on both sides of the equation, workers and employers. D (1110 ) A good part of our airport facilities are contracted out. Mrs. Diane Ablonczy: Mr. Speaker, I rise on a point of order. The government has cut off time on this debate. I can understand D (1115) why the government House leader would want to make an apology for the government, but can we not spend time on this bill? This is That was a decision of the Liberal government. I fully supported what— it. Why they have decided that this thing should have successor rights nobody knows. I cannot understand why. The Deputy Speaker: I am sorry, but with great respect to hon. members there seem to be a lot of points of order that are really When people put in a bid for a job they should come in as bona points for debate. The government House leader was addressing the fide employers in a jurisdiction and say they have experience, amendments and indicating his opposition to the amendments. I personnel and training. They may be unionized; they may not be think he was on topic. unionized. That is a decision for the workers in the company to decide. They make a bid in all good faith for a particular service. Mr. Chuck Strahl (Fraser Valley, Ref.): Mr. Speaker, I will They should be allowed to bid on an equal basis. talk about successor rights as that is what we are debating today. It is unfortunate that we are now facing time allocation which means What happened in British Columbia? Perhaps I can use an there will only be a few more speeches on this topic. Ten minutes of example not just of successor rights but of when there is not it just went down the drain due to some kind of diatribe from the balanced labour legislation. B.C. has an NDP government which is House leader which I will not describe in further detail. a lot like the Liberal government. It decides that only unions can apply for particular road building contracts on Vancouver Island. It is the 40th occasion the Liberal government has introduced time allocation to restrict people’s ability to debate things. It is A paid up, law abiding tax paying corporation of some sort with ironic that in our own rules of the House, Beauchesne’s describes a long track record can be building roads to beat the band in British that is the job of opposition and it is within the realm of the tactics Columbia. It could bid on a highway project and say that it will of opposition to talk at length on a bill it opposes. It is part of what fulfil not just this labour code because it is provincial but all labour an opposition party does in order to draw attention to the weakness code requirements and that its workers will decide what union they of government legislation. belong to or whether they belong to a union at all. They will decide what wages they work for because they have the power to withdraw This is a weak bill although it depends on which you want to their services as does every worker, and the corporation will be bid look at it. It is a very strong bill in that it is unbalanced. There is too on the project accordingly. much emphasis on cabinet rights and union rights and not enough emphasis on general worker rights, which may not necessarily be The NDP Government of British Columbia said that they do not union, and the rights of parliament. have that right. If it does not like the union, if they are part of the 340

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Government Orders

Christian labour union movement, for example, it is too bad. It D (1120 ) cannot bid on the project because they are not part of the unions the government likes. The government says too bad but it is tired of the debate. There is no crisis or no other issue. It is just tired of it and does not want to listen to the opposition. It just shuts it down. The highway goes ahead. It is ironic that the biggest construction companies do not mind the law. It gives them a chance to bid This is the 40th time. Unfortunately members on the Liberal side against a smaller number of bidders. They are all in the same seem to think it is all right to shut down democratic debate. Just so unions together, the biggest outfits, the ones with thousands of the folks at home know, they will push through the bill this week. employees and hundreds of millions of dollars of work. There is nothing we can do to stop it. It does not matter whether or not we want to talk on it. Many members on this side of the House However, if a smaller outfit is just starting out or does not have a will be denied an opportunity to ever speak a word on the bill. That union that is affiliated, it is too bad. Tough toe nails; it does not get is undemocratic and very unfortunate. It shows a trend on the to bid. It does not even get to bid on the job. government side, the government that previously criticized Brian Mulroney’s government.

Successor rights do a similar sort of thing. They say to employ- Brian Mulroney’s government on closure was a pillar of virtue ers or maybe to a co-operative that wants to bid on a project, compared to what the Liberal government has done since it came to whatever it might be, that cabinet will have the power to determine power. It continuously uses this hammer. It is not a matter of these successor rights and that is just the way it is. negotiation. It is just too bad: ‘‘It is my way or the highway’’.

In other words, they come in and say they want to bid on a It is unfortunate the government has decided to go this way. It is project, that their workers want to work for it, want to belong to a a trend. It does not bode well for this institution that the govern- particular union or do not want to belong to a union, or whatever it ment has decided this is the way to force through legislation, might be. Workers should have that right one way or the other. controversial or not. The government is just doing it. They should have the right to bid on the job. I will be pleased to speak to further motions if I get a chance, which is unlikely given the time allocation. It singles out a very small part of the industry. Unfortunately it says that part of the industry must have successor rights. Cabinet Mr. Bryon Wilfert (Oak Ridges, Lib.): Mr. Speaker, I listened decides and that is the way it goes. If the job is worth $15 an hour with interest and I would indicate as a member of the Standing or $12 an hour, it does not matter because once it is bid on it will Committee on Human Resources that the debate we are talking pay the same as the last guy regardless. The workers will put up about today should have taken place in committee. with it one way or the other, and that is just the way it goes. In other words, there is no choice. There is no balance. Unfortunately my friends on the other side were more interested in a filibuster and now have all the speakers. They did not have the We will hear a lot during the very limited amount of debate left speakers when we were in committee. To suggest for a moment that about the necessity to have balance in labour legislation. This somehow the government is stifling debate is ludicrous. group of motions shows that there is no balance. In committee we started at 11 o’clock and went through to 8:30 because we had to go to question period. Again they were going I would like to conclude by saying how unfortunate it is that through a filibuster. If the members on the other side wanted to talk again for the 40th time the government has brought in time about serious amendments, and I would suggest that these are allocation. There is no crisis looming. There is no work stoppage serious amendments, they should have been discussed in commit- that has shut down the country. It is not like the economy has been tee. brought to its knees. It is not like there is no current labour law in place. I would like to put on the public record some issues I did not have a chance to do last week. The official opposition suggested that the certification procedures under Bill C-19 were undemocrat- They have decided for their own political reasons to bring in ic and that the bill deprived employees of their right to vote on time allocation to stifle debate in a democratic institution. That is union certification applications. the only reason. There is no other crisis out there in the country. There is no other crisis in parliament. It is for one reason only. They have decided that they do not want to debate it any more. I do not agree with these statements particularly because there is nothing undemocratic about certification procedures under the Canada Labour Code. Bill C-19 does not amend these procedures. That is too bad. Things like successor rights, final offer binding arbitration and the rights of workers to vote by secret ballot on their The basis of certification would remain majority support. The union certification deserve full debate in the House. board would retain its current authority to verify union support by 341

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Government Orders holding a certification vote in any case. Certification procedures Mr. Pat Martin: Mr. Speaker, my understanding was that I under the code are similar to those in a number of provincial spoke to Group No. 2. I frankly did not realize that I had spoken to jurisdictions. I am sure those jurisdictions do not consider their Group No. 3. I could be wrong but— procedures undemocratic. The Acting Speaker (Mr. McClelland): I will double check. As We also heard a lot about the remedial certification procedure hon. members know, each time a group comes forward each under Bill C-19. Members of the official opposition keep referring member has the opportunity to speak once to each group. It will to the Ontario Labour Relations Board decision in the Wal-Mart just take us a second. case, a decision which members should be aware has been upheld by the courts, despite the fact that remedial certification procedures existed in five provincial jurisdictions for many years. The Ontario According to our records the hon. member for Winnipeg Centre Wal-Mart case is the only case members of the official opposition spoke last Friday to this specific group. We could go back to can cite to support their position that the provision has been Hansard and triple check, and we will do so. misused. Mr. Pat Martin: That will not be necessary. Contrary to statements made in the House last week, remedial certification in the Ontario statute was not brought in by the Rae The Acting Speaker (Mr. McClelland): Thank you. The hon. government. It was there before the NDP formed the Government member for Waterloo—Wellington. of Ontario. Interestingly the provision was modified but not removed when the current government reformed the province’s labour laws. Mr. Lynn Myers (Waterloo—Wellington, Lib.): Mr. Speaker, I am pleased to speak regarding Bill C-19. I know that this is a Last week a member referred to the British Columbia Labour complex bill, but having listened to the comments made by Relations Board decision in another Wal-Mart case. It is interesting members of the opposition on the motions in Group No. 3 I can that contrary to the member’s assertion the B.C. board did not use only conclude that the members do not understand the successive its remedial certification powers to overturn a vote in that case. In contractor provisions in Bill C-19. Either they do not understand or fact the B.C. board ordered that a representation vote be held. they are intentionally spreading misinformation.

The absence of examples of use of remedial certification author- They say they agree with part of proposed section 47.3 which ity by provincial boards proves what the government has been would protect the pay levels of employees providing pre-board saying about the provision. It is an effective deterrent to serious security screening services in the event of a change of contractor. employer actions designed to prevent employees from exercising Then they put forward Motion No. 28 which would remove the their fundamental right to organize. right of these employees to seek a remedy before the board if a successive contractor were in fact to reduce their wages.

D (1125 ) In other words, the official opposition wants compliance with section 47.3 to be completely voluntary. If a successive contractor It is rarely used and only to remedy the worst cases of employee does not respect the provision, too bad for the employees. They conduct which make it impossible to measure employee support would have no recourse and that is unacceptable. through the holding of a vote. The certification procedures and remedial certification provisions of Bill C-19 are part of the overall package of task force recommendations which representatives of Members of the official opposition have also talked at length both labour and management in the federally regulated sector about how the provision, if extended, could impact on railway short accepted as fair and balanced. They should not be modified or lines and the transfer of government services to the private sector. removed from the package in my view. This provision has nothing to do with either sales of business or Mr. Pat Martin: Mr. Speaker, I am glad to speak to the Group the privatization of government services. It would not even apply No. 3 motions, the recommended amendments to Bill C-19. to such situations and to suggest otherwise is completely false.

We do not find anything in these particular amendments that we Proposed section 47.3 would not grant successor rights where feel will move the bill forward or make it better in any way, shape the federal government or an employer subject to the Canada or form. In fact it certainly strikes us in the NDP caucus— Labour Code contracts out services. Proposed section 47.3 would not even grant successor rights when there is a change of The Acting Speaker (Mr. McClelland): I am just informed that contractor. The successive contractor would not be bound by that the hon. member for Winnipeg Centre has already spoken to Group collective agreement. The bargaining agent would not retain No. 3. bargaining rights. 342

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Government Orders All the provision does is require a successive contractor to we are doing today, substantive, real amendments like successor maintain wage levels, that is to compete on the basis of sufficien- rights, but the government most often turns them down and does cies other than wage reductions. not give them fair and due consideration. If the amendments are put forward in cabinet or if they are put forward by members of the This provision will protect low wage employees who might government, whether they be in committee or privately to cabinet otherwise lose their employment or be forced to accept pay members or however that process may work, they are more likely reductions when there is a change of contractor. to be considered and implemented.

D (1130 ) We were given good information that there were people on the government side who had problems with successor rights as they Pre-board security screening services are important to the safety stand in Bill C-19 and there were people who had problems with of the Canadian public. Employees providing such services deserve privacy concerns and there were people who had problems with the this minimal protection as would other groups of vulnerable violation of the secret ballot as proposed in Bill C-19, along with a employees providing such key services. These are the kinds of few other things. We were giving those members time to bring employees who would benefit from protection under proposed those concerns forward in committee and they failed to do so. section 47.3. Those members who said they had a backbone in the government I thought it was important to set the record straight on these caucus and said they had a backbone in the cabinet failed to have issues. I think it is important that we do so as a government. one and failed to bring forward those changes to Bill C-19.

I would also like to comment that I was at the committee when To the Minister of Labour who said that he did not have the the Reform Party was filibustering. Talk about wasting time and resources in his own office to fight his own departmental officials resources. Talk about the abuse of parliament. Talk about being on those aspects of Bill C-19 that he thought were over the top, childish. All of this is from the party that claims there is a fresh shame on him. To the Minister of National Revenue who had start to be had in parliament and a new way of doing business. That concerns yet did not bring forward these things in committee and is rubbish. I saw it firsthand and I was disgusted by it. did not actually get a change when push came to shove, shame on him. Shame on them. To the Liberal caucus members who sat in Mr. Rob Anders (Calgary West, Ref.): Mr. Speaker, I could not HRD committee and argued along with the Reform Party on some help but respond to some of the criticisms that were levelled from of these substantive changes that we wanted early on when we were across the way. questioning witnesses in testimony, shame on them for not having put forward those amendments. The reason the Reform Party was filibustering in committee—

An hon. member: You admit it. We wanted to see those things brought forward. We will be speaking about them today at report stage and we will be speaking Mr. Rob Anders: Oh, indeed I do because filibustering is about them at third reading. Shame on the government for not something that has been used by opposition parties since the having brought those things forward. We know that is the only way beginning of parliament. It is one of the few tools that we actually those things would have been given proper and due consideration. have to be able to change government legislation. The fact that the government put the 40th time allocation since it has been in office shows that government members have had little As a result of the Reform filibuster, Bill C-19 was changed so will or little backbone to stand up to the department. that people who were offsite workers, contract workers would not be forced to have their names given over to union organizers. That Bill C-19 basically amounts to a departmental official being way their home addresses would not be violated by union organiz- shuffled off for many years into a sideline of the labour department. ers along the lines of ding-dong, knock knock, the unions calling at Mike McDermott finally had his glowing chance and I talked with their home addresses. him many times in committee. To him I say, I guess you finally have your chance to leave your glowing mark on Canadian labour The opposition was able to get some amendments to Bill C-19 as legislation by going ahead and embedding successor rights, going a result of our filibuster in committee. However there are things ahead and violating the secret ballots in workplace democracy, that have not changed. Successor rights is indeed one of the things going ahead and not allowing final offer selection arbitration, but the government has not changed. shoving through instead more cabinet power. There are reasons we were enacting a filibuster and I am going to speak to this today. I would not have done so otherwise but I think D (1135 ) it is important that people know why the opposition was doing that type of thing. Rather than trying to achieve peace in the workplace, they are This is the way it works in this setting for the information of the going ahead and giving the power more thumbs down control over folks at home. The opposition puts forward amendments, much like the worksites which does not promote labour peace. 343

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Government Orders Mr. Reed Elley: Undemocratic. The Acting Speaker (Mr. McClelland): The recorded division on Motion No. 28 stands deferred. Mr. Rob Anders: Very undemocratic. We will now proceed to debate on Group No. 4, Motion No. 10. With that, I subside. Those are the reasons why the opposition enacted filibuster. I am proud to say I was probably one of the [Translation] biggest pains in the government’s side in filibuster and am proud to have been so. Mr. Yves Rocheleau (Trois-Rivières, BQ) moved:

The Acting Speaker (Mr. McClelland): Is the House ready for Motion No. 10 the question? That Bill C-19, in Clause 31, be amended by replacing lines 19 to 21 on page 23 Some hon. members: Question. with the following: (3) The Minister may take only one action referred to in this section with respect The Acting Speaker (Mr. McClelland): The question is on to any particular dispute involving a bargaining unit and, in the case of one of the actions referred to in paragraphs (1)(a), (b) or (c), the Minister may take the action Motion No. 9 in Group No. 3. Is it the pleasure of the House to only with the consent of the parties.’’ adopt the motion? He said: Mr. Speaker, I am pleased once again to take part in the Some hon. members: Agreed. debate on Bill C-19 through this logical amendment, which is Some hon. members: No. consistent with the objectives of the new Canada Labour Code.

The Acting Speaker (Mr. McClelland): All those in favour of It is an amendment that might be described as ancillary, but the motion will please say yea. which takes on its full meaning in the context of a labour dispute when the minister is called upon to use his authority to step in and Some hon. members: Yea. appoint someone to resolve the dispute.

The Acting Speaker (Mr. McClelland): All those opposed will As members probably know, there are three courses open to the please say nay. minister: he may appoint a conciliation officer, a conciliation commissioner, or a conciliation board. I will read an extract from Some hon. members: Nay. this clause on page 23 of the bill: The Acting Speaker (Mr. McClelland): In my opinion the yeas (3) The Minister may only take one action referred to in this section with respect have it. to any particular dispute involving a bargaining unit.

And more than five members having risen: That would be to appoint a conciliation officer, a conciliation commissioner, or a conciliation board. The Acting Speaker (Mr. McClelland): The recorded division on Motion No. 9 stands deferred. D (1140) The next question is on Motion No. 28. Is it the pleasure of the House to adopt the motion? What we are adding, and to a certain extent this strengthens the intent of the legislation, is that such a decision may be taken by the Some hon. members: Agreed. minister only with the consent of the parties. If a labour dispute were dragging on and tensions were mounting, it would be a bit Some hon. members: No. ridiculous for the minister to decide to step in arbitrarily, on his own initiative, and impose action that is supposed to resolve the The Acting Speaker (Mr. McClelland): All those in favour of dispute. the motion will please say yea. What we are saying is that the minister should have the consent Some hon. members: Yea. of the parties to appoint a conciliation officer, a conciliation commissioner or a conciliation board, and that this should be done The Acting Speaker (Mr. McClelland): All those opposed will in a spirit of co-operation, without which such a decision on the please say nay. part of the minister might well have the effect of worsening the Some hon. members: Nay. situation, rather than resolving it.

The Acting Speaker (Mr. McClelland): In my opinion the yeas It is only common sense that the government intervention have it. provided for in the legislation should be desired by the parties. If it is not, it could have an effect opposite to that intended. If the And more than five members having risen: parties are not forced to consent to one of the three mechanisms 344

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Government Orders available to them and thus perhaps reflect on how the situation is D (1145 ) developing, things may get worse. Mr. Reed Elley: Mr. Speaker, I think you will find that there is not a quorum in the House. The Bloc Quebecois is introducing this sensible amendment in the hope that the government and the other opposition parties will approve it, in order to improve the Canada Labour Code for the The Acting Speaker (Mr. McClelland): Call in the members. greater good of the public. And the bells having rung: [English] The Acting Speaker (Mr. McClelland): We have quorum.

Mrs. Brenda Chamberlain (Parliamentary Secretary to Min- Mrs. Brenda Chamberlain: Mr. Speaker, I am surprised. ister of Labour, Lib.): Mr. Speaker, this motion would entirely Reform Party members say they want to debate this bill and talk remove the Minister of Labour’s discretion to appoint conciliation about the amendments and then the hon. member calls quorum and assistance unless the parties were to consent to such an appoint- leaves the Chamber. He does not even stay to listen to the debate. It ment. Presumably it would require the joint consent of both labour is really quite hypocritical. and management before the minister could make an appointment under the code. Mr. Dale Johnston: Mr. Speaker, I rise on a point of order. I am sure that the hon. parliamentary secretary knows it is not proper to comment on the presence or absence of members in this House. Government prescribed conciliation services have had a long and distinguished history reaching back to the very beginning of this century when in 1900 the Conciliation Act established the The Acting Speaker (Mr. McClelland): The hon. member for Department of Labour and provided for conciliation of labour Wetaskiwin is quite correct. disputes. Over the years the system has been modified. Currently the minister has full authority to appoint not just one but two Mrs. Brenda Chamberlain: Mr. Speaker, my apologies for consecutive levels of conciliation and that without the agreement pointing out that the member had left the Chamber when he called of the party. quorum.

The task force recommended that because of the nature of the The presenter of the motion does understand that conciliation federal jurisdiction and the prevalence of industries providing works best when the parties are committed to the process. What he services to the public it is important that every effort be made and perhaps does not understand is that sometimes in labour disputes a be seen to be made to find an avenue for settlement before the party will want to have conciliation assistance but will not want to parties decide to resort to economic sanctions to further their ask for it for fear that such a request will be taken as a sign of bargaining objectives. weakness. That is where leaving discretion to the minister to appoint can be of great value. For this reason, the Minister of Labour requires the parties to take part in conciliation proceedings. Conciliation has proven During the extensive consultation process leading up to the successful in assisting the parties to arrive at settlements in the vast introduction of Bill C-19, representatives of labour and manage- majority of cases and should remain an option for the Minister of ment organizations subject to part I of the code, while critical of Labour. lengthy delays in the current conciliation process found conciliation valuable and praised the services offered by the federal Elsewhere in the bill, of course, the conciliation process is being mediation and conciliation service. streamlined and modernized. I have already mentioned the two stages being compressed into one stage. The process is also being limited in duration unless the parties jointly agree to extend it. This The labour-management working group did not recommend that should please the presenter of this motion. compulsory conciliation be abolished, only that the two stage process be replaced by a single stage which could take various Perhaps just as important is the new profile being given to the forms. This consensus is reflected in a single stage, time limited federal mediation and conciliation service. The service is well conciliation process included in Bill C-19. respected and the important role of the head of the FMCS in advising the Minister of Labour on dispute resolution will be The Sims task force found that conciliation remains an important formally recognized in the code. function and that the federal mediation and conciliation service is a resource that helps reduce industrial conflict in Canada. Over 90% Similarly, the service will gain statutory recognition for its work of disputes referred to conciliation are resolved with the assistance in fostering harmonious relations between labour and management. of conciliation officers without resort to work stoppages. The task This will provide the platform from which to launch relationship force— building programs. 345

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Government Orders In all, Bill C-19 recognizes the value of conciliation and lays chance of having this amendment passed as the proverbial snow- the foundation for its continuing development. ball in Hades.

Mr. Dale Johnston (Wetaskiwin, Ref.): Mr. Speaker, we again I should not prejudge the hon. member, but I think he may have find ourselves, for I think the 40th time, looking at time allocation overlooked one of the decisions the minister can make here. He in the House. We believe this is a very important piece of may appoint a conciliation officer, a conciliation board or advise legislation that should be debated. We have noted that in the past the parties of his intention to do neither. He may just say ‘‘No, I do when the Liberals were in opposition they thought it was absolutely not think it is appropriate for me to get involved at this time’’, and deplorable that the Tories would move time allocation as many the parties would therefore be forced into a situation where they times as they did. The Liberals wrote the book on time allocation. would have to go back and negotiate and get down to brass tacks rather than just throw their hands up and turn it over to someone I would like to refer members back to the beginning of the 36th else. Parliament. The first item on the Order Paper was Bill C-19. It languished on the Order Paper until sometime in November when it was given first reading. It remained on the Order Paper and just There has been a lot said in the House about whether this party or recently there was a big panic to put through the labour legislation that party supports the collective bargaining process. Certainly the which, I might add, was also an item of business in the 35th Reform Party does support the right to organize peacefully, to Parliament. strike and to negotiate through a union.

Suddenly there is a big panic to get this legislation passed, to the However, I think the legislation, as I have said before in the point where the government is only going to allow one further day House, is patterned after a report by Mr. Andrew Sims, and he of debate at report stage and one further day at third reading. I think named the report ‘‘Seeking a Balance’’. Certainly that is a noble this is an unprecedented abuse of the power of the government to goal for any labour legislation and indeed for most legislation, that lord it over the opposition. Our duty is to point out how we think it be balanced. Page after page of the report concerns the empower- we can improve this legislation and the government, I submit, is ment of the union organizers, the union bosses, and not necessarily really hampering us in doing that. the rank and file people who pay membership dues to the union, and certainly not the people who provide jobs for those union D (1150 ) members.

To speak specifically to Group No. 4, the amendment put forth D (1155 ) by my colleague from the Bloc indicates that the parties should agree on who the conciliator or the conciliation board should be at a point when the two parties cannot seem to agree on much of Mr. Pat Martin (Winnipeg Centre, NDP): Mr. Speaker, when anything. This comes at a point when both labour and management we first saw the amendment with the idea of reviewing the role of have agreed to disagree basically on everything or negotiations the conciliation officer et cetera, we viewed it in a favourable light. would not have broken off. Our caucus wrestled for quite some time as to whether we would support the amendment. At this time we are satisfied that the I think that if the member’s motion had read that both parties changes made to the original Bill C-19 will address some of the would submit names of conciliation officers that they would things we recognized as being problematic. Moving from a two approve of and if each side happened to recommend a person whom stage process to a single stage process was a very positive step. each one agreed on then that would be fine. But to come up with a Given the spirit and the history of how the amendments that form conciliator, an officer or a board, to make any sort of judgment on part of Bill C-19 were arrived at, we were very reluctant to upset this is going to be extremely difficult. that fine balance or compromise that went into the changes we see in Bill C-19. If we are looking at people who are going to come in to assess the situation and render a decision, I think that input from the two I regret that our caucus will not be able to support Motion No. groups would be a good idea. If they happen to agree on a person to 10. We will be voting against it, but not for the same reasons we arbitrate the case, that is fine. have been hearing from the official opposition. We are finding more and more that the tone of the official opposition’s comments I do not believe, though, that my colleague’s amendment has a regarding this whole piece of legislation, no matter which group of chance in the world of passing since at committee, on at least one motions we are talking to, has an underlying sinister quality to it. occasion, members of the government made remarks that they There is an anger and a bitterness surging forward in all Reformers’ certainly were not foolish enough to entertain or to pass any comments that reveals their true attitude toward the industrial amendments put forth by the opposition. So I would caution my relations climate in Canada. I do not think it has its basis in the colleague that although his intentions are no doubt honourable and same spirit of co-operation that was in the original Bill C-19. I am will, in his opinion, improve the legislation, he has about as much disappointed to that degree. 346

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Government Orders We saw some of the delay tactics that went on during committee Some hon. members: Question. stage and the filibustering that occurred during report stage. I wonder what prairie farmers think as they view these deliberate The Acting Speaker (Mr. McClelland): The question is on stalling tactics which hold back a very worthy piece of legislation. Motion No. 10. Is it the pleasure of the House to adopt the motion? The agriculture industry in my province is looking forward to this legislation. We are coming up to another season when grain will Some hon. members: Yes. be shipped through the west coast ports. The producers want the security that their products will be handled at those terminals no Some hon. members: No. matter what kind of labour relations climate might exist at those terminals. The Acting Speaker (Mr. McClelland): All those in favour will please say yea. With its stalling tactics, at least until the closure motion of today, the Reform Party has jeopardized the possibility of moving this bill forward in a timely fashion, at least in time for the harvest season Some hon. members: Yea. when grain shipping at west coast ports will be an issue again. The Acting Speaker (Mr. McClelland): All those opposed will The tone of the rest of Reform’s comments reminds me of please say nay. another message I have heard for years. It is a poison that has been sliding across the Canada-U.S. border in recent years. That poison Some hon. members: Nay. is called right to work legislation. This seems to be the songbook that Reformers are singing their hymns from. It is not original, but The Acting Speaker (Mr. McClelland): In my opinion the yeas it seems they have glommed onto it as if it were a new idea. It is have it. sort of like the way they have glommed onto final offer selection as if it is some brand new idea they have just come up with. And more than five members having risen:

Everybody knows what right to work is about. The Fraser The Acting Speaker (Mr. McClelland): A recorded division on Institute has just written a book and sent a copy to all MPs in an Motion No. 10 stands deferred. effort to promote this idea as the way we should conduct ourselves in the 21st century within the labour relations climate. We have We now turn to the motions in Group No. 5. another book that shows the empirical evidence, the actual statistics, of what it is like to live in a right to work state. One of those Mr. Yves Rocheleau (Trois-Rivières, BQ) moved: states had lower than average incomes and the poverty level was higher. The right to work is really the right to work for less. Motion No. 11 That Bill C-19, in Clause 37, be amended by replacing lines 1 to 19 on page 27 The Reform Party is using the debate on Bill C-19 as a platform with the following: from which to launch its ideas on right to work legislation. They ‘‘87.2 Unless the parties agree otherwise in writing, were frustrated in Alberta. The Klein government looked at right to work legislation and found it was too radical and too conservative. (2) a notice shall not be required to be given by the trade union to the employer indicating the date on which a strike will occur; and

D (1200) (b) a notice shall not be required to be given by the employer to the trade union indicating the date on which a lockout will occur.’’ In fact, it was bordering on fascist in a lot of its attitudes and it Motion No. 12 actually dropped it. It did not want to use it, and to its credit. Now That Bill C-19, in Clause 37, be amended by replacing lines 17 to 19 on page 27 we are having people shopping it around Ottawa trying to get with the following: people interested from a federal point of view. ‘‘seventy-two hours shall not be required to be given by the trade union or the employer if they wish to initiate a strike or lockout.’’ I think Canadians should be cautious about the spirit and the tone being used in these arguments. Read between the lines a little. Motion No. 13 What will really be seen is a warmed over version of right to work That Bill C-19, in Clause 37, be amended by deleting lines 20 to 38 on page 27 legislation trying to be foisted on the Canadian people through the and lines 1 to 31 on page 28. back door, through debate on a very worthy piece of labour Motion No. 14 legislation, Bill C-19. That Bill C-19, in Clause 37, be amended by replacing lines 20 to 38 on page 27 with the following: [Translation] ‘‘87.3 (1) Unless a lockout not prohibited by this Part has occurred, a trade union may not declare or authorize a strike unless it has held a secret ballot vote among the The Acting Speaker (Mr. McClelland): Is the House ready for employees in the unit and received the approval of the majority of the employees the question? who voted. 347

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Government Orders (2) Unless a strike not prohibited by this Part has occurred, an employers’ Canada Labour Code as amended by Bill C-19, a strike must be organization may not declare or cause a lockout unless it has held a secret ballot vote initiated within 60 days of the vote. among the employers who are members of the organization and received the approval of the majority of the employers who voted.’’ We consider this to be an arbitrary, unnecessary deadline, which, Motion No. 15 as Canadians—which we will probably remain for a short time— would say, could cause serious organizational problems given how That Bill C-19, in Clause 37, be amended by deleting lines 1 to 6 on page 28. huge this country is. Motion No. 16 D (1210) That Bill C-19, in Clause 37, be amended by deleting lines 7 to 31 on page 28.

Motion No. 17 From coast to coast, from Newfoundland to British Columbia, That Bill C-19, in Clause 37, be amended by deleting lines 23 to 27 on page 28. unions could run into serious logistical problems if they had to hold a strike within 60 days of the strike vote. Let us say, for example, that an agreement has almost been reached, and the union has D (1205) decided not to strike within the 60 days provided under the law. If an agreement is not reached, another strike vote has to be held. He said: Mr. Speaker, my colleagues listened carefully and, Given the breadth of this country, we are not sure that the fortunately, there is a consensus on the amendments that must be government is making a wise choice in imposing such a time made to the Canada Labour Code. frame.

We consider that no time period should be provided, that, once We are interested in how, based on the labour code’s provisions, the parties have the right to strike or to lockout they may do so a vote allowing workers to go on strike or employers to initiate a when they consider it appropriate, without being overly restricted, lockout would be held. We object to the procedure, and we wonder as is the case here, by a time frame of 60 days following a strike or where the government got this strange idea. lockout vote.

We feel the government is unduly trying to control, to say the The last motions, namely Motions Nos. 15, 16 and 17 set out the least, the union in terms of how it operates and in terms of its terms of voting, the conduct of a vote and the procedure for having relations with its own members. Indeed, the government is propos- a vote declared invalid. We have little sympathy for this sort of ing a slew of means and mechanisms that have the effect of government intervention in voting activities and in technicalities. controlling the union a little too much, and this is why we are proposing these amendments. It amounts to inappropriate intrusion in the operations of the union. I think they are going after the unions. There is also Motion No. 11 reflects our opposition to the 72 hour notice that provision for an individual to invalidate a vote if they are not happy is required under the bill, and that is supposed to be given by the with it. Labour relations are complex enough as it is, and I see no union in case of a strike or by the employer in case of a lockout. need for the government to intervene in such matters. If there is one body in this country that is not in a moral position to interfere in the Through this amendment, we are causing it to be withdrawn business of others and tell them how to behave it is the Government because we think there is no need for notice to be given to either of Canada. party. The party that decides to hold a strike or lockout should decide on the most appropriate time to do so without necessarily In terms of elections—of direct concern to it—the government is being required à because this would become a requirement à to give in no position to give anybody lessons on how to hold a vote. We all notice to the other side that it plans to act on its decision. know that returning officers in this fine country are appointed on a purely partisan basis. Also, regarding Motion No. 12, where the 72 hour strike or lockout notice is not acted on, section 87.2(3) provides that a new In Quebec we can count on our fingers the number of federal notice must be given. ridings where the returning officers have qualifications other than that of having worked for the Liberal Party of Canada. They come up with such inventions as postal votes, proxy votes, which are an If only for reasons of mere logic and consistency, we object to open invitation to all unscrupulous organizers tempted to manipu- either party having to give a new notice where the strike or lockout late vote outcomes. This has been done shamelessly in some initially planned did not occur. That is what Motion No. 12, which Quebec ridings. we feel will be passed by this House, is all about. Considering how lax the federal government is with respect to Motions Nos. 11, 12, 13, 14, 15, 16 and 17 all concern the whole the Canada Elections Act, it is in a very poor position to lecture voting mechanism and the notices to be given. Once a vote has Canada’s unions on how to carry out a vote, how to declare a vote been held authorizing the union to initiate a strike, under the new invalid and all the procedures related to that. 348

May 12, 1998 COMMONS DEBATES 6833

Government Orders It might be a good thing for the Canadian Liberal government to The major economic impact of a port work stoppage is that the use its own bill as a model for inserting a bit more discipline into port is closed and the fixed capital remains idle. Surely such a the Canada Elections Act, in order to clean up the mess we have got major impact on important investments is a significant pressure into in Quebec. Such practices as going after the senior vote by point and a reasonable offset for the loss of income employees pursuing them to hospital rooms, waking patients up—it has gone must incur during a work stoppage. as far as that à going door to door not to influence the vote, as our democracy is meant to work, but to get people out to vote. So they While the code recognizes a union’s right to exercise economic are far indeed from being in a position to lecture others, as they are pressure on the employer engaged in a labour dispute, and the in Bill C-19. strike is one of the economic sanctions that can be used, it is only reasonable that both parties have time to prepare for its use. It is most unimpressive to see this government indicating non-confidence in the way unions have always operated. The We believe that in the small number of cases under the code federal government is most certainly not the one who should be where the parties do resort to work stoppage action that the 72 hour giving lessons to anyone in this area. notice requirement will ensure an orderly shutdown or reduction of operations. Who knows? There may even be a last successful effort at settlement. I trust that these words have cast some light on this matter. The Bloc Quebecois has put forward five motions relating to the D strike and lockout vote requirement. These include the removal of (1215) the requirement that the strike or lockout vote be held within the previous 60 days, the removal of the entire section 87.3 dealing [English] with strike and lockout votes, the removal of the rules governing the conduct of the vote requirement, the removal of the procedure to contest irregularities, and the removal of the board’s authority to Mrs. Brenda Chamberlain (Parliamentary Secretary to Min- summarily dismiss an unjustified challenge of votes and to order ister of Labour, Lib.): Mr. Speaker, this group of motions deals that a new vote be held. with the new requirement for exercising the right to strike or the right to lock out. It is important to stress that with the exception of the current Canada Labour Code secret ballot strike votes are mandatory in all Under Bill C-19 the right to strike or lock out will be acquired 21 Canadian jurisdictions including Quebec as a prerequisite for legal days after conciliation is completed, subject to the parties meeting strike action. new requirements regarding the holding of a secret ballot vote within the previous 60 days and the giving of a 72 hour advance Although the vast majority of unions subject to the code already notice of a strike or a lockout. hold secret ballot votes before declaring a strike, employees in the bargaining unit who are not union members may be excluded from Motions. Nos. 11 an 12 would delete the reference to the 72 hour participating in a major decision which directly affects them. notice requirement and the obligation to send a new notice if no strike or lockout occurs at the end of the notice period. The new 72 Strike votes are not always held in a timely fashion. In some hour notice provision implements the recommendation of the Sims cases a strike mandate is acquired early in the bargaining process as task force. Its purpose is twofold. It will allow for an orderly a means of demonstrating solid employee support for union shutdown or reduction of operations and resolve the problem of demands but may not be a true reflection of support for a work perishable items. It will further focus the parties on serious stoppage. negotiations and should encourage settlement of disputes. The conditions for a valid vote specified in Bill C-19 reflect the recommendations of the Sims task force. They are similar to To those unions which feel that this new requirement will provisions found in a number of provincial statutes. They are not frustrate the right to strike, it is important to point out that Bill onerous. C-19 will not require that a new notice be given once a strike or lockout action has commenced, even if it is temporarily suspended. D (1220) Furthermore, where the other side begins a strike or a lockout action, the 72 hour notice requirement will not apply to the other It is hard to imagine that any democratically held vote would fail party. to meet these basic requirements. These conditions will simply ensure that such votes are timely, fairly conducted and based on the Some unions, mostly longshore unions, have said that the 72 entire workplace involved in the dispute. hour notice requirement will allow an unfair advantage to the shipping companies and agents in the negotiating process as it will I have difficulty understanding why the Bloc Quebecois objects remove the prospect of ships being held captive during a port work to a requirement for votes to be held in such a manner as to allow stoppage. This position is echoed by the Bloc Quebecois. eligible workers a reasonable opportunity to participate in a vote 349

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Government Orders and to be made aware of the results. Surely this is fundamental to D (1225) the democratic principles which trade unions recognize and prac- tise. The 60 days as referred to in Motion No. 13 is reasonable and sufficient to negotiate and give the employers and employees time The Bloc Quebecois is also proposing that there be no opportuni- to prepare for possible work disruptions. As the parliamentary ty for an employee in the bargaining unit to allege irregularities in secretary alluded to several times in her statement, it allows for an the conduct of a strike vote. Surely there should be some recourse orderly shutdown. It also allows time for people to make alternate for employees who allege they have been unfairly denied the plans. We concur with that. We think it is reasonable. We think it is opportunity to participate in a strike vote. an area that would not be improved by the amendment put forth by our colleague in the Bloc.

Without such a provision the requirements of this section could Motion No. 14 in particular seems to be a continuation of Motion not be enforced. Concerns have been raised that the 60 day period No. 13. It would seem to deny worker and employee associations for holding a strike vote may cause difficulty in some cases, an opportunity to participate in a ballot vote. Our party is very particularly where employees in the bargaining unit are employed much in support of a ballot vote being taken to determine whether across the country or do not work at a specific location. By there should be work stoppage or a strike. Also a ballot vote should allowing the 60 day validity period for a strike vote to be extended be taken to determine whether or not a union should be certified. Bill C-19 addresses these concerns. In summing up, we will not be able to support these motions. The 72 hour notice requirement and the strike and lockout vote The Deputy Speaker: Is the House ready for the question? provisions in Bill C-19 are fair and democratic. I urge members to support them and to reject the amendments proposed by these Some hon. members: Question. motions. [Translation] Mr. Dale Johnston (Wetaskiwin, Ref.): Mr. Speaker, in Group No. 5 we see several motions put forth by the Bloc and unfortunate- The Deputy Speaker: The question is on Motion No. 11. Is it ly we can support none of them. the pleasure of the House to adopt the motion? Some hon. members: Agreed. The requirement for a 72 hour notice before a work stoppage takes place is a reasonable one. The Bloc wants to delete this Some hon. members: No. provision. We do not agree with that at all. The Deputy Speaker: All those in favour will please say yea.

The 72 hour notice period is one of the few positive features of Some hon. members: Yea. Bill C-19, at least one of the changes we could support. It would allow innocent third parties that have goods in transit, for instance, The Deputy Speaker: All those opposed will please say nay. an opportunity to seek alternate arrangements. Or, if their goods were actually in transit, they would have an opportunity to carry on Some hon. members: Nay. their journey prior to having the services withdrawn. The Deputy Speaker: In my opinion the nays have it. Many times we find perishable goods stranded somewhere and And more than five members having risen: by the time labour and management have resolved their differences the perishable goods have spoiled. That is unfortunate and not fair The Deputy Speaker: The recorded division on Motion No. 11 to innocent third parties that ship these goods. Of course it has a stands deferred. very detrimental affect on Canada’s economy overall. The next question is on Motion No. 13. Is it the pleasure of the The amendments put forth by my colleagues in the Bloc are not House to adopt the motion? in concert with the idea of seeking a balance between labour and management. The people who use these services must be consid- Some hon. members: Agreed. ered more because when services are withdrawn, whether through a strike or a lockout, it is not just management and labour that are Some hon. members: No. affected. It is all the people who rely on the services in the area The Deputy Speaker: All those in favour will please say yea. where federal industrial relations apply. Oftentimes these are services for which there is not an immediate alternative. In many Some hon. members: Yea. cases this is the only game in town as far as the services are concerned. The provision for the 72 hour notice before a strike or The Deputy Speaker: All those opposed will please say nay. lockout is a rather reasonable one and should not be amended as my colleague has suggested. Some hon. members: Nay. 350

May 12, 1998 COMMONS DEBATES 6835

Government Orders The Deputy Speaker: In my opinion the nays have it. Motion No. 23 That Bill C-19, in Clause 37, be amended, in the English version only, by And more than five members having risen: replacing line 26 on page 31 with the following:

‘‘ment of vessels in and out of a port’’ The Deputy Speaker: The recorded division on Motion No. 13 stands deferred. He said: Mr. Speaker, Group No. 6 deals with the continuation of [English] services where there is a situation in which the danger to public health or safety may exist and the minister would be able to step in and intervene. We will now proceed with putting the motions in Group No. 6 to the House. That seems very reasonable. There are, however, no provisions in the bill that would allow for the continuation of service in order Mr. Dale Johnston (Wetaskiwin, Ref.) moved: to protect Canada’s economy. For instance, in the 1994 west coast Motion No. 18 work stoppage the estimated cost was in the range of $125 million. That is the direct cost. That is what was estimated it would cost the That Bill C-19, in Clause 37, be amended by replacing line 39 on page 28 with the following: Canadian farmers by not getting their crops to market. I suppose one could say they would eventually get their crops to market but if ‘‘of the public or the causing of severe economic hardship to the national an item is not on the shelf, so to speak, it is extremely difficult to economy.’’ sell it. I think this is one occasion where a work stoppage had a Motion No. 20 devastating effect on the Canadian economy. That Bill C-19, in Clause 37, be amended We are talking about the direct costs at the moment of roughly (a) by replacing line 34 on page 29 with the following: $125 million. Indirectly the figures vary but it has been generally ‘‘danger to the safety or health of the public or cause severe economic hardship to stated that the indirect costs could be as high as $250 million and a the national economy, the’’ possibility of threatening $500 million in grain sales in the future. (b) by replacing line 42 on page 29 with the following:

‘‘or health of the public or the causing of severe economic hardship to the national Why do we say threatened grain sales in the future? If customers economy;’’ come to Canada for a load of grain and they find their ships have to wait in the port for a week or two weeks or three weeks and they [Translation] have to go down to Seattle or Portland in order to get a load of grain, in the future they are going to say why take chances on going Mr. Yves Rocheleau: Mr. Speaker, unless I have misunderstood, to Canada and not get the supply order they came for, that perhaps we have voted on Motions No. 11 and Motion No. 12. What would they should deal with the United States in the first place. be needed now is a vote on Motions Nos. 13, 14, 15, 16 and 17, which are part of Group No. 5, and not Motions Nos. 20 and 18. There should be some protection in the bill to protect the economy and to protect the innocent third parties who rely on these services. Services, as I have stated before, are not readily available. D (1230) It is not as though we have a multiple choice as far as where we can ship our grain. Canada is not particularly well endowed with ports. The Deputy Speaker: The question was on these two motions The ports we have are certainly well appointed and capable of only, because the decision that will apply to the other motions handling a tremendous amount of traffic but we do not have very depends on the result of the divisions on the two motions I put many. When we have work stoppages at Canada’s major port on the before the House. west coast it has an absolutely devastating effect on the economy of the country. For example, if one of the two is rejected, there will be a recorded division on the others. Does that give the hon. member his It would be in the interests of all Canadians if we have reliable explanation? Fine. access to services. Definitely it would help to keep employment within our borders and establish and maintain a reputation as a [English] reliable worldwide supplier and exporter of goods. As I have said, we definitely have a world class transportation system and we Mr. Dale Johnston (Wetaskiwin, Ref.) moved: should not allow it to fall whim to work stoppages, in particular Motion No. 22 work stoppages that occur at the highest traffic times of the year. We will hear people say if you are going negotiate, to take some That Bill C-19, in Clause 37, be amended by replacing lines 24 and 25 on page 31 kind of a job action, the best time to take it is when there is lots of with the following: activity because you want to put optimum pressure on whomever ‘‘let-go and loading of vessels and the move-’’ you are bargaining with to come to terms. 351

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D (1235) with a dispute settlement mechanism of its own making, of its own naming, but something that would have the effect of the continuation of services at the west coast ports while we encourage those This bill does provide for maintenance of services whenever people to come to an agreement. there is a danger to public health or safety. But I think the national economy is important enough that there should be some provision in here. What has been the alternative over the years? The alternative has been to legislate services back to work at the west coast ports. Once that happens, there will be services reluctantly restored but there Throughout the bill we have seen the Canadian Industrial are none of the things addressed that brought about the work Relations Board, the replacement for the old Canada labour stoppage in the first place. relations board, given all kinds of powers. Indeed we see where the minister and the governor in council have all kinds of powers they can use as well. We think it is only reasonable that they be given This government has used a dispute settlement mechanism over some latitude as to whether these work stoppages will have a and over in the past in conjunction with back to work legislation. devastating effect on Canada’s economy and we have to look at the We are suggesting that a dispute settlement mechanism is needed spin-off jobs damaged by the disruption in these services. here that would be far more effective than simply picking out one commodity and declaring it an essential service.

Motions Nos. 22 and 23 deal with amendments to the provision We certainly concur with the expedient movement of grain from that ensures that grain once it reaches port will be shipped out. I the farm gate to the high seas. We recognize the provisions in this would like to make it perfectly clear that the Reform Party is bill are a small step in that direction. wholeheartedly in favour of farmers’ grain being able to be shipped offshore unimpeded from the farm gate right to the high seas. Mrs. Brenda Chamberlain (Parliamentary Secretary to Min- ister of Labour, Lib.): Mr. Speaker, Bill C-19 introduces for the But this bill does not guarantee that. This bill does not address first time in the Canada Labour Code provisions that would require that. This bill simply says that if the grain reaches the port it will be the maintenance of activities necessary to prevent immediate and loaded on to the ships and the ships will be piloted out of the serious danger to public health and safety during work stoppages. harbour. It addresses the tie-up, loading and let go of grain vessels. We agree that is a good small step. But what does it do for the farmers on the prairies who cannot get their grain to the port The bill also introduces a requirement for employers and because there is some kind of a work stoppage somewhere else in employees in the ports to continue to provide services to grain the system, between the farm gate and the port? This bill addresses vessels loaded at licensed terminal and transfer elevators. no portion of that. The official opposition has put forward motions to amend these provisions. One would make economic hardship to the national We are suggesting there should be some kind of dispute settle- economy a criterion for requiring parties to maintain services ment mechanism in place that will allow services to continue in the during a work stoppage. The others would require the parties in the west coast ports while negotiation takes place. We certainly agree ports to continue to provide their services to all vessels and to that a negotiated settlement is far better and probably more long authorize the board to refer collective bargaining disputes in the lasting than any kind of an imposed settlement. Regardless of what ports for settlement by final offer selection arbitration. our opponents will try to convince us of, that is our position. We believe that to negotiate a settlement is the best way. Together these amendments would effectively remove the strike and lockout rights from all parties in the ports as well as large However, there are many other products, coal, sulphur, potash, numbers of other employers and employees subject to part one of dehydrated alfalfa, many petrochemical products as well, that the code. depend on a deep water port to get their products to the markets, often to the Asian markets, and by sea is the only logical way to transport these products. The alfalfa dehydrators for instance Such an interventionist approach is contrary to the wishes of export about $100 million worth of product a year and their product employers and unions who engage in collective bargaining under is perishable as well. the code.

There is no precedent in Canada for the standing removal of D (1240) strike and lockout rights from private sector parties as the official opposition is suggesting with respect to parties in the ports. What we are saying is put in a dispute settlement mechanism. If the government decides the Reform Party has given too much In addition, no Canadian jurisdiction includes economic impact profile to final offer selection arbitration and brings it in, it would as a criterion for maintaining services during work stoppages, nor be accused of caving into the Reform Party. Then let it come up did parties subject to the code support such an approach. 352

May 12, 1998 COMMONS DEBATES 6837

Government Orders The Sims task force examined the issue of maintenance of tax earnings from this source would not sustain a lengthy work activities and concluded that the right to strike or lockout should stoppage for the union which maintains no strike fund. be removed from any group of workers or any employers subject to the code. The task force did recommend that the code include This provision has the full support of the grain industry and the specific provisions for the protection of public health and safety, grain producers who, unlike other resource producers, have no criteria supported by both labour and management. relationship or influence on collective bargaining between the longshore employers and unions. I also want to note that the The maintenance of activities provisions in Bill C-19 fairly government has committed to reviewing the effectiveness of this balances the collective bargaining rights of employees and employ- provision in 1999. ers subject to the code with the public’s right to protection of health and safety. I think it is important that if one had been at the hearings and heard farmers speak about this clause and knew how much the Turning now to the grain provision, grain has been declared to be western farmers need this clause it would be hard to understand for the general advantage of Canada. It is a multibillion dollar why the Reform Party is trying to hold up this bill. It is hard for me industry exporting to over 70 countries worldwide. The livelihood to understand why it is holding the western farmers hostage in this of over 130,000 farmers and their families depends on Canada’s particular issue. maintaining its reputation as a reliable exporter. I do urge members to support the provisions in Bill C-19 and These interests must, however, be balanced with the rights of reject the radical approaches being suggested by the official labour and management to determine fair terms and conditions of opposition which would conflict with Canada’s International La- employment through collective bargaining. bour Organization commitments.

D (1245 ) [Translation]

Since 1972 there have been 12 work stoppages in west coast Mr. Yves Rocheleau (Trois-Rivières, BQ): Mr. Speaker, I am ports which have disrupted grain exports. Nine of these work very pleased once again to participate in this debate, particularly as stoppages have involved longshoremen and their employers and it regards these two motions put forward by the Reform Party. were ended by parliament. Only three work stoppages have in- Many things can be said about that party, but it cannot be said to volved grain handlers and in one case the major terminal elevators keep its cards close to its chest. It cannot be said to hide the in Vancouver were not affected. contempt it has for the workers or at least for labour organizations.

Two independent studies found that longshore employers and Since things in this House are not always spelled out, it is worth unions have avoided their collective bargaining responsibilities by reading these motions for the benefit of our listeners and for your using disruptions to grain exports to trigger back to work legisla- benefit, Mr. Speaker, to see what they are all about. tion. The first little masterpiece is found on page 28. Motion No. 18 of The grain provision in Bill C-19 is designed to reduce disrup- the Reform Party concerns section 87.4, which deals essentially tions to grain exports caused by work stoppages in the ports, reduce with the maintenance of certain activities, which we in Quebec the reliance of parties in the ports on parliamentary intervention in refer to in more transparent terms as essential services, such as their disputes and maintain the strike and lockout rights of parties public safety and health, as the Canada Labour Code refers to. in both the port and grain handling sectors. However, as you will see, the Reform Party has added a very cute line about public safety and health with respect to economic Claims that this provision discriminates against other resources activities in this country. by singling out grain for special treatment overlook the fact that 87.4(1) During a strike or lockout not prohibited by this Part, the employer, the grain has already been singled out by longshore employers and trade union and the employees in the bargaining unit must continue the supply of unions using it as a trigger for back to work legislation. services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public. Claims that longshore unions will use the revenue earned by loading grain to finance longer work stoppages are without founda- If ever the Reform Party came to power in Canada—poor tion. No more than 200 employees in a total west coast longshore Canada—this would be all the more reason for Quebeckers to leave workforce of well over 3,000 ever service grain vessels. this country. And there are plenty of reasons. The Reform Party wants to add the following:

In the main port of Vancouver the percentage of longshore ‘‘of the public or the causing of severe economic hardship to the national employees assigned to grain vessels is between 5% and 8%. After economy’’. 353

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D (1250) sector was getting special treatment while the necessary adjustments were not being made.

What this actually does is undermine the very existence of the Very few people are aware of the fact, and I think the members right to strike and form a union because, ultimately, unions no all learned about it from a witness, whose name I have unfortunate- longer have the right to strike, which is one of the things that make ly forgotten, that this provision is contained in the Canadian society fairer. Let us not kid ourselves; in the history of humanity, Constitution, which would have to be amended in order to do away unions are a plus, not a minus. with this issue of grain crops and the special status accorded grains and wheat production in the west. Tactics as vicious as this, where a few little words completely undermine the real power, the equal footing at the heart of labour Therefore the wording of the code is warranted. The Reform management negotiations, are a move—and a completely neo-Lib- Party, with Motion No. 22, is seeking to replace the words ‘‘grain eral one at that—to destroy the middle class. vessels’’ with ‘‘let-go and loading of vessels and the move’’. Thus they are broadening the scope of the bill by changing its content and giving everyone the same treatment. There would be no more The middle class benefits from the distribution of wealth and, special status. through social programs and collective agreements, from the fact that wealth in this world is no longer concentrated in the hands of a D (1255) tiny few but has been redistributed among several thousands of individuals. In the West, Europe, Scandinavia, North America, but The very particular matter of wheat’s perishable nature is unfortunately not many other places, there is a strong middle class trivialized in total disregard of the spirit of the legislation before that may also enjoy life. us.

These are two motions that reflect the profound thinking of the That is what is at stake, make no mistake, if we approve such a Reform Party, which manipulates words a bit too much, by the way. motion, which adds a few words to ensure that strikes do not cause The word ‘‘reform’’ is being hackneyed. That is somewhat unfortu- severe economic hardship to the national economy. They must not nate of itself. We would hope the House will reject as vigorously as put anyone out. ‘‘Go ahead and strike, but we will make sure that possible this sort of amendment, which is too much like a school of no one is put out’’. This is very hypocritical and cynical and thought—which, we hope, will soon disappear—that of the impov- members should be aware that it is part of an ideology that would erishment of the poor and the enrichment of the rich, concentration see the gap between rich and poor grow as wide as possible and rather than distribution of wealth. wealth increasingly concentrated in the hands of a tiny few, as it was before the industrial revolution and the appearance of unions It is unfortunate that we have in this House the sort of lawyers in the western world. that have become the apostles of this battle, which leads nowhere, that they are questioning the gains made by humanity at great cost, The same holds for the other amendment, which is undoubtedly resulting in a respectable middle class in certain countries. This a recommendation of the Sims report. It refers directly to the cannot be permitted, and we will fight it with our last breath. problem already experienced by western Canada, where there is a [English] special provision for grain vessels, and the fact that grain vessels and all related port activities must continue to operate, strike or no Mr. Larry McCormick (Hastings—Frontenac—Lennox and strike, and this provision is imposed on employers and unions. As I Addington, Lib.): Mr. Speaker, thank you for the opportunity to understood the witnesses, the wisdom of this provision is the envy speak to the motions in Group No. 6 of Bill C-19. I am sure my of other sectors of activity. hardworking colleague from the official opposition, the critic for the labour file and the member for Wetaskiwin, recognizes this is a But grain shipping is an activity based on a perishable product very important bill and a very positive step in amending the Canada and that is what lawmakers, in their wisdom, wish to illustrate. It Labour Code. seems that the members of the Reform Party and the right, those with a one track mind, cannot contemplate such subtlety in society, I am sure most of my colleagues in this House remember sitting that is, they cannot contemplate our making legislative provision in this House on a Saturday and a Sunday in 1994 in support of our for perishable goods known as grains, which determine the eco- western grain producers. nomic activity of an entire region of this great country Canada, where those who testified, the farmers, are economically vulner- The official opposition has proposed a change to section 87.7 able. from a limited requirement for parties in the ports to continue services to grain vessels to a complete ban on strikes and lockouts in the ports. This is what the code is attempting to remedy and what we support, but what is opposed by the spokespeople of big business, Section 87.7 addresses a specific problem identified by two that is the oil and mining companies, which complained that one independent studies. That is, parties in the west coast ports have 354

May 12, 1998 COMMONS DEBATES 6839

Government Orders been using disruptions to grain exports as a trigger for parliamenta- would not be allowed or would be ended if economic hardship ry intervention in their disputes. Removing this trigger without could be demonstrated. removing the strike and lockout rights of the parties will force them to accept their responsibilities and develop their own solutions to collective bargaining issues. I question how anybody could be that painfully naive about labour relations to put forward a motion that would call for a strike to cease if there was economic hardship demonstrated. What is the Opponents of this provision claim it discriminates against other purpose of withholding services if not to peacefully apply some resources. However when questioned before the standing commit- kind of economic pressure on the other party? That is the very tee, they admitted that it is in their interest to retain grain as a nature of withholding services, to try to motivate somebody to your trigger for parliamentary intervention. They know that as long as way of thinking. There is a level of naivety there. I hope it is grain exports are disrupted, parliament will be quickly pressured naivety and not just plain ignorance. into intervening in a work stoppage. They want to be able to continue to use the 130,000 western grain farm families as pawns in someone else’s labour dispute. We are speaking against the idea that this motion should even be entertained. Anybody who has some labour relations background in this House would see through that immediately and would not give Section 87.7 has the strong support of western grain producers it the time of day. and the grain industry. These groups pointed out to the committee that the grain industry is unique not only because it is food and because the world continues to exist on an 18 to 21 day grain The people who are putting this package forward should remem- supply, but also because of the political nature of production, ber that Bill C-19 was born out of a truly co-operative consultative transportation and marketing. It is this uniqueness of grain that has process which was almost an experiment. It was almost a pilot been detrimental to the labour peace at the west coast ports during project on how to amend labour legislation. Labour and manage- contract negotiations. In their view section 87.7 will help bring ment worked together for more than two years to try to find the grain back to a more level playing field. balance they were seeking, the balance recommended by the Sims task force. They have done an admirable job. Many of the motions The government is of the view, as was the Sims task force, that we are dealing with today would tend to upset that delicate balance without the ability to interrupt grain exports, the parties in the ports and would jeopardize the success of the whole process. will be forced to accept their responsibilities and to settle their disputes without lengthy work stoppages. Those who oppose the There are other tripartite models of labour, management and provision claim and some even threaten that the provision will not government working together around the world. Those countries work. It can work. The parties have the ability to negotiate with are moving forward as nations and are doing a good job of each other and conclude agreements which are good for them and elevating the standards of the living conditions of the people they for the health of the ports. They should concentrate on solving their represent. Those countries have realized that it has to be a tripartite own problems. model. The hostility and the adversarial qualities that we sense from the tone of some of the Reform Party motions will only hold If Canadian ports are to remain competitive, the parties must us back as a nation. There is no future in that kind of thing, with work together to find workable solutions to collective bargaining one party determined to stamp out the other. Instead the more issues. Remove strike and lockout rights and you remove the civilized model is the three parties working together and moving incentive for the parties to deal with issues important to the future forward. of the industry. What we are hearing from the Reform Party, in many of the D (1300 ) motions it is putting forward, is a reworked version of the right to work movement. Do we want to go in that direction? We should be cautious. We should look at those places where right to work is a That is what Motions Nos. 22 and 23 would do. I urge all reality before we take that particular road. members to reject them. North Carolina is a right to work state. Everybody has heard of Our government will continue to support our western grain the Triangle Shirtwaist Company fire in 1913 that founded the producers. Bill C-4 gives our producers continuous support and the whole idea that workplace safety and health is an issue. The whole freedom to decide their own future. This bill will support these world agreed that it was too horrible to ever let it happen again. I very valuable producers. have news for members. In the right to work state of North Carolina, 20 women died recently in a fire in a chicken processing Mr. Pat Martin (Winnipeg Centre, NDP): Mr. Speaker, I was plant because they chained the doors closed from the outside. They not going to rise to speak to this group of motions, but because of were convinced that these low-waged women were stealing by- what I am hearing from the two sides I would like to comment on products from the chickens, like wing tips, to make soup when they Motion No. 18 in Group 6. As I understand this motion, a strike got home. 355

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Government Orders From 1913 to 1995 we have come the whole circle. With that among the working people. Anything that we do to hold that back kind of environment, where there is no worker representation on does not move us forward in any way at all. It is a myth. joint labour-management safety committees, standards quickly erode if we are not diligent about trying to elevate the standards The fact is that fair wages benefit the whole community. I do not and working conditions. Right to work is a step in the wrong see what it is about that concept that bothers the Reform Party, but direction in that regard. it seems bound and determined to reduce the ability of unions to do their job in elevating the standards of the community. Holding us back in that regard does not help anybody. D (1305 ) It is middle-class people with money in their pockets who can go out, purchase things and get the economy moving. Screwing them Some of the other motions deal with the movement of grain down in terms of wages does not benefit anybody. That is the through the west coast ports. This is key and integral to the whole empirical evidence. The statistics of all the right to work states in balance I was talking about in Bill C-19. The whole process of Bill the United States, the 21 right to work states, show that some of C-19 was a trade-off, where none of the parties really came away them have no minimum wage. All of them have a lower than very satisfied that they got everything they wanted. average industrial wage. They have worse health and safety legislation. They even have a higher infant mortality rate and all We would have liked to have seen a lot tougher anti-scab the predictable things one would see in the low-income category. legislation. Nobody likes to give away the right to strike, the right to peacefully withhold services, and in this case they have not, but We believe in our caucus that society does not move forward in actual fact the grain will keep carrying through. unless we all move forward together. The motions that are being put forward by the Reform Party are completely the opposite of that point of view. The positive side of this, the upside and the side that seems to be lost on the Reform Party, is that there are about 130,000 Canadian Mr. Garry Breitkreuz (Yorkton—Melville, Ref.): Mr. Speak- farmers who are anxiously awaiting the speedy passage of this er, before I begin my speech I have to make a comment on some of legislation so they can feel secure that their crops this year will not the last things that have been said and some of the previous be interrupted by any kind of a dispute at the west coast ports. speeches just before me.

Talk to pool elevator operators, the UGG or the whole agribusi- I cannot believe what I am hearing. The member who has just ness. They want this bill to go through, and yet we have the Reform spoken, as others, talked in a very rational, calm tone, saying things Party, largely made up of representatives from western agricultural that are totally false and we cannot leave those things unchallenged districts, being an obstacle and a barrier to this very real benefit to in this House. the whole prairie agricultural industry. It is a real contradiction. I hope Reform members are thinking this through. As they stand to He referred to us as being naive and not thinking through things. speak they should be aware that the industry is watching these I would challenge him to think through some of these things debates very carefully. I am sure they are scratching their heads himself. wondering right now how they can see fit to justify being a barrier to the speedy passage of this particular bill. D (1310)

They talk about defending workers, that this is their mandate and We know that the favourite right-wing think tank of the Reform so on. Some of the amendments that we have put forward would in Party is the Fraser Institute. The Fraser Institute, that tax deduct- fact protect workers better. They would help protect the economy. ible, right-wing melting pot for all their ideas, is pushing the idea When we are protecting the economy we are doing what is best for of right to work. Donated copies of the book promoting right to workers. The NDP ought to think that through. work as the answer for labour relations in the 21st century have arrived in our mailboxes. They are trying to imply that Canada is backwards because we believe in a more progressive labour Who suffers most when we destroy the economy in certain relations climate. areas? Of course it is the worker. What the NDP does not realize is that innocent third parties are being hurt and hurt severely by what is happening at the ports. The Fraser Institute and the Reform Party are going down a dangerous road as they advocate this particular labour relations The member who just spoke said that we do not represent environment. It is the role of labour and the role of governments to farmers and have not talked to them. I have talked to farmers and I provide the legislative environment in which unions can do their have spent a lot of time with them. They have talked to me about job to elevate the standards of wages and working conditions for this legislation. That is why we have proposed some of these the people they represent. It is a matter of the redistribution of amendments. For example, we have an amendment here that would wealth. It is a matter of spreading the wealth of this great nation include other commodities that farmers produce in this legislation. 356

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Government Orders The members display their lack of knowledge of the farm member of the government. I do not want to embarrass anybody in economy. Farmers do not just grow seeds and grains. They this House at the present time. produce other things that, when shipped, look almost like seeds but will not be treated the same in this bill. For example, they An hon. member: We want to hear it. produce alfalfa pellets which are simply dry little pellets that are made from alfalfa grass. Why should that be treated any different- An hon. member: Please. ly than wheat, barley or canola? Mr. Garry Breitkreuz: Maybe at a later time, but not at this The members have not addressed this. They have read these time. I respect the Chair. prepared speeches from the bureaucrats without realizing that they do not address the problem that we have come to address. Grain is given a preferential treatment. We are asking for equality. In my riding alfalfa producers are really protesting this We are speaking on behalf of farmers. Why should we divide the inequity. I hope the government will reconsider and allow its agricultural community as this legislation does? It is totally unfair. members at least a free vote on this. If there is going to be any reform or any freeing up of this parliament the government has to lead in reforming and democratizing the House. We are only one Another thing that the government keeps saying over and over is small voice in this regard. that Reform is holding up the bill. Look at the reason we are pushing for these changes. It is the lack of democracy in this House D that forces us to try to get the attention of the government as to the (1315) importance of these amendments. It just does not listen. One of the things that has been said is that we should not be singling out just grain. There are many other commodities that This bill has a good aim. There are some very good things in it. deserve equal protection. We need to protect the national economy. But if it can be strengthened, why not strengthen it? It makes no We have already made that point. sense to simply pass this bill through the House and not consider some of the very reasoned and good amendments that we have put The grain producers and many other commodity shippers have forward. been held hostage by the labour disputes at the west coast. Third parties that have no control are greatly harmed. I challenge the government not to just listen to us. I challenge the NDP. I challenge the Bloc. Do not just listen to what we are saying. We have had a discussion in the House in the last couple of I believe if they talk to Canadians generally they will find that we weeks on hepatitis C and the victims who have been harmed. Third have very strong support across the entire spectrum for these parties were harmed and they had no control over the circum- amendments. I challenge the government to find out the same thing stances. This is not in the same category but here is a third party that we have found out, which is, this is what people want. We need being harmed by a situation over which it has no control, that being to return to a real balance in labour legislation. strikes at our ports. It is blatantly unfair to allow that to continue. I hear the NDP, the Liberals and the Bloc defending this but it is I would like now to begin my speech. That was simply in reply to basically most unfair. some of the things that were said previously which are totally unfair. If there is a better solution such as final offer selection arbitration why not consider that? It has worked and it has worked very effectively. It would prevent some of the great harm that is being The whole debate today was led off by the House leader for the done to the third parties that suffer because of the strikes that take Liberal Party. I would like to read a quotation. ‘‘I am shocked. This place. It would be protection for the economy. There is a balance is terrible. This time we are talking about a major piece of here. It is not just the strike but also the lockouts so it helps both legislation. Shame on those Tories across the way’’. Do you know sides. who said that, Mr. Speaker? It was the very person who introduced the motion to invoke time allocation upon this bill. It was the government House leader. It is in the interest of all Canadians that we have reliable access to essential services. If we do not what is going to happen? We are going to lose some of the jobs to our competitors such as the United I will read another quotation. ‘‘It displays the utter disdain with States. We would like to keep employment within our borders. We which this government treats the Canadian people’’. That was said need to establish and maintain what we now have and that is a by the foreign affairs minister when he sat on this side of the House reputable world class export system. We need to continue to in opposition. maintain that.

Here is another quotation. ‘‘This is not the way to run parlia- Canada has had this transportation and communications infra- ment. This is abuse of the process in this House’’. I will not tell structure and many of these things will gradually have to be scaled you, Mr. Speaker, who said it, but it was a highly esteemed back if we allow these strikes and lockouts to continue. The 357

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Government Orders disruption in day to day operations of vital transportation sectors My colleague quoted what members on the other side said when would inhibit the national economy from functioning. they were on this side. As a new member of parliament it makes me agree with Canadians who say politicians do not speak the truth. The second group of motions that we would ask the government These are the members who said one thing on closures while on to support also deals with proposing an extension to include all the this side of the House and another thing on closures on the other other commodities. I have mentioned one which I am very familiar side. This is not a good example for upcoming politicians in this with and that is alfalfa pellets and alfalfa products. There is no country. reason why that cannot be included in this. The Reform Party has brought in Motions Nos. 18 and 20 which I do not know if members realize that the port of Vancouver deal with the national economy as a whole. The federal government alone in 1960—I think that is the right date—had $30 billion in has approximately 10% of the workforce under its jurisdiction. exports. Only $4 billion of that is grain. The government is That 10% is working in an environment providing service to all dividing up and giving special treatment to a certain sector and we Canadians which is very important and crucial. In some of the have no problem. We appreciate the fact that grain producers will legislation it gives them a monopoly. Therefore these industries have this protection but it should be extended to all. That is why we have a very serious potential of harming all Canadians. cannot accept what the government has done and so have proposed the amendments. Grain is only about 20% of the commodities that When we look at this bill in terms of these motions that is what are shipped to the west coast. we are talking about. It is wrong to say we are trying to hold workers hostage. We are just trying to say that we should not hold Mr. Deepak Obhrai (Calgary East, Ref.): Mr. Speaker, I rise Canadians hostage. As such, my colleagues have brought in today to speak on Bill C-19 which seeks to amend the Canada amendments that are trying to address that. Labour Code. We agree that the continuation of service must carry on if there is I listen to debate from across the floor and from members from a danger to public health and safety. That is paramount and the other party accusing the Reform of being anti-worker, holding critically important. However, we also feel that the national farmers hostage and trying to make the middle class rich. I ask economy needs to be protected but not by taking away the rights of myself what is the debate leading to. the workers as was said on the other side. We want to create a balance to ensure that services go on and we do not hold the D (1320 ) Canadian public hostage. Being a member of the union as well as working in the business sector, I feel everything needs to have a balance. I have had experience both in strikes and running a Labour harmony is very crucial to the economic prosperity of business. I can see that antagonistic attitudes, egos and all these Canada. That goes for the workers, the employers and manage- things get in the way and create a situation that harms the Canadian ment. Economic prosperity is a partnership between the workers, public. management and those who run the businesses. Any time we create an imbalance going toward one right against the other then we are creating a situation where in the long run it affects all Canadians. D (1325)

When my hon. colleague talks about the Reform Party spending Motions Nos. 22 and 23 deal with the transportation of grain. time working for the middle class, I would like to tell him that the Once the grain reaches the port it can be shipped out. There are majority of the middle class are workers for whom he is saying he flaws in this and it is absolutely ludicrous for anyone to say that we is fighting for their rights. I do not know whose rights he is fighting are holding farmers hostage. We are not. This is absolute rubbish. for but he seems to write off the middle class. I would like to remind the member that it is the middle class people who are also the workers of this nation. What we and the farmers are saying is that their crops are very important. Grain must be shipped but so should the other crops. As my colleague said, we are trying to create a fair balance, a This is crucially important for our economy. balance in the rights of the workers and the rights of the persons who have put the time, effort and sweat into running the business. We cannot carry on. It is quite interesting, as my colleague We cannot have one held hostage at the expense of the other. Both across the way indicated, that grain is crucially important for the are partners in the economic prosperity. economy. Grain is crucially important for Canada’s international commitments. I agree 100% that it is crucial but why are they The Reform Party in general supports many of the good inten- speaking about only one aspect? There are all the other aspects tions in this bill. Like my colleague said, all we are trying to do is which make up the whole picture. Members across can pick up on strengthen the bill. We are not taking anybody’s right away despite things that suit them and present their arguments. This does not the rhetoric that comes from the other side. give the whole picture. 358

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Government Orders If we think it is critically important for the nation and need to employee and ought to be strengthened. While the focus of Bill address it in a bill then let us address the whole issue, let us C-19 is on collective bargaining, the labour code itself deals with address the whole picture. All farmers are equally important. They the health and safety of federal government employees. have international commitments. They have international obligations to meet. Canadians have a right to expect their government to be a model We support the grain farmers and we think the intent of that employer that takes great care to see that its employees are not small portion is fine but we are asking that they all be included to unnecessarily put in life threatening situations. Yet the facts give a whole picture. suggest that the government has often been careless with the lives of its employees. The labour code is the first line of defence of an I feel that in supporting these amendments I am not going employee of the federal government yet it often fails them. Let me against the wishes of workers. I am not being anti-worker. All I am give a specific example. saying is let us look at the whole picture. Both workers and management have an equal role to play and both are partners. Therefore this should not be viewed as anti-worker legislation but Dean Miller was a fisheries officer in Prince Rupert. He was something to make the whole picture. required to take white water survival training in the Kitimat River on September 18, 1996. Dean died of a heart attack that day. He * * * was forced to take a course that he probably did not need and definitely should not have been asked to participate in. Dean was a [Translation] supervisor who worked in an office in Prince Rupert. There was no obvious reason for him to be ordered to take a rigorous white water survival course; his job never required it. Dean had a pacemaker BUSINESS OF THE HOUSE and a serious heart condition. He never should have been forced to Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Mr. take such a course. Speaker, there have been discussions among all parties and with the member for Kamloops concerning the taking of the division on The law requires that federal employees taking rigorous and Motion M-75. demanding survival courses first be approved as medically fit by I believe you would find consent for the following motion: the Department of Health. Dean was never approved as medically fit by the regional medical officer of the Department of Health. [English] More than likely if such a medical test had been done, Dean would have been excluded from that course. Perhaps he would have been That at the conclusion of today’s debate on M-75, all questions necessary to dispose of the said motion shall be deemed put, a recorded division deemed alive today. He certainly would not have died in the Kitimat River. requested and deferred until Tuesday, May 26, 1998 at the expiry of the time provided for Government Orders. The minimal requirements of the labour code were never (Motion agreed to) enforced. Dean had not neglected his health or his wife and family. He had a check-up only months before his death. The medical * * * report from that check-up stated: ‘‘His fatigue has continued. In fact over the last four to five years it may be worse. He finds that D (1330 ) when he exercises he gets tired with some breathlessness’’. Never- theless Dean took the course because he believed it would protect his job and thus his family. CANADA LABOUR CODE

The House resumed consideration of Bill C-19, an act to amend After Dean’s death the department of human resources stepped the Canada Labour Code (Part I) and the Corporations and Labour in and shut down the mandatory white water survival course under Unions Returns Act and to make consequential amendments to authority of section 145 of part II of the code. A directive was other acts as reported (with amendment) from the committee; and issued to the Department of Fisheries and Oceans that stated: of Motions Nos. 18, 20, 22 and 23. On September 18, 1996 the undersigned safety officer conducted an investigation Mr. John Cummins (Delta—South Richmond, Ref.): Mr. into the fatality of Dean Miller on the Kitimat River, a workplace operated by the Speaker, today I would like to address issues relating to Bill C-19 Department of Fisheries and Oceans—being an employer subject to the Canada and the Canada Labour Code. I want to bring to the attention of the Labour Code. House my concerns both as to what the government has failed to include in the bill as well as the problems with proposed amend- The said safety officer considers that a condition exists that constitutes a danger to ments to the labour code. an employee while at work. Employees are participating in a swift water rescue—course without a risk Let me first address an incident where the Canada Labour Code evaluation having been conducted or physical fitness ability (medical condition) of failed to protect the health and safety of a federal government employees having been conducted contrary to section 124 [of the code]. 359

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Government Orders It is now clear that DFO had been failing to follow the any user of either that section 87.7 will advance the ports in requirements of the Canada Labour Code for years. No real action Delta—South Richmond. has been taken against those who required Dean Miller to take this rigorous survival course even though he had a pacemaker and a It has been said that the grain provision is counterproductive and serious heart condition. Dean died while on the mandatory course. fundamentally at cross purposes with the government’s widely supported efforts on the international trade file. Thankfully a safety officer acting under the Canada Labour Code shut down the program, but only after Dean died. No action was It is unreasonable and unacceptable that prairie grain shipments ever taken against the DFO officials who ordered Dean to take the will have access to British Columbia ports during a strike, while safety course. The only person who has suffered was the DFO B.C. based exports will not. safety officer. He was concerned by the lax attitude to employee safety in his own department. He was forced out of the department Industry leaders have outlined a number of negative conse- for speaking out on the death of Dean Miller. quences and equity considerations raised by section 87.7. They point out that commodity producers in the forestry, mining, I brought Dean’s death to the attention of the minister of human petrochemical, energy and manufacturing industries will not be resources on April 25, 1997. I asked that a review of the procedures able to export or import goods through a B.C. port affected by a be undertaken that required a fisheries officer with a very serious strike, yet grain exports would continue. pre-existing medical condition to take a white water survival course and for a copy of such a review when it was completed. I Allowing grain exports to continue during a strike will likely have never received a satisfactory reply. I ask again today for a prolong and not shorten work stoppages as employees providing reply from the minister on the death of Dean Miller. services to grain vessels will have less incentive to settle.

Let me now turn to the amendments to the code contained in Bill There is considerable potential for transportation handling busi- C-19. Section 87.7 has been of concern to employers in British ness usually undertaken by Canadian ports and railways to be lost Columbia. It is said that section 87.7 has a laudable objective: to as firms re-route their products and services through the U.S. Many keep prairie grain moving to the markets. I think we all agree with commodities currently handled at west coast port facilities can be that point. transferred to facilities in Seattle or Tacoma, Washington, or Portland, Oregon. Once business is lost, experience shows it is hard D (1335 ) to get it back.

I suspect the real intention of the bill though is to make life I have yet to hear any business or spokesman for port employees easier for the Minister of Labour and his staff. They claim it is too in my province requesting this provision or speaking convincingly much bother to deal with disputes that tie up the shipment of grain. in support of it. If the shipment of grain is too difficult for the minister, then let him step aside. On April 27 the British Columbia Employers Association asked the Minister of Labour for relief from section 87.7. It said:

B.C. industry believes that section 87.7 is a mistake. It points out We believe that—the discriminatory grain provisions unnecessarily threaten that Mr. Justice Estey has been asked to report to the government Canada’s economy by jeopardizing Canada’s reputation as a reliable importer and on grain transportation and handling. It suggests that it is prema- exporter of commodities to world markets. The impact on the western economy will be devastating. ture to take this action prior to the Estey commission even having completed its report. The Business Council of British Columbia has also asked the Minister of Labour for relief. It states: Industry in my province believes that section 87.7 may lengthen labour disputes. It believes that striking employees may have less As you know from your consultation with western stakeholders as well as from incentive to bargain. numerous presentations made by western industries and associations to the Standing Committee on Human Resources Development, the special grain provisions contained in section 87.7—pose a serious threat to the competitiveness of west coast The B.C. economy depends on trade. Forest products and coal ports and the economy of western Canada as a whole—non-grain commodities represent up to 87% of the total dollar value of the cargo moved through the port of are no less important to the B.C. economy than grain is to the Vancouver alone—these commodities may remain stagnant in the event of an prairies. If this provision has the effect of prolonging industrial extended strike indirectly subsidized by the mandatory movement of grain. disputes in British Columbia, then it is a mistake. If it makes our Given the tenuous position of the current western economy as a result of the drop ports less competitive with their American counterparts, it is a in world oil prices and the Asia crisis, such a threat to future economic stability could mistake. not come at a worse time.

There are two ports in Delta—South Richmond, the Delta port at Weyerhaeuser Canada, a Vancouver based company, believes Roberts Bank and the Fraser port facility. I have yet to hear from section 87.7 needlessly threatens the forestry sector and potential- 360

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Government Orders ly the communities of western Canada that depend on exports and sion, constant government intrusion and discriminatory treatment imports through the ports. which will lead us who knows where. We will be monkeying with this legislation forever. We will be monkeying with the whole collective bargaining process. This is not good news at all. In conclusion, as a member of this House from British Columbia and having two major ports in my riding, I feel it is important that these matters and concerns be brought to the attention of this House One of our backgrounders describes this as an uncontrolled and that the government take note. experiment being conducted by the federal government. There is an ongoing commission to review grain handling and the transporta- D tion system. It is reviewing that whole business in terms of labour (1340 ) relations. It is the Estey commission. That commission will not report until the end of this year. Mr. John Duncan (Vancouver Island North, Ref.): Mr. Speak- er, I am pleased to speak on the Group No. 6 amendments to Bill C-19. From the debate we have heard it appears that whenever one D (1345 ) challenges the established order, one runs the risk of being called names. Symbolically what has transpired is that other parties in the House have been calling Reform names on this issue which is most In the meantime none of the legislation is based on anything unfortunate. substantive or concrete. It simply is not fact based. To justify it on the basis that it is temporary when it is so arbitrarily discriminatory and targeted makes no logical sense. The only conclusion that one Forty per cent of British Columbia’s gross domestic product can come to is that there must either be some special interest at comes from exports. The real question here is how to optimize work or some collective feeling that somehow this will make society’s benefits and at the same time create an enlightened someone’s life easier in this jurisdiction. Surely those are the framework for labour-management negotiations in those areas of wrong reasons to be doing what we are doing. federal jurisdiction. Just so people do not get confused on this issue, we are talking about a small portion of Canada’s workforce which is associated with federal areas of jurisdiction. There has also been a suggestion that by somehow selectively targeting provisions in the act to only apply to grain will prevent labour disputes from escalating because grain can no longer be I have a special place in my export file for forest products. I do used as the commodity that will be at risk. That is also illogical. that because the products from our forests are Canada’s largest net The same argument could be used for all other excluded commodi- export. This is something which is overlooked by virtually every ties. As we know forest products represent by far the largest dollar walk of life in this country, particularly by politicians and our own value commodity moved through Canadian west coast ports. bureaucracy. They are not our highest value export but we import almost no forest products. Having spent 20 years working in this business prior to my coming to the House of Commons, I know this We can identify no one who actually wants the legislation other has always been a bone of contention. It is overlooked. In any than the people who created it and they are rather anonymous. We national strategy it is important to look at the net impacts of many also know there is a split in cabinet over it. Once again we have the of our exports. spectre of the west coast being burdened with a piece of legislation to its detriment by a non-west coast based group. This certainly The automotive trade represents 26% of our exports which is does nothing to pull the country together. wonderful and marvellous and does a lot of great things, but we have a lot of automotive imports as well. It is a very different issue We also seem to have a non-recognition of the marketplace and a different strategy should apply. serviced by the port of Vancouver. For example, the Asian market is the marketplace in the world that places the highest premium on With this set of amendments Reform is saying that we need to predictability and timely delivery. That is a crucial consideration. extend protection to all commodities. We cannot selectively exper- The bill must address that issue and it must address it on a very iment with protecting one group or commodity. To do so puts us in even handed basis. a perilous position. It also distorts the collective bargaining process. It tends to distort everything. Other members of my I will get back to softwood lumber. We have a circumstance caucus have talked about the employer groups, the producer where the government’s posture on the Canada-U.S. softwood groups, the manufacturer groups, the exporters, all west coast lumber agreement is that the agreement gives greater predictability based and all very concerned that anything other than equal for Canadian exporters that are planning to ship softwood lumber treatment for commodities will lead to all kinds of difficulties. to the United States. There are thousands of British Columbians out of work because of that softwood lumber agreement. It is one more In my view any treatment other than equal treatment for all example of how the west coast cannot seem to permeate the commodities will lead to a need for constant government supervi- bureaucracy that creates west coast based legislation. 361

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Government Orders

D (1350) The parties subject to the code agree that the appropriate criteria for maintenance of service requirements is protection of public health and safety. Mr. Bryon Wilfert (Oak Ridges, Lib.): Mr. Speaker, the official opposition is trying to do in the House what it failed to do in the committee, that is actually to take a constructive part in the On this point the Business Council of British Columbia told the debate other than the filibuster we witnessed the other week. task force: The inclusion of a provision within the Canada Labour Code for designating ‘‘essential services’’ should be confined to matters deemed to be essential to the Let us make clear what it is trying to do. It is nothing less than to protection and maintenance of ‘‘public safety and health’’. remove strike and lockout rights from employees and employers subject to the Canada Labour Code. The Sims task force did not recommend the removal of strike and lockout rights from any group of employees or any employer Motions Nos. 18 and 20 would add hardship to the national subject to the code. The vast majority of parties subject to the code economy as a criterion for maintenance of service requirements do not support the removal of strike and lockout rights. while Motions Nos. 22 and 23 would prohibit all strikes and lockouts in the ports. I urge members of the House not to support these amendments.

Members of the official opposition have stated that they support Mr. Jay Hill (Prince George—Peace River, Ref.): Mr. Speak- collective bargaining and the right of workers to what they call er, it is unfortunate that every time I get up to speak to important strike peacefully. What does strike peacefully mean? For most it bills it is just before question period. We know that once again my means a work stoppage free of violence, but for the official presentation will undoubtedly be interrupted by that frivolous use opposition it would appear to mean that a work stoppage has no of an hour of House time. economic impact. It is a pleasure to rise today to speak once again to Bill C-19, the This is a complete contradiction. The entire purpose of a strike labour legislation that is before the House, and specifically to the or lockout is to impose economic sanctions in order to convince the Group No. 6 amendments. other party to agree to terms and conditions of a collective agreement. Motions Nos. 18 and 20 by the official opposition deal with the fact that we are concerned the only provisions for preventing rail or shipping disruptions at the Vancouver port deal specifically with In democratic countries such as ours the right of workers to grain. organize and begin collective bargaining is a fundamental right. This right is recognized in the international bill of human rights and in International Labour Organization conventions to which D (1355 ) Canada is a signatory. One might wonder why as the agriculture critic of the official In democratic countries the right to strike or lockout by private opposition and a grain farmer for close to 20 years in the real world sector parties is limited only to the extent necessary to protect I would be speaking to expand it and why I would not be speaking public health and safety. That is exactly what Bill C-19 proposes. in favour of this amendment. There is no precedent in Canada to my knowledge for removing the strike and lockout rights from private sector parties for economic While I do favour the fact that it is a small step in the right reasons. direction to have a process in place to ensure that the grain continues to flow through the ports, to meet our international commitments and to ultimately reach our foreign customers, the Federally regulated employers and unions that negotiate under fact remains that it is specific to one commodity. I do not think the Canada Labour Code specifically told the Sims task force—and even farmers would feel that is fair. There are many agricultural I know the opposition remembers the Sims task force because we commodities other than grain that we ship abroad and on which we talked about it ad infinitum during the discussions—that they did have important commitments to our foreign customers. It is very not want their lockout and strike provisions removed. They did not important that those commodities reach our customers. want their disputes subject to binding third party determinations. One can readily see that while a lot of farmers including many in The federally regulated employers, transportation and commu- my riding, I am sure, support the particular clause in the legislation nications, FETCO, which represents most major employers subject they are concerned with fairness and equity. They wonder why they to the code said: are singled out. There has certainly been a history of rail and shipping disruptions at the ports that have cost the country and We do not want statutory authority to be given to the government to impose arbitration, alternative dispute mechanism, or unilaterally determine some of the specifically farmers very dearly in the past. It has cost them provisions of the collective agreement itself. hundreds of thousands of dollars in demurrage charges as ships sit 362

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S. O. 31 waiting to be loaded. That is ultimately reflected in the final In particular I underline the hard work and tremendous commu- payment that farmers receive from the Canadian Wheat Board. nity spirit of two of Parkdale Collegiate’s students, Rahel Beigel and Kevin Brijlal, who were the student co-ordinators for this As a young farmer trying to eke out an existence in the Peace year’s event. River country I too from time to time was very angry when I would view the ships waiting in the harbour for days and weeks. I knew The benefits of a community clean-up day are plain to see. A the mounting demurrage charges. I wanted to jump in my pick-up more attractive neighbourhood encourages people to spend their truck, tear off the 1,000 miles south to Vancouver and load the time there and allows businesses to flourish but, more important, ships myself. I know many other young and older farmers felt the such activity also fosters a true sense of belonging. Safe and clean same way. They would have liked to have just gone down and communities are prosperous communities, and prosperous commu- loaded the bloody grain themselves rather than see it sitting on the nities are safe and clean communities. wharf and not being shipped. It is a pleasure to salute such community spirit and I thank them I see my time is up so I will continue after question period. all for their hard work.

The Speaker: The member still has about six and half minutes * * * and will be recognized right after question period. D (1400 ) ______CRTC Mr. Jim Abbott (Kootenay—Columbia, Ref.): Mr. Speaker, STATEMENTS BY MEMBERS when the heritage minister promotes Canadiana she really goes Hollywood.

[English] The minister’s CRTC licenses network and specialty TV chan- nels mandating Canadian content. This drives a high demand for CANADA WORLD YOUTH production but the dollars and cents simply do not add up to the commercial level. Ň Mr. Janko Peri (Cambridge, Lib.): Mr. Speaker, since 1971 As a result the minister directs spending of $200 million to pay Canada World Youth has been organizing the international ex- for the production of TV shows. So we have $200 million a year change programs fostering leadership skills, cross cultural learning dispensed through a nightmare of people with sleeping bags and and social justice both locally and globally. tents waiting outside bureaucrats’ offices trying to be first come Funded in part by CIDA some 22,000 young people have taken first served. part in the program which provides hands on work experience and The minister presides over a demeaning joke and it is getting participation in community and international development. worse. This year Jordan Hancey, a university student from my riding of The bureaucracy has already taken a $20 million advance on Cambridge, has been chosen to take part in the Alberta-Poland next year’s funding. Informed speculation says Canadians may be exchange program. paying up to $600 million a year if the minister gets her way. And who asked the taxpayer? Nobody. I congratulate Jordan on his selection and I wish him every success as he prepares to represent Canada on this important Do they really want to pay for her fund? We demand a mandate cultural exchange. review of the CRTC and its Canadian content rulings.

* * * * * * [Translation] PARKDALE CLEAN-UP DAY MEMBER FOR LONGUEUIL Ms. Sarmite Bulte (Parkdale—High Park, Lib.): Mr. Speaker, on Saturday, May 9, Parkdale Collegiate Institute held is fourth Mr. Guy St-Julien (Abitibi, Lib.): Mr. Speaker, on June 3, annual community clean-up day in Parkdale. 1993, the Bloc Quebecois refused to discuss the topic of my speech on paying a salary for women and men who stay at home. First, I thank and congratulate the 200 volunteers who participated in that day. I also mention the strong support given to the Today, the Bloc Quebecois member for Longueuil is showing clean-up day by the Parkdale Liberty Economic Development that she did not understand anything in my speech of April 28, Committee, the Parkdale Village BIA, as well as the other commu- 1998, and my motion of October 7, 1997, which read ‘‘That, in the nity based groups that contributed so much to Saturday’s success. opinion of this House, the government should legislate to pay a 363

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S. O. 31 salary to the mothers and fathers who stay at home to raise their habitat preservation and improvement long before it became the in children’’. The hon. member should understand my whole speech, thing to do. not just 23 words out of 1,500. I commend the men, women and children who operate as a Mothers belong to one of two groups: those who work outside family unit in one of the most healthy, wonderful lifestyles known the home and those who stay at home. Today, I figured out the to mankind. strategy of the Bloc Quebecois member for Longueuil: she wants to stay in the third group. Mr. Speaker, I would simply ask you and millions of other Canadians at your next beef barbeque to stop for a moment and give thanks to these farmers and ranchers. They truly are real * * * Canadians. [English] * * * POLICE WEEK TRADE Mr. Lynn Myers (Waterloo—Wellington, Lib.): Mr. Speaker, this is Police Week in Canada. It is an opportunity for all Canadians Mr. John Maloney (Erie—Lincoln, Lib.): Mr. Speaker, as we to show our gratitude and appreciation for the outstanding work rush toward the 21st century trade barriers are being reduced to performed day in and day out by our police and peace officers enhance commerce between nations. across the country. In recent discussions with a constituent I became intrigued with This year in my riding of Waterloo—Wellington Police Week the idea of establishing a centralized resource centre for importers will be celebrated as follows: and exporters, an international trade information centre. there will be police displays in malls; This is an opportunity for our government to enter the 21st century as innovators in trade by providing one stop shopping for there will be seminars on various crime prevention tips and on importers and exporters alike to attend information seminars tailor personal safety; made to their needs, to have information material at their fingertips and knowledgeable personnel a simple phone call away. there will be media announcements saluting individual officers; As we continue to march into the shrinking world of a global there will be tours of police facilities; and economy it is apparent that such a resource centre would be a much needed facility not only for our traders but also for those who wish finally, there will be an awards night to recognize members of to trade with us. the community who assisted police in some very significant way. The port of Fort Erie in my riding of Erie-Lincoln is adjacent to On behalf of all residents of Waterloo-Wellington and on behalf the U.S. border at Buffalo, New York, and is one of the busiest land of all Canadians, I thank all police for working so hard to make our crossings in the country. As new and renewed bridge infrastructure communities the great places they are. Canadians respect them and is being undertaken there is great potential in Fort Erie to become Canadians salute them. the highest volume port in the country.

* * * Fort Erie would be an ideal location for an international trade information centre. AGRICULTURE * * * Mr. Howard Hilstrom (Selkirk—Interlake, Ref.): Mr. Speak- er, today I would like to commend the many beef cattle farmers and STUDENT SUMMER EMPLOYMENT ranchers in every province of Canada. Mrs. Karen Redman (Kitchener Centre, Lib.): Mr. Speaker, I commend them for supplying a safe, healthy, nutritious, this Friday I will participate in the opening of a student employ- convenient product at a very affordable price. ment centre in Kitchener. I commend them for the large positive impact they have on the Each year at this time we are faced with the struggle of students Canadian economy. Over 54% of Canadian beef production is looking for summer jobs. As a mother of four I know this yearly exported to countries around the world, earning cash to be used to ritual very well. create a better Canada. D (1405) I commend them for the thousands of direct and indirect jobs they create for Canadians in rural and urban areas. This government has made great progress not only in creating youth employment programs but also in providing access to I commend them for their excellent stewardship of the land they information about programs available both to students and pro- use. Cattle ranchers were saving endangered species through spective employers throughout the Internet. 364

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S. O. 31 Experience Canada, Young Canada Works, SchoolNet Youth I am proud to speak with a Ukrainian accent, but at the same Employment, Youth Internships Canada, Summer Career Place- time I am shocked at the Reform Party that would be asking me to ments, Youth Info Line and Youth Info Site are all programs and speak English. services targeted at assisting students in finding summer jobs and breaking the cycle of no job, no experience. * * *

I encourage all young Canadians to look into these initiatives. I [Translation] encourage all employers to hire a student this summer, providing them with valuable experience that will last them a lifetime. DAVID LEVINE

Mr. Louis Plamondon (Richelieu, BQ): Mr. Speaker, the * * * appointment of David Levine as chief executive officer of an Ottawa hospital is generating a lot of controversy in Ontario.

SURREY YOUTH RECOGNITION AWARDS The issue is not Mr. Levine’s great competence, but the fact that he was a PQ candidate 17 years ago. He is accused of being an old Mr. Chuck Cadman (Surrey North, Ref.): Mr. Speaker, on stock separatist. His appointment is perceived as posing a great May 2 I had the pleasure of attending the third annual City of danger to medical services in English in the Ottawa region. Surrey Youth Recognition Awards. On behalf of all of us in this place I wish to congratulate the following: Daniel Chapman, Week after week, the federalists accuse us of wanting to promote Armand Dhaliwal, Jesse Dosanjh, Amanda Ellestad, Marissa Had- ethnic nationalism. Yet, when a non-francophone Quebecker dares land, Mary Illical, Todd Lajeunesse, Rachna Singh and Elizabeth to support our political option, he is publicly condemned by all Thampy. these great Canadians.

From Tamanawis Secondary School I congratulate students: The whole episode involving Mr. Levine clearly shows that Meghan Anderssen, Amanda Cheung, Katie Henderson, Stephanie those who accuse sovereignists of creating ethnic divisions are in Kingdon, Laura MacKay, Ranjiv Manak, Reggie Sanantonio, Sean fact the ones who try to maintain such splits. Vandergronden and Dawn Young. While we fear for the future of the Montfort hospital, some are now concerned about services in English in Ontario. This takes the From Queen Elizabeth Secondary School I congratulate stu- cake. dents: Sueanne Amisola, Erin Ashenhurst, Sarah Cathey, Domini- que Chasse, Sarah Clark, Jennie Cline, Anshin Chu, Jennifer Derton, Johnny Faria, Brent Fraser, Gagandeep Luddu, Laura * * * Maltman, Jennifer Neher, Kevin Redden and Joseph Siembida. [English] My apologies for any mispronunciations. SPORTS These young people of Surrey represent the vast majority of Canadian youth who truly are making a difference. Mr. Nelson Riis (Kamloops, NDP): Mr. Speaker, sports are an integral part of Canadian culture. In fact, during the Stanley Cup playoffs hockey becomes the cultural glue unifying Canadians * * * from coast to coast to coast. Canadian players are very competitive, yet when it comes to UKRAINIAN HERITAGE competing sports teams the Americans tilt the playing field and compete with an unfair advantage. Huge local, state and federal subsidies provide unfair advantages to professional sport teams Mr. Lou Sekora (Port Moody—Coquitlam, Lib.): Mr. Speak- based in the U.S. and it is time for us to act. er, I would like to tell all members just how proud I am of my Ukrainian heritage. If I speak in an unique way it is something I Canadian professional sporting teams have been harmed by will wear as a badge of honour. My father, mother, grandmother unfair American subsidy policies which have reduced the operating and grandfather came to Canada in 1891 and settled near Hafford, costs of United States teams. The NAFTA establishes clear rules to Saskatchewan. prohibit these unfair practices. The Canadian government should initiate a dispute with the American government under chapter 20 They were, in fact, the first Ukrainian family to settle in of the NAFTA and seek compensation for the unfair U.S. policies. Saskatchewan. My family was among the thousands of immigrants from all over the world who built the west. We owe those pioneers On behalf of sports in Canada let us establish a backbone rather an incredible debt of gratitude. than a wishbone. Let us take some action. 365

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S. O. 31 CANADIAN NURSES School, having completed 1,000 environmental action projects, is Liverpool Regional High School in Queens County, Nova Scotia. Mr. Greg Thompson (Charlotte, PC): Mr. Speaker, this week Canadians are paying tribute to our Canadian nurses. These There are 1,771 green schools in Canada that have completed dedicated professionals are the backbone of our health care system. 100 projects. This is the first goal in the SEEDS Canada program. With compassion and wisdom they care for us when we cannot care To qualify as an Earth School the students must complete 1,000 for ourselves. environmental projects.

D (1410 ) There are only 94 Earth Schools in Canada and the only one at the high school level is the Liverpool Regional High School. The Canadian Nurses Association, 110,000 members strong, continues to promote its profession and share its vision for the Congratulations to the students, teachers and staff at the Liver- future of Canadian health care. They are fighters for a health care pool Regional High School. system that ensures Canadians have the highest standards of health care. * * *

The theme for this week’s events is ‘‘Nursing is the Key’’ and [Translation] marks the 90th anniversary of the association. Today is also Florence Nightingale’s birthday and Canada Health Day. INTERNATIONAL NURSES DAY

Congratulations to Canadian nurses for a job well done. Mrs. Madeleine Dalphond-Guiral (Laval Centre, BQ): Mr. Speaker, today, May 12, the birthday of Florence Nightingale, the A recent poll listed the most appreciated and trusted professions. famous lady with the lamp, is International Nurses Day. Guess who topped the list? Yes, that is right, Canada’s nurses. I salute Canada’s nurses with pride and respect, particularly my colleagues, the 67,000 nurses of Quebec. I recognize their compe- * * * tency, their professionalism, and above all their people skills. They are called upon to share people’s suffering and grief, often in LUCIEN BOUCHARD difficult, even painful, circumstances. Mr. Gary Pillitteri (Niagara Falls, Lib.): Mr. Speaker, my first Nurses are everywhere, in the hospitals, in the CLSCs, in the impulse in commenting on Premier Bouchard’s one person attempt schools, in the work place, in big cities and in outlying areas, to manipulate history was to shrug and say ‘‘What is new?’’ playing a key role in both prevention and cure. The slogan of the Ordre des infirmières et infirmiers du Québec is ‘‘Consult a On more thought, however, I realized what a horrible insult he nurse’’. had made to Quebeckers. That invitation will no doubt be accepted, because a CROP poll The rest of Canada may dismiss it as one more of the premier’s conducted in Quebec at the height of the ice storm crisis ranked childish tantrums, but when one recalls the blood and sacrifice of nurses first among all professionals in terms of trust. You deserve thousands of Quebeckers in World War II one sees how his actions our trust more than ever, and we thank you. approach sacrilege.

How can he dismiss the record of the Vandoos, the Maisonneuve, * * * the Black Watch and others and their fallen comrades who left their blood, their dreams, their youth on the soil of Europe so that people QUEBEC CITY CONFERENCES OF 1942 AND 1943 like Premier Bouchard would have freedom of speech? Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, How can he forget General and Mrs. Vanier, one of Quebec’s, Lib.): Mr. Speaker, according to reports in this morning’s newspa- and indeed Canada’s, most famous families and their record of pers, President Roosevelt was in favour of assimilating French service to Canada? Canadians. We are already familiar with the separatist habit of denouncing everything that is federalist or comes from English Mr. Bouchard should hang down his head in shame. Canada. Out of ignorance, or deliberate omission, they refused to give a * * * statue of a Canadian Prime Minister the place it deserved on the occasion of the celebrations marking the Quebec City meetings of LIVERPOOL REGIONAL HIGH SCHOOL 1942 and 1943. Mr. Gerald Keddy (South Shore, PC): Mr. Speaker, the riding I trust that the leader of the Bloc Quebecois will acknowledge his of South Shore can claim a first that no other riding in Canada can former leader has made a mistake and that justice will be done to claim. The first high school in Canada to attain the status of Earth Prime Minister Mackenzie King. 366

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Oral Questions [English] tions. Some want to hold with the agreement that all governments entered into in March. Some want to reopen that agreement. CANADIAN ARMED FORCES It is important for us to determine where the provincial govern- Mr. Myron Thompson (Wild Rose, Ref.): Mr. Speaker, over ments are in this matter. We are having this meeting because of the past several months the standing committee on defence has changes they made in their positions. It is important for us to know heard about the atrocious living conditions and the quality of life what position the provincial governments are taking. our military personnel are experiencing. The only real reason for this is that successive governments have overworked and under- On the basis of that, I will see on Thursday whether it is possible equipped the members of our forces and have left them grossly to develop a new consensus. It may not be possible based on what underpaid. we are hearing. We will determine whether a new consensus can be forged on Thursday. D (1415 ) Mr. Preston Manning (Leader of the Opposition, Ref.): Mr. At one of these committee meetings Colonel Jim Calvin reported Speaker, the minister went all around the bush but he did not that a fully trained private after three years services, married with answer the obvious question in the minds of the victims and in the two children, has only $49 of disposal income a month. minds of the provinces.

At the same time we heard the solicitor general brag that our He talked about possible positions on the part of the provinces, prison system is one of the best in the world, a system which but what is the position of the Government of Canada? What provides inmates with the use of golf courses, big screen TVs, pool positive position on compensating all hepatitis C victims is this tables, et cetera. But most astonishingly, our inmates receive in minister taking to this conference in two days? some cases a monthly salary of $157. This is more than three times what military personnel are forced to get by on. Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, I thought I made it very clear. We said there was an agreement by all The bottom line is that our convicts are being given more governments. As a result of the change in position by Ontario and consideration by our government than our military personnel. How in part by Quebec and perhaps others we should look again at the can we ever hope to recruit young people to serve our country, question and see whether a new consensus can be reached. knowing that those in jail are treated better? They have to stand and— We are going to that meeting to determine what the positions are of the various governments. Once that is known it will be clear The Speaker: Oral questions. whether governments can act again in a concerted fashion to deal with this issue. It is in the best interests of all that governments act ______together and not unilaterally. Let us see what happens on Thursday and what the position of the provinces is.

Mr. Preston Manning (Leader of the Opposition, Ref.): Mr. ORAL QUESTION PERIOD Speaker, this minister is running out of excuses.

[English] First he said that every province agreed with him. Now that excuse is gone. Then he said there was no more money available. But then the premiers found a couple hundred million more dollars HEPATITIS C to put on the table. One by one the minister’s excuses for inaction and not having a position are gone. Mr. Preston Manning (Leader of the Opposition, Ref.): Mr. Speaker, the country’s health ministers are meeting in two days to negotiate a solution to help all the hepatitis C victims. Yet this Is it not true that the only obstacle that is now standing between government has still not stated its position. these victims and a just settlement is an obstinate Minister of Health who is unable to admit that he was wrong? Canadians know what the government is against. They know that it tried to stonewall Krever. They know that it attacked the Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, on premiers. It has even tried to divide and conquer the hepatitis C this, as on so many other matters, we disagree profoundly with the victims themselves. Leader of the Opposition.

What is the government for? What positive position is it taking Last summer, last fall, last winter, even into this year the into these negotiations in two days? provincial governments, especially Ontario and Quebec, took the position that they did not want to compensate anybody. It is as a Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, as result of the leadership of the Prime Minister and this government the member knows, the provinces have expressed various posi- that we have the agreement we produced. After that agreement was 367

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Oral Questions reached, some provinces changed their positions. It is for that [Translation] reason that I say let us hear them out. Let us find out what the position of the provincial— POVERTY The Speaker: The hon. member for Macleod. Mr. Gilles Duceppe (Laurier—Sainte-Marie, BQ): Mr. Mr. Grant Hill (Macleod, Ref.): Mr. Speaker, it is interesting Speaker, yesterday, in response to the devastating statistics on the way the government is treating the victims. The victims have poverty released by the National Council of Welfare, the Minister said they do not want to be a prior audience to the meeting on of Human Resources Development could find nothing better to say Thursday. than this, and I quote ‘‘Canada no longer has a deficit, so poor families are richer’’. D (1420) How could the minister make such a ridiculous and insensitive Here is what the health minister has said to those victims: ‘‘I statement with respect to the millions of individuals who are have proposed that we arrange to meet prior to the federal-provin- victims of his government’s policies? cial-territorial meeting of health ministers’’. Hon. Pierre S. Pettigrew (Minister of Human Resources Why does the health minister continue to treat these victims just Development, Lib.): Mr. Speaker, the leader of the Bloc Quebe- like a photo op? cois is being very selective in his reading of the press clippings prepared for him, because I said many other things about child Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, I poverty. thought he would be the last person in this House to talk about using victims as photo ops. In particular, I said that it was a priority of our government, and that we had earmarked $1.7 billion for the new national child Long before this member calculated what political benefit he benefit, a partnership with the provinces for improved programs could derive from exploiting victims, I was meeting with them. and services. Long before this member knew what that ribbon was, I received one. Long before that man understood this issue, I was champion- We are giving the provinces $25 billion under the CHST. We ing their cause. He ought to keep— have increased child care deductions and further reduced Cana- dians’ taxes— Some hon. members: Hear, hear. The Speaker: The hon. leader of the Bloc Quebecois. The Speaker: Colleagues, I am sure you want to hear the answers and the questions as much as I do. Mr. Gilles Duceppe (Laurier—Sainte-Marie, BQ): Mr. Speaker, I will go on with the list. Mr. Grant Hill (Macleod, Ref.): Mr. Speaker, here is what the champion of the victims’ cause said to them for the Thursday Does the minister realize that he is the one who is making meeting. It is interesting to note. They know it is in Ottawa. They poverty worse by slashing EI, by being complacent, by allowing do not know what building it is in. They do not know what time it is the surplus in the EI fund to climb to scandalous heights, despite and they do not have the agenda yet. the crying needs of the public? Does he realize that the reason there These people have to make travel plans. They do not have a are poor children is perhaps because there are poor parents? limousine that will take them there. Why is this minister treating these victims so poorly? Hon. Pierre S. Pettigrew (Minister of Human Resources Development, Lib.): Mr. Speaker, putting the economy back on Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, the track means taking decisions that are sometimes difficult. But we trouble with the Reform Party and this member is that when they were also bold enough to propose EI reforms, which have also had pretend to speak of compassion for the victims, they lack credibili- a favourable impact in a great many cases. ty profoundly. They just are not credible. For instance, we have amended EI to include a family income We supported the resolution put by the New Democratic Party supplement for low income claimants with children. Claimants last week because we agreed that ministers should meet with receiving the family income supplement are exempt from the victims and hear their perspective on these issues. intensity rule.

I have written to all provincial and territorial ministers. I have We have made it possible for those receiving EI to earn up to $50 asked them to agree with me to receive victims early in the day without losing their benefits. before we consider any of these issues so that we can have their perspectives in our mind as we consult. Mr. Paul Crête (Kamouraska—Rivière-du-Loup—Témis- couata—Les Basques, BQ): Mr. Speaker, this same Minister of The Speaker: The hon. leader of the Bloc Quebecois. Human Resources Development, through his reform of employ- 368

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Oral Questions ment insurance, together with the Minister of Finance has created country develop nuclear arms. More important, Canada has de- the greatest poverty in Canada. cided to recall its high commissioner to India for consultation in protest against the nuclear testing. D (1425) Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Mr. Speaker, How can he be so insensitive as not to recognize that, by denying this kind of action would have more credibility if we were not over 60% of the unemployed the benefits of the employment committed to exporting the technology to make bombs. I ask the insurance plan, he is making hundreds of people poor in Canada minister whether he would give more credibility to the Canadian every day? position by finally showing some leadership within the context of Canada’s membership in NATO and questioning the nuclear doc- Hon. Pierre S. Pettigrew (Minister of Human Resources trine of NATO which holds that some countries should continue to Development, Lib.): Mr. Speaker, with what is happening to have nuclear weapons forever. When will he seek the abolition of poverty among children and because of where the people we are all nuclear weapons no matter what country has them? talking about come from, solutions must be found, and we in the government are looking for them. Hon. Herb Gray (Deputy Prime Minister, Lib.): Mr. Speaker, Canada has not provided any nuclear information to India since the We have made major reforms just so that parents will be able to early 1970s, so there could not possibly be a link between the go back to work more easily. We are providing active employment unacceptable tests recently carried out by India and what Canada measures with substantial budgets to enable parents to return to the has been doing. With respect to the hon. member’s point, I will labour market, because the best guarantee against poverty is not certainly take it as a representation. unemployment insurance, but employment.

Mr. Paul Crête (Kamouraska—Rivière-du-Loup—Témis- * * * couata—Les Basques, BQ): Mr. Speaker, given his attitude in the matter of the Atlantic groundfish strategy, does the Minister of SUGAR QUOTAS Human Resources Development understand that he is once again condemning thousands of fishers in eastern Canada to poverty? Mrs. Elsie Wayne (Saint John, PC): Mr. Speaker, in 1995 the government bowed to U.S. pressure and agreed to lower our sugar Hon. Pierre S. Pettigrew (Minister of Human Resources quotas into the U.S. from 35,000 tonnes to 5,000 tonnes. After Development, Lib.): Mr. Speaker, the Atlantic groundfish strategy pressure from the sugar industry and the all-party sugar caucus we was our government’s initiative in 1993 in response to the crisis got it back up to 10,000 tonnes but the U.S. can ship 100,000 tonnes people were facing in Atlantic Canada. into Canada. We are working very hard at the moment, this is a complex problem. We are looking for long term solutions to make sure As a result of this agreement Lantic Sugar in Saint John, New people can earn a living with dignity and for a long time. This is Brunswick announced that it will be closing. This will put 240 what interests us on this side of the House, not petty politics. more people out of work. What does the Prime Minister have to say to those 240 people, and their families, who will be out of work because this government freely sold out the interests of Canadians * * * for its own convenience?

[English] Mr. Julian Reed (Parliamentary Secretary to Minister for International Trade, Lib.): Mr. Speaker, we always regret the closing of an industry. I also should point out that Canada has taken NUCLEAR TESTING steps in recent years to make sure that there is a viable industry in this country. I am sure my hon. friend will understand the terms of Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Mr. Speaker, the re-export program and the fact that Canada would lose sugar my question is for the Deputy Prime Minister. I am sure many producing industries to a greater extent if we did not have it. Canadians were glad to see that the Canadian government deplored the detonation of nuclear bombs for testing in India yesterday. Many Canadians also deplore the way Canada contributes to the D (1430) nuclear arms race through the export of nuclear reactors. Mrs. Elsie Wayne (Saint John, PC): Mr. Speaker, we would Is the government prepared in this context to reconsider its still have our sugar industry if we had not undermined the whole commitment to the export of nuclear reactors, in particular those sugar industry of Canada with the agreement. being considered for Turkey in the near future? Today those 240 people and their families are facing unemploy- Hon. Herb Gray (Deputy Prime Minister, Lib.): Mr. Speaker, ment in a city where the unemployment rate is in excess of 13%. we are not pursuing a nuclear program aimed at helping any We have fishermen on both coasts wondering how they are going to 369

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Oral Questions support their families. Yesterday we had another report confirming good loyal Liberal backbenchers. They are toddling off for a that the poor are getting poorer because of this government’s vacation. There is nothing else, pure and simple. policy. Is it not true that this trip is not about building strong Italian-Ca- What is the Prime Minister going to do for these Canadians? nadian relationships? This trip is a reward for good loyal Liberal When is the Prime Minister going to take responsibility for the backbenchers. consequences of his see nothing, do nothing government? Hon. Herb Gray (Deputy Prime Minister, Lib.): Mr. Speaker, Mr. Julian Reed (Parliamentary Secretary to Minister for what is the hon. member suggesting? Does he want the members to International Trade, Lib.): Mr. Speaker, I would welcome a go away while the House is sitting? Is this not the proper use of the suggestion from my hon. friend to improve the situation we break? Furthermore if the hon. whip was interested in promoting presently have. We have worked very hard to make this agreement Canada’s trade with Italy, then he and the other opposition parties on the re-export program beneficial to Canada. would not refuse to send their members as part of the delegation. Let them show their sincerity by taking part in this mission. * * * * * * TRADE [Translation] Mr. Chuck Strahl (Fraser Valley, Ref.): Mr. Speaker, 17 Liberal MPs are flying with the Prime Minister on his latest junket, POVERTY this time to Italy. No opposition MPs are going because this is not about government business. It is about Liberal party business. It is Mrs. Christiane Gagnon (Québec, BQ): Mr. Speaker, my called taking care of favours. It is too bad the taxpayers are on the question is for the Deputy Prime Minister. hook for the charges. Poverty is on the rise in Canada and the government is still The Liberal MP for Niagara Falls said the trip is a great refusing to admit its responsibility in this phenomenon, which opportunity for him to make sales for his wine business. Why do affects close to 18% of the Canadian population and more than taxpayers have to foot the bill so that this MP can make a personal 61% of single mothers. profit? D (1435) Hon. Don Boudria (Leader of the Government in the House of Commons, Lib.): Mr. Speaker, not surprisingly the hon. mem- Does the Deputy Prime Minister admit that the government ber’s numbers are wrong again. Let me give him the following bears a considerable portion of the responsibility for the rise in information. poverty because of the cuts it has made to the employment insurance program and to transfer payments to the provinces for First of all Italy is the fifth largest economy in the world. It is health and social assistance? Canada’s 11th largest— Hon. Pierre S. Pettigrew (Minister of Human Resources Some hon. members: Oh, oh. Development, Lib.): Mr. Speaker, poverty is a difficult, challenging and complex phenomenon, and a priority for this government. Hon. Don Boudria: Mr. Speaker, the hon. member across does not seem to know anything else about Italy other than the fact that We are working as much as possible with the provinces and the it is shaped like a boot, by what he just said. I would like to think provincial governments to contribute to a healthy economy which there are things more important. will enable people to earn a good living.

We are talking about the relationship between two of the largest We have social programs in Canada that are working well. We economies on the face of the earth. Italy is the 11th largest trading have social programs that serve Canadians well and will be made partner of Canada. We have asked MPs of Italian origin from all even better in the coming years, now that we have reacquired some parties in the House to represent our country to enhance our trading financial leeway. and otherwise— Mrs. Christiane Gagnon (Québec, BQ): Mr. Speaker, the The Speaker: The hon. member for Fraser Valley. government may well deny accusations that it is the one responsible for creating poverty, but can it deny that the number of poor Mr. Chuck Strahl (Fraser Valley, Ref.): Mr. Speaker, if the people has been constantly on the rise since it came into power, government wants to build strong relationships with Italy, which it despite the fact that the country is in a period of economic should, this is the wrong way to go about it. I will tell him that. prosperity?

What the Liberals have done is they have waited until parliament Hon. Pierre S. Pettigrew (Minister of Human Resources takes a break. They have hired an airplane and will load it up with Development, Lib.): Mr. Speaker, the welfare figures are constant- 370

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Oral Questions ly dropping. Fewer families are on the welfare rolls, in Quebec, Hon. Herb Gray (Deputy Prime Minister, Lib.): Mr. Speaker, among others. if the hon. member is right in what she is saying, is she saying that hundreds of Canadian business men and women are wrong when There is a lot of good news, which the opposition is determined they accompany the Prime Minister on these trips? Is she saying not to note, even though their good buddies are the ones in they are wrong, the Canadian business men and women, when they government in Quebec at present. I find it amusing that they are come back from these trips and say that they have signed hundreds suddenly attacking our government, when their own friends in the of millions of dollars of trade deals? Government of Quebec also bear responsibility. There is a contradiction here. These people say that the Prime Minister is right. These people by their actions say that the Reform Party on this, as in everything What I can tell the House is that we are going to continue to work else, is wrong, wrong, wrong and wrong. with our partners to ensure that the well-being of our fellow citizens is being properly looked after. * * *

D (1440) * * * [Translation] [English] HEPATITIS C TRADE Mr. Maurice Dumas (Argenteuil—Papineau, BQ): Mr. Speaker, two days before the health ministers conference, we still Miss Deborah Grey (Edmonton North, Ref.): Mr. Speaker, do not know where the government is headed on the hepatitis C when the Liberals were in opposition they went up one side and issue. So far, the minister has merely acted as an adjudicator down the other of Brian Mulroney for spending $9.5 million on between the provinces; he has not even had the courage of international travel in those five years. But since 1993 this Prime admitting responsibility. Minister has racked up over $12 million in international travel. Instead of playing adjudicator, should the minister not concen- I just have one question for the government. Why was it so bad trate all his energy on actively seeking a solution, so that all when it was in opposition but it is so good when it is in hepatitis C victims can be compensated? government? Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, we Hon. Don Boudria (Leader of the Government in the House must first find out what the provinces’ positions are. I hope that Dr. of Commons, Lib.): Mr. Speaker, this government will not Rochon from Quebec will attend Thursday’s meeting, as I am apologize for Team Canada which is creating thousands and anxious to find out Quebec’s position. It is not quite clear right thousands of jobs for Canadians. We do not apologize for going to now, and I have a few questions for Dr. Rochon. Italy to sell Canadian goods abroad. We will not apologize for So, let us first ascertain the provinces’ positions and then see if a going to South America to sell Canadian expertise, the best in the consensus can be achieved among the provinces and the federal world. That is what this country is all about. We want to continue government. creating jobs notwithstanding the adverse wishes of the Reform Party. Mr. Maurice Dumas (Argenteuil—Papineau, BQ): Mr. Speaker, the minister is trying to tell us that he is showing Some hon. members: Oh, oh. leadership. He should instead admit that Quebec and Ontario are the leaders on this issue. The Speaker: My colleagues, even with my microphone I am having a tough time up here. The hon. member for Edmonton Will he admit that a true leader would first and foremost tell us North. where he is headed and how he intends to address the problem?

Miss Deborah Grey (Edmonton North, Ref.): Mr. Speaker, Hon. Allan Rock (Minister of Health, Lib.): No, Mr. Speaker. that sounds exactly like Brian Mulroney when he sat in that chair just ahead of the member. * * * [English] Twelve million dollars and counting this Prime Minister spent. Nine and a half million dollars it was for Mr. Mulroney and he said INDIA ‘‘We don’t apologize at all’’. Mr. Bob Mills (Red Deer, Ref.): Mr. Speaker, experts and This Deputy Prime Minister in 1993 said it is egomania. If the foreign governments are saying that without Canadian technology shoe fits, they have to wear it. the Indian nuclear program would not be where it is today. Let me ask again. If it was so wrong for Mulroney, why is it so It is time that the Liberals took some responsibility for the right for this Prime Minister? proliferation of this nuclear technology. What is this government 371

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Oral Questions going to do besides what many other countries have done in terms community banks. In fact, this is one of the reasons why we of our ambassador? What is this government going to do in the referred the issue to the MacKay task force. We are anxiously G-8, in the Commonwealth to stop this proliferation of nuclear awaiting its recommendations, in September. material? Hon. Herb Gray (Deputy Prime Minister, Lib.): Mr. Speaker, * * * the Prime Minister has said that he intends to raise this with the other G-7 countries to see what appropriate action would be. CALGARY DECLARATION I want to repeat that Canada is not providing material to India or Mr. Mauril Bélanger (Ottawa—Vanier, Lib.): Mr. Speaker, Pakistan to support their nuclear programs. Canada has not been yesterday, Ontario released the results of its public consultation involved in this way since the early 1970s. Canada deplores the exercise on the Calgary declaration. actions of India in these tests. It has withdrawn its high commissioner. It intends to discuss the matter with its G-8 partners. This A poll conducted as part of this consultation shows that 87% of shows that we are very concerned about this and we are prepared Ontarians support the declaration. This is consistent with the and are taking concrete action. results of similar polls conducted elsewhere in the country, including Quebec, even though the Bloc would have us believe just the Mr. Bob Mills (Red Deer, Ref.): Mr. Speaker, I do not think that opposite. is good enough. That just sounds like more Liberal rhetoric, protecting ministers of the past, Liberal governments that decided Can the Minister of Intergovernmental Affairs tell us more about to export this technology. It is just not good enough for the minister the level of support for the Calgary declaration in Ontario? to answer this way. Hon. Stéphane Dion (President of the Queen’s Privy Council What kind of responsibility is this government going to take and for Canada and Minister of Intergovernmental Affairs, Lib.): what kind of leadership is it going to show to the world? Mr. Speaker, the Bloc obviously does not like the Calgary declaration. Hon. Ralph E. Goodale (Minister of Natural Resources and Minister responsible for the Canadian Wheat Board, Lib.): Mr. But Canadians, including Quebeckers, find it a rather good Speaker, the Candu technology sold to India in the 1960s and 1970s initial gesture of openness that reflects the values which unite us, as was in fact not used by India for the production of its first nuclear was clearly shown by the recent consultation in Ontario. weapon back in 1974. After that Indian weapon test in 1974, Canada suspended all nuclear trade with India. Let me say to those who may have doubts about this consultation that a rigorous, scientific poll shows that 73% of Ontarians Thereafter the non-proliferation standards were also strength- recognize the unique character of Quebec society. ened and total trade was terminated. This demonstrates that more than 20 years ago Canada was acting decisively to express our * * * dissatisfaction with the kind of conduct that the hon. gentleman mentioned. [English]

* * * RCMP [Translation] Mr. Jack Ramsay (Crowfoot, Ref.): Mr. Speaker, today we learned that the RCMP has been called in by the government to POVERTY investigate leaks to the Globe and Mail about the new TAGS program. Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Mr. Speaker, 5.2 million Canadians live below the poverty line. There Why are the Liberal spin doctors so upset by this? Is it because is a direct link between poverty and access to credit, along with the new TAGS program was leaked before they had a chance to do bank investment in underprivileged communities. In the United it? States, the Community Reinvestment Act regulates bank operations in these underprivileged communities. Why is the RCMP investigating leaks to the media, something the government does every other day? Tomorrow, a private member’s bill will be tabled in the House, asking that the banks reinvest in the community. Does the govern- Hon. Andy Scott (Solicitor General of Canada, Lib.): Mr. ment intend to support this legislation, which is meant as a concrete Speaker, the RCMP has been given information with regard to this measure against poverty? situation and will take appropriate action as is befitting a law enforcement agency of its stature. D (1445) Mr. Jack Ramsay (Crowfoot, Ref.): Mr. Speaker, the justice Hon. Paul Martin (Minister of Finance, Lib.): Mr. Speaker, minister’s suggested changes to the YOA were all over the we have said repeatedly that we do support the principle of newspapers this morning hours before the official release. 372

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Oral Questions Will the solicitor general ask the RCMP to investigate that leak Offenders Act is administered by the provinces and is supposedly as well? funded 50:50 by the federal and provincial governments.

Hon. Andy Scott (Solicitor General of Canada, Lib.): Mr. Yet the minister should also know that the real federal contribu- Speaker, as I have said many times before, the government does not tions only amount to about 30% of total administrative cost, ask the RCMP to conduct an official investigation. It gives it downloading the majority of these expenses to the provinces. information and the RCMP makes the appropriate decision based on 125 years of law enforcement in Canada. Is her government prepared to put its money where its mouth is and make sure the provinces do not get stuck with the bill on her * * * recent musings about changes to the Young Offenders Act? Hon. Anne McLellan (Minister of Justice and Attorney ABORIGINAL AFFAIRS General of Canada, Lib.): Mr. Speaker, let me reassure the hon. member that we continue our cost sharing discussions with the Mr. Gordon Earle (Halifax West, NDP): Mr. Speaker, succes- provinces. I will not pretend those discussions are not without sive supreme court decisions reinforce the obligation of the federal difficulty, but in most cases they are going forward quite well. government to uphold a fiduciary or trust responsibility toward aboriginal peoples. Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Mr. Speaker, according to the leak to the media yesterday the The honour of the crown is the standard to which the courts hold minister has no intention of lowering the age limit of the Young all governments. Does the Liberal government still believe it has a Offenders Act to cover those under the age of 12. fiduciary responsibility toward aboriginal peoples and does it still honour the crown when it intercedes in court cases? She should also know that children between the ages of 10 and Hon. Jane Stewart (Minister of Indian Affairs and Northern 12 are being recruited by youth gangs to do their dirty work Development, Lib.): Mr. Speaker, very clearly the government because they know they are exempt from prosecution. honours the fiduciary relationship that we see between the crown Will the minister extend to parliamentarians the same courtesy and first nations. she did to the media and confirm she has no intention of lowering In Gathering Strength we also identify that it is appropriate for the age of responsibility to under 12? us to add other partners to our relationships so that we can Hon. Anne McLellan (Minister of Justice and Attorney altogether improve the lives of aboriginal people. That includes the General of Canada, Lib.): Mr. Speaker, let me reassure the provincial governments, municipal governments, third parties and honourable House that I have no intention before release of that the voluntary sector. document later this afternoon of commenting on its content. Let me Mr. Gordon Earle (Halifax West, NDP): Mr. Speaker, when in reassure members of the honourable House that neither I nor my opposition the present finance minister called on the federal department had anything to do with that leak. In fact, let me government to honour the tax immunity of aboriginal Canadians. reassure—

D (1450 ) Some hon. members: Oh, oh.

Now this justice minister has intervened on the side of the The Speaker: The hon. Minister of Justice, if she wants to Government of New Brunswick to appeal a lower court ruling continue. exempting aboriginal people from sales tax. Hon. Anne McLellan: The hon. member asked this question of Could the justice minister explain how this action is consistent my colleague, the solicitor general. I want to inform the honourable with the finance minister’s previous statement, let alone the House that the RCMP has been asked to investigate the leak, the government’s goal of working in partnership with aboriginal alleged leak, regarding our response— peoples? Some hon. members: Oh, oh. Hon. Anne McLellan (Minister of Justice and Attorney General of Canada, Lib.): Mr. Speaker, the action taken by the The Speaker: I cannot wait for tomorrow. The hon. member for government is in no way inconsistent with our fiduciary obligation. Vancouver Kingsway.

* * * * * *

YOUNG OFFENDERS ACT TRADE Mr. Peter MacKay (Pictou—Antigonish—Guysborough, Ms. Sophia Leung (Vancouver Kingsway, Lib.): Mr. Speaker, PC): Mr. Speaker, the Minister of Justice knows that the Young my question is for the Minister for International Trade. It is about a 373

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Oral Questions recent move by U.S. customs to reclassify predrilled boards as [English] ordinary lumber. Hon. Ralph E. Goodale (Minister of Natural Resources and This seems to contravene the free trade agreement and will Minister responsible for the Canadian Wheat Board, Lib.): Mr. threaten jobs in western Canada. How will the government protect Speaker, in the course of the government’s program review process the Canadian lumber industry from this threat? some very difficult decisions had to be made about priorities. Mr. Julian Reed (Parliamentary Secretary to Minister for It was determined in that process that fusion research which has International Trade, Lib.): Mr. Speaker, I commend my hon. a payback that is at least 30 to 40 years in the future could not at colleague for keeping the government fully aware of the impor- this time be a priority. tance of this issue. Over the course of the last number of years we have invested On May 7 the government met with the stakeholders in the something in the order of $90 million in the facility at Varennes. softwood lumber issue. The purpose of the meeting was to discuss We provided an additional $19 million to assist with an orderly the recent reversal of the U.S. customs service proposal to reclassi- shutdown. fy drilled studs. Unfortunately, in terms of establishing priorities and living D (1455) within the confines of fiscal responsibility, tough decisions have to be made. We will be commenting on the proposal by May 15 and we intend to pursue the matter vigorously. * * *

* * * HEALTH IMMIGRATION Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): Mr. Speaker, yesterday I asked the Minister of Health about Mr. John Reynolds (West Vancouver—Sunshine Coast, unlicensed blood products being used in hospitals without the Ref.): Mr. Speaker, my question is for the Minister of Citizenship knowledge or consent of patients. and Immigration. Today we have learned the situation is even worse than we A Vancouver immigration consultant, Iraj Rezaei, is facing 18 thought. The chair of the transfusion practices committee of the charges ranging from passport forgery to counselling false refugee Health Sciences Centre in Winnipeg says unlicensed human serum claims, to threatening and assault. While he awaits trial he albumin is being used 100% of the time. continues to counsel unsuspecting immigrants via his new website on the Internet. What steps is the minister taking to deal with the apparent shortage of fractionated blood products? Could he explain how it is Has the minister asked the Minister of Justice to seek an that we have unlicensed product on the market five months after injunction to stop this evil man from practising his fraudulent the government established the licensing requirements? trades? Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, as a [Translation] result of the facts referred to by the hon. member yesterday in Hon. Lucienne Robillard (Minister of Citizenship and Im- question period, officials have been requested to look into the migration, Lib.): Mr. Speaker, as you are well aware, I cannot matter to find out what the facts are. I will respond to the hon. comment in any detail on the case of a person currently residing in member’s questions of yesterday and today as soon as they have Canada, but I can assure the hon. members of this House that our completed that inquiry. Immigration Act contains all of the mechanisms necessary to deal I share her concern that either unlicensed or unsafe products may with these actions by individuals. be used. I also worry about the blood supply in general and the shortage. We continue to encourage donors to be as generous as * * * they have in the past.

VARENNES TOKAMAK I will respond to the member when I have the information.

Mr. Stéphane Bergeron (Verchères, BQ): Mr. Speaker, today * * * the verdict was brought down. The Varennes tokamak is shutting down, after winning an award of excellence for its work. How TAXATION ironic! Mr. Charlie Power (St. John’s West, PC): Mr. Speaker, my Is the government not ashamed of having been so shortsighted as question is for the Minister of Finance. to bring about the death of this highly promising research project, in order to save $7.2 million, after 20 years of successful efforts The number of American work visas issued to Canadians has and more than $150 million in investments? increased over 50% in just four years. There is one major reason for 374

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Government Orders this. Our government continues to follow high tax policies which public servants while at the same time and on the same day as this drive our best and brightest south of the border. announcement is made we see the details of the government’s response to the Standing Committee on Justice with respect to the My question is for the minister. When will the government offer YOA all over the newspapers this morning. real tax relief so that those Canadians who choose to stay at home and work will not at the same time be taking a vow of poverty? These are sort of two points of order, Mr. Speaker, but I hope you will hear them both at once. There is the point of order having to do Hon. Paul Martin (Minister of Finance, Lib.): Mr. Speaker, with the fact that the government is very concerned and sanctimo- the high tax policy in this country was established by the previous nious when other people leak information and yet there is good government. reason to believe, although the minister denies it, that the govern- Since we have taken office we have brought in a series of ment does from time to time deliberately leak details of responses targeted tax reductions. In the last budget I am delighted to or proposals that it is going to make the following day. announce that we were able to take off the 3% surtax imposed by My other point of order which deals with the same thing is that if the Conservative government for 83% of Canadians. the minister is making a response to a committee report it should be done either in the House or in committee and not in the context of a * * * media announcement.

D (1500 ) Both these things have to do with respect for the House of Commons and the fact that the business of the House of Commons NUCLEAR TESTING should be conducted in the House of Commons. We want to see—

Mr. Alex Shepherd (Durham, Lib.): Mr. Speaker, my question The Speaker: The point of order the member brings up is surely is for the Minister of Natural Resources. an opinion which rightly takes place in debate. With regard to the leaks, from what I heard today there are two investigations going Following India’s alarming nuclear test yesterday many in the on. I rule at this time that this is not a point of order. international community are pointing to Canada as a source of technology transfer. India entered into agreements with Canada regarding the peaceful use of these technologies. ______What safeguards exist in these sales of nuclear technologies? Hon. Ralph E. Goodale (Minister of Natural Resources and GOVERNMENT ORDERS Minister responsible for the Canadian Wheat Board, Lib.): Mr. Speaker, I want to make this very clear. After the first deplorable test by India back in 1974, Canada suspended all nuclear trade with D (1505) India. We then developed a much more stringent non-proliferation policy in the mid-1970s. [English] In 1976 Canada terminated all nuclear trade with India after it became clear India would not comply with our non-proliferation CANADA LABOUR CODE policy. The House resumed consideration of Bill C-19, an act to amend Any reactor, researcher or otherwise sold or provided to any the Canada Labour Code (Part I) and the Corporations and Labour country today would have to adhere to those much higher standards Unions Returns Act and to make consequential amendments to that apply in this day and age. other acts, as reported (with amendment) from the committee; and of Motions Nos. 18, 20, 22 and 23.

* * * Mr. Jay Hill (Prince George—Peace River, Ref.): Mr. Speak- er, before question period I was speaking from a farmer’s perspec- POINTS OF ORDER tive to Motions Nos. 18, 20, 22 and 23.

MEDIA LEAKS I was trying to speak from a farmer’s perspective, having farmed for close to 20 years in the British Columbia Peace River region, Mr. Bill Blaikie (Winnipeg—Transcona, NDP): Mr. Speaker, growing grain, grass seed and oilseed. I was remarking on how my point of order arises out of something that was raised in angry farmers become when they see the shipments of grain which question period but which I think should more properly be raised are supposed to be freely flowing through the ports on to ships for under a point of order. The government has asked the RCMP to shipment to our foreign markets, our overseas customers, delayed launch an investigation into the supposed leaks of the government’s and held up in some cases for extended periods of time and the policy on the TAGS program, thus intimidating the media and resultant cost that ultimately the farmers and the country pay. 375

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Government Orders I have heard from quite a number of farmers who grow these selection works. In 72 of those cases the parties returned to the crops, the six standard grains, wheat, barley, oats, rye, flax and bargaining table and ultimately reached a satisfactory resolution to canola which I am assuming are included under this definition of their dispute. The process worked. I add that as further confirma- exclusion from any possible strike action at the ports. They are tion that the Reform amendments to this legislation deserve serious quite concerned because they want to see this bill proceed so that consideration by all parties. When it comes time to vote on these they do receive that protection. motions, I urge all members to consider that and vote accordingly.

The end result is that we are going to be enshrining inequity and ______unfairness with the passage of Bill C-19 as it is presently written. That is why the official opposition has put forward Motions Nos. 22 and 23. It is to drop the inclusion pertaining simply to the THE ROYAL ASSENT standard grain crops. We feel that it discriminates.

I have not heard the answer from the government benches on [English] whether specialty crops would be included under this protection. A The Acting Speaker (Mr. McClelland): Order, please. I have lot of farmers are growing so-called specialty crops. Lentils, peas, the honour to inform the House that a communication has been fava beans, sunflower, safflower, these types of crops are being received as follows: grown on increasing acreage across the land. In particular I am speaking about western Canada. I wonder if they are protected Government House under this same clause. I do not think so. I think this clause simply Ottawa pertains to the standard grains. May 12, 1998 Mr. Speaker: As we expand these markets for these specialty crops the bill is I have the honour to inform you that the Right Honourable Antonio Lamer, Chief going to discriminate against some producers and thereby pit Justice of the Supreme Court of Canada, in his capacity of Deputy Governor farmer against farmer when there are strikes or lockouts at the General, will proceed to the Senate chamber today, the 12th day of May, 1998 at ports. 4 p.m., for the purpose of giving royal assent to certain bills. Yours sincerely, Motions Nos. 18 and 20 put forward by Reform have been open Judith A. LaRocque to attack, in particular from members of the fourth party, the NDP, Secretary to the Governor General saying they are unfair because they pertain to expansion of this restriction of strikes to protect the national economy. ______

D (1510 ) GOVERNMENT ORDERS In other words, if it can be shown that a strike or lockout has a profound impact on the national economy, it would not be allowed. [English] Because of that, members of the NDP have suggested that we are being unfair to the unions and that no strikes would be allowed. CANADA LABOUR CODE In fairness to their arguments, we cannot consider Motions The House resumed consideration of Bill C-19, an act to amend Nos. 18, 20, 22 and 23 in isolation. We must consider them in the Canada Labour Code (Part I) and the Corporations and Labour tandem with the Group No. 8 motions, which have not yet been Unions Returns Act and to make consequential amendments to debated. These deal with Reform’s proposal for final offer selec- other acts, as reported (with amendment) from the committee; and tion arbitration. of Motions Nos. 18, 20, 22 and 23.

To make my point I refer to Hansard and quote the hon. member Mr. Charlie Penson (Peace River, Ref.): Mr. Speaker, I am for Winnipeg Centre on February 10, 1998: happy to take part in this debate today on report stage of Bill C-19, specifically Group No. 6 amendments. In the province of Manitoba where I am from we actually had final offer selection legislation for a number of years. D (1515 ) The actual fact is in Manitoba FOS was used very sparingly. In fact, the Manitoba labour relations board received only 97 applications in all the time that it was Unfortunately I am not happy about the way this is proceeding. legislation in that province. Of those 97 applications only 7 were ever ruled on by an In the last five years since I have been involved we have seen all FOS selector or arbitrator. Four went to the union package and three were in favour too much of this in the House of Commons, that is, the use of of the company in those rulings. In the vast majority of cases, 72 in all, the application was withdrawn because the parties returned to the bargaining table and closure to shut down debate on very important issues. It is very found a satisfactory resolution by more convention means. ironic. The Liberal government across the way was very critical of the Mulroney government for the use of closure and time allocation The point I am making is that by his very admission, the hon. when the Liberals sat in opposition, but this is the 40th occasion member from the New Democratic Party is saying that final offer where it has been used in the last five years. 376

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Government Orders It is a misuse of power by the government to use it in this with Vancouver wharf. There is a $25 million operation that can be manner. There is a very important principle involved, which is that shut down. all members should have the right to debate these important issues. This is the first opportunity I have had for a 10 minute debate on If this principle is the sound principle the government is putting Bill C-19, the changes to Canada’s labour code. forward, why would it not extend it to things like specialty crops, like alfalfa, peas, lentils and all the other grains? The area I would like to discuss stems from my role as critic for international trade. It deals with the Vancouver terminals, specifi- There is a real problem here and we have an opportunity to cally section 87.7 under Motions Nos. 22 and 23 being proposed by correct that problem. My colleague from Wetaskiwin has said that my Reform colleague, the member for Wetaskiwin. this is the first time the Canada Labour Act has been opened up in 25 years and it probably will not be opened up again for some time.

I am concerned that if the principle of allowing movement of We are looking for this opportunity to make substantial changes grain for 72 hours after a strike or lockout notice has been given is now when the debate is happening. We encourage members in the such a good principle, why it is not applied to all commodities. Liberal government to listen to some of the reasoned amendments we are putting forward with a view to trying to improve Canada’s delivery out of our port system. As recently as Wednesday last week, I had a meeting with the hon. Pat Nelson, the minister of economic development for the province of Alberta. She wanted me to bring the point to the floor D (1520 ) of the House of Commons that it is very important to ensure we have good movement of our commodities through the terminals, A lot of other products are being handled in Vancouver. In Prince through the port facilities, so we can continue to have good service Rupert there is coal. We have sulphur. One of my colleagues has and enjoy a good reputation worldwide. I am concerned that our already mentioned that lumber is one of our biggest ones. Chemical reputation for delivery is not as good as it should be. potash and various other products are being exported worldwide. This legislation does not deal with that. It is important also to note that Canada had the most time lost to labour-management strikes and lockouts of any industrial country Our party thinks a more reasoned approach to this would be to go except for Italy in the last 10 years. It is a deplorable state for a big to final offer arbitration. What it does is it allows for the parties to country like Canada which relies on exports, on international trade negotiate for some time before the labour-management contract is to supply the world. finished. I would think negotiations should start if it is a three year contract a year ahead to see if they can come to some kind of an agreement. If they cannot, having a strike or lockout and withdraw- I am aware that the member from Regina, the former minister of ing services has the effect of shutting down the terminal and in agriculture, accompanied a group to Japan a year ago. They were some cases shutting down the port. trying to reassure the Japanese of Canada’s ability to deliver in a timely manner products through our ports both in Vancouver and in As a grain farmer myself in the Peace River country I know the Prince Rupert. devastating effects of having some 20 ships sitting in English Bay harbour at Vancouver and paying demurrage of about $60,000 a day for each ship. It is a very big bill, millions of dollars. Last year My concern has to do with grain itself. The Minister of Labour it was approximately $60 million that grain farmers had to pay and others in the government are trying to win support from grain because of the ships that were waiting for product because there farmers across Canada by saying that if something happens and was a strike lockout situation at the Vancouver terminals. there is a strike or lockout at the Vancouver port, they will continue to load grain into an ocean-going vessel for 72 hours. This is true. We have to correct that. Canada has a reputation that has to be However, it does not deal with any of the problems originating enhanced otherwise we are going to be bypassed. Products will be from the farm gate to the terminal. It does not deal with any bought from the United States. I suggest we look at final offer problems in the railway system. There are something like 20 arbitration as one way of resolving this. different labour-management units along the way that can disrupt the flow of grain during that time. It does not deal with things that my colleague from Prince George—Peace River, the critic for Final offer arbitration needs to be explained a little. In a agriculture talked about. labour-management contract quite often when the contract is being negotiated the two parties will start a long way apart. If a labour union wants a 5% increase quite often it will ask for 7% or 8% When it says grains, the grains identified do not include alfalfa knowing it will probably be negotiated down and it will be settled pellets. In my riding of Peace River, we have the world’s biggest somewhere in the range of 5%. On the other hand the company alfalfa pelletizing plant, Falher Alfalfa. It is very concerned that quite often starts at a position recognizing that it is going to be a this section does not deal with Neptune terminals. It does not deal 5% settlement and starts negotiating at 3%. This goes on for 377

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Government Orders months and months before they finally come to some kind of a them. If we do not have an opportunity to voice the concerns of settlement. Often there is time lost in that bargaining unit where Canadians here in this place, I ask all hon. members, where will labour is withdrawn or there is a lockout. This has a very Canadians have that opportunity if it is not here in the House devastating effect on the Canadian economy. through their duly elected members? I am very concerned about that. Final offer arbitration is a reasonable way to approach this. Approximately one month prior to the contract expiring if a I am also very concerned when I hear NDP members taking shots settlement had not been reached by negotiations, each party would at the Reform Party inaccurately telling the Canadian people have to submit a reasonable final offer. I suggest reasonable. They untruths about us, saying that we are against fair wages. What would not have to submit a reasonable one but an independent third balderdash that we would be against fair wages. That is absolute party looking at it would choose the more reasonable of the two. It nonsense. I want to suggest that the NDP cannot teach the Reform would be in their best interests to submit a reasonable final offer. Party anything about economic policy or fair labour practices. The arbitrator would decide which one looks more reasonable than the other and would choose that one and the parties would have to live with it. Perhaps the member should go to my province of British Columbia to see what an NDP government has done to the In the event that did not happen, if one party put in a very economy of that province. The member should see what kind of unreasonable final offer and the other party did not, we know what legislation it has tried to impose upon businesses in that province would happen. The effect of that would be to have the two parties with unfair labour codes and see the kind of public revolt against put in a reasonable offer at the start. It would prevent a lot of the that which occasioned that government to take the legislation out of problems we have in the labour-management area. Canada could the legislative docket. enhance its reputation as being a reliable supplier. We have just gone through a devastating strike in my riding of If we miss this opportunity I think we are missing an opportunity Nanaimo—Cowichan at the Fletcher Challenge mill. When we as that is going to cost future jobs. Canada relies on our exports for Reformers say that we stand up for people who do not seem to be about one-third of our gross domestic product. That means 40% of able to be heard in this country, that strike was another example of the jobs of every Canadian family, every community rely on our this very thing. That mill produces pulp and paper which contrib- ability to export. We know that some of our exports go through the utes 53% of the tax base of the municipality which it is in. When its United States but some go through our port cities as well. workers go on strike and labour and management cannot come to some kind of consensus, there are lots of third parties in that riding This is an opportunity we want to seize. The government should that are hurt far beyond the union members and far beyond the look at these as reasonable amendments and adopt them. management and those who own the mill.

Mr. Reed Elley (Nanaimo—Cowichan, Ref.): Mr. Speaker, it is All the businesses suffer because of a strike that goes on and on. a pleasure to rise today in the House and speak on Bill C-19 and the The small businesses lay off employees because people are no amendments that have been put forward at this time. longer buying their goods. Car dealers have seen their sales plummet in January, February and March because of the strike. A number of us will remember the eminent Canadian poet Robert Service who talked about strange things being done in the midnight sun in the Yukon. There have been some strange things The NDP members miss a big point in this whole debate when done here in the midday sun in this House today. I have heard they only stand up for big unions. Someone has to stand up for the some. I have seen some. little ordinary guy in this country who feels that he has no voice in these kinds of occurrences in our society when prolonged and protracted labour-management disputes paralyze other industries D (1525 ) and other businesses. Something has to be done about that.

First of all the government is putting time allocation on another bill that is before the House. The government when it was in In terms of Motions Nos. 18 and 20, we are concerned that there opposition so quickly condemned the Conservatives for doing the is no provision in the bill to protect the national economy. very same thing and it continues to do this time after time. That concerns me very much, the limit on our free speech and on the We are concerned about Motions Nos. 25 and 29 that prohibit the democratic process in the House. use of replacement workers if the CIRB determines their presence undermines the union. This was a slight modification from All Canadians should be concerned about the way the govern- previous Bill C-66, but this provision still leaves too much control ment is using time allocation to shut down democracy in the House. in the hands of the CIRB which may view the use of replacement This is the parliament of all Canadians. We come here to represent workers as undermining the union. 378

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Government Orders

D (1530 ) The total tone of his speech was attributing motives. He talked about the deep bitterness of Reformers against workers, many of whom support the Reform Party, so I am not quite sure why we This provision could very well stop the use of managerial staff would be anything but approving of that. from operating the company. It restricts and infringes on the employer’s rights. Somewhere along the way in this national debate on restructuring this kind of thing employers have to be able D (1535 ) to have their say in this House of Commons and the employers that we hear from are saying that this is unfair and it needs to be changed. There is a labelling, an attributing of motives and a real agenda here. I assure Canadians watching this debate that the agenda of the official opposition in putting forward amendments and in speaking It very well could shift the balance of power in labour manage- to this bill is simply to protect Canadian workers and the well-be- ment relations in favour of the unions. The Globe and Mail on ing of Canadians in our labour legislation and in the way labour and November 5, 1996 quoted Nancy Riche, the executive vice-presi- business operate in our country. We are dependent on good dent of the Canadian Labour Congress, as saying: ‘‘I would go so economic results from the activities that take place. That is our far as to suggest that anybody who does work of a member of a motive and that is what we want to do in a very balanced, sensible union undermines the representative capacity of the union’’. She and thoughtful way. went on to say: ‘‘None of the bureaucrats are going to agree with me—but we’ll have to wait and see. The new board will rule’’. I urge members of the NDP and other parties to stick to the practical issues being raised and not to continue with their agenda We in the Reform Party have some real concerns about this and of suspicion, conspiracy and some of the other things they seem to that is why we have proposed this amendment. think are happening in this debate, because that is not the case.

I hope that all hon. colleagues in this House will not close their There has been no disagreement that services should be contin- minds so easily to the amendments that the Reform Party has put ued in federally regulated sectors if public health and safety could forth in this regard, that they will see all sides of the debate and be endangered by services being cut off. No one is disagreeing with realize that there is more to this country than big business, big that. We would argue that danger to the national economy should government and big union. also be a consideration. Health and safety are immediate dangers and immediate harm could be caused by services being cut off. The There are little people, hard working little people, who need to danger and harm to a national economy can cause every bit as be heard in this country and it seems that the only party that is much pain and hardship. It can contribute every bit as much to the willing to stand up for them today, as it did in the hepatitis C poverty of Canadian families as cutting off services in areas where debate, is the Reform Party. health or safety is immediately impacted.

Mrs. Diane Ablonczy (Calgary—Nose Hill, Ref.): Mr. Speak- We need to think a little more broadly and long term when we er, we are speaking today on motions to amend Bill C-19. This bill give carte blanche to strikes and lockouts that impact people’s provides for changes to the Canada Labour Code and the opposition livelihoods, their businesses, their incomes, their ability to pay parties have put forward a number of amendments, in fact eight their rent and mortgage, and their ability to put milk on the table for groups of motions to amend the bill, and there are a few motions in their children. We have to think of those things. We cannot just each of these groups. look at some immediate danger. We have to look at the impact over a little longer period of time that can be equally devastating. That is the intention of this amendment. Now we are speaking to Group No. 6. There are four motions in this group. The first two motions essentially add to the grounds for prohibiting the cutting off of services in the event of a strike. The There is a cost to Canadian families and to Canadian workers in bill provides for continuation of service in a strike situation if particular. Many of these workers are barely making ends meet as it public health or safety is endangered. The amendments that we is, thanks to the taxation policies of this government and the cost of have brought forward would also provide for continuation of living in Canada. They depend on the viability of the whole local service to protect the national economy. economy and a strike can be critical in impacting their short term and long term well-being. I listened with great interest to the comments of the member for the New Democratic Party on this series of amendments. What was This motion is designed to protect the national economy and so interesting to me was that the member really did not address at thereby to protect regular Canadians with their day to day bills, all the substance of these amendments or argue that the national their day to day need for income and their day to day need to make economy, in the short term, could not be affected, so therefore we sales in their little businesses in the towns where they work. We do not need the amendments. There was none of that. need to think about these things. We need to protect the Canadians 379

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Government Orders of this country. If services are cut off in an area due to a strike or a people the opportunity for us to debate this openly and talk about lockout, and if it happens federally across the country, the industri- this issue as it will affect all Canadians. al relations board needs some ability to determine what is going to be the impact on the national economy and thereby on the families The sort of thing that this government persists in doing is and workers of Canada and those who are dependent on economic despicable. It is disgraceful. It is anti-democratic. It has used activity for their well-being. closure more than any other government in the history of this country. Canadians are watching and are going to demand some This is a very sensible amendment that looks at the bigger accountability for this sort of action. picture. It tries to protect people from some of the so-called unintended consequences of labour unrest and labour shutdown. We need to look in a very balanced and logical way at whether this The key thing about this amendment and the key thing about this ought to be done. We should not close our minds and shoot the bill is the protection of the economy of Canada. That has to be messenger, we should deal with the message and its merits. number one. We are talking about jobs and the standard of living that we have grown used to as Canadians, and we are falling behind. D (1540 ) I have had the opportunity to travel to many parts of the world I would urge all members to think about what is best for and I have started to realize more and more what is happening to us Canadians. That is why we are here. That is why we get the big as Canadians. money. That is why we get the airtime. We need to be very focused on what is best and look at the proposals on their merits. I think this proposal has a great deal of merit. I cannot help thinking about last Friday when I was going to the airport. The cab driver said to me ‘‘The Ottawa Senators are not going to lose another game. They are way better than the Capitals We also, of course, as a number of my colleagues have said, urge and they will beat them hands down’’. That is a little bit like we that other commodities be protected from disruptions in shipping sometimes hear the Prime Minister talk about Canada. The United besides just grain. There are farmers who have interests in different Nations says we are number one; therefore, we do not have to work commodities. We know that some of the wheat pools support this harder. That is wrong. We have to continue to work. The world legislation because grain is protected. But again we have to think around us is becoming more competitive and we must be conscious more broadly, not just in a narrow sense. There are some very clear of that. concerns about unintended consequences if only grain is protected from disruptions in shipping. In travelling recently to China, seeing the changes that have occurred there and having the opportunity to talk to some of our A number of people who work in the sector say that labour unrest shippers and some of our businessmen, I asked: ‘‘What do you and disputes will be extended and enhanced if only grain can be think of Canada looking from here back there?’’ The message that I shipped because, in a sense, that commodity will be used to got was ‘‘We don’t deal with Canada as much as we used to’’. They subsidize strike activities that hold up other commodities. Some do not feel that there are the same opportunities, that there is the income would come in from that one narrow sector, but the other same aggressive tendencies to try to sell them something, particu- sectors will still be disrupted and there will be less incentive to larly when it gets to things such as wheat. settle those disputes because they are not as harmful to the participants. D (1545 ) Our amendments are designed to look at the big picture, to look at other products that need to be shipped, such as coal, lumber, I talked to a brewer who is responsible for buying malt barley for chemicals, potash and other commodities. I would ask that my hon. 150 breweries. He said he does not go to Canada any more for colleagues in this House look at these proposals on their merits. I supplies. He does not go to the Canadian Wheat Board because he believe then they will be soundly supported. is not sure about whether delivery will come or when it will come. He indicated that there seemed to be many problems with guaran- Mr. Bob Mills (Red Deer, Ref.): Mr. Speaker, it is truly a teeing delivery. privilege to be able to speak to the motions in Group No. 6. I talked to a Japanese shipowner who indicated a problem. He We have had the opportunity to talk about Bill C-19 a number of books his ships on a two year basis and allows so many days for times in the House. I have to start off by saying that it is despicable sailing, so many days for loading and so many days for getting to when the government uses closure on a bill like this. This bill will the port of destination. He said he could not come to Canada affect every single farmer in western Canada. It will affect because his ship might be sitting for 30, 40 or 50 days as a result of anybody, basically, who has anything to do with the movement of some transportation blockage or of some strikes that are so products across this country. The government owes the Canadian frequent. 380

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Government Orders That is what is hurting us as Canadians. We can talk about strikes tion to worry about. I am worried the government is not listening. I and the national economy. However, we have to ask ourselves, suppose it would argue that because of the huge turnout it is going into the 21st century, what happens when a strike is called. listening and is here to understand exactly what the message is. We know for sure union bosses keep getting the salaries they have been getting. We know union members who go on strike do not get However it is a little hard sometimes to see its members through the salaries they have been used to getting, and if they are out for the fog, but I am sure they are over there listening very carefully to very long we know they never make up that money again. the message that our member from Wetaskiwin has led us through in the debate on Bill C-19. We certainly know the economy of the country is hurt. We certainly know many people, for example farmers, are hurt. Let us The bill is too little too late. The government is not listening to just stop for a minute and look at the farmer. He has a lot of the people. The bill is out of date and back in the 1970s which is decisions to make. He has to decide when to plant, what to plant, where most government members are at. It does not show any kind what kind of fertilizer to use, what kind of seed to use, and then of vision for the 21st century. It will certainly not help the economy depend on the weather. He should not also have to depend on the or the people of Canada. unions to get his commodity to market and ultimately get paid for it. The Acting Speaker (Mr. McClelland): Is the House ready for the question?

Those people are hurt. The whole country is hurt in terms of our Some hon. members: Question. reputation because we do not have modern labour practices that allow us to be competitive. The Acting Speaker (Mr. McClelland): The question is on Motion No. 18 in Group No. 6. Is it the pleasure of the House to A question has to be asked. There must be a better way than adopt the motion? having strikes. There must be a better way than Bill C-19 which is liberal in its makeup. It goes a little way here and a little way there Some hon. members: Agreed. and does not stand for very much. No one really knows what it means. It certainly does not improve either the economy of Some hon. members: No. country, the well-being of our people or our reputation internationally. The Acting Speaker (Mr. McClelland): All those in favour of the motion will please say yea. Instead of resting on our laurels it is time that we examine different ways of handling the situation. The motions put forward Some hon. members: Yea. would help us to do it. The Acting Speaker (Mr. McClelland): All those opposed will I will speak specifically to Motion Nos. 18 and 20 which the please say nay. Reform Party has put forward. What effect would they have on our Some hon. members: Nay. national economy? That becomes the number one issue when we decide what will happen. They also talk about protection not only The Acting Speaker (Mr. McClelland): In my opinion the nays of our economy but of third parties. have it.

Going on to Motion Nos. 22 and 23 the key issue, as the previous And more than five members having risen: member mentioned, is that all commodities be included. It is not enough to only include grain. We should be including many other The Acting Speaker (Mr. McClelland): The recorded division things that move through our ports. On the prairies there are all on Motion No. 18 stands deferred. Accordingly the recorded kinds of different products. Right across the country we have division will also apply to Motion No. 20. products that depend upon transportation and upon the movement of goods. The next question is on Motion No. 22. Is it the pleasure of the House to adopt the motion? We need to look at better ways. We need to examine them. I do not think it is fair to say that any one of us is anti-union. That is not Some hon. members: Agreed. the message. The message is that we have to find some other way to deal with the problem of labour disputes other than strictly going Some hon. members: No. on strike. I hope the day will come when strikes will be a thing of The Acting Speaker (Mr. McClelland): All those in favour of the past. the motion will please say yea.

D (1550 ) Some hon. members: Yea.

It is also important to emphasize that we have to do what is good The Acting Speaker (Mr. McClelland): All those opposed will for the country and its economy. We have an international reputa- please say nay. 381

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Government Orders Some hon. members: Nay. [English]

The Acting Speaker (Mr. McClelland): In my opinion the yeas have it. BUSINESS OF THE HOUSE

And more than five members having risen: Mr. Peter Adams (Parliamentary Secretary to Leader of the Government in the House of Commons, Lib.): Mr. Speaker, The Acting Speaker (Mr. McClelland): The recorded division there has been consultation among the parties and I think you on Motion No. 22 stands deferred and will also apply to Motion would find unanimous consent for the following motion: No. 23. That, notwithstanding any standing order or special order, any division requested on Private Members’ Business, Motion No. M-75 or Bill C-247, shall be deferred to Just before we go to Group No. 7, for the information of hon. the expiry of the time for government business on Monday, May 25. members present and those in the gallery in about 10 minutes we will be going to the Senate for royal assent. The Acting Speaker (Mr. McClelland): The House has heard the terms of the motion. Is it the pleasure of the House to adopt the [Translation] motion?

Mr. Yves Rocheleau (Trois-Rivières, BQ) moved: Some hon. members: Agreed. Motion No. 19 That Bill C-19, in Clause 37, be amended by adding after line 39 on page 28 the (Motion agreed to) following: ‘‘(1.1) During a strike or lockout not prohibited by this Part, no employer or * * * person acting on behalf of an employer shall use the services of a person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of an employee in the bargaining unit on strike or locked out if the CANADA LABOUR CODE employees of the bargaining unit continue the activities referred to in subsection (1) in the manner prescribed by that subsection.’’ The House resumed consideration of Bill C-19, an act to amend the Canada Labour Code (Part I) and the Corporations and Labour [English] Unions Returns Act and to make consequential amendments to other acts, as reported (with amendment) from the committee; and Mr. Dale Johnston (Wetaskiwin, Ref.) moved: of Motions Nos. 19, 25, 26, 27 and 29. Motion No. 25 That Bill C-19, in Clause 42, be amended by deleting lines 28 to 38 on page 33. The Acting Speaker (Mr. McClelland): Order, please. I wish to inform the House that there is an error in today’s notice paper and D (1555 ) in the voting pattern in respect of Motion No. 27 in Group No. 7.

[Translation] A vote on Motion No. 25 applies to Motion No. 29. An affirmative vote on Motion No. 25 obviates the necessity of the Mr. Yves Rocheleau (Trois-Rivières, BQ): moved: question being put on Motion No. 27. On the other hand, a negative Motion No. 26 vote on Motion No. 25 necessitates the question being put on That Bill C-19, in Clause 42, be amended by replacing lines 28 to 38 on page 33 Motion No. 27. Motions Nos. 19 and 26 will be voted on with the following: separately. ‘‘(2.1) No employer or person acting on behalf of an employer shall use the services of a person who was not an employee in the bargaining unit on the date on Revised voting patterns and report stage charts are available at which notice to bargain collectively was given and was hired or assigned after that the table. I regret any inconvenience this may have caused hon. date to perform all or part of the duties of an employee in the bargaining unit on members. strike or locked out.’’ [Translation] Mr. Jean Dubé (Madawaska—Restigouche, PC) moved: Motion No. 27 Mr. Yves Rocheleau: Mr. Speaker, first of all, I thank you for That Bill C-19, in Clause 42, be amended by adding after line 38 on page 33 the reading Motion No. 26 in its entirety. We asked you to do so on a following: matter of principle and as a symbolic gesture. Given the impor- ‘‘(2.2) For greater certainty, an employer shall be deemed not to have undermined tance of this motion, we wanted it recorded properly in the Debates a trade union’s representational capacity by reason only of the employer’s use of the of the House of Commons. services of a person referred to in subsection (2.1).’’ I am also very proud to see that the motion is seconded by the Mr. Dale Johnston (Wetaskiwin, Ref.) moved: hon. member for Hochelaga—Maisonneuve, who was responsible Motion No. 29 last year for the brilliant and valiant work done on the Canada That Bill C-19, in Clause 45, be amended by deleting lines 15 to 24 on page 36. Labour Code, when he held the position I have this year. Consider- 382

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The Royal Assent ing the situation that prevailed last year, I feel I must thank and It puts me in mind of Meech Lake, and this is part of the congratulate him. Canada-Quebec problem. The Bloc Quebecois is against the bill because it does not give workers enough, and the Reform party is against it because it gives workers too much. It is so strongly Here we are with Group No. 7, which substantially represents opposed that it wants to eliminate every term that prevents the our position with respect to this bill, and which refers in particular hiring of scabs or replacement workers. to the clause on replacement workers. It is of such importance that we cannot, in all conscience, support this bill with the present With the Reform Party there is no subtlety. It even goes into the wording of clause 42. details where the board is given powers to declare the hiring of replacement workers when done out in the open an unfair labour practice, whereas here, with their balanced approach, the Liberals So that our audience may understand this fully, I feel it is are claiming that replacement workers can be hired in order to worthwhile reading in its entirety the position of the government, undermine a union’s representational capacity. backed by the NDP, and I believe by the Progressisve Conservative Party, while the Reform Party and the Bloc Quebecois are opposed The Reform Party goes a long way. Should it appear that to clause 42, but for diametrically opposed reasons. replacement workers are being hired to undermine the union’s representational capacity, it wants to deny the board the right to declare the hiring of replacement workers unfair labour practice. D (1600) That’s that. The Conservatives are after the same thing, but more subtlely. I will read clause 42 in its entirety. Their approach is worth describing. The government has grown in wisdom and in thoughtfulness in the past year. It has added a very No employer or person acting on behalf of an employer shall use, for the important word. Last year, the wording read ‘‘No employer or demonstrated purpose of undermining a trade union’s representational capacity person acting on behalf of an employer shall use, thereby under- rather than the pursuit of legitimate bargaining objectives, the services of a person who was not an employee in the bargaining unit on the date on which notice to mining a trade union’s representational capacity—’’, while the bargain collectively was given and was hired or assigned after that date to perform 1998 version reads ‘‘—for the demonstrated purpose of undermin- all or part of the duties of an employee in the bargaining unit on strike or locked out. ing a trade union’s representational capacity—’’.

Members will have noted, as my colleague, the member for ______Hochelaga—Maisonneuve, did last year, the convoluted wording, which is of no real help to anyone. It is a nightmare, not to put too fine a point on it, to get at the meaning of using for the demon- THE ROYAL ASSENT strated purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives. It sidesteps the issue, and this is one of the secondary reasons, in D (1605) addition to the fact that we are opposed to the substance, that we are opposed to the way the problem is set out. [Translation] A message was delivered by the Usher of the Black Rod as I do not think that Canada—compared with Quebec obviously— follows: is equipping itself with the means to move forward. I think that Mr. Speaker, the Honourable Deputy to His Excellency the Governor General everyone is going after a careful balance. This is worth pointing desires the immediate attendance of this honourable House in the chamber of the out, because the whole thrust of the Sims report is to achieve honourable the Senate. balance. I think the result is something that is going to balance Accordingly, Mr. Speaker with the House went up to the Senate everyone into a corner. chamber.

D (1610) This is one of the reasons—and it is both secondary and essential at the same time—we oppose this clause and accordingly the entire [English] bill. And being returned: It is rather interesting to note, as I did earlier, that the Liberal The Acting Speaker (Mr. McClelland): I have the honour to party, the government party, is in favour of the bill. It is under- inform the House that when the House went up to the Senate standable that the New Democratic party supports it, given its close chamber the Deputy Governor General was pleased to give, in Her ties with the union movement. The Progressive Conservative party Majesty’s name, the royal assent to the following bills: is in favour, but the Bloc Quebecois is not, nor is the Reform party, Bill S-4, an act to amend the Canada Shipping Act (maritime liability)—Chapter for diametrically opposed reasons. No. 6. 383

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Government Orders Bill S-5, an act to amend the Canada Evidence Act and the Criminal Code in respect ‘‘for the demonstrated’’ specific and actual ‘‘purpose of undermin- of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to ing the union’s representational capacity’’. other Acts—Chapter No. 9.

Bill C-8, an act respecting an accord between the Governments of Canada and the This makes the union’s burden of proof even heavier, which is Yukon Territory relating to the administration and control of and legislative likely to have a negative impact on its members’ morale and jurisdiction in respect of oil and gas—Chapter No. 5. discourage them from getting involved in this kind of thing. Bill C-18, an act to amend the Customs Act and the Criminal Code—Chapter No. 7. The PC’s approach is even worse. I do not know whether it was Bill C-17, an act to amend the Telecommunications Act and the Teleglobe Canada inspired by its former leader, Jean Charest, the former member for Reorganization and Divestiture Act—Chapter No. 8. Sherbrooke, but if that is the case, Quebec workers are in for a rough ride if Charest ever becomes the premier of Quebec. D (1615 ) Motion No. 27 moved by the Progressive Conservative Party [Translation] reads as follows: (2.2) For greater certainty, an employer shall be deemed not to have undermined a It is my duty, pursuant to Standing Order 38, to inform the House trade union’s representational capacity by reason only of the employer’s use of the that the questions to be raised tonight at the time of adjournment services of a person referred to in subsection (2.1). are as follows: the hon. member for Acadie—Bathurst, employment insurance; the hon. member for Vancouver East, the multilat- The Liberals are saying that it must be ‘‘for the demonstrated eral agreement on trade; the hon. member for Prince purpose’’, while the Conservatives are basically saying that even George—Peace River, disaster relief. though scabs are hired, the employer is not trying to adversely affect workers.

______This is a big joke. They are laughing at workers. They do not care about their right to strike, about their demands. Both the Conservatives and the Reformers are trying to undermine the very existence of unions. This is most serious and this is why I cannot GOVERNMENT ORDERS support the clause in its present form. One can see that workers’ rights are in jeopardy, given that the government—with just one additional word—and the Conservatives—with their proposed amendment—are making it a lot more difficult for unions to [Translation] adequately protect themselves.

CANADA LABOUR CODE As for the Reform Party, it does not beat around the bush. For all practical purposes, the right to strike is completely undermined. The House resumed consideration of Bill C-19, an act to amend With the Reformers, the issue is not the unions’ representational the Canada Labour Code (Part I) and the Corporations and Labour capacity, but the right to strike. Under the Reformers’ logic, even Unions Act and to make consequential amendments to other acts, though workers are unionized and can democratically decide to go as reported (with amendments) from the committee; and of the on strike, any employer could legally, with impunity, hire replace- motions in Group No. 7. ment workers to continue operations, and there would be nothing wrong with that. Under the Reformers’ plan, it would all be Mr. Yves Rocheleau (Trois-Rivières, BQ): Mr. Speaker, I was perfectly legal. denouncing the fact that the government changed its position, rather subtly, without boasting too loudly about it, from one year to In no way are they saying that this is an unfair practice. Under the next. In 1997, speaking of replacement workers, it read ‘‘for the the Reformers’ plan, even though the right to strike exists, even purpose of undermining a trade union’s representational capacity’’. though a strike is legal, replacement workers could be hired with impunity. In 1998, obviously under pressure from management, the word ‘‘demonstrated’’ was added. It now reads ‘‘for the demonstrated D (1620) purpose of undermining a trade union’s representational capacity’’. This will make it much more difficult for the union to prove to the We feel this is unacceptable, particularly to those of us in court that replacement workers were hired for the purpose of Quebec who have experienced something else, which we shall get undermining its representational capacity. back to at third reading. For the last 21 years, we have lived in a society where the right to strike is respected and where the hiring of The union will be required to prove the ‘‘demonstrated purpose scab labour is banned as an unfair labour practice. As a result, there of undermining’’. The fact that replacement workers are being are fewer strikes, they are not as long, and most importantly, there hired is not enough. Now it will have to be demonstrated that it was is no violence. 384

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Government Orders One need only go as far as Quebec City to see the difference. protection of a union’s representational rights, as was the case Recently there was violence at the port of Quebec, which is a under Bill C-66. federal jurisdiction, when there was a labour conflict and scabs were hired. The authorities intervened too late, unfortunately, to The chair of the federally regulated employers transportation prevent the violence. and communications group told the committee: ‘‘The language we see in Bill C-19 is reflective of the spirit, intent and content of the We are, therefore, totally opposed to this clause of the bill. Sims report in most of the critical areas’’. FETCO legal counsel stated that the drafting concern they had with former Bill C-66, including the replacement worker provision, had been addressed. [English] In my view, given these comments, additional language would be redundant. Mrs. Brenda Chamberlain (Parliamentary Secretary to Min- ister of Labour, Lib.): Mr. Speaker, I see there are several motions Bill C-19 includes a number of other provisions recommended with respect to the replacement worker provision in Bill C-19. One by the task force which will protect the rights of employees who motion is seeking to delete the provision while another is seeking strike or are locked out. to make the provision into a general prohibition on their use. Bill C-19 confirms the right of striking or locked out employees to return to work at the end of a work stoppage in preference to Bill C-19 implements the majority recommendation of the Sims replacements. It gives employees dismissed or disciplined during a task force with respect to replacement workers. The task force work stoppage access to grievance arbitration. It prohibits the noted that the one point concerning replacement workers on which submission of an application for certification or revocation during both labour and management agreed was that they should not be work stoppages without the consent of the board. It says replace- used by an employer for the purpose of ridding the workplace of ment workers are not entitled to participate in representation votes. union representation. It recognizes the right of employees on strike or who are locked out to continue to be covered by insurance plans provided they pay the full amount of required contributions. The task force majority did not recommend a general prohibition on the use of replacement workers. It did recommend that their demonstrated use for the purpose of undermining a union’s repre- D (1625 ) sentational capacity rather than the pursuit of legitimate bargaining objectives should be an unfair labour practice. The Bloc Quebecois has put forward a motion to add a paragraph to proposed section 87(4). This motion would prohibit the use of replacement workers where employees of the bargaining unit While maintaining their underlying opposing positions on the continue the activities necessary to prevent immediate and serious replacement worker issue, representatives of both labour and danger to the safety or health of the public. I submit this is likely to management in the federal sector accepted this approach in the generate unnecessary litigation. context of the overall package of task force recommendations. The proposed amendment sees a somewhat bizarre situation in In response to concerns raised during the study of former Bill which an employer seeks not only to have services maintained by C-66, that the wording of the provision did not capture the full bargaining unit employees but to recruit replacements to work intent of the task force recommendation, the provision in Bill C-19 alongside of them. Add to this unusual circumstance a trade union was redrafted to include the complete wording of the task force ready to negotiate the maintenance of services by its own members recommendation. The new wording was requested by employer and to accept that they will be working with replacements doing representatives as well as by the Senate standing committee in its bargaining unit work; in all, an eventuality which is, to say the report on Bill C-66. The added words make it clear that the union least, very unlikely. filing the complaint bears the burden of proof and that the use of replacement workers by an employer for the purpose of continuing The provisions in Bill C-19 respecting the use of replacement operations is not prohibited. workers represent a fair and reasonable compromise to a difficult issue. I urge members of the House to support the provisions in Bill C-19 without amendment. With respect of the new wording of the provision, the Canadian Chamber of Commerce told the Standing Committee on Human Resources Development and the Status of with Persons with Mr. Dale Johnston (Wetaskiwin, Ref.): Mr. Speaker, we are Disabilities that the addition of the words ‘‘rather than the pursuit debating Group No. 7. I want to talk a bit about replacement worker of legitimate bargaining objectives’’ in proposed section 94(2.1) legislation. will ensure that any tribunal interpreting this legislation will be guided by the explicit obligation to consider the reason why the While this legislation does not come out with an outright ban on employer may have hired strike replacements rather than only the the use of replacement workers, it does leave, to say the least, a lot 385

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Government Orders of discretion up to the CIRB. It begs probably more questions than I will deliberately shorten my comments because some of my it actually answers. colleagues would like to share their thoughts on the use and partial bans of replacement workers. The discretion of whether to use replacement workers is going to be left solely to the board. In any case of the use of replacement Mr. Pat Martin (Winnipeg Centre, NDP): Mr. Speaker, this set workers there will be tremendous pressure put on the board to agree of motions in Group No. 7 is a bit of a quandary for us. There are with the union that this an undermining of the union, which is two motions which the NDP caucus is in favour of and others that referred to in the vernacular as union busting. we are not. I presume we will have the opportunity to vote on them individually. It is likely that, under tremendous pressure, the use of any replacement workers, whether managerial or otherwise, will be The two motions we are in favour of deal with strengthening the seen by the board as undermining the fundamentals of the union. anti-scab aspects of Bill C-19. We have spoken in favour of Bill C-19 in total. We recognize its value and we recognize the long and exhaustive consultative process it took to get us to this point. We have read quotes by several union leaders which say exactly However our one criticism of Bill C-19 has always been and still is that. They say they are going to impress on the board in every that the reference to anti-scab is too soft and does not really follow instance where replacement workers are used that it will be solely through to the degree— to undermine the union. Mr. Jean Dubé: Mr. Speaker, I rise on a point of order. I notice I think there are instances where replacement workers will that presently we do not have quorum to continue debate. simply be used to maintain the viability of the business. I do not think there is a union in the world that would like to have its The Acting Speaker (Mr. McClelland): We have a quorum employer broke. It would be basically cutting off its nose to spite call. Call in the members. its face. And the bells having rung: In the area of replacement workers, we are also told by union bosses that this is absolutely necessary to prevent violence. It The Acting Speaker (Mr. McClelland): We have quorum. seems as if we are under some kind of constant threat. If there is not an outright ban on replacement workers there may be violence. The Mr. Pat Martin: Mr. Speaker, I really hope the 130,000 prairie unions are quick to cite examples of where there was violence on farmers who are waiting for this bill to be passed so that they can be the picket lines. Violence is one thing but good labour legislation is comfortable that their grain will move without interruption this fall another thing. There are laws which state that violence is not are taking note of the delays and the stalling tactics that have been acceptable and having to pass labour laws under the veil of possible going on in this House. I hope they are paying attention. I am sure violence is doing it for the wrong reasons. they are. They will make good note of that.

D (1630 ) D (1635 )

In the course of the debate today we heard how naive some What I was getting at and the reason I rose to speak is that while members in this House thought members of the Reform Party were we are happy with the package in total, our one criticism of Bill because we made allusions to protecting the national economy C-19 is that the anti-scab aspects of the bill do not go far enough to from devastating work stoppages that would have an effect on the really fulfill what the parties had in mind when they sat down to national economy. A rather weak argument was put forth that of draft Bill C-19. course any disruption of services is going to put economic pressure on somebody. Certainly. Of course. We understand that the union We understand that the whole package was a compromise. wants to put economic pressure on the employer in order for the Nobody at the table really got everything they wanted. There was a employer to see the union’s way of thinking. lot of give and take and a lot of goodwill. Finding a balance is never easy, but having reviewed the motions we have before us from the Apparently, the people who made those comments had selective hon. member for Trois-Rivières, I believe Motion Nos. 19 and 26 hearing. We were talking about actions taken by employers and would serve the bill well in making it the piece of legislation employees, strikes or lockouts, that would have a devastating effect Canadian industry really needs and should be asking for. on the national economy. A devastating effect on the national economy filters down very quickly to the very people my col- The virtues of anti-scab legislation are obvious. We have the leagues down the way are purporting to protect. If there is a work case study right in the province next to us. We can look to the stoppage of any type that has a tremendously adverse effect on the province of Quebec and monitor the experience and the benefits economy, it is the little people who support those businesses and from its long tenure of the anti-scab bill. We know from that who depend on those services who are ultimately hurt. experience there are fewer days of lost time due to strikes and 386

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Government Orders lockouts. The parties are not likely to risk pushing a bargaining Reform Party should take some comfort in that. The way I read session to an impasse knowing that their anti-scab legislation Bill C-19 on that aspect, the advantage is clearly for the employer. would preclude the ability of using replacement workers. Naturally the parties are forced to a position where they have to work a little harder to find a reasonable solution. D (1640 )

We also know that the incidence of picket line violence is lower. This is one of the most sensitive parts of Bill C-19 for our caucus I agree with the previous speaker that we should not be charting our at least and for the labour movement. The right to withhold course by the lighting on a passing ship. What I mean to say is that services in a way that puts economic pressure on the employer is we should not be crafting legislation to preclude violence. Nobody the only peaceful means of negotiating benefits for workers that is is going to be drafting legislation under threat or some veiled available to us. It is really the only tool in our tool chest. When threat. That is not the case. The actual fact is that both parties often bargaining breaks down and we are trying to elevate the standards allow tempers to flare and incidents of violence do take place on or the wages and working conditions for the people we represent, picket lines when scabs try to cross picket lines. If that is precluded passive resistance and withholding service are the two things we or eliminated, then there is not that problem. can legally use to add weight to our points of view.

I have been to the scene of strikes in the city of Montreal. I As a result, these clauses and the motions put forward by the joined my fellow brothers with the carpenters union when they member for Trois-Rivières are very important to us. They would were striking in that industry in the city of Montreal. The first thing add that small bit which is lacking in Bill C-19 to make it a truly I did was I went to a major site where I knew there were carpenters satisfactory package that will add lasting labour peace to the working. I wanted to join them on the picket line, not really Canadian industrial relations environment. thinking through that there was not going to be a picket line. There did not need to be a picket line. The whole idea of strikes and lockouts may get more attention than it deserves in these debates. It has been stated over and over Picket lines are there to keep scabs out. Once it has been shown again that over 95% of all rounds of bargaining are settled without that there is a strike, a couple of placards are put up and the public any lost time. While lost time due to strikes and lockouts is a problem in the industry, it is dealt with in a way that is out of knows there is a strike at the site and the product is hot as a result. proportion. There are no scabs crossing the line. There is no need for workers to be walking the line keeping vehicles from going in and out, et cetera. That is where things flare up. In Manitoba we lose approximately 50,000 person days per year due to strikes and lockouts which is a big problem. Management howls about lost productivity and lost profits, et cetera. It is a Just the very fact that there is solid anti-scab legislation in the problem. However we lose 550,000 person days per year due to province of Quebec minimizes the number of days lost due to injuries on the job and workplace accidents. If they are serious strikes and lockouts. It minimizes the incidents of people stooping about lost productivity, the answer is to clean up the workplace, to to violence on either side, whether it is the replacement workers or stop the carnage in the workplace. Then those 50,000 person days frustrated employees at the location trying to defend their jobs. lost per year will be put into perspective.

Another aspect of Bill C-19 deals with anti-scab and I believe it Another aspect deals with picket line incidents. One of the needs to be improved. The burden of proof is currently on the union positive aspects of Bill C-19 is that employees who are off work for to demonstrate that the employer is using scabs in a way that a strike or a lockout will be guaranteed their jobs when they go undermines the bargaining rights of the union, or it is the intent to back. Those who may have been disciplined during their absence undermine the union by the use of scabs. Regarding that burden of will have the right to the grievance procedure and arbitration. This proof, contrary to what we heard from the previous speaker, it is is a case of natural justice. They should have access to some avenue going to be very difficult to get any board to rule as to what was in of recourse. If in the heat of the moment an incident happens, this the mind of the employer when the scabs were hired. provision in Bill C-19 will recognize that everybody deserves the right to the use of that avenue of recourse. The advantage is clearly to the employer in the current language of Bill C-19 if it is not amended. I would certainly argue that it does Our caucus will be voting in favour of Motions Nos. 19 and 26. not matter what labour leaders were quoted, obviously the advo- We believe they are necessary and that they will add substance and cates for the employees are going to argue that the union is trying to weight to what is already a worthy piece of legislation. In the undermine the bargaining rights and that therefore the scabs should interests of minimizing the lost time due to strikes and lockouts, I be outlawed. I frankly do not think that they would win. It would be would hope the other members in the House can support the a terrible uphill battle and a very difficult argument to win. The motions put forward by the member for Trois-Rivières. 387

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Government Orders [Translation] comes to that the government cuts us off. It is unfortunate but is what happened today. Mr. Jean Dubé (Madawaska—Restigouche, PC): Mr. Speaker, I listened carefully to the remarks of my colleagues from the Bloc The government mentions consultation. Yes, it did that but it Quebecois, the Reform Party and the New Democratic Party. If we certainly did not listen. There are probably 50 amendments today were to follow the policy described by my hon. colleague from the and I do not believe very many of them will pass. These are the NDP, unemployment and poverty would be much higher in Canada, concerns of Canadians but they do not seem to be what the because I can assure you that many more industries would be government thinks. closing down. Before Bill C-19 there was Bill C-66 which contained provisions that were deemed to tilt the balance toward the unions. The bill did I also listened to the comments made by the hon. member from not stipulate clearly that there was no ban on the use of replacement the Bloc Quebecois, who addressed the rights of workers. We in the workers. Instead it stated that no employer or person shall use the Conservative Party believe in the rights of workers and we have services of a replacement worker for the purpose of undermining a shown it. trade unions replacement representational capacity.

We want to make sure these workers do not lose their jobs. We During Senate hearings no one seemed to know how the terms of believe in dialogue rather than in steamrolling people. the bill would be interpreted. That is still a problem today. We do not seem to know what the interpretation will be. D (1645) An hon. member: Oh, oh.

[English] Mr. Jean Dubé: My hon. colleague on the government side seems to have all the answers, but I am sure we will have problems One of the big problems in what we are dealing with today is the with it. replacement workers part of it. This issue is one of the few on which the authors of the Sims report could not agree. [Translation] Motion No. 19 in Group No. 7, moved by the Bloc Quebecois, One of its authors argued in favour of a complete ban on the use prohibits the use of replacement workers as long as the workers of replacement workers as is the case in labour legislation in agree to perform the duties necessary to maintain the essential Quebec and British Columbia. The majority of the Sims report services referred to in subsection (1). argued against a general ban on the use of replacement workers. It states where the use of replacement workers is in dispute and is For example, during a postal strike, as long as postal workers demonstrated to be for the purpose of undermining the union’s agreed to deliver government cheques, Canada Post would not be representative capacity rather than pursuing a legitimate bargaining allowed to hire replacement workers to perform these duties. That objective it should be declared an unfair labour practice. There was is what is proposed in the Bloc’s motion. a lot of confusion when it came to this part and I believe there still is. We in the Conservative Party must vote against this motion. With this amendment, what cannot be done through the front door Many motions are before us today and we will probably be here is done through the back door. Quite simply, we are against banning late tonight voting on them. When there are many motions on a replacement workers. piece of legislation it means there are many questions about the proposed legislation. We have not dealt with this legislation in Motion No. 25 put forward by the Reform Party deletes the approximately 25 years and all of a sudden it is being put through clause on replacement workers altogether. We in the Conservative the House. Party will vote for this motion. D Let me explain what is happening. Let me take a bit of time to (1650) explain to our viewing audience and the people in the gallery what We have an amendment that seeks to clarify this clause and to has happened today and what the government has imposed on this make its interpretation less ambiguous. If our changes are rejected, piece of legislation, on the House of Commons and on the public. it would be better to completely eliminate the clause, so as to avoid any ambiguity that might give the board the power not to allow the Once again the government is in a rush to get it out of here. It has use of replacement workers. invoked time allocation on the bill. That means it has cut off debate. While Motion No. 26 proposed by the Bloc Quebecois seeks to completely prohibit the hiring of replacement workers, our amend- It was in committee. I agree; I was there. A lot of consultation ment strikes a balance. Indeed, it is not reasonable to prohibit the went on and we heard from a lot of witnesses. We now have a use of replacement workers, because it would jeopardize the very chance to debate the legislation in front of Canadians. When it existence of a business. What is the point of going on strike, if the 388

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Government Orders business no longer exists at the conclusion of the negotiation Does the government give unanimous consent to yield to the process? Replacement workers must be available to provide the opposition for the time remaining in debate? essential services that workers will not provide. Some hon. members: Agreed. Our amendment, Motion No. 27, better reflects the spirit of the Some hon. members: No. Simms report. It clearly states that replacement workers are not hired for the purpose of undermining a trade union’s representa- D tional capacity. The motion is clear, and if it is passed, there will (1655 ) definitely not be many questions. But I am sure that this evening, the government will vote against it. The motion is too clear for the Mr. Bryon Wilfert (Oak Ridges, Lib.): Mr. Speaker, I listened government, which prefers a bit of confusion. with interest to my colleagues across the way and I am dismayed to hear about the fact that suddenly we have invoked time allocation.

Motion No. 29 is proposed by the Reform Party. Motion No. 25 I ask hon. members across the way where they were during the seeks to completely eliminate the clause on the use of replacement discussions on Bill C-19. I would like to know where they were workers. If Motion No. 25 is passed, that clause will have to be during the course of the filibuster when we had members of the deleted as well. official opposition obviously needing to go back to labour code 101 to understand the basics. It was very disappointing to see that of the There are many motions before us today, and we think it is 97 clauses there were nine amendments proposed by the official possible to make the bill fair. However, the government must listen opposition, seven on clause 2. to Canadians and to all the opposition parties which have made good suggestions, whether it is the Reform Party, the Bloc Quebe- On the road to Damascus they suddenly discovered the light. cois or our own party. I wonder about the New Democratic Party, if They discovered all sorts of new amendments. Where were they you follow me. We have an opportunity to do a good job. during the course of the debate that I participated in? I understand that members of the New Democratic Party were there. Unfortu- [English] nately the Conservatives were not there during the filibuster. To suggest that the government is try to bring in closure on this important bill is absolutely ludicrous. While the new formulation comes closer to what the Sims task force on Bill C-19 had in mind, it is our opinion that it is still not Dealing with the substance of the amendments before us, the made clear enough. This is not a general ban on the use of approach in Bill C-19 is a very careful compromise on a very replacement workers. More important, it still does not properly difficult issue. We recognize an employer’s right to hire replace- address the meaning of the words used. ment workers for legitimate purposes. However, their use for the purpose of ridding the workplace of union representation would be unfair labour practice. This was the recommendation of the major- Mr. Jim Gouk: I rise on a point of order, Mr. Speaker. I will say ity. right at the start so that it does not get a scurry going that this is not a quorum call. My colleague opposite talks about the fact that it was not unanimous, but the majority of the members of the Sims task force I would ask, Mr. Speaker, that you hear me out on this issue supported it. It was part of the overall package of recommendations because I am saying it in all sincerity. Given that opposition which both labour and management considered acceptable. members would like as much time as possible to raise points on debate on the various amendments, some of which we may not Motions have been put forward which would radically alter this even be able to get to, and given that the government would like to provision and therefore upset the overall balance of the proposed limit the time available for debate, I ask if it would be willing to amendments we are trying to achieve. One motion calls for a yield the floor to opposition members. There is little time left and general prohibition of the use of replacement workers. Another there is a whole group we have not be able to debate yet. motion seeks to eliminate any restriction on their use. Still another motion seeks to add additional wording. Mrs. Brenda Chamberlain: I rise on the same point of order. This provision was carefully examined during the parliamentary Absolutely not, Mr. Speaker. The reality is that we had a whole day study of former Bill C-66. Again I hear that we are trying to rush of debate last week in which members of the Reform Party refused the legislation through. Bill C-66 died when the election was to even discuss these motions. We have been in committee. They called. We have been told time after time that this is an improve- filibustered. Absolutely not. ment on Bill C-66. If we are rushing the bill, I would like to know where the opposition was. The Acting Speaker (Mr. McClelland): The hon. member for West Kootenay—Okanagan has asked for unanimous consent that Some employer groups raised concerns about the wording of the the government yield to the opposition. provision in the former Bill C-66. They wanted the full text of the 389

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Government Orders task force recommendations to be included. This was also the the people in there who act according to what the whip tells them. I recommendation of the Senate committee which also studied the have seen the whip’s department in there watching how they vote former Bill C-66. on certain occasions to make sure they toe the party line.

What did the government do? The Minister of Labour responded In fact, one time they made a mistake in the transport committee. to these concerns and changed the wording of the replacement They actually had a Reform amendment that the hierarchy of the worker provision in Bill C-19 to fully reflect the task force Liberal Party did not like, but it passed because there were a couple recommendation. To repeat that for the opposition, to make sure of Liberals who did not have their marching orders and consequent- that the replacement worker provision was fully implemented the ly they voted according to what made sense instead of the task force recommendation was put into the bill. Major federally directives of the Liberal hierarchy. regulated employers who appeared before the House committee during the study of the bill indicated that they were satisfied with We came into this place at report stage and the Liberals made an the new wording. If members of the opposition were there they amendment that changed the one that passed in committee. So certainly would have heard that. much for the garbage spewed by the last speaker that we have to do things in committee where things are treated seriously. To those who wish to eliminate the provision I say there must be an appropriate remedy when an employer hires a replacement As far as this business of replacement workers, it is really worker and then refuses to bargain in good faith. This provision unfortunate that debate on this is going to be cut short. They say it provides in my view and certainly in the view of the government should all be done in committee. such a remedy. In committee we have three members. In this House we have 59. When the television cameras are on we now get all the amend- Basically they are denying 56 members the right to have a voice, to ments. Obviously we need to have television cameras on all the speak according to their constituents, to people they have consulted time in committee and then maybe we would have some serious and according to their own beliefs. That is unacceptable. It is work done. shameful.

To those who want to prohibit the use of replacement workers a They talk about democracy. They should not utter that word. It total ban on replacements would undermine the balance. The bill is should not be coming out of their mouths. trying to achieve a balance. Where I have a problem with the whole concept of replacement Finally to those who think more wording is needed I refer them workers is that this act talks about who can decide when replace- to the position of the Canadian Chamber of Commerce. ment workers can be used and when they cannot. The problem is where in here does it define exactly what a replacement worker is. D (1700 ) If you are working in a mill, operating a particular machine, and you go on strike and the company simply hires a different operator Maintaining its objection to the rationale for amending the code for that machine, that is a replacement worker. Frankly, I do not to include such a provision, the chamber representative told the agree with that. Some of my colleagues may not happen to agree standing committee: with me. That is fine. I think that is a replacement worker and I do We are pleased that the federal government heeded our concerns with respect to not think that aspect of it should be allowed. the earlier wording of this provision and is proposing to amend the legislation accordingly. In particular, the addition of the words ‘‘rather than the pursuit of If on the other hand the company is owned by a particular legitimate bargaining objectives’’ in proposed subsection 94(2.1) will ensure that any tribunal interpreting this legislation will be guided by the explicit obligation to individual and his wife and their business partner and they are able consider the reason why the employer may have hired strike replacements rather to keep that plant operating, then I think it is their right. It is their than only the protection of a union’s representation rights, as was the case under Bill plant. Who are we or the labour relations board or anyone else to C-66. tell them they cannot run their own business? If there is a contract involved, they have to honour the obligations of that contract. It is my view that the provisions that have been put forward in terms of the amendments be voted down. This allows the CIRB to actually make a decision. If the owner of the company does something and the union says that is taking Mr. Jim Gouk (West Kootenay—Okanagan, Ref.): Mr. away its powers because they are still making some money, the Speaker, I am very anxious to speak after listening to all that board says it will just shut them down. That is the power that this claptrap and bafflegab by the Liberal member who just spoke. thing gives.

This is garbage about how we need television cameras in the There is a bigger problem. The bigger problem is strikes. If there committee room because then serious work will get done. We need were no strikes, in a utopian world, we would not be arguing here something in the committee room so something serious gets done, today about whether there should be replacement workers. In a but it is not TV cameras. It is the replacement of the majority of better world everybody would have a job. Everybody would be 390

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Government Orders treated fairly. Negotiations would go smoothly. That would be just Now we find ourselves in Bill C-19 arguing about replacement great. Unfortunately this is not a perfect world. workers. Of course the government is going to be right back into that. It came up with the replacement worker concept for the air traffic controllers which basically put them in a situation where It might be a little more perfect if the other side would give us they could go on strike but when they were on strike everything more time to discuss the possibilities and some of the things that carried on the same as always. So what does this do for the might happen, but we get into this confrontational role and it does collective bargaining system the government claims it cherishes so not want to hear other ideas. It is like the old adage, do not confuse much? It does not cherish it at all. me with the facts, my mind is already made up. I see them sitting laughing over there. I think it is great, at least somebody is in here When we talk in terms of strikes, we do not talk about who wins to laugh. That is rare. and loses, because the winner is the person who loses the least. What is it going to take for the government to wake up? I am glad D (1705) to see some of the Liberals are coming to their senses, coming over to the right side. I hope in doing that their minds change as well as their position, because if that happens we would make some As far as whether replacement worker definition should be progress in this place. amended better, one of the things that is really sad about the death of democracy caused by the other side’s vote this morning to When there is a strike, and we do not even talk about replace- restrict the debate is that we are not even going to get to Group ment workers, we have a company that is deprived of their No. 8. Group No. 8 would deal with something that would resolve revenues, we have workers who are deprived of their income and the problem of replacement workers. Group No. 8 deals with an we have all the supplemental collateral damage that is done to alternative to a strike. Would it not be wonderful if we could find a people all over other areas. Instead of talking about replacement reasonable alternative to a strike? workers, maybe we should be talking about replacing the dispute settlement mechanism in the labour code so that we actually have We had the post office situation. This is something the Liberals something that means Canadians will be able to keep their jobs and should really appreciate because they just went through this. We there will be a reasonable, viable alternative to going out on strike. had last year our fourth postal strike in ten years. Four times in the last ten years the governments of this country have allowed the post Going on strike or locking people out, if it happens to be the office, which is a monopoly, to shut down the mail service of this employer who initiates the labour disruption, is kind of like a duel country. Each time the government says this is terrible, this is where both sides shoot at one another. devastating, so it orders postal workers back to work. I see I am even getting the victory sign from the Parliamentary Secretary to the Minister of Labour. I really like that. I think she It compounded the mistake with another mistake. The first finally realizes the error of her ways in the past and now she is mistake was to say ‘‘you can strike and restrict everybody and actually ready to listen. deprive them of their ability to have a mail service even though we have set it up so that there is only one possible alternative for you D (1710) anyway to use the mail’’. Then recognizing it made a mistake it made a second mistake by ordering postal workers back to work If nothing else happens out of all this debate, if we can get but not putting into place an alternative to going out on strike in the through to one poor soul on that side, then perhaps this will have first place. Why should we be surprised if year after year, strike been worth it. after strike we find ourselves right back in the same situation? The whole concept of replacement workers is wrong. We are To make a mistake the first time I can understand. But when the approaching it from who decides when they can have them. The same mistake is made over and over again then we have to start approach that should have been taken is what are replacement questioning the relative wisdom of the group that is making the workers. The CIRB decides what hurts, what is okay, what is not, mistake. The Liberal Party has certainly made that with the post maybe it will flip a coin in the event of a strike. We cannot go office. tipping the scales by saying it is okay to change the formula for one side and not the other. I hate even to admit there is the possibility of a strike. We have to recognize we have a bigger problem and begin Now we have a potential strike of the air traffic system. I hope it dealing with it with things like final offer arbitration. does not go any further. For years that could not happen, but now they have been cut loose. However, as long as we are stuck in this system we need some kind of mechanism which states what constitutes a replacement I tried in transport to get a provision put in that would provide an worker. As long as the company is not using that type of person it is alternative to a strike-lockout dispute settlement mechanism. The free to take those types of actions. Where we have someone who is vehicle we wanted to use was final offer arbitration. But the clearly defined as a replacement worker there is no decision to government in its wisdom chose not to do that. make. It is black and white. They are not allowed to be used. 391

6876 COMMONS DEBATES May 12, 1998

Government Orders It is really unfortunate that we are dealing with an opposition of the proceedings and put forthwith all questions necessary to minds instead of dealing with solutions. We are in this confronta- dispose of report stage of the bill now before the House. tional position and unfortunately, because of the actions of the Liberal government today, the last and perhaps most important The question is on Motion No. 19. Is it the pleasure of the House group, finding an alternative dispute settlement mechanism, will to adopt the motion? not even get debated. That is a shame. Some hon. members: Agreed.

Mr. John Duncan (Vancouver Island North, Ref.): Mr. Speak- Some hon. members: No. er, I understand that in a few minutes we are going to be voting. We The Acting Speaker (Mr. McClelland): All those in favour will have something like 47 votes to go through so this is sort of the end please say yea. of debate before closure. Closure happened 14 times in the 12 years when we had a Liberal government under Pierre Elliott Trudeau Some hon. members: Yea. and we thought he was arrogant. This government has more than The Acting Speaker (Mr. McClelland): All those opposed will doubled that already. please say nay.

I have talked on this bill at second reading and on Groups Nos. 1, Some hon. members: Nay. 2, 6 and now 7. Group No. 7 deals with replacement workers. If The Acting Speaker (Mr. McClelland): In my opinion the yeas there is one item where we can listen to rhetorical comment, have it. polarized comment, entrenched comment, confrontational comment, unenlightened comment, blind comment or comment And more than five members having risen: coloured by experiences, this is the one area of the bill where we are going to hear all that. We do not need that. The Acting Speaker (Mr. McClelland): The recorded division on Motion No. 19 stands deferred. What we need is a vision that does not look at the past and does [English] not lead us into poor management and poor union leadership where workers very often tend to come last. That is not what we need. We The next question is on Motion No. 25. Is it the pleasure of the all know how bad it can get. We can count the ways very readily. House to adopt the motion? We had the example that is often referred to with the Royal Oak Some hon. members: Agreed. mine in the north where we had replacement workers brought in. People lost their lives in an underground bombing over an issue. Some hon. members: No. The Acting Speaker (Mr. McClelland): All those in favour of At the other end of the scale we have small businesses with the motion will be please say yea. certification whereby the total business would be at risk just from a short targeted strike on that business. We need to balance all that. It Some hon. members: Yea. is an important issue. It should be addressed in the collective The Acting Speaker (Mr. McClelland): All those opposed will agreement and if the agreement is suspended, which often occurs, please say nay. both parties will agree to live up to their end of this bargain on replacement workers. Some hon. members: Nay. The Acting Speaker (Mr. McClelland): In my opinion the yeas What we do not need is the CIRB to be put in the untenable have it. position which this bill does of being able to prohibit the use of replacement workers if the CIRB determines their presence under- And more than five members having risen: mines the union. The CIRB should never be placed in that position. The Acting Speaker (Mr. McClelland): The recorded division on Motion No. 25 stands deferred. The recorded division will also D (1715 ) apply to Motion No. 29. [Translation] Mr. Speaker, I notice you are signalling that my time is up. That is unfortunate because I had so much worthy material to present. I The next question is on Motion No. 26. Is it the pleasure of the did not even get to the bottom line of my speech. However, I do House to adopt the motion? appreciate the fact that you have given me this opportunity to exit. I look forward to the upcoming votes. Some hon. members: Agreed. Some hon. members: No. [Translation] The Acting Speaker (Mr. McClelland): All those in favour will please say yea. The Acting Speaker (Mr. McClelland): It being 5.15 p.m., pursuant to the order made earlier this day, it is my duty to interrupt Some hon. members: Yea. 392

May 12, 1998 COMMONS DEBATES 6877

Government Orders The Acting Speaker (Mr. McClelland): All those opposed will Some hon. members: Nay. please say nay. The Acting Speaker (Mr. McClelland): In my opinion the yeas Some hon. members: Nay. have it.

The Acting Speaker (Mr. McClelland): In my opinion the nays And more than five members having risen: have it. The Acting Speaker (Mr. McClelland): A recorded division on And more than five members having risen: Motion No. 21 stands deferred.

The Acting Speaker (Mr. McClelland): The recorded division We will now put the question on Motion No. 24. Is it the pleasure on Motion No. 26 stands deferred. of the House to adopt the motion?

[English] Some hon. members: Agreed.

The next question is on Group No. 8, Motion No. 21. Some hon. members: No.

Mr. Jim Gouk: Mr. Speaker, I rise on a point of order to ask The Acting Speaker (Mr. McClelland): All those in favour of your advice. Is there any procedure available to us to deal with the the motion will please say yea. fact that we are about to vote on a number of things in this House on which there has not been one single word of debate? Some hon. members: Yea.

The Acting Speaker (Mr. McClelland): The hon. member for The Acting Speaker (Mr. McClelland): All those opposed will West Kootenay—Okanagan is aware that a motion for time alloca- please say nay. tion was given with proper notice earlier in the week. A vote was taken. According to the standing orders of the House of Commons, Some hon. members: Nay. it is quite appropriate to proceed in this way. That is all I will say on that point of order. The Acting Speaker (Mr. McClelland): In my opinion the nays have it. D (1720) And more than five members having risen: We are now introducing Group No. 8, Motions Nos. 21 and 24. The Acting Speaker (Mr. McClelland): A recorded division on Mr. Dale Johnston (Wetaskiwin, Ref.) moved: Motion No. 24 stands deferred. Motion No. 21 [Translation] That Bill C-19, in Clause 37, be amended by replacing line 18 on page 30 with the following: Mr. Yves Rocheleau (Trois-Rivières, BQ) moved: ‘‘the trade union, direct that final offer selection arbitration be used as a method of’’ Motion No. 31 Motion No. 24 That Bill C-19, in Clause 68, be amended by adding after line 26 on page 42 the That Bill C-19, in Clause 37, be amended by replacing line 41 on page 31 with the following: following: ‘‘(1.1) The report laid before Parliament pursuant to subsection (1) stands ‘‘make an order directing the parties to adopt final offer selection arbitration as a permanently referred to the standing committee of the House of Commons that method of resolving the issues in dispute between the parties for the purpose of normally considers matters relating to human resources development.’’ ensuring the settlement of the dispute to’’ The Acting Speaker (Mr. McClelland): Is it the pleasure of the The Acting Speaker (Mr. McClelland): We will now put the House to adopt the motion? question on Motion No. 21. Is it the pleasure of the House to adopt the motion? Some hon. members: Agreed.

Some hon. members: Agreed. Some hon. members: No.

Some hon. members: No. The Acting Speaker (Mr. McClelland): All those in favour will please say yea. The Acting Speaker (Mr. McClelland): All those in favour of the motion will please say yea. Some hon. members: Yea.

Some hon. members: Yea. The Acting Speaker (Mr. McClelland): All those opposed will please say nay. The Acting Speaker (Mr. McClelland): All those opposed will please say nay. Some hon. members: Nay. 393

6878 COMMONS DEBATES May 12, 1998

Government Orders The Acting Speaker (Mr. McClelland): In my opinion the yeas NAYS have it. Members And more than five members having risen: Adams Alcock The Acting Speaker (Mr. McClelland): The recorded division Anderson Assad on Motion No. 31 stands deferred. Assadourian Baker Bakopanos Barnes [English] Beaumier Bélair Bélanger Bellemare The House will now proceed to the taking of the deferred Bennett Bertrand Bevilacqua Blaikie recorded divisions at the report stage of the bill. Call in the Bonin Bonwick members. Boudria Bradshaw Brown Bryden D (1745) Bulte Byrne Caccia Calder Cannis Caplan After the ringing of the bells: Carroll Catterall Cauchon Chamberlain The Acting Speaker (Mr. McClelland): The question is on Chan Charbonneau Motion No.1 at the report stage of Bill C-19. Clouthier Coderre Cohen Collenette D (1750) Comuzzi Copps Cullen Davies Desjarlais DeVillers (The House divided on Motion No. 1, which was negatived on Dhaliwal Dion the following division:) Discepola Dockrill Dromisky Duhamel (Division No. 138) Earle Easter Eggleton Finestone Finlay Folco YEAS Fontana Fry Members Gagliano Gallaway Godfrey Godin (Acadie—Bathurst) Abbott Ablonczy Goodale Graham Alarie Anders Asselin Bachand (Richmond—Arthabaska) Gray (Windsor West) Grose Bachand (Saint-Jean) Bailey Guarnieri Harb Bellehumeur Bergeron Harvard Hubbard Bigras Breitkreuz (Yorkton—Melville) Ianno Jackson Brien Brison Jennings Jordan Cadman Casey Karetak-Lindell Keyes Casson Chatters Kilgour (Edmonton Southeast) Knutson Chrétien (Frontenac—Mégantic) Crête Lastewka Lavigne Cummins Dalphond-Guiral Lee Leung de Savoye Debien Lill Lincoln Doyle Dubé (Lévis) Dubé (Madawaska—Restigouche) Duceppe Longfield MacAulay Dumas Duncan Malhi Maloney Elley Epp Mancini Marleau Forseth Gagnon Martin (LaSalle—Émard) Martin (Winnipeg Centre) Gauthier Gilmour Massé McCormick Girard-Bujold Gouk McDonough McGuire Grey (Edmonton North) Guay McKay (Scarborough East) McTeague Guimond Hart McWhinney Mills (Broadview—Greenwood) Harvey Hill (Macleod) Minna Mitchell Hill (Prince George—Peace River) Hilstrom Hoeppner Jaffer Murray Myers Johnston Jones Nault Nystrom Keddy (South Shore) Kenney (Calgary-Sud-Est) O’Reilly Pagtakhan Kerpan Konrad Paradis Parrish Lalonde Laurin Patry Peric Lebel Lefebvre Pettigrew Phinney Loubier Lowther Pickard (Kent—Essex) Pillitteri Lunn MacKay (Pictou—Antigonish—Guysborough) Pratt Proud Manning Marceau Provenzano Redman Marchand Martin (Esquimalt—Juan de Fuca) Reed Richardson Matthews McNally Ménard Mercier Riis Robillard Meredith Mills (Red Deer) Robinson Rock Morrison Muise Saada Scott (Fredericton) Nunziata Obhrai Sekora Serré Pankiw Penson Shepherd Speller Plamondon Power St. Denis Steckle Price Ramsay Stewart (Brant) Stewart (Northumberland) Reynolds Ritz St-Julien Stoffer Rocheleau Sauvageau Szabo Telegdi Schmidt Scott (Skeena) Thibeault Torsney Solberg St-Hilaire Strahl Thompson (Charlotte) Ur Valeri Thompson (Wild Rose) Tremblay (Rimouski—Mitis) Vanclief Vautour Turp Vellacott Volpe Wappel Venne Wayne Wasylycia-Leis Whelan White (Langley—Abbotsford) White (North Vancouver) —100 Wilfert Wood—152 394

May 12, 1998 COMMONS DEBATES 6879

Government Orders PAIRED MEMBERS (Division No. 139)

Augustine Axworthy (Winnipeg South Centre) Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) YEAS Canuel Drouin Fournier Godin (Châteauguay) Marchi O’Brien (Labrador) Members Perron Peterson Picard (Drummond) Saada Alarie Asselin Tremblay (Lac-Saint-Jean) Bachand (Saint-Jean) Bellehumeur Bergeron Bigras The Speaker: I declare Motion No. 1 lost. The next question is Brien Chrétien (Frontenac—Mégantic) Crête Dalphond-Guiral on Motion No. 2. de Savoye Debien Dubé (Lévis) Duceppe D Dumas Gagnon (1755 ) Gauthier Girard-Bujold Guay Guimond Ms. Marlene Catterall: Mr. Speaker, I rise on a point of order. Lalonde Laurin Lebel Lefebvre Before we proceed to Motion No. 2, I believe you would find Loubier Marceau Marchand Ménard unanimous consent to apply the result of the vote just taken to Mercier Nunziata Motion Nos. 5, 7 and 31. Plamondon Rocheleau Sauvageau St-Hilaire Tremblay (Rimouski—Mitis) Turp The Speaker: Is there agreement to proceed in this fashion? Venne —37 Some hon. members: Agreed. NAYS [Editor’s Note: See list under Division No. 138] The Speaker: Therefore I declare Motions Nos. 5, 7 and 31 lost. Members Abbott Ablonczy The next question is on Motion No. 2. Adams Alcock Anders Anderson Assad Assadourian Ms. Marlene Catterall: Mr. Speaker, I rise on a point of order. Bachand (Richmond—Arthabaska) Bailey If the House would agree I would propose that you seek unanimous Baker Bakopanos Barnes Beaumier consent that the members who voted on the previous motion be Bélair Bélanger recorded as having voted on the motion now before the House, with Bellemare Bennett Bertrand Bevilacqua Liberal members voting yea. Blaikie Bonin Bonwick Boudria Bradshaw Breitkreuz (Yorkton—Melville) The Speaker: Is there agreement to proceed in such a fashion? Brison Brown Bryden Bulte Some hon. members: Agreed. Byrne Caccia Cadman Calder Cannis Caplan Mr. Chuck Strahl: Mr. Speaker, I am checking closely but I am Carroll Casey Casson Catterall sure the Reform Party is voting nay to this motion. Cauchon Chamberlain Chan Charbonneau [Translation] Chatters Clouthier Coderre Cohen Collenette Comuzzi Mr. Stéphane Bergeron: Mr. Speaker, we support this, one of Copps Cullen our own motions. Cummins Davies Desjarlais DeVillers Dhaliwal Dion [English] Discepola Dockrill Doyle Dromisky Dubé (Madawaska—Restigouche) Duhamel Mr. Bill Blaikie: Mr. Speaker, New Democrats vote no to this Duncan Earle motion. Easter Eggleton Elley Epp Finestone Finlay [Translation] Folco Fontana Forseth Fry Gagliano Gallaway Mr. André Harvey: Mr. Speaker, the members of our party will Gilmour Godfrey vote against this motion. Godin (Acadie—Bathurst) Goodale Gouk Graham Gray (Windsor West) Grey (Edmonton North) [English] Grose Guarnieri Harb Hart Harvard Harvey Mr. John Nunziata: I will be voting yes to this motion. Hill (Macleod) Hill (Prince George—Peace River) Hilstrom Hoeppner (The House divided on Motion No. 2, which was negatived on Hubbard Ianno Jackson Jaffer the following division:) Jennings Johnston 395

6880 COMMONS DEBATES May 12, 1998

Government Orders Jones Jordan Ms. Marlene Catterall: Mr. Speaker, I believe you would find Karetak-Lindell Keddy (South Shore) Kenney (Calgary-Sud-Est) Kerpan consent to apply the results of the vote just taken to the following Keyes Kilgour (Edmonton Southeast) items: Motions Nos. 10, 11, 12, 13, 14, 15, 16 and 17. Knutson Konrad Lastewka Lavigne Lee Leung The Speaker: Is there agreement to proceed in such a fashion? Lill Lincoln Longfield Lowther Some hon. members: Agreed. Lunn MacAulay MacKay (Pictou—Antigonish—Guysborough) Malhi Maloney Mancini Mr. John Nunziata: Mr. Speaker, I will support Motions Manning Marleau Nos. 10 and 11. With respect to the remaining motions I will vote Martin (Esquimalt—Juan de Fuca) Martin (LaSalle—Émard) as I voted on the original motion. Martin (Winnipeg Centre) Massé Matthews McCormick McDonough McGuire [Editor’s Note: See list under Division No. 139] McKay (Scarborough East) McNally McTeague McWhinney D Meredith Mills (Broadview—Greenwood) (1800 ) Mills (Red Deer) Minna Mitchell Morrison The Speaker: I declare Motions Nos. 10, 11, 12, 13, 14, 15, 16 Muise Murray Myers Nault and 17 defeated. Nystrom Obhrai O’Reilly Pagtakhan Ms. Marlene Catterall: Mr. Speaker, I rise on a point of order. I Pankiw Paradis Parrish Patry believe you will find consent to apply the results of the vote just Penson Peric taken to the following items: Motion No. 6 and Motion No. 8. Pettigrew Phinney Pickard (Kent—Essex) Pillitteri Power Pratt The Speaker: Is there agreement to proceed in such a fashion? Price Proud Provenzano Ramsay Some hon. members: Agreed. Redman Reed Reynolds Richardson Riis Ritz Mr. John Nunziata: Mr. Speaker, on Motion No. 6 I would like Robillard Robinson to be recorded in the affirmative as voting for the motion. With Rock Saada respect to Motion No. 8, I would oppose that motion. Schmidt Scott (Fredericton) Scott (Skeena) Sekora Serré Shepherd [Editor’s Note: See list under Division No. 139.] Solberg Speller St. Denis Steckle (The House divided on Motion No. 8, which was negatived on Stewart (Brant) Stewart (Northumberland) St-Julien Stoffer the following division:) Strahl Szabo Telegdi Thibeault Thompson (Charlotte) Thompson (Wild Rose) (Division No. 142) Torsney Ur Valeri Vanclief YEAS Vautour Vellacott Volpe Wappel Members Wasylycia-Leis Wayne Whelan White (Langley—Abbotsford) Alarie Asselin White (North Vancouver) Wilfert Bachand (Saint-Jean) Bellehumeur Bergeron Bigras Wood—215 Brien Chrétien (Frontenac—Mégantic) Crête Dalphond-Guiral de Savoye Debien Dubé (Lévis) Duceppe PAIRED MEMBERS Dumas Gagnon Gauthier Girard-Bujold Guay Guimond Lalonde Laurin Lebel Lefebvre Loubier Marceau Augustine Axworthy (Winnipeg South Centre) Marchand Ménard Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Mercier Plamondon Canuel Drouin Rocheleau Sauvageau Fournier Godin (Châteauguay) St-Hilaire Tremblay (Rimouski—Mitis) Marchi O’Brien (Labrador) Turp—35 Perron Peterson Picard (Drummond) Saada NAYS Tremblay (Lac-Saint-Jean) Members Abbott Ablonczy The Speaker: I declare Motion No. 2 lost. The next question is Adams Alcock Anders Anderson on Motion No. 3. Assad Assadourian 396

May 12, 1998 COMMONS DEBATES 6881

Government Orders

Bachand (Richmond—Arthabaska) Bailey Proud Provenzano Baker Bakopanos Ramsay Redman Barnes Beaumier Reed Reynolds Bélair Bélanger Richardson Riis Ritz Robillard Bellemare Bennett Robinson Rock Bertrand Bevilacqua Saada Schmidt Blaikie Bonin Scott (Fredericton) Scott (Skeena) Bonwick Boudria Sekora Serré Bradshaw Breitkreuz (Yorkton—Melville) Shepherd Solberg Brison Brown Speller St. Denis Bryden Bulte Steckle Stewart (Brant) Byrne Caccia Stewart (Northumberland) St-Julien Stoffer Strahl Cadman Calder Szabo Telegdi Cannis Caplan Thibeault Thompson (Charlotte) Carroll Casey Thompson (Wild Rose) Torsney Casson Catterall Ur Valeri Cauchon Chamberlain Vanclief Vautour Chan Charbonneau Vellacott Volpe Chatters Clouthier Wappel Wasylycia-Leis Coderre Cohen Wayne Whelan Collenette Comuzzi White (Langley—Abbotsford) White (North Vancouver) Wilfert Wood—216 Copps Cullen Cummins Davies Desjarlais DeVillers Dhaliwal Dion PAIRED MEMBERS Discepola Dockrill Doyle Dromisky Dubé (Madawaska—Restigouche) Duhamel Duncan Earle Augustine Axworthy (Winnipeg South Centre) Easter Eggleton Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Canuel Drouin Elley Epp Fournier Godin (Châteauguay) Finestone Finlay Marchi O’Brien (Labrador) Folco Fontana Perron Peterson Forseth Fry Picard (Drummond) Saada Gagliano Gallaway Tremblay (Lac-Saint-Jean) Gilmour Godfrey Godin (Acadie—Bathurst) Goodale Gouk Graham The Speaker: I declare Motions Nos. 6 and 8 defeated. The next Gray (Windsor West) Grey (Edmonton North) question is on Motion No. 3. Grose Guarnieri Harb Hart Harvard Harvey [Translation] Hill (Macleod) Hill (Prince George—Peace River) Hilstrom Hoeppner Hubbard Ianno Jackson Jaffer Ms. Marlene Catterall: Mr. Speaker, I believe you would find Jennings Johnston unanimous consent that the members who are recorded as having Jones Jordan voted on the previous motion be recorded as having voted on the Karetak-Lindell Keddy (South Shore) Kenney (Calgary-Sud-Est) Kerpan motion now before the House, with Liberal members voting nay. Keyes Kilgour (Edmonton Southeast) Knutson Konrad Lastewka Lavigne [English] Lee Leung Lill Lincoln Longfield Lowther The Speaker: Is there agreement to proceed in such a fashion? Lunn MacAulay MacKay (Pictou—Antigonish—Guysborough) Malhi Maloney Mancini Some hon. members: Agreed. Manning Marleau Martin (Esquimalt—Juan de Fuca) Martin (LaSalle—Émard) Martin (Winnipeg Centre) Massé Mr. Chuck Strahl: Mr. Speaker, Reform Party members will Matthews McCormick McDonough McGuire vote no to this motion. McKay (Scarborough East) McNally McTeague McWhinney [Translation] Meredith Mills (Broadview—Greenwood) Mills (Red Deer) Minna Mitchell Morrison Muise Murray Mr. Stéphane Bergeron: Mr. Speaker, the members of the Bloc Myers Nault Quebecois, with the exception of the member for Saint-Bruno— Nunziata Nystrom Saint-Hubert, who had to leave, are in favour of the motion. Obhrai O’Reilly Pagtakhan Pankiw Paradis Parrish [English] Patry Penson Peric Pettigrew Phinney Pickard (Kent—Essex) Pillitteri Power Mr. Bill Blaikie: Mr. Speaker, New Democratic Party members Pratt Price vote no to this motion. 397

6882 COMMONS DEBATES May 12, 1998

Government Orders [Translation] Finlay Folco Fontana Forseth Fry Gagliano Gallaway Gilmour Mr. André Harvey: Mr. Speaker, the members of our party vote Godfrey Godin (Acadie—Bathurst) yes to this motion. Goodale Gouk Graham Gray (Windsor West) Grey (Edmonton North) Grose [English] Guarnieri Harb Hart Harvard Hill (Macleod) Hill (Prince George—Peace River) (The House divided on Motion No. 3, which was negatived on Hilstrom Hoeppner Hubbard Ianno the following division:) Jackson Jaffer Jennings Johnston Jordan Karetak-Lindell (Division No. 140) Kenney (Calgary-Sud-Est) Kerpan Keyes Kilgour (Edmonton Southeast) Knutson Konrad YEAS Lastewka Lavigne Lee Leung Lill Lincoln Members Longfield Lowther Lunn MacAulay Alarie Asselin Bachand (Richmond—Arthabaska) Bachand (Saint-Jean) Malhi Maloney Bellehumeur Bergeron Mancini Manning Bigras Brien Marleau Martin (Esquimalt—Juan de Fuca) Brison Casey Martin (LaSalle—Émard) Martin (Winnipeg Centre) Chrétien (Frontenac—Mégantic) Crête Massé McCormick Dalphond-Guiral de Savoye McDonough McGuire Debien Doyle McKay (Scarborough East) McNally Dubé (Lévis) Dubé (Madawaska—Restigouche) McTeague McWhinney Duceppe Dumas Meredith Mills (Broadview—Greenwood) Gagnon Gauthier Mills (Red Deer) Minna Girard-Bujold Guay Mitchell Morrison Guimond Harvey Murray Myers Jones Keddy (South Shore) Nault Nunziata Lalonde Laurin Nystrom Obhrai Lebel Lefebvre O’Reilly Pagtakhan Loubier MacKay (Pictou—Antigonish—Guysborough) Marceau Marchand Pankiw Paradis Matthews Ménard Parrish Patry Mercier Muise Penson Peric Plamondon Power Pettigrew Phinney Price Rocheleau Pickard (Kent—Essex) Pillitteri Sauvageau St-Hilaire Pratt Proud Thompson (Charlotte) Tremblay (Rimouski—Mitis) Provenzano Ramsay Turp Wayne —50 Redman Reed Reynolds Richardson Riis Ritz NAYS Robillard Robinson Rock Saada Members Schmidt Scott (Fredericton) Scott (Skeena) Sekora Abbott Ablonczy Serré Shepherd Adams Alcock Solberg Speller Anders Anderson St. Denis Steckle Assad Assadourian Stewart (Brant) Stewart (Northumberland) Bailey Baker St-Julien Stoffer Bakopanos Barnes Strahl Szabo Beaumier Bélair Telegdi Thibeault Bélanger Bellemare Thompson (Wild Rose) Torsney Bennett Bertrand Ur Valeri Bevilacqua Blaikie Vanclief Vautour Bonin Bonwick Vellacott Volpe Boudria Bradshaw Wappel Wasylycia-Leis Breitkreuz (Yorkton—Melville) Brown Whelan White (Langley—Abbotsford) Bryden Bulte Byrne Caccia White (North Vancouver) Wilfert Cadman Calder Wood —201 Cannis Caplan Carroll Casson Catterall Cauchon Chamberlain Chan PAIRED MEMBERS Charbonneau Chatters Clouthier Coderre Cohen Collenette Comuzzi Copps Cullen Cummins Davies Desjarlais Augustine Axworthy (Winnipeg South Centre) DeVillers Dhaliwal Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Dion Discepola Canuel Drouin Dockrill Dromisky Fournier Godin (Châteauguay) Duhamel Duncan Marchi O’Brien (Labrador) Earle Easter Perron Peterson Eggleton Elley Picard (Drummond) Saada Epp Finestone Tremblay (Lac-Saint-Jean) 398

May 12, 1998 COMMONS DEBATES 6883

Government Orders The Speaker: I declare Motion No. 3 defeated. The next Guay Guimond Hart Hill (Macleod) question is on Motion No. 4. Hill (Prince George—Peace River) Hilstrom Hoeppner Jaffer Johnston Kenney (Calgary-Sud-Est) Ms. Marlene Catterall: Mr. Speaker, I rise on a point of order. Kerpan Konrad If the House would agree, I propose that you seek unanimous Lalonde Laurin Lebel Lefebvre consent that members who voted on the previous motion be Loubier Lowther recorded as having voted on the motion now before the House with Lunn Manning Liberal members voting nay. Marceau Marchand Martin (Esquimalt—Juan de Fuca) McNally Ménard Mercier The Speaker: We are voting on Motion No. 4. Is there agree- Meredith Mills (Red Deer) Morrison Nunziata ment to proceed in such a fashion? Obhrai Pankiw Penson Plamondon Some hon. members: Agreed. Ramsay Reynolds Ritz Rocheleau Sauvageau Schmidt Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Scott (Skeena) Solberg St-Hilaire Strahl vote yes to this motion. Thompson (Wild Rose) Tremblay (Rimouski—Mitis) Turp Vellacott White (Langley—Abbotsford) White (North Vancouver) —84 D (1805 )

[Translation] NAYS

Mr. Stéphane Bergeron: Mr. Speaker, the members of the Bloc Members Quebecois support this motion. Adams Alcock [English] Anderson Assad Assadourian Bachand (Richmond—Arthabaska) Baker Bakopanos Mr. Bill Blaikie: Mr. Speaker, the New Democrats present vote Barnes Beaumier Bélair Bélanger no. Bellemare Bennett Bertrand Bevilacqua [Translation] Blaikie Bonin Bonwick Boudria Bradshaw Brison Mr. André Harvey: Mr. Speaker, the members of our party will Brown Bryden Bulte Byrne vote against this motion. Caccia Calder Cannis Caplan [English] Carroll Casey Catterall Cauchon Chamberlain Chan Mr. John Nunziata: Mr. Speaker, as I understand this amend- Charbonneau Clouthier Coderre Cohen ment it allows the board to vote for a chair should the position Collenette Comuzzi become vacant. I would support that motion. Copps Cullen Davies Desjarlais DeVillers Dhaliwal (The House divided on Motion No. 4, which was negatived on Dion Discepola the following division:) Dockrill Doyle Dromisky Dubé (Madawaska—Restigouche) Duhamel Earle (Division No. 141) Easter Eggleton Finestone Finlay Folco Fontana YEAS Fry Gagliano Gallaway Godfrey Members Godin (Acadie—Bathurst) Goodale Graham Gray (Windsor West) Abbott Ablonczy Grose Guarnieri Alarie Anders Harb Harvard Asselin Bachand (Saint-Jean) Harvey Hubbard Bailey Bellehumeur Ianno Jackson Bergeron Bigras Jennings Jones Breitkreuz (Yorkton—Melville) Brien Jordan Karetak-Lindell Cadman Casson Keddy (South Shore) Keyes Chatters Chrétien (Frontenac—Mégantic) Kilgour (Edmonton Southeast) Knutson Crête Cummins Dalphond-Guiral de Savoye Lastewka Lavigne Debien Dubé (Lévis) Lee Leung Duceppe Dumas Lill Lincoln Duncan Elley Longfield MacAulay Epp Forseth MacKay (Pictou—Antigonish—Guysborough) Malhi Gagnon Gauthier Maloney Mancini Gilmour Girard-Bujold Marleau Martin (LaSalle—Émard) Gouk Grey (Edmonton North) Martin (Winnipeg Centre) Massé 399

6884 COMMONS DEBATES May 12, 1998

Government Orders Matthews McCormick [English] McDonough McGuire McKay (Scarborough East) McTeague McWhinney Mills (Broadview—Greenwood) Minna Mitchell Mr. Bill Blaikie: Mr. Speaker, the New Democrats present vote Muise Murray no to this motion. Myers Nault Nystrom O’Reilly Pagtakhan Paradis [Translation] Parrish Patry Peric Pettigrew Phinney Pickard (Kent—Essex) Mr. André Harvey: Mr. Speaker, the members of our party will Pillitteri Power Pratt Price vote in favour of this motion. Proud Provenzano Redman Reed Richardson Riis [English] Robillard Robinson Rock Saada Scott (Fredericton) Sekora Mr. John Nunziata: Mr. Speaker, this motion would preclude Serré Shepherd automatic certification. I would vote in support. Speller St. Denis Steckle Stewart (Brant) Stewart (Northumberland) St-Julien (The House divided on Motion No. 30, which was negatived on Stoffer Szabo Telegdi Thibeault the following division:) Thompson (Charlotte) Torsney Ur Valeri Vanclief Vautour (Division No. 143) Volpe Wappel Wasylycia-Leis Wayne Whelan Wilfert Wood—167 YEAS Members PAIRED MEMBERS Abbott Ablonczy Anders Bachand (Richmond—Arthabaska) Bailey Breitkreuz (Yorkton—Melville) Brison Cadman Augustine Axworthy (Winnipeg South Centre) Casey Casson Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Chatters Cummins Canuel Drouin Doyle Dubé (Madawaska—Restigouche) Fournier Godin (Châteauguay) Duncan Elley Marchi O’Brien (Labrador) Epp Forseth Perron Peterson Gilmour Gouk Picard (Drummond) Saada Grey (Edmonton North) Hart Tremblay (Lac-Saint-Jean) Harvey Hill (Macleod) Hill (Prince George—Peace River) Hilstrom Hoeppner Jaffer Johnston Jones The Speaker: I declare Motion No. 4 lost. Keddy (South Shore) Kenney (Calgary-Sud-Est) Kerpan Konrad Lowther Lunn The next question is on Motion No. 30. MacKay (Pictou—Antigonish—Guysborough) Manning Martin (Esquimalt—Juan de Fuca) Matthews McNally Meredith [Translation] Mills (Red Deer) Morrison Muise Nunziata Obhrai Pankiw Penson Power Ms. Marlene Catterall: Mr. Speaker, you will find there is Price Ramsay Reynolds Ritz unanimous consent that those members who have voted on the Schmidt Scott (Skeena) previous motion be recorded as having voted on the motion now Solberg Strahl Thompson (Charlotte) Thompson (Wild Rose) before the House, with the Liberal members voting no. Vellacott Wayne White (Langley—Abbotsford) White (North Vancouver)—64 [English] NAYS

The Speaker: Is there agreement to proceed in such a fashion? Members Adams Alarie Alcock Anderson Some hon. members: Agreed. Assad Assadourian Asselin Bachand (Saint-Jean) Baker Bakopanos Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Barnes Beaumier Bélair Bélanger vote yes to this motion. Bellehumeur Bellemare Bennett Bergeron Bertrand Bevilacqua [Translation] Bigras Blaikie Bonin Bonwick Boudria Bradshaw Mr. Stéphane Bergeron: Mr. Speaker, the members of the Bloc Brien Brown Bryden Bulte Quebecois will oppose this motion. Byrne Caccia 400

May 12, 1998 COMMONS DEBATES 6885

Government Orders Calder Cannis PAIRED MEMBERS Caplan Carroll Catterall Cauchon Chamberlain Chan Augustine Axworthy (Winnipeg South Centre) Charbonneau Chrétien (Frontenac—Mégantic) Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Clouthier Coderre Canuel Drouin Cohen Collenette Fournier Godin (Châteauguay) Comuzzi Copps Marchi O’Brien (Labrador) Crête Cullen Perron Peterson Dalphond-Guiral Davies Picard (Drummond) Saada de Savoye Debien Tremblay (Lac-Saint-Jean) Desjarlais DeVillers Dhaliwal Dion The Speaker: I declare Motion No. 30 lost. Discepola Dockrill Dromisky Dubé (Lévis) Ms. Marlene Catterall: Mr. Speaker, I believe you will find Duceppe Duhamel Dumas Earle consent to apply the results of the vote just taken to the following Easter Eggleton items: Motions Nos. 9, 28, 18, 22, 25 and 27. Finestone Finlay Folco Fontana Fry Gagliano The Speaker: Is there agreement to proceed in such a fashion? Gagnon Gallaway Gauthier Girard-Bujold Some hon. members: Agreed. Godfrey Godin (Acadie—Bathurst) Goodale Graham [Editor’s Note: See list under Division No. 143.] Gray (Windsor West) Grose Guarnieri Guay Guimond Harb The Speaker: I declare Motions Nos. 9, 18, 22, 25, 27 and 28 Harvard Hubbard lost. I also declare Motion Nos. 20 and 23 lost. Ianno Jackson Jennings Jordan Karetak-Lindell Keyes The next question is on Motion No. 19. Kilgour (Edmonton Southeast) Knutson Lalonde Lastewka D (1810 ) Laurin Lavigne Lebel Lee Lefebvre Leung Ms. Marlene Catterall: Mr. Speaker, I propose that you seek Lill Lincoln unanimous consent that members who voted on the previous Longfield Loubier motion be recorded as having voted on the motion now before the MacAulay Malhi Maloney Mancini House with Liberal members voting nay. Marceau Marchand Marleau Martin (LaSalle—Émard) The Speaker: Is there agreement to proceed in such a fashion? Martin (Winnipeg Centre) Massé McCormick McDonough McGuire McKay (Scarborough East) Some hon. members: Agreed. McTeague McWhinney Ménard Mercier Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Mills (Broadview—Greenwood) Minna vote nay to this motion. Mitchell Murray Myers Nault Nystrom O’Reilly [Translation] Pagtakhan Paradis Parrish Patry Mr.Stéphane Bergeron: Mr. Speaker, the members of the Bloc Peric Pettigrew Phinney Pickard (Kent—Essex) Quebecois are in favour of this motion. Pillitteri Plamondon Pratt Proud [English] Provenzano Redman Reed Richardson Mr. Bill Blaikie: Mr. Speaker, New Democrats present vote yes Riis Robillard Robinson Rocheleau to this motion. Rock Saada Sauvageau Scott (Fredericton) [Translation] Sekora Serré Shepherd Speller St. Denis Steckle Mr. André Harvey: Mr. Speaker, the members of our party vote Stewart (Brant) Stewart (Northumberland) nay to this motion. St-Hilaire St-Julien Stoffer Szabo [English] Telegdi Thibeault Torsney Tremblay (Rimouski—Mitis) Turp Ur Mr. John Nunziata: Mr. Speaker, this amendment would ban Valeri Vanclief replacement workers and I oppose the amendment. Vautour Volpe Wappel Wasylycia-Leis Whelan Wilfert (The House divided on Motion No. 19, which was negatived on Wood—187 the following division:) 401

6886 COMMONS DEBATES May 12, 1998

Government Orders (Division No. 144) Hill (Macleod) Hill (Prince George—Peace River) Hilstrom Hoeppner Hubbard Ianno Jackson Jaffer YEAS Jennings Johnston Jones Jordan Karetak-Lindell Keddy (South Shore) Members Kenney (Calgary-Sud-Est) Kerpan Keyes Kilgour (Edmonton Southeast) Alarie Asselin Knutson Konrad Bachand (Saint-Jean) Bellehumeur Lastewka Lavigne Bergeron Bigras Lee Leung Blaikie Brien Chrétien (Frontenac—Mégantic) Crête Lincoln Longfield Dalphond-Guiral Davies Lowther Lunn de Savoye Debien MacAulay MacKay (Pictou—Antigonish—Guysborough) Desjarlais Dockrill Malhi Maloney Dubé (Lévis) Duceppe Manning Marleau Dumas Earle Martin (Esquimalt—Juan de Fuca) Martin (LaSalle—Émard) Gagnon Gauthier Massé Matthews Girard-Bujold Godin (Acadie—Bathurst) Guay Guimond McCormick McGuire Lalonde Laurin McKay (Scarborough East) McNally Lebel Lefebvre McTeague McWhinney Lill Loubier Meredith Mills (Broadview—Greenwood) Mancini Marceau Mills (Red Deer) Minna Marchand Martin (Winnipeg Centre) Mitchell Morrison McDonough Ménard Muise Murray Mercier Nystrom Plamondon Riis Myers Nault Robinson Rocheleau Nunziata Obhrai Sauvageau St-Hilaire O’Reilly Pagtakhan Stoffer Tremblay (Rimouski—Mitis) Pankiw Paradis Turp Vautour Parrish Patry Wasylycia-Leis—51 Penson Peric Pettigrew Phinney Pickard (Kent—Essex) Pillitteri NAYS Power Pratt Price Proud Provenzano Ramsay Members Redman Reed Reynolds Richardson Abbott Ablonczy Ritz Robillard Adams Alcock Rock Saada Anders Anderson Schmidt Scott (Fredericton) Assad Assadourian Scott (Skeena) Sekora Bachand (Richmond—Arthabaska) Bailey Baker Bakopanos Serré Shepherd Barnes Beaumier Solberg Speller Bélair Bélanger St. Denis Steckle Bellemare Bennett Stewart (Brant) Stewart (Northumberland) Bertrand Bevilacqua St-Julien Strahl Bonin Bonwick Szabo Telegdi Boudria Bradshaw Breitkreuz (Yorkton—Melville) Brison Thibeault Thompson (Charlotte) Brown Bryden Thompson (Wild Rose) Torsney Bulte Byrne Ur Valeri Caccia Cadman Vanclief Vellacott Calder Cannis Volpe Wappel Caplan Carroll Wayne Whelan Casey Casson White (Langley—Abbotsford) White (North Vancouver) Catterall Cauchon Chamberlain Chan Wilfert Wood —200 Charbonneau Chatters Clouthier Coderre Cohen Collenette Comuzzi Copps PAIRED MEMBERS Cullen Cummins DeVillers Dhaliwal Dion Discepola Doyle Dromisky Dubé (Madawaska—Restigouche) Duhamel Duncan Easter Augustine Axworthy (Winnipeg South Centre) Eggleton Elley Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Epp Finestone Canuel Drouin Finlay Folco Fournier Godin (Châteauguay) Fontana Forseth Marchi O’Brien (Labrador) Fry Gagliano Perron Peterson Gallaway Gilmour Picard (Drummond) Saada Godfrey Goodale Gouk Graham Tremblay (Lac-Saint-Jean) Gray (Windsor West) Grey (Edmonton North) Grose Guarnieri Harb Hart Harvard Harvey The Speaker: I declare Motion No. 19 defeated. 402

May 12, 1998 COMMONS DEBATES 6887

Government Orders Ms. Marlene Catterall: Mr. Speaker, I believe you would find McNally Meredith Mills (Red Deer) Morrison consent to apply the results of the vote just taken to Motion Nunziata Obhrai No. 26. Pankiw Penson Ramsay Reynolds Ritz Schmidt The Speaker: Is there agreement to proceed in such a fashion? Scott (Skeena) Solberg Strahl Thompson (Wild Rose) Some hon. members: Agreed. Vellacott White (Langley—Abbotsford) White (North Vancouver)—49 [Editor’s Note: See list under Division No. 144.] NAYS The Speaker: I declare Motion No. 26 defeated. Members The next question is on Motion No. 21. Adams Alarie Alcock Anderson [Translation] Assad Assadourian Asselin Bachand (Richmond—Arthabaska) Bachand (Saint-Jean) Baker Ms. Marlene Catterall: Mr. Speaker, you would find unani- Bakopanos Barnes mous consent that the members who are recorded as having voted Beaumier Bélair Bélanger Bellehumeur on the previous motion be recorded as having voted on the motion Bellemare Bennett Bergeron Bertrand now before the House with Liberal members voting nay on this Bevilacqua Bigras motion. Blaikie Bonin Bonwick Boudria [English] Bradshaw Brien Brison Brown Bryden Bulte The Speaker: Is there agreement to proceed in such a fashion? Byrne Caccia Calder Cannis Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Caplan Carroll Casey Catterall vote yes to this motion. Cauchon Chamberlain Chan Charbonneau [Translation] Chrétien (Frontenac—Mégantic) Clouthier Coderre Cohen Collenette Comuzzi Mr. Stéphane Bergeron: Mr. Speaker, the members of the Bloc Copps Crête Quebecois are against this motion. Cullen Dalphond-Guiral Davies de Savoye Debien Desjarlais [English] DeVillers Dhaliwal Dion Discepola Mr. Bill Blaikie: Mr. Speaker, New Democrats present vote no Dockrill Doyle Dromisky Dubé (Lévis) to this motion. Dubé (Madawaska—Restigouche) Duceppe Duhamel Dumas [Translation] Earle Easter Eggleton Finestone Finlay Folco Mr. André Harvey: Mr. Speaker, the members of our party vote Fontana Fry nay to this motion. Gagliano Gagnon Gallaway Gauthier [English] Girard-Bujold Godfrey Godin (Acadie—Bathurst) Goodale Graham Gray (Windsor West) Mr. John Nunziata: Mr. Speaker, this amendment would pro- Grose Guarnieri Guay Guimond vide for final offer selection arbitration as a contract settlement Harb Harvard method. I support that amendment. Harvey Hubbard Ianno Jackson (The House divided on Motion No. 21, which was negatived on Jennings Jones Jordan Karetak-Lindell the following division:) Keddy (South Shore) Keyes Kilgour (Edmonton Southeast) Knutson Lalonde Lastewka (Division No. 145) Laurin Lavigne Lebel Lee YEAS Lefebvre Leung Lill Lincoln Members Longfield Loubier MacAulay MacKay (Pictou—Antigonish—Guysborough) Abbott Ablonczy Anders Bailey Malhi Maloney Breitkreuz (Yorkton—Melville) Cadman Mancini Marceau Casson Chatters Marchand Marleau Cummins Duncan Martin (LaSalle—Émard) Martin (Winnipeg Centre) Elley Epp Massé Matthews Forseth Gilmour McCormick McDonough Gouk Grey (Edmonton North) McGuire McKay (Scarborough East) Hart Hill (Macleod) McTeague McWhinney Hill (Prince George—Peace River) Hilstrom Ménard Mercier Hoeppner Jaffer Mills (Broadview—Greenwood) Minna Johnston Kenney (Calgary-Sud-Est) Mitchell Muise Kerpan Konrad Murray Myers Lowther Lunn Nault Nystrom Manning Martin (Esquimalt—Juan de Fuca) O’Reilly Pagtakhan 403

6888 COMMONS DEBATES May 12, 1998

Government Orders Paradis Parrish Some hon. members: Nay. Patry Peric Pettigrew Phinney Pickard (Kent—Essex) Pillitteri The Speaker: In my opinion the yeas have it. Plamondon Power Pratt Price And more than five members having risen: Proud Provenzano Redman Reed Ms. Marlene Catterall: Mr. Speaker, if the House agrees I Richardson Riis Robillard Robinson would propose that you seek unanimous consent that members who Rocheleau Rock voted on the previous motion be recorded as having voted on the Saada Sauvageau Scott (Fredericton) Sekora motion now before the House with Liberal members voting yea. Serré Shepherd Speller St. Denis D (1815) Steckle Stewart (Brant) Stewart (Northumberland) St-Hilaire St-Julien Stoffer The Speaker: Is there agreement to proceed in such a fashion? Szabo Telegdi Thibeault Thompson (Charlotte) Some hon. members: Agreed. Torsney Tremblay (Rimouski—Mitis) Turp Ur Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Valeri Vanclief Vautour Volpe vote no to this motion. Wappel Wasylycia-Leis Wayne Whelan [Translation] Wilfert Wood—202 Mr. Stéphane Bergeron: Mr. Speaker, Bloc members, including PAIRED MEMBERS the hon. member for Saint-Bruno—Saint-Hubert, oppose this motion. [English] Augustine Axworthy (Winnipeg South Centre) Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Canuel Drouin Mr. Bill Blaikie: Mr. Speaker, NDP members vote yes. Fournier Godin (Châteauguay) Marchi O’Brien (Labrador) [Translation] Perron Peterson Picard (Drummond) Saada Mr. André Harvey: Mr. Speaker, the members of our party vote Tremblay (Lac-Saint-Jean) nay to this motion. The Speaker: I declare Motion No. 21 defeated. [English]

Ms. Marlene Catterall: Mr. Speaker, I believe you would find Mr. John Nunziata: Mr. Speaker, I will be voting no. consent to apply the results of the vote just taken to Motion No. 24. (The House divided on the motion, which was agreed to on the following division:) The Speaker: Is there unanimous consent to proceed in such a fashion? (Division No. 146) YEAS Some hon. members: Agreed. Members Adams Alcock [Editor’s Note: See list under Division No. 145.] Anderson Assad Assadourian Baker Bakopanos Barnes The Speaker: I declare Motion No. 24 defeated. Beaumier Bélair Bélanger Bellemare Bennett Bertrand Bevilacqua Blaikie Hon. Lawrence MacAulay (Minister of Labour, Lib.) moved Bonin Bonwick that the bill be concurred in. Boudria Bradshaw Brown Bryden Bulte Byrne The Speaker: Is it the pleasure for the House to adopt the Caccia Calder Cannis Caplan motion? Carroll Catterall Cauchon Chamberlain Chan Charbonneau Some hon. members: Agreed. Clouthier Coderre Cohen Collenette Comuzzi Copps Some hon. members: No. Cullen Davies Desjarlais DeVillers Dhaliwal Dion The Speaker: All those in favour of the motion will please say Discepola Dockrill Dromisky Duhamel yea. Earle Easter Eggleton Finestone Finlay Folco Some hon. members: Yea. Fontana Fry Gagliano Gallaway Godfrey Godin (Acadie—Bathurst) The Speaker: All those opposed will please say nay. Goodale Graham 404

May 12, 1998 COMMONS DEBATES 6889

Government Orders

Gray (Windsor West) Grose Lunn MacKay (Pictou—Antigonish—Guysborough) Guarnieri Harb Manning Marceau Harvard Hubbard Marchand Martin (Esquimalt—Juan de Fuca) Ianno Jackson Matthews McNally Jennings Jordan Ménard Mercier Meredith Mills (Red Deer) Karetak-Lindell Keyes Morrison Muise Kilgour (Edmonton Southeast) Knutson Nunziata Obhrai Lastewka Lavigne Pankiw Penson Lee Leung Plamondon Power Lill Lincoln Price Ramsay Longfield MacAulay Reynolds Ritz Malhi Maloney Rocheleau Sauvageau Mancini Marleau Schmidt Scott (Skeena) Martin (LaSalle—Émard) Martin (Winnipeg Centre) Solberg St-Hilaire Massé McCormick Strahl Thompson (Charlotte) McDonough McGuire Thompson (Wild Rose) Tremblay (Rimouski—Mitis) Turp Vellacott McKay (Scarborough East) McTeague Venne Wayne McWhinney Mills (Broadview—Greenwood) White (Langley—Abbotsford) White (North Vancouver) —100 Minna Mitchell Murray Myers Nault Nystrom O’Reilly Pagtakhan PAIRED MEMBERS Paradis Parrish Patry Peric Pettigrew Phinney Pickard (Kent—Essex) Pillitteri Augustine Axworthy (Winnipeg South Centre) Pratt Proud Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Provenzano Redman Canuel Drouin Fournier Godin (Châteauguay) Reed Richardson Marchi O’Brien (Labrador) Riis Robillard Perron Peterson Robinson Rock Picard (Drummond) Saada Saada Scott (Fredericton) Tremblay (Lac-Saint-Jean) Sekora Serré Shepherd Speller St. Denis Steckle The Speaker: I declare the motion carried. Stewart (Brant) Stewart (Northumberland) St-Julien Stoffer Szabo Telegdi Thibeault Torsney Ur Valeri * * * Vanclief Vautour Volpe Wappel Wasylycia-Leis Whelan Wilfert Wood—152 CANADA GRAIN ACT

The House resumed from May 11 consideration of Bill C-26, an NAYS act to amend the Canada Grain Act and the Agriculture and Agri-food Administrative Monetary Penalties Act and to repeal the Members Grain Futures Act, as reported (with amendment) from the commit-

Abbott Ablonczy tee. Alarie Anders Asselin Bachand (Richmond—Arthabaska) Bachand (Saint-Jean) Bailey The Speaker: The House will now proceed to the taking of Bellehumeur Bergeron several deferred recorded divisions at the report stage of Bill C-26, Bigras Breitkreuz (Yorkton—Melville) Brien Brison an act to amend the Canada Grain Act. Cadman Casey Casson Chatters Chrétien (Frontenac—Mégantic) Crête The question is on Motion No. 1. A vote on this motion also Cummins Dalphond-Guiral applies to Motions Nos. 5, 8, 9, 10 and 11. de Savoye Debien Doyle Dubé (Lévis) Dubé (Madawaska—Restigouche) Duceppe Dumas Duncan Ms. Marlene Catterall: Mr. Speaker, I propose that you seek Elley Epp unanimous consent that members who voted on the previous Forseth Gagnon motion be recorded as having voted on the motion now before the Gauthier Gilmour Girard-Bujold Gouk House, with the Liberal members voting nay. Grey (Edmonton North) Guay Guimond Hart Harvey Hill (Macleod) The Speaker: Is there agreement to proceed in such a fashion? Hill (Prince George—Peace River) Hilstrom Hoeppner Jaffer Johnston Jones Some hon. members: Agreed. Keddy (South Shore) Kenney (Calgary-Sud-Est) Kerpan Konrad Lalonde Laurin Lebel Lefebvre Mr. Chuck Strahl: Mr. Speaker, Reform members present vote Loubier Lowther yes to this motion. 405

6890 COMMONS DEBATES May 12, 1998

Government Orders [Translation] NAYS

Mr. Stéphane Bergeron: Bloc members oppose this motion, Members Mr. Speaker. Adams Alarie Alcock Anderson Assad Assadourian [English] Asselin Bachand (Saint-Jean) Baker Bakopanos Barnes Beaumier Mr. Bill Blaikie: Mr. Speaker, New Democrats present vote yes Bélair Bélanger to this motion. Bellehumeur Bellemare Bennett Bergeron Bertrand Bevilacqua [Translation] Bigras Bonin Bonwick Boudria Bradshaw Brien Brown Bryden Mr. André Harvey: The members of our party vote yea to this Bulte Byrne motion. Caccia Calder Cannis Caplan Carroll Catterall [English] Cauchon Chamberlain Chan Charbonneau Chrétien (Frontenac—Mégantic) Clouthier Coderre Cohen Mr. John Nunziata: Mr. Speaker, this bill deals with the Canada Collenette Comuzzi Grain Act and really does not affect the residents of York South— Copps Crête Cullen Dalphond-Guiral Weston, so I am prepared to give the government the benefit of the de Savoye Debien doubt and support the bill. DeVillers Dhaliwal Dion Discepola Dromisky Dubé (Lévis) (The House divided on Motion No. 1, which was negatived on Duceppe Duhamel Dumas Easter the following division:) Eggleton Finestone Finlay Folco Fontana Fry (Division No. 147) Gagliano Gagnon Gallaway Gauthier Girard-Bujold Godfrey Goodale Graham YEAS Gray (Windsor West) Grose Guarnieri Guay Members Guimond Harb Harvard Hubbard Abbott Ablonczy Ianno Jackson Anders Bachand (Richmond—Arthabaska) Jennings Jordan Bailey Blaikie Karetak-Lindell Keyes Breitkreuz (Yorkton—Melville) Brison Kilgour (Edmonton Southeast) Knutson Cadman Casey Lalonde Lastewka Casson Chatters Laurin Lavigne Cummins Davies Lebel Lee Desjarlais Dockrill Doyle Dubé (Madawaska—Restigouche) Lefebvre Leung Duncan Earle Lincoln Longfield Elley Epp Loubier MacAulay Forseth Gilmour Malhi Maloney Godin (Acadie—Bathurst) Gouk Marceau Marchand Grey (Edmonton North) Hart Marleau Martin (LaSalle—Émard) Harvey Hill (Macleod) Massé McCormick Hill (Prince George—Peace River) Hilstrom McGuire McKay (Scarborough East) Hoeppner Jaffer McTeague McWhinney Johnston Jones Ménard Mercier Keddy (South Shore) Kenney (Calgary-Sud-Est) Mills (Broadview—Greenwood) Minna Kerpan Konrad Mitchell Murray Lill Lowther Myers Nault Lunn MacKay (Pictou—Antigonish—Guysborough) Nunziata O’Reilly Mancini Manning Pagtakhan Paradis Martin (Esquimalt—Juan de Fuca) Martin (Winnipeg Centre) Parrish Patry Matthews McDonough Peric Pettigrew McNally Meredith Phinney Pickard (Kent—Essex) Mills (Red Deer) Morrison Pillitteri Plamondon Muise Nystrom Pratt Proud Obhrai Pankiw Provenzano Redman Penson Power Price Ramsay Reed Richardson Reynolds Riis Robillard Rocheleau Ritz Robinson Rock Saada Schmidt Scott (Skeena) Sauvageau Scott (Fredericton) Solberg Stoffer Sekora Serré Strahl Thompson (Charlotte) Shepherd Speller Thompson (Wild Rose) Vautour St. Denis Steckle Vellacott Wasylycia-Leis Stewart (Brant) Stewart (Northumberland) Wayne White (Langley—Abbotsford) St-Hilaire St-Julien White (North Vancouver) —79 Szabo Telegdi 406

May 12, 1998 COMMONS DEBATES 6891

Government Orders Thibeault Torsney Mr. Chuck Strahl: Mr. Speaker, we did not get our motion so Tremblay (Rimouski—Mitis) Turp Ur Valeri we have to vote no at this stage. Vanclief Venne Volpe Wappel Whelan Wilfert [Translation] Wood—173 Mr. Stéphane Bergeron: Mr. Speaker, the members of the Bloc PAIRED MEMBERS Quebecois are in favour of this motion. [English] Augustine Axworthy (Winnipeg South Centre) Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Canuel Drouin Mr. Bill Blaikie: Mr. Speaker, the New Democrats vote yes to Fournier Godin (Châteauguay) Marchi O’Brien (Labrador) this motion. Perron Peterson Picard (Drummond) Saada [Translation] Tremblay (Lac-Saint-Jean) The Speaker: I declare Motion No. 1 defeated. I therefore Mr. André Harvey: Mr. Speaker, the members of our party vote declare Motions Nos. 5, 8, 9, 10 and 11 defeated. yea to this motion. Ms. Marlene Catterall: Mr. Speaker, I believe you would find [English] consent to apply the results of the vote just taken to Motion No. 2. Mr. John Nunziata: Mr. Speaker, on behalf of my constituents I The Speaker: Is there unanimous consent to proceed in such a will vote yes. fashion? (The House divided on the motion, which was agreed to on the Some hon. members: Agreed. following division:)

[Editor’s Note: See list under Division No. 147] (Division No. 148)

The Speaker: I declare Motion No. 2 defeated. I also declare YEAS Motions Nos. 3, 4 and 6 defeated. Members Hon. Lyle Vanclief (Minister of Agriculture and Agri-Food, Adams Alarie Alcock Anderson Lib.) moved that the bill be concurred in. Assad Assadourian Asselin Bachand (Richmond—Arthabaska) The Speaker: Is it the pleasure of the House to adopt the Bachand (Saint-Jean) Baker Bakopanos Barnes motion? Beaumier Bélair Bélanger Bellehumeur Bellemare Bennett Some hon. members: Agreed. Bergeron Bertrand Bevilacqua Bigras Blaikie Bonin Some hon. members: No. Bonwick Boudria Bradshaw Brien D (1820) Brison Brown Bryden Bulte Byrne Caccia The Speaker: All those in favour of the motion will please say Calder Cannis Caplan Carroll yea. Casey Catterall Cauchon Chamberlain Chan Charbonneau Some hon. members: Yea. Chrétien (Frontenac—Mégantic) Clouthier Coderre Cohen Collenette Comuzzi The Speaker: All those opposed will please say nay. Copps Crête Cullen Dalphond-Guiral Some hon. members: Nay. Davies de Savoye Debien Desjarlais DeVillers Dhaliwal The Speaker: In my opinion the yeas have it. Dion Discepola Dockrill Doyle Dromisky Dubé (Lévis) And more than five members having risen: Dubé (Madawaska—Restigouche) Duceppe Duhamel Dumas Earle Easter Ms. Marlene Catterall: Mr. Speaker, I propose that you seek Eggleton Finestone unanimous consent that members who voted on the previous Finlay Folco Fontana Fry motion be recorded as having voted on the motion now before the Gagliano Gagnon House, with Liberal members voting yea. Gallaway Gauthier Girard-Bujold Godfrey Godin (Acadie—Bathurst) Goodale The Speaker: Is there agreement to proceed in such a fashion. Graham Gray (Windsor West) Grose Guarnieri Guay Lastewka Some hon. members: Agreed. Laurin 407

6892 COMMONS DEBATES May 12, 1998

Government Orders Guimond Harb PAIRED MEMBERS Harvard Harvey Hubbard Ianno Jackson Jennings Jones Jordan Augustine Axworthy (Winnipeg South Centre) Karetak-Lindell Keddy (South Shore) Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Keyes Kilgour (Edmonton Southeast) Canuel Drouin Knutson Lalonde Fournier Godin (Châteauguay) Lavigne Lebel Marchi O’Brien (Labrador) Lee Lefebvre Perron Peterson Leung Lill Picard (Drummond) Saada Lincoln Longfield Tremblay (Lac-Saint-Jean) Loubier MacAulay MacKay (Pictou—Antigonish—Guysborough) Malhi Maloney Mancini The Speaker: I declare the motion carried. Marceau Marchand Marleau Martin (LaSalle—Émard) Martin (Winnipeg Centre) Massé Matthews McCormick * * * McDonough McGuire McKay (Scarborough East) McTeague McWhinney Ménard DNA IDENTIFICATION ACT Mercier Mills (Broadview—Greenwood) Minna Mitchell Muise Murray The House resumed from May 11 consideration of Bill C-3, an Myers Nault Nunziata Nystrom act respecting DNA identification and to make consequential O’Reilly Pagtakhan amendments to the Criminal Code and other acts, as reported (with Paradis Parrish Patry Peric amendment) from the committee. Pettigrew Phinney Pickard (Kent—Essex) Pillitteri Plamondon Power The Speaker: The next deferred recorded divisions are on the Pratt Price motions at the report stage of Bill C-3. The question is on Motion Proud Provenzano Redman Reed No. 1. A negative vote on Motion No. 1 requires the question to be Richardson Riis put on Motion No. 2. Robillard Robinson Rocheleau Rock Saada Sauvageau Ms. Marlene Catterall: Mr. Speaker, I rise to seek unanimous Scott (Fredericton) Sekora Serré Shepherd consent that members who voted on the previous motion be Speller St. Denis recorded as having voted on the motion now before the House, with Steckle Stewart (Brant) Stewart (Northumberland) St-Hilaire Liberal members voting nay. St-Julien Stoffer Szabo Telegdi Thibeault Thompson (Charlotte) The Speaker: Is there agreement to proceed in such a fashion? Torsney Tremblay (Rimouski—Mitis) Turp Ur Valeri Vanclief Some hon. members: Agreed. Vautour Venne Volpe Wappel Wasylycia-Leis Wayne Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Whelan Wilfert vote no to this motion. Wood —204 [Translation]

NAYS Mr. Stéphane Bergeron: Mr. Speaker, the members of the Bloc Quebecois vote yes to this motion. Members [English] Abbott Ablonczy Anders Bailey Breitkreuz (Yorkton—Melville) Cadman Mr. Bill Blaikie: Mr. Speaker, New Democrats present vote yes Casson Chatters Cummins Duncan to this motion. Elley Epp Forseth Gilmour Gouk Grey (Edmonton North) [Translation] Hart Hill (Macleod) Hill (Prince George—Peace River) Hilstrom Hoeppner Jaffer Mr. André Harvey: Mr. Speaker, the members of our party vote Johnston Kenney (Calgary-Sud-Est) nay to this motion. Kerpan Konrad Lowther Lunn Manning Martin (Esquimalt—Juan de Fuca) [English] McNally Meredith Mills (Red Deer) Morrison Obhrai Pankiw Mr. John Nunziata: Mr. Speaker, on behalf of my constituents I Penson Ramsay Reynolds Ritz will vote no. Schmidt Scott (Skeena) Solberg Strahl (The House divided on Motion No. 1, which was negatived on Thompson (Wild Rose) Vellacott White (Langley—Abbotsford) White (North Vancouver) —48 the following division:) 408

May 12, 1998 COMMONS DEBATES 6893

Government Orders (Division No. 149) Hill (Macleod) Hill (Prince George—Peace River) Hilstrom Hoeppner Hubbard Ianno Jackson Jaffer YEAS Jennings Johnston Jones Jordan Karetak-Lindell Keddy (South Shore) Members Kenney (Calgary-Sud-Est) Kerpan Keyes Kilgour (Edmonton Southeast) Alarie Asselin Knutson Konrad Bachand (Saint-Jean) Bellehumeur Lastewka Lavigne Bergeron Bigras Lee Leung Blaikie Brien Chrétien (Frontenac—Mégantic) Crête Lincoln Longfield Dalphond-Guiral Davies Lowther Lunn de Savoye Debien MacAulay MacKay (Pictou—Antigonish—Guysborough) Desjarlais Dockrill Malhi Maloney Dubé (Lévis) Duceppe Manning Marleau Dumas Earle Martin (Esquimalt—Juan de Fuca) Martin (LaSalle—Émard) Gagnon Gauthier Massé Matthews Girard-Bujold Godin (Acadie—Bathurst) Guay Guimond McCormick McGuire Lalonde Laurin McKay (Scarborough East) McNally Lebel Lefebvre McTeague McWhinney Lill Loubier Meredith Mills (Broadview—Greenwood) Mancini Marceau Mills (Red Deer) Minna Marchand Martin (Winnipeg Centre) Mitchell Morrison McDonough Ménard Muise Murray Mercier Nystrom Plamondon Riis Myers Nault Robinson Rocheleau Nunziata Obhrai Sauvageau St-Hilaire O’Reilly Pagtakhan Stoffer Tremblay (Rimouski—Mitis) Pankiw Paradis Turp Vautour Parrish Patry Venne Wasylycia-Leis—52 Penson Peric Pettigrew Phinney Pickard (Kent—Essex) Pillitteri NAYS Power Pratt Price Proud Provenzano Ramsay Members Redman Reed Reynolds Richardson Abbott Ablonczy Ritz Robillard Adams Alcock Rock Saada Anders Anderson Schmidt Scott (Fredericton) Assad Assadourian Scott (Skeena) Sekora Bachand (Richmond—Arthabaska) Bailey Baker Bakopanos Serré Shepherd Barnes Beaumier Solberg Speller Bélair Bélanger St. Denis Steckle Bellemare Bennett Stewart (Brant) Stewart (Northumberland) Bertrand Bevilacqua St-Julien Strahl Bonin Bonwick Szabo Telegdi Boudria Bradshaw Breitkreuz (Yorkton—Melville) Brison Thibeault Thompson (Charlotte) Brown Bryden Thompson (Wild Rose) Torsney Bulte Byrne Ur Valeri Caccia Cadman Vanclief Vellacott Calder Cannis Volpe Wappel Caplan Carroll Wayne Whelan Casey Casson White (Langley—Abbotsford) White (North Vancouver) Catterall Cauchon Chamberlain Chan Wilfert Wood —200 Charbonneau Chatters Clouthier Coderre Cohen Collenette Comuzzi Copps PAIRED MEMBERS Cullen Cummins DeVillers Dhaliwal Dion Discepola Doyle Dromisky Dubé (Madawaska—Restigouche) Duhamel Duncan Easter Augustine Axworthy (Winnipeg South Centre) Eggleton Elley Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Epp Finestone Canuel Drouin Finlay Folco Fournier Godin (Châteauguay) Fontana Forseth Marchi O’Brien (Labrador) Fry Gagliano Perron Peterson Gallaway Gilmour Picard (Drummond) Saada Godfrey Goodale Gouk Graham Tremblay (Lac-Saint-Jean) Gray (Windsor West) Grey (Edmonton North) Grose Guarnieri Harb Hart Harvard Harvey The Speaker: I declare Motion No. 1 defeated. 409

6894 COMMONS DEBATES May 12, 1998

Government Orders Ms. Marlene Catterall: Mr. Speaker, I believe you would find [English] the consent of the House to apply the results of the vote just taken to Motions Nos. 4 and 6. Mr. John Nunziata: Mr. Speaker, I will be voting yes to this motion. The Speaker: Is there agreement to proceed in such a fashion?

Some hon. members: Agreed. (The House divided on Motion No. 2, which was negatived on the following division:) [Editor’s Note: See list under Division No. 149]

The Speaker: I declare Motion Nos. 4 and 6 defeated. (Division No. 150)

The next question is on Motion No. 2. Is it the pleasure of the YEAS House to adopt the motion? Members

Some hon. members: Agreed. Abbott Ablonczy Alarie Anders Asselin Bachand (Saint-Jean) Some hon. members: No. Bailey Bellehumeur Bergeron Bigras The Speaker: All those in favour of the motion will please say Blaikie Breitkreuz (Yorkton—Melville) Brien Cadman yea. Casson Chatters Chrétien (Frontenac—Mégantic) Crête Cummins Dalphond-Guiral Some hon. members: Yea. Davies de Savoye Debien Desjarlais Dockrill Dubé (Lévis) The Speaker: All those opposed will please say nay. Duceppe Dumas Duncan Earle Elley Epp Some hon. members: Nay. Forseth Gagnon Gauthier Gilmour Girard-Bujold Godin (Acadie—Bathurst) The Speaker: In my opinion the nays have it. Gouk Grey (Edmonton North) Guay Guimond Hart Hill (Macleod) And more than five members having risen: Hill (Prince George—Peace River) Hilstrom Hoeppner Jaffer Johnston Kenney (Calgary-Sud-Est) D (1825 ) Kerpan Konrad Lalonde Laurin Lebel Lefebvre Ms. Marlene Catterall: Mr. Speaker, I propose that you seek Lill Loubier Lowther Lunn unanimous consent that members who voted on the previous Mancini Manning motion be recorded as having voting on the motion now before the Marceau Marchand Martin (Esquimalt—Juan de Fuca) Martin (Winnipeg Centre) House, with Liberal members voting no. McDonough McNally Ménard Mercier Meredith Mills (Red Deer) The Speaker: Is there agreement to proceed in such a fashion? Morrison Nunziata Nystrom Obhrai Pankiw Penson Some hon. members: Agreed. Plamondon Ramsay Reynolds Riis Ritz Robinson Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Rocheleau Sauvageau vote yes to this motion. Schmidt Scott (Skeena) Solberg St-Hilaire Stoffer Strahl [Translation] Thompson (Wild Rose) Tremblay (Rimouski—Mitis) Turp Vautour Vellacott Venne Mr. Stéphane Bergeron: Mr. Speaker, the members of the Bloc Wasylycia-Leis White (Langley—Abbotsford) Quebecois are in favour of this motion. White (North Vancouver) —101

[English] NAYS

Mr. Bill Blaikie: Mr. Speaker, New Democrats present vote yes Members to this motion. Adams Alcock Anderson Assad [Translation] Assadourian Bachand (Richmond—Arthabaska) Baker Bakopanos Barnes Beaumier Mr. André Harvey: Mr. Speaker, the members of our party vote Bélair Bélanger Bellemare Bennett nay to this motion. Bertrand Bevilacqua 410

May 12, 1998 COMMONS DEBATES 6895

Government Orders Bonin Bonwick The next question is on Motion No. 3. Boudria Bradshaw Brison Brown Bryden Bulte [Translation] Byrne Caccia Calder Cannis Ms. Marlene Catterall: Mr. Speaker, you would find unani- Caplan Carroll Casey Catterall mous consent that the members who are recorded as having voted Cauchon Chamberlain on the previous motion be recorded as having voted on the motion Chan Charbonneau Clouthier Coderre now before the House with Liberal members voting nay on this Cohen Collenette motion. Comuzzi Copps Cullen DeVillers [English] Dhaliwal Dion Discepola Doyle Dromisky Dubé (Madawaska—Restigouche) The Speaker: Is there agreement to proceed in such a fashion? Duhamel Easter Eggleton Finestone Some hon. members: Agreed. Finlay Folco Fontana Fry Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Gagliano Gallaway Godfrey Goodale vote yes to this motion. Graham Gray (Windsor West) Grose Guarnieri [Translation] Harb Harvard Harvey Hubbard Mr. Stéphane Bergeron: Mr. Speaker, Bloc Quebecois mem- Ianno Jackson Jennings Jones bers are in favour of this motion. Jordan Karetak-Lindell Keddy (South Shore) Keyes [English] Kilgour (Edmonton Southeast) Knutson Lastewka Lavigne Lee Leung Mr. Bill Blaikie: Mr. Speaker, New Democrats present vote yes Lincoln Longfield to this motion. MacAulay MacKay (Pictou—Antigonish—Guysborough) Malhi Maloney [Translation] Marleau Martin (LaSalle—Émard) Massé Matthews McCormick McGuire Mr. André Harvey: Mr. Speaker, the members of our party vote McKay (Scarborough East) McTeague yes to this motion. McWhinney Mills (Broadview—Greenwood) Minna Mitchell [English] Muise Murray Myers Nault O’Reilly Pagtakhan Mr. John Nunziata: Mr. Speaker, I will be voting in favour of Paradis Parrish this motion. Patry Peric Pettigrew Phinney Pickard (Kent—Essex) Pillitteri (The House divided on Motion No. 3, which was negatived on Power Pratt the following division:) Price Proud Provenzano Redman (Division No. 151) Reed Richardson Robillard Rock Saada Scott (Fredericton) YEAS Sekora Serré Shepherd Speller Members St. Denis Steckle Abbott Ablonczy Stewart (Brant) Stewart (Northumberland) Alarie Anders St-Julien Szabo Asselin Bachand (Richmond—Arthabaska) Telegdi Thibeault Bachand (Saint-Jean) Bailey Thompson (Charlotte) Torsney Bellehumeur Bergeron Ur Valeri Bigras Blaikie Vanclief Volpe Breitkreuz (Yorkton—Melville) Brien Wappel Wayne Brison Cadman Whelan Wilfert Casey Casson Wood—151 Chatters Chrétien (Frontenac—Mégantic) Crête Cummins Dalphond-Guiral Davies de Savoye Debien PAIRED MEMBERS Desjarlais Dockrill Doyle Dubé (Lévis) Dubé (Madawaska—Restigouche) Duceppe Dumas Duncan Earle Elley Epp Forseth Augustine Axworthy (Winnipeg South Centre) Gagnon Gauthier Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Gilmour Girard-Bujold Canuel Drouin Godin (Acadie—Bathurst) Gouk Fournier Godin (Châteauguay) Grey (Edmonton North) Guay Marchi O’Brien (Labrador) Guimond Hart Perron Peterson Harvey Hill (Macleod) Picard (Drummond) Saada Hill (Prince George—Peace River) Hilstrom Tremblay (Lac-Saint-Jean) Hoeppner Jaffer Johnston Jones Keddy (South Shore) Kenney (Calgary-Sud-Est) Kerpan Konrad The Speaker: I declare Motion No. 2 defeated. Lalonde Laurin 411

6896 COMMONS DEBATES May 12, 1998

Government Orders

Lebel Lefebvre Parrish Patry Lill Loubier Peric Pettigrew Lowther Lunn Phinney Pickard (Kent—Essex) MacKay (Pictou—Antigonish—Guysborough) Mancini Pillitteri Pratt Manning Marceau Proud Provenzano Marchand Martin (Esquimalt—Juan de Fuca) Redman Reed Martin (Winnipeg Centre) Matthews Richardson Robillard McDonough McNally Rock Saada Scott (Fredericton) Sekora Ménard Mercier Serré Shepherd Meredith Mills (Red Deer) Speller St. Denis Morrison Muise Steckle Stewart (Brant) Nunziata Nystrom Stewart (Northumberland) St-Julien Obhrai Pankiw Szabo Telegdi Penson Plamondon Thibeault Torsney Power Price Ur Valeri Ramsay Reynolds Vanclief Volpe Riis Ritz Wappel Whelan Robinson Rocheleau Wilfert Wood—136 Sauvageau Schmidt Scott (Skeena) Solberg St-Hilaire Stoffer PAIRED MEMBERS Strahl Thompson (Charlotte) Thompson (Wild Rose) Tremblay (Rimouski—Mitis) Turp Vautour Augustine Axworthy (Winnipeg South Centre) Vellacott Venne Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Wasylycia-Leis Wayne Canuel Drouin White (Langley—Abbotsford) White (North Vancouver)—116 Fournier Godin (Châteauguay) Marchi O’Brien (Labrador) Perron Peterson Picard (Drummond) Saada NAYS Tremblay (Lac-Saint-Jean)

Members The Speaker: I declare Motion No. 3 defeated.

Adams Alcock Ms. Marlene Catterall: Mr. Speaker, I believe you would find Anderson Assad Assadourian Baker consent to apply the results of the vote just taken to Motion Nos. 7 Bakopanos Barnes and 8. Beaumier Bélair Bélanger Bellemare Bennett Bertrand The Speaker: Is there agreement to proceed in such a fashion? Bevilacqua Bonin Bonwick Boudria Bradshaw Brown Some hon. members: Agreed. Bryden Bulte Byrne Caccia [Editor’s Note: See list under Division No. 151] Calder Cannis Caplan Carroll Catterall Cauchon The Speaker: I declare Motions Nos. 7 and 8 defeated. Chamberlain Chan Charbonneau Clouthier Coderre Cohen The next question is on Motion No. 5. Collenette Comuzzi Copps Cullen DeVillers Dhaliwal Ms. Marlene Catterall: Mr. Speaker, I think you would consent Dion Discepola that the members who voted on the previous motion be recorded as Dromisky Duhamel Easter Eggleton voting on the motion now before the House, with the Liberal Finestone Finlay members voting no. Folco Fontana Fry Gagliano Gallaway Godfrey The Speaker: Is there agreement to proceed in such a fashion? Goodale Graham Gray (Windsor West) Grose Guarnieri Harb Some hon. members: Agreed. Harvard Hubbard Ianno Jackson Jennings Jordan Mr. Chuck Strahl: Mr. Speaker, Reform Party members vote no Karetak-Lindell Keyes to this motion. Kilgour (Edmonton Southeast) Knutson Lastewka Lavigne Lee Leung [Translation] Lincoln Longfield MacAulay Malhi Maloney Marleau Mr. Stéphane Bergeron: Mr. Speaker, Bloc Quebecois mem- Martin (LaSalle—Émard) Massé bers vote yes to this motion. McCormick McGuire McKay (Scarborough East) McTeague McWhinney Mills (Broadview—Greenwood) [English] Minna Mitchell Murray Myers Mr. Bill Blaikie: Mr. Speaker, New Democrats present vote yes Nault O’Reilly Pagtakhan Paradis to this motion. 412

May 12, 1998 COMMONS DEBATES 6897

Government Orders [Translation] Caplan Carroll Casson Catterall Cauchon Chamberlain Mr. André Harvey: Mr. Speaker, the members of our party vote Chan Charbonneau yes to this motion. Chatters Clouthier Coderre Cohen Collenette Comuzzi [English] Copps Cullen Cummins DeVillers Dhaliwal Dion Mr. John Nunziata: Mr. Speaker, as I understand it, this motion Discepola Dromisky would provide for a three year review of the legislation. According- Duhamel Duncan ly, I will be voting yes. Easter Eggleton Elley Epp Finestone Finlay D (1830 ) Folco Fontana Forseth Fry Gagliano Gallaway (The House divided on Motion No. 5, which was negatived on Gilmour Godfrey the following division:) Goodale Gouk Graham Gray (Windsor West) Grey (Edmonton North) Grose (Division No. 152) Guarnieri Harb Hart Harvard Hill (Macleod) Hill (Prince George—Peace River) YEAS Hilstrom Hoeppner Hubbard Ianno Members Jackson Jaffer Alarie Asselin Jennings Johnston Bachand (Richmond—Arthabaska) Bachand (Saint-Jean) Jordan Karetak-Lindell Bellehumeur Bergeron Kenney (Calgary-Sud-Est) Kerpan Bigras Blaikie Keyes Kilgour (Edmonton Southeast) Brien Brison Knutson Konrad Casey Chrétien (Frontenac—Mégantic) Crête Dalphond-Guiral Lastewka Lavigne Davies de Savoye Lee Leung Debien Desjarlais Lincoln Longfield Dockrill Doyle Lowther Lunn Dubé (Lévis) Dubé (Madawaska—Restigouche) MacAulay Malhi Duceppe Dumas Maloney Manning Earle Gagnon Gauthier Girard-Bujold Marleau Martin (Esquimalt—Juan de Fuca) Godin (Acadie—Bathurst) Guay Martin (LaSalle—Émard) Massé Guimond Harvey McCormick McGuire Jones Keddy (South Shore) McKay (Scarborough East) McNally Lalonde Laurin McTeague McWhinney Lebel Lefebvre Lill Loubier Meredith Mills (Broadview—Greenwood) MacKay (Pictou—Antigonish—Guysborough) Mancini Mills (Red Deer) Minna Marceau Marchand Mitchell Morrison Martin (Winnipeg Centre) Matthews Murray Myers McDonough Ménard Nault Obhrai Mercier Muise O’Reilly Pagtakhan Nunziata Nystrom Plamondon Power Pankiw Paradis Price Riis Parrish Patry Robinson Rocheleau Penson Peric Sauvageau St-Hilaire Pettigrew Phinney Stoffer Thompson (Charlotte) Pickard (Kent—Essex) Pillitteri Tremblay (Rimouski—Mitis) Turp Vautour Venne Pratt Proud Wasylycia-Leis Wayne—68 Provenzano Ramsay Redman Reed Reynolds Richardson NAYS Ritz Robillard Rock Saada Members Schmidt Scott (Fredericton) Abbott Ablonczy Scott (Skeena) Sekora Adams Alcock Serré Shepherd Anders Anderson Solberg Speller Assad Assadourian St. Denis Steckle Bailey Baker Stewart (Brant) Stewart (Northumberland) Bakopanos Barnes Beaumier Bélair St-Julien Strahl Bélanger Bellemare Szabo Telegdi Bennett Bertrand Thibeault Thompson (Wild Rose) Bevilacqua Bonin Torsney Ur Bonwick Boudria Valeri Vanclief Bradshaw Breitkreuz (Yorkton—Melville) Vellacott Volpe Brown Bryden Bulte Byrne Wappel Whelan Caccia Cadman White (Langley—Abbotsford) White (North Vancouver) Calder Cannis Wilfert Wood —184 413

6898 COMMONS DEBATES May 12, 1998

Government Orders PAIRED MEMBERS Boudria Bradshaw Brien Brown Bryden Bulte Byrne Caccia Augustine Axworthy (Winnipeg South Centre) Calder Cannis Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Caplan Carroll Canuel Drouin Catterall Cauchon Fournier Godin (Châteauguay) Chamberlain Chan Marchi O’Brien (Labrador) Charbonneau Chrétien (Frontenac—Mégantic) Perron Peterson Clouthier Coderre Picard (Drummond) Saada Tremblay (Lac-Saint-Jean) Cohen Collenette Comuzzi Copps Crête Cullen The Speaker: I declare Motion No. 5 defeated. Dalphond-Guiral Davies de Savoye Debien Desjarlais DeVillers The next question is on Motion No. 13. Dhaliwal Dion Discepola Dockrill Ms. Marlene Catterall: Mr. Speaker, if the House would agree, Dromisky Dubé (Lévis) Duceppe Duhamel I propose that you seek unanimous consent that the members who Dumas Earle voted on the previous motion be recorded as having voted on the Easter Eggleton motion now before the House, with Liberal members voting yes. Finestone Finlay Folco Fontana Fry Gagliano The Speaker: Is there agreement to proceed in such a fashion? Gagnon Gallaway Gauthier Girard-Bujold Godfrey Godin (Acadie—Bathurst) Some hon. members: Agreed. Goodale Graham Gray (Windsor West) Grose Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Guarnieri Guay Guimond Harb vote no to this motion. Harvard Hubbard Ianno Jackson [Translation] Jennings Jordan Karetak-Lindell Keyes Kilgour (Edmonton Southeast) Knutson Mr. Stéphane Bergeron: Mr. Speaker, Bloc Quebecois mem- Lalonde Lastewka Laurin Lavigne bers are in favour of this motion. Lebel Lee Lefebvre Leung [English] Lill Lincoln Longfield Loubier MacAulay Malhi Mr. Bill Blaikie: Mr. Speaker, New Democrats present vote yes Maloney Mancini to this motion. Marceau Marchand Marleau Martin (LaSalle—Émard) Martin (Winnipeg Centre) Massé [Translation] McCormick McDonough McGuire McKay (Scarborough East) Mr. André Harvey: Mr. Speaker, the members of our party vote McTeague McWhinney Ménard Mercier no to this motion. Mills (Broadview—Greenwood) Minna Mitchell Murray [English] Myers Nault Nunziata Nystrom O’Reilly Pagtakhan Mr. John Nunziata: Mr. Speaker, I will be voting in favour of Paradis Parrish Patry Peric this motion. Pettigrew Phinney Pickard (Kent—Essex) Pillitteri (The House divided on Motion No. 13, which was agreed to on Plamondon Pratt Proud Provenzano the following division:) Redman Reed Richardson Riis (Division No. 153) Robillard Robinson Rocheleau Rock Saada Sauvageau YEAS Scott (Fredericton) Sekora Serré Shepherd Members Speller St. Denis Steckle Stewart (Brant) Adams Alarie Stewart (Northumberland) St-Hilaire Alcock Anderson St-Julien Stoffer Assad Assadourian Szabo Telegdi Asselin Bachand (Saint-Jean) Thibeault Torsney Baker Bakopanos Tremblay (Rimouski—Mitis) Turp Barnes Beaumier Bélair Bélanger Ur Valeri Bellehumeur Bellemare Vanclief Vautour Bennett Bergeron Venne Volpe Bertrand Bevilacqua Wappel Wasylycia-Leis Bigras Blaikie Whelan Wilfert Bonin Bonwick Wood—189 414

May 12, 1998 COMMONS DEBATES 6899

Government Orders NAYS [Translation]

Members Mr. Stéphane Bergeron: Mr. Speaker, Bloc Quebecois mem-

Abbott Ablonczy bers vote yes to this motion. Anders Bachand (Richmond—Arthabaska) Bailey Breitkreuz (Yorkton—Melville) [English] Brison Cadman Casey Casson Chatters Cummins Mr. Bill Blaikie: Mr. Speaker, New Democrats present vote yes. Doyle Dubé (Madawaska—Restigouche) Duncan Elley [Translation] Epp Forseth Gilmour Gouk Grey (Edmonton North) Hart Mr. André Harvey: Mr. Speaker, the members of our party vote Harvey Hill (Macleod) yes to this motion. Hill (Prince George—Peace River) Hilstrom Hoeppner Jaffer Johnston Jones Mr. John Nunziata: Mr. Speaker, the purpose of this amend- Keddy (South Shore) Kenney (Calgary-Sud-Est) ment is to clarify the French version of the bill and I support it. Kerpan Konrad Lowther Lunn MacKay (Pictou—Antigonish—Guysborough) Manning [English] Martin (Esquimalt—Juan de Fuca) Matthews McNally Meredith (The House divided on Motion No. 9, which was agreed to on the Mills (Red Deer) Morrison Muise Obhrai following division:) Pankiw Penson Power Price (Division No. 154) Ramsay Reynolds Ritz Schmidt Scott (Skeena) Solberg YEAS Strahl Thompson (Charlotte) Thompson (Wild Rose) Vellacott Members Wayne White (Langley—Abbotsford) Abbott Ablonczy White (North Vancouver) —63 Adams Alarie Alcock Anders Anderson Assad PAIRED MEMBERS Assadourian Asselin Bachand (Richmond—Arthabaska) Bachand (Saint-Jean) Bailey Baker Bakopanos Barnes Beaumier Bélair Augustine Axworthy (Winnipeg South Centre) Bélanger Bellehumeur Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Bellemare Bennett Canuel Drouin Bergeron Bertrand Fournier Godin (Châteauguay) Bevilacqua Bigras Marchi O’Brien (Labrador) Blaikie Bonin Perron Peterson Bonwick Boudria Picard (Drummond) Saada Bradshaw Breitkreuz (Yorkton—Melville) Tremblay (Lac-Saint-Jean) Brien Brison Brown Bryden Bulte Byrne Caccia Cadman The Speaker: I declare Motion No. 13 carried. Calder Cannis Caplan Carroll Casey Casson The next question is on Motion No. 9. Catterall Cauchon Chamberlain Chan Charbonneau Chatters Chrétien (Frontenac—Mégantic) Clouthier [Translation] Coderre Cohen Collenette Comuzzi Copps Crête Cullen Cummins Ms. Marlene Catterall: Mr. Speaker, you would find unani- Dalphond-Guiral Davies mous consent that the members who are recorded as having voted de Savoye Debien Desjarlais DeVillers on the previous motion be recorded as having voted on the motion Dhaliwal Dion now before the House with Liberal members voting yea on this Discepola Dockrill Doyle Dromisky motion. Dubé (Lévis) Dubé (Madawaska—Restigouche) Duceppe Duhamel Dumas Duncan [English] Earle Easter Eggleton Elley Epp Finestone Finlay Folco The Speaker: Is there agreement to proceed in such a fashion? Fontana Forseth Fry Gagliano Gagnon Gallaway Gauthier Gilmour Some hon. members: Agreed. Girard-Bujold Godfrey Godin (Acadie—Bathurst) Goodale Gouk Graham Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Gray (Windsor West) Grey (Edmonton North) Grose Guarnieri vote yes to this motion. Guay Guimond 415

6900 COMMONS DEBATES May 12, 1998

Government Orders Harb Hart PAIRED MEMBERS Harvard Harvey Hill (Macleod)

Augustine Axworthy (Winnipeg South Centre) (Division No. 154) Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Canuel Drouin Fournier Godin (Châteauguay) YEAS Marchi O’Brien (Labrador) Perron Peterson Members Picard (Drummond) Saada Tremblay (Lac-Saint-Jean) Hill (Prince George—Peace River) Hilstrom Hoeppner Hubbard Ianno Jackson The Speaker: I declare Motion No. 9 carried. Jaffer Jennings Johnston Jones Jordan Karetak-Lindell Ms. Marlene Catterall: Mr. Speaker, I believe you would find Keddy (South Shore) Kenney (Calgary-Sud-Est) consent to apply the results of the vote just taken to Motion No. 14. Kerpan Keyes Kilgour (Edmonton Southeast) Knutson Konrad Lalonde The Speaker: Is there agreement to proceed in such a fashion? Lastewka Laurin Lavigne Lebel Lee Lefebvre Some hon. members: Agreed. Leung Lill Lincoln Longfield Loubier Lowther [Editor’s Note: See list under Division List No. 154] Lunn MacAulay MacKay (Pictou—Antigonish—Guysborough) Malhi Maloney Mancini Manning Marceau The Speaker: I declare Motion No. 14 carried. Marchand Marleau Martin (Esquimalt—Juan de Fuca) Martin (LaSalle—Émard) Martin (Winnipeg Centre) Massé The next question is on Motion No. 10. Matthews McCormick McDonough McGuire McKay (Scarborough East) McNally Ms. Marlene Catterall: Mr. Speaker, I believe you would again McTeague McWhinney find consent in the House that members who voted on the previous Ménard Mercier Meredith Mills (Broadview—Greenwood) motion be recorded as having voted on the motion now before the Mills (Red Deer) Minna House, with Liberal members voting nay, and I would note that the Mitchell Morrison Muise Murray member for Scarborough East, the member for Pickering—Ajax— Myers Nault Uxbridge and the member for Whitby—Ajax have left the Cham- Nunziata Nystrom Obhrai O’Reilly ber. Pagtakhan Pankiw Paradis Parrish Patry Penson D (1835) Peric Pettigrew Phinney Pickard (Kent—Essex) Pillitteri Plamondon The Speaker: Is there agreement to proceed in such a fashion? Power Pratt Price Proud Provenzano Ramsay Some hon. members: Agreed. Redman Reed Reynolds Richardson Riis Ritz An hon. member: No. Robillard Robinson Rocheleau Rock Saada Sauvageau The Speaker: There is no agreement, so we will take a formal Schmidt Scott (Fredericton) Scott (Skeena) Sekora vote on Motion No. 10. Serré Shepherd Solberg Speller St. Denis Steckle D (1840 ) Stewart (Brant) Stewart (Northumberland) St-Hilaire St-Julien Stoffer Strahl (The House divided on Motion No. 10, which was negatived on Szabo Telegdi Thibeault Thompson (Charlotte) the following division:) Thompson (Wild Rose) Torsney Tremblay (Rimouski—Mitis) Turp Ur Valeri (Division No. 155) Vanclief Vautour Vellacott Venne Volpe Wappel YEAS Wasylycia-Leis Wayne Whelan White (Langley—Abbotsford) Members White (North Vancouver) Wilfert Wood —252 Abbott Ablonczy Anders Bachand (Richmond—Arthabaska) Bailey Breitkreuz (Yorkton—Melville) NAYS Brison Cadman Casey Casson Members Chatters Cummins Doyle Dubé (Madawaska—Restigouche) *Nil/aucun Duncan Elley 416

May 12, 1998 COMMONS DEBATES 6901

Government Orders

Epp Forseth Marceau Marchand Gilmour Gouk Marleau Martin (LaSalle—Émard) Grey (Edmonton North) Hart Martin (Winnipeg Centre) Massé Harvey Hill (Macleod) McCormick McDonough Hill (Prince George—Peace River) Hilstrom McGuire McWhinney Hoeppner Jaffer Ménard Mercier Johnston Jones Mills (Broadview—Greenwood) Minna Keddy (South Shore) Kenney (Calgary-Sud-Est) Mitchell Murray Kerpan Konrad Myers Nault Lowther Lunn Nystrom O’Reilly MacKay (Pictou—Antigonish—Guysborough) Manning Pagtakhan Paradis Martin (Esquimalt—Juan de Fuca) Matthews Parrish Patry McNally Meredith Pettigrew Phinney Mills (Red Deer) Morrison Pickard (Kent—Essex) Pillitteri Muise Nunziata Plamondon Pratt Obhrai Pankiw Proud Provenzano Penson Power Redman Reed Price Ramsay Richardson Riis Reynolds Ritz Robillard Robinson Schmidt Scott (Skeena) Rocheleau Rock Serré Solberg Saada Sauvageau Steckle Strahl Scott (Fredericton) Sekora Thompson (Charlotte) Thompson (Wild Rose) Shepherd Speller Vellacott Wayne St. Denis Stewart (Brant) White (Langley—Abbotsford) White (North Vancouver)—66 Stewart (Northumberland) St-Hilaire St-Julien Stoffer Szabo Telegdi Thibeault Torsney NAYS Tremblay (Rimouski—Mitis) Turp Ur Valeri Vanclief Vautour Members Venne Volpe Wappel Wasylycia-Leis Whelan Wilfert Adams Alarie Wood—181 Alcock Anderson Assad Assadourian Asselin Bachand (Saint-Jean) Baker Bakopanos PAIRED MEMBERS Barnes Bélair Bélanger Bellehumeur Bellemare Bennett Bergeron Bertrand Bevilacqua Bigras Augustine Axworthy (Winnipeg South Centre) Blaikie Bonin Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Bonwick Boudria Canuel Drouin Bradshaw Brien Fournier Godin (Châteauguay) Brown Bryden Marchi O’Brien (Labrador) Bulte Byrne Perron Peterson Caccia Calder Picard (Drummond) Saada Cannis Caplan Tremblay (Lac-Saint-Jean) Carroll Catterall Cauchon Chamberlain Chan Charbonneau Chrétien (Frontenac—Mégantic) Clouthier The Speaker: I declare Motion No. 10 defeated. The next Coderre Cohen question is on Motion No. 11. Collenette Comuzzi Copps Crête Cullen Dalphond-Guiral Davies de Savoye Ms. Marlene Catterall: Mr. Speaker, I believe that you would Debien Desjarlais find consent in the House to have members who voted on the DeVillers Dhaliwal Dion Discepola previous motion recorded as voting on the motion now before the Dockrill Dromisky House, with Liberal members voting nay. Dubé (Lévis) Duceppe Duhamel Dumas Earle Easter Eggleton Finestone The Speaker: Is there agreement to proceed in such a fashion? Finlay Folco Fontana Fry Gagliano Gagnon Gallaway Gauthier D (1845 ) Girard-Bujold Godfrey Godin (Acadie—Bathurst) Goodale Graham Gray (Windsor West) Grose Guarnieri Some hon. members: Agreed. Guay Guimond Harb Harvard Hubbard Ianno Jackson Jennings Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Jordan Karetak-Lindell vote yes to this motion. Keyes Kilgour (Edmonton Southeast) Knutson Lalonde Lastewka Laurin Lavigne Lebel [Translation] Lee Lefebvre Leung Lill Lincoln Loubier Mr. Stéphane Bergeron: Mr. Speaker, the members of the Bloc MacAulay Malhi Maloney Mancini Quebecois are against this motion. 417

6902 COMMONS DEBATES May 12, 1998

Government Orders [English] Bevilacqua Bigras Bonin Bonwick Boudria Bradshaw Mr. Bill Blaikie: Mr. Speaker, New Democrats present vote yes Brien Brown Bryden Bulte to this motion. Byrne Caccia Calder Cannis [Translation] Caplan Carroll Catterall Cauchon Chamberlain Chan Mr. André Harvey: Mr. Speaker, the members of our party vote Charbonneau Chrétien (Frontenac—Mégantic) yes to this motion. Clouthier Coderre Cohen Collenette [English] Comuzzi Copps Crête Cullen Dalphond-Guiral de Savoye Mr. John Nunziata: Mr. Speaker, I will be voting in support of Debien DeVillers Dhaliwal Dion this motion. Discepola Dromisky Dubé (Lévis) Duceppe Mr. Chuck Strahl: Mr. Speaker, since the last recorded vote the Duhamel Dumas Easter Eggleton member for Surrey North has had to excuse himself and should not Finestone Finlay be included in this tally. Folco Fontana Fry Gagliano Gagnon Gallaway (The House divided on Motion No. 11, which was negatived on Gauthier Girard-Bujold the following division:) Godfrey Goodale Graham Gray (Windsor West) Grose Guarnieri (Division No. 156) Guay Guimond Harb Harvard Hubbard Ianno YEAS Jackson Jennings Members Jordan Karetak-Lindell Keyes Kilgour (Edmonton Southeast) Abbott Ablonczy Knutson Lalonde Anders Bachand (Richmond—Arthabaska) Lastewka Laurin Bailey Blaikie Lavigne Lebel Breitkreuz (Yorkton—Melville) Brison Lee Lefebvre Casey Casson Leung Lincoln Chatters Cummins Loubier MacAulay Davies Desjarlais Malhi Maloney Dockrill Doyle Marceau Marchand Dubé (Madawaska—Restigouche) Duncan Marleau Martin (LaSalle—Émard) Earle Elley Massé McCormick Epp Forseth McGuire McWhinney Gilmour Godin (Acadie—Bathurst) Ménard Mercier Gouk Grey (Edmonton North) Mills (Broadview—Greenwood) Minna Hart Harvey Mitchell Murray Hill (Macleod) Hill (Prince George—Peace River) Myers Nault Hilstrom Hoeppner O’Reilly Pagtakhan Jaffer Johnston Paradis Parrish Jones Keddy (South Shore) Patry Pettigrew Kenney (Calgary-Sud-Est) Kerpan Phinney Pickard (Kent—Essex) Konrad Lill Pillitteri Plamondon Lowther Lunn Pratt Proud MacKay (Pictou—Antigonish—Guysborough) Mancini Provenzano Redman Manning Martin (Esquimalt—Juan de Fuca) Reed Richardson Martin (Winnipeg Centre) Matthews Robillard Rocheleau McDonough McNally Rock Saada Meredith Mills (Red Deer) Sauvageau Scott (Fredericton) Morrison Muise Sekora Serré Nunziata Nystrom Shepherd Speller Obhrai Pankiw St. Denis Steckle Penson Power Stewart (Brant) Stewart (Northumberland) Price Ramsay St-Hilaire St-Julien Reynolds Riis Szabo Telegdi Ritz Robinson Thibeault Torsney Schmidt Scott (Skeena) Tremblay (Rimouski—Mitis) Turp Solberg Stoffer Ur Valeri Strahl Thompson (Charlotte) Vanclief Venne Thompson (Wild Rose) Vautour Volpe Wappel Vellacott Wasylycia-Leis Whelan Wilfert Wayne White (Langley—Abbotsford) Wood—167 White (North Vancouver)—79 NAYS PAIRED MEMBERS Members Adams Alarie Alcock Anderson Augustine Axworthy (Winnipeg South Centre) Assad Assadourian Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) Asselin Bachand (Saint-Jean) Canuel Drouin Baker Bakopanos Fournier Godin (Châteauguay) Barnes Bélair Marchi O’Brien (Labrador) Bélanger Bellehumeur Perron Peterson Bellemare Bennett Picard (Drummond) Saada Bergeron Bertrand Tremblay (Lac-Saint-Jean) 418

May 12, 1998 COMMONS DEBATES 6903

Government Orders The Speaker: I declare Motion No. 11 lost. [English] Mr. Bill Blaikie: Mr. Speaker, New Democrats present vote yes. Ms. Marlene Catterall: Mr. Speaker, I think you would find consent to apply the results of the vote just taken to Motion No. 12. [Translation] Mr. André Harvey: Mr. Speaker, the members of our party vote The Speaker: Is there agreement to proceed in such a fashion? yes to this motion.

Some hon. members: Agreed. [English] Mr. John Nunziata: Mr. Speaker, this bill on DNA is a small [Editor’s Note: See list under Division No. 156] step in the right direction and I will support it. (The House divided on the motion, which was agreed to on the The Speaker: Therefore I declare Motion No. 12 lost. following division:)

Hon. Andy Scott (Solicitor General of Canada, Lib.) moved (Division No. 157) that the bill be concurred in. YEAS The Speaker: Is it the pleasure of the House to adopt the Members Adams Alarie motion? Alcock Anderson Assad Assadourian Asselin Bachand (Richmond—Arthabaska) Some hon. members: Agreed. Bachand (Saint-Jean) Baker Bakopanos Barnes Bélair Bélanger Bellehumeur Bellemare Some hon. members: No. Bennett Bergeron Bertrand Bevilacqua Bigras Blaikie The Speaker: All those in favour of the motion will please say Bonin Bonwick Boudria Bradshaw yea. Brien Brison Brown Bryden Bulte Byrne Some hon. members: Yea. Caccia Calder Cannis Caplan Carroll Casey Catterall Cauchon The Speaker: All those opposed will please say nay. Chamberlain Chan Charbonneau Chrétien (Frontenac—Mégantic) Clouthier Coderre Some hon. members: Nay. Cohen Collenette Comuzzi Copps Crête Cullen Dalphond-Guiral Davies The Speaker: In my opinion the yeas have it. de Savoye Debien Desjarlais DeVillers Dhaliwal Dion And more than five members having risen: Discepola Dockrill Doyle Dromisky Dubé (Lévis) Dubé (Madawaska—Restigouche) Duceppe Duhamel Ms. Marlene Catterall: Mr. Speaker, I rise on a point of order Dumas Earle for the last time this evening. If the House agrees I propose that you Easter Eggleton Finestone Finlay seek unanimous consent that members who voted on the previous Folco Fontana motion be recorded as voting on the motion now before the House, Fry Gagliano Gagnon Gallaway with Liberal members voting yes. Gauthier Girard-Bujold Godfrey Godin (Acadie—Bathurst) Goodale Graham The Speaker: Is there agreement to proceed in such a fashion? Gray (Windsor West) Grose Guarnieri Guay Guimond Harb Harvard Harvey Some hon. members: Agreed. Hubbard Ianno Jackson Jennings Jones Jordan Mr. Chuck Strahl: Mr. Speaker, having failed to pass those last Karetak-Lindell Keddy (South Shore) Keyes Kilgour (Edmonton Southeast) three motions, we have to vote no to this motion. Knutson Lalonde Lastewka Laurin Lavigne Lebel [Translation] Lee Lefebvre Leung Lill Lincoln Loubier Mr. Stéphane Bergeron: Mr. Speaker, the members of the Bloc MacAulay MacKay (Pictou—Antigonish—Guysborough) Malhi Maloney Quebecois are in favour of this motion. Mancini Marceau 419

6904 COMMONS DEBATES May 12, 1998

Private Members’ Business Marchand Marleau The Speaker: I declare the motion carried. Martin (LaSalle—Émard) Martin (Winnipeg Centre) Massé Matthews McCormick McDonough D McGuire McWhinney (1850 ) Ménard Mercier Mills (Broadview—Greenwood) Minna Mitchell Muise The House will now proceed to the consideration of Private Murray Myers Members’ Business as listed on today’s order paper. Nault Nunziata Nystrom O’Reilly Pagtakhan Paradis Parrish Patry ______Pettigrew Phinney Pickard (Kent—Essex) Pillitteri Plamondon Power Pratt Price Proud Provenzano Redman Reed PRIVATE MEMBERS’ BUSINESS Richardson Riis Robillard Robinson Rocheleau Rock Saada Sauvageau Scott (Fredericton) Sekora [English] Serré Shepherd Speller St. Denis Steckle Stewart (Brant) Stewart (Northumberland) St-Hilaire MACKENZIE-PAPINEAU BATTALION St-Julien Stoffer Szabo Telegdi Thibeault Thompson (Charlotte) The House resumed from March 19 consideration of the motion. Torsney Tremblay (Rimouski—Mitis) Turp Ur Valeri Vanclief Mr. John Bryden (Wentworth—Burlington, Lib.): Mr. Speak- Vautour Venne er, I am glad to rise to speak to this motion which I do not support. I Volpe Wappel Wasylycia-Leis Wayne wish to explain in some detail why I do not support it. Whelan Wilfert Wood —199 Some years ago I was in Washington to do some research in the archives. I found the archives were closed, that it was a public NAYS holiday and quite an unexpected public holiday. It turned out that it was Memorial Day.

Members I had nothing to do because I could not work so I walked down Abbott Ablonczy into the mall area. I found myself next to the Vietnam memorial. It Anders Bailey Breitkreuz (Yorkton—Melville) Casson was the first time I had ever seen the Vietnam memorial. As I said, Chatters Cummins it was on Memorial Day so quite a few veterans were standing Duncan Elley Epp Forseth around the memorial. Gilmour Gouk Grey (Edmonton North) Hart Hill (Macleod) Hill (Prince George—Peace River) It has to be imagined. The monument to the Vietnam war in the Hilstrom Hoeppner United States is probably one of the most moving monuments built Jaffer Johnston Kenney (Calgary-Sud-Est) Kerpan anywhere in the world. It is quite remarkable. It consists of a huge Konrad Lowther slab of black marble. A ramp goes down one end and up the other, Lunn Manning Martin (Esquimalt—Juan de Fuca) McNally and on it are engraved all the names of the people who died during Meredith Mills (Red Deer) the Vietnam war. Morrison Obhrai Pankiw Penson Ramsay Reynolds Many of the veterans were middle aged since the Vietnam war Ritz Schmidt Scott (Skeena) Solberg occurred in the late 1960s and early 1970s. Many people of my age Strahl Thompson (Wild Rose) were standing around the Vietnam memorial to pay homage to their Vellacott White (Langley—Abbotsford) White (North Vancouver) —47 fallen comrades. It was very moving. I was surprised to see little Canadian flags everywhere from one end of the memorial to the other. It was quite a shocking contrast to see the Canadian flags PAIRED MEMBERS against the black.

I did not realize that Canadians had served in the Vietnam war. I was very surprised to find that out. I talked to some of the veterans Augustine Axworthy (Winnipeg South Centre) Bernier (Bonaventure—Gaspé—Îles-de-la-Madeleine—Pabok) there at the time who explained that they knew Canadians who Canuel Drouin fought with them in the rice paddies in Vietnam, Canadians who Fournier Godin (Châteauguay) Marchi O’Brien (Labrador) served with great courage. Some were killed and some were Perron Peterson injured. Many of them believed in the cause the Americans were Picard (Drummond) Saada Tremblay (Lac-Saint-Jean) fighting for in Vietnam. 420

May 12, 1998 COMMONS DEBATES 6905

Private Members’ Business On further inquiry I found out that approximately 10,000 the day, the Soviet Union. The Soviet Union was instrumental in Canadians fought with the Americans in Vietnam. There was such getting that war rolling because it had a philosophy until recent a surge of support for the war among young people in Canada that years of spreading international communism. The Soviet Union the Americans set up a special recruitment system whereby made a direct effort to keep the civil war going in Spain. Canadians could cross the border to get a letter of acceptance and then go back across the border to join up and serve in the forces. Part of the Soviet Union’s campaign to support the republican side involved the formation of international brigades. These bri- Many Canadians who served in Vietnam did so because they gades comprised battalions and volunteers who were recruited thought they were fighting against communism. They believed that from all over the world. One of those battalions was the Macken- communism as we saw it in North Korea was a terrible force in the zie-Papineau Battalion. world and they wanted to save the world from it. True idealism brought those Canadians to actually risk their lives in that foreign Approximately 1,300 Canadians went over and joined the Mack- war. enzie-Papineau Battalion and fought on the side of the republicans during the Spanish civil war. The Spanish civil war was a terrible Canada does not recognize veterans who served in foreign war. It was a brutal war. Men, women and children were killed. It armies. We can see the wisdom of that decision when we consider was a war that is echoed by the civil war that is now occurring in Vietnam. Those young Canadians who went over there to serve in Algeria. the American forces in Vietnam believed they were doing the right thing. We now know subsequently that the war in Vietnam was not It was a different world in 1937. As the young men from Canada really a war of the United States fighting to save the free world and went over to serve in the republican forces they could not see inside sparing it from communism. It was really the United States the Soviet Union. They only knew the Soviet Union as a country intervening in a civil war that involved a struggle for indepen- that was supporting workers and they thought it was a grand new dence. experiment. They thought it was going to free the people, and so with the greatest good spirit they went over to serve in the The Vietnamese had been under the heel, literally speaking, of republican forces. the French, the Vichy French and even the Japanese during the second world war and post second world war. The Vietnamese are very proud people and were very determined to gain their indepen- One of the most famous persons at that time was Norman dence. Bethune who served in the Spanish civil war, not in the Mackenzie- Papineau Battalion but by giving medical aid to the republican troops. D (1855 ) We now know in retrospect that far from fighting for democracy, The war in Vietnam, as we know, led to some very terrible as the member from Kamloops said, they were fighting on the side atrocities. I think of My Lai in which Canadian soldiers were of the republicans who were supported by the worst dictatorship in distressed by the fact that they could not see the enemy among the the world. The dictator was Stalin. After the war we discovered that civilians so they killed the civilians. The Vietnam war was also a this was a communist rule, a dictatorship that would kill millions of war in which the Americans resorted to chemical warfare in the people, millions of people in Ukraine and millions of its own form of defoliants and agent orange. people, the Russians.

I think we would agree that Canada is probably very glad that it We have to remember that Norman Bethune went on to China, did not officially sanction the Canadians fighting in Vietnam served in the Chinese forces and became famous there. However because in fact despite their very best intentions they were fighting China became a dictatorship under Mao and it was one of the for a losing cause and a wrong cause. That is the most important cruelest dictatorships in modern time. These people killed millions issue. and they were every bit as bad as Hitler.

This is one of the dangers when Canadians fight for other We have the dilemma that these people in good spirit and good countries. They may indeed take up a cause that later is discovered heart went over to support a cause that Canada and all the world in to be a cause that Canada would not want to associate itself with. retrospect realize was actually supporting a cause that was perfectly reprehensible and we would not want to have Canada associated The Vietnam war was from 1967 to 1973, the major portion of with it. the war. If we flip back another 30 years we come to 1937 and the Spanish civil war. That war involved the forces of General Franco We have the dilemma that the member for Kamloops wants to representing the state and backed by the fascists, backed by acknowledge the courage and contribution to history, the contribu- Germany and Mussolini but mainly by Nazi Germany, and the tion in spirit of the members of the Mackenzie-Papineau Battalion republican forces which were backed by the communist power of 60 years ago. He is right in his intention but wrong in the execution. 421

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Private Members’ Business

D (1900 ) The point I would like to dwell on is that ordinary Canadians have to be diligent just as those young Canadians were diligent. When the extreme right wing raises its ugly head, ordinary working Canada can never take the chance of supporting foreign wars in Canadians have to be aware of the risk and the threat to democracy which the outcome or result may indicate a political entity that is as well as the threat to the treasured institutions we value and completely unacceptable to Canada. which make our country great.

I will conclude by making a suggestion to the member for I would like to think that is what those people did. In the 1930s Kamloops. In the United States the Canadian Vietnam veterans are those young people were watching the newsreels in their local recognized and compensated by the United States because of their movie houses and saw the jackboot storming across Europe, the service in the Vietnam war. I suggest very strongly to the member rise of fascism. Canadians travelled overseas to see firsthand what that he make representations to the Embassy of Spain to see if he it was like. Tommy Douglas was one in the mid-1930s to visit can get Spain to make a similar recognition of the members of the Europe to see whether it was true. He wanted to find out if the rise Mackenzie-Papineau Battalion and to get compensation from of Hitler and the rise of fascism was as threatening as they were where it really ought to come and that is Spain. hearing. People read about it in the newspapers and came to the very logical conclusion that fascism was the greatest threat they Mr. Pat Martin (Winnipeg Centre, NDP): Mr. Speaker, I thank faced. the member across the way for a very enlightening and well researched speech. He made some very good points which I agree Rather than talk about it and rather than wait for the government with. to act, because the Canadian government could have been quicker in getting on board to smash Hitler and smash fascism, that group I do not agree with the basic premise that the Mac-Paps were of people saw fit to put their own lives aside, leave their homes and going across on some kind of a flawed premise that they were loved ones and hike off to Europe unsanctioned in a formal way by doing something noble and honourable and then found out they the Canadian government. were actually pawns or were being used by a larger power.

D (1905 ) When the group went over to fight fascism they were right. A couple of years later the Canadian government agreed and declared war. That group recognized the fear of fascism in Europe earlier We gave them thanks by making them outlaws. We threatened and chose to take up arms. If the group can be criticized for being them with two years jail time for having the temerity to get aligned with the communists by working with the republic of Spain involved in the battle. It was a battle which we knew at that time to then so can any of the allies as we joined forces in the second world be just and right because within 18 months we were in the same war to do what we thought was right, which was to smash fascism. boat as a country leading the fight as one of the early countries in the great struggle of World War II. The purpose of the motion as it was worded was to investigate ways to grant some form of recognition to these noble and heroic These young men and women realized the danger. Instead of Canadians. It did not limit us to any particular course of action being criticized and threatened with legal action they should be although first and foremost the goal was to have these people recognized and championed and given the full status and full rights declared and treated as veterans with the full status that veterans other veterans enjoy. They gave their youth for the fight for enjoy. There are other options which I think we should be talking democracy against fascism. about today as well. A parallel can be drawn today in the need for us to be vigilant as In my own research on this subject I was very interested to note pockets of the extreme right wing surface again across Canada. that the Mac-Paps were named after Mackenzie and Papineau who Even within political parties in Canada the right wing is rising up in led the 1837 Rebellion in Upper and Lower Canada. In fact the year circumstances similar to what we saw in the 1930s. Many parallels the Mac-Paps were formed, 1937, would have been the 100th can be drawn. Fascism in Europe really grew out of a period of very anniversary of that uprising. I presume that is how the name was poor economic times, tight fiscal policy, high unemployment, and chosen. general dissatisfaction. That is when working people and otherwise decent people seem to seek out these extreme alternatives. The member who spoke on behalf of the government was correct. My research shows that 1,300 volunteer soldiers banded Regarding the rise of fascism in Germany, when Eichmann was together from all parts of Canada to go abroad. Approximately half interviewed in his prison cell he was asked what did he think Adolf of them came home. Not all of them died. Some were missing in Hitler would be remembered for most. His answer was the great action. Some actually settled in Europe and did not choose to return way that he solved the unemployment problem. He said nothing to Canada. about the killing of six million Jews. It was the great way that he 422

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Private Members’ Business solved the unemployment problem. They were really desperate for that, eliminating that stigma which these 40 or so living Canadian some kind of relief in the miserable lives they were living. veterans of the Spanish civil war still have to wear.

We saw the recent rise in right wing populism coming out of a The other thing we can do, and I think there is interest in this and period of tight money and economic fiscal policy. The Bank of in fact we have some interest on the government benches, is to put Canada was trying to fight inflation with high interest rates and up a monument to the Mac-Paps on the grounds outside the House screwed it up. It resulted in truly desperate times for a lot of people, of Commons. That would be a popular move. It would be the very especially where I live in western Canada. They sought out extreme least we could do. right wing solutions. This is what led to the rise of the new right wing populism. As I say we have to be ever on guard and ever Mrs. Diane Ablonczy (Calgary—Nose Hill, Ref.): Mr. Speak- vigilant because looking toward those kinds of options brings us all er, the debate this evening is on Motion No. 75, that in the opinion down and threatens the institutions that make Canada great. of this House the government should consider the advisability of giving members of the Mackenzie-Papineau Battalion and other The Spanish civil war in many ways acted as a dress rehearsal Canadians who fought with the Spanish republican forces in the for the second world war. When Canada saw the international Spanish civil war between 1936 and 1939 the status of veterans brigades mobilizing, taking action and doing what was necessary, it under the federal legislation and making them eligible for veterans probably served to inspire Canadian leaders and other world pensions and benefits. leaders to become motivated and get active. The wording of this motion is a little strange in that it says We are aware that it was not just Franco they were fighting. The consider the advisability. We can consider anything. I wonder Spanish fascists were being backed heavily by Mussolini and by whether a motion that is worded quite so tentatively is going to get Hitler. They were pouring money in. much of a result. In any event, that is the motion before us.

This courageous rather ragtag group went over there on dimes Here is a little background on the Spanish civil war. The Liberal and nickels. They passed the hat around to pay their way over. They member opposite who spoke earlier gave some excellent back- were poorly armed. We can imagine how much courage it took to ground as well. As he said the Spanish civil war was a savage go into that kind of armed conflict against some of the greatest conflict. It took more than half a million lives. That was long world powers of the time. That should be recognized. before the days of modern weapons and modern technology. It was noted as a war of terrible atrocities and also some very dramatic acts of heroism. Norman Bethune’s name was mentioned. He was certainly one of the more famous persons to go over during that period. He was an honourable and noble man. He dedicated his life to elevating the Historian Hugh Thomas noted that politically the war was a standards of the poor. In health care he broke new ground in terms hodgepodge of monarchists, fascists, anarchists, liberals, Trotsky- of transfusion techniques some of which actually was learned on ites, communists and others seeking to use the war to advance their the battlefield in the heat of battle doing triage. particular programs. Thomas has done a very definitive work on the Spanish civil war. It is very interesting reading if anyone is interested in getting more background. The only valid criticism I have heard against Motion No. 75 is if we do it for this group, how many other groups are we going to The Soviet Union supported the republic but it was careful not to have to recognize in some way and apologize for? Nobody is do so directly. What it did was set up an organization to purchase asking for apologies. We are just asking for some serious second arms and transport them by covert means to assist the Spanish consideration in this case. We are looking at a situation where we communist forces. believe there should be some kind of recognition. If people cannot see fit to grant the full veteran status that we are asking for, then surely they can do two things. The communist leader in France, Maurice Thorez, suggested that aid be given to the republic in the form of volunteers raised internationally by foreign communist parties. They would be D (1910 ) organized by the Comintern, Communist International, and would be led by foreign communists exiled from their own countries and One was made reference to by the Minister of Veterans Affairs. living in Russia. In a letter about this recently he came back reminding us that an order in council was passed at the time making it a criminal offence The international brigades were seen to have great propaganda for Canadians to serve on either side of the Spanish civil war. No value for the communists and were seen as a possible nucleus of an charges were actually laid but technically these people committed a international red army. Such an organization could be the chief crime against Canada by going to fight the fascists on our behalf. recipient of any Soviet aid in Spain and ensure that Soviet arms The very first and foremost thing we should be doing is striking would be secure in the hands of reliable party members. 423

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Private Members’ Business It might be interesting to note that before Soviet weapons were We implore you from the depths of our hearts to do everything possible to help Spanish democracy. In so doing you are serving your own interests. We are here for actually used on Spanish soil, the entire Spanish gold reserve had the duration until fascism is defeated. been dispatched to Russia as security for payment. Russia was not just altruistic in this wonderful battle against fascism. King never replied, but I think the cable is an indication of how idealistic the people who sent it were. Unfortunately the cause they Most of the ablest leaders in the Comintern were employed in served turned out to be equally as brutal and oppressive as the raising volunteers for the international brigades, for example, fascist cause. Joseph Broz who became Marshal Tito of Yugoslavia, and Enrico Togliatti from Italy who later became leader of the Italian commu- The reason that the Canadians who served in the Mac-Pap nist party. battalion were not thought well of and not respected in Canada was simply because they broke the law. Historian Thomas tells us that about 60% of the volunteers were communists. Another 20% became communists during their expe- There had been the non-intervention agreement of 1936, sup- riences in Spain. Most were young men and members of the ported by all the major European powers as well as Canada, which working class. A high percentage were unemployed. Many of the was in full accord with the agreement. What happened was that the Europeans had the experience of street fighting against the fascists countries agreed on what Churchill called ‘‘an absolutely rigid in Berlin, Paris and London. neutrality’’.

The Liberal government in Canada in the mid and late 1930s did D (1915 ) not want to get involved in any international problems and, in fact, would not support some of the rather tentative measures that were Some of these men were adventurers. Some were hard line put forward by the League of Nations at that time, a pretty toothless communists. Many were idealists, as other speakers have men- organization such as it was, of which Canada was not a strong tioned. member. That being said, Prime Minister King had little sympathy for the The personal motivations for joining the cause varied widely. It republican cause and considered communism a great threat at home has been suggested that somehow these were visionaries who and abroad. happened to see the evils of fascism before everybody else did. Unfortunately, they did not see the evils of the extreme left wing Canada revised the Foreign Enlistment Act in 1937 to give legal which was also raising its ugly head at the same time and they were force to its policy of non-intervention. Travel to Spain and its seconded into that cause which proved equally perilous and brutal territories was forbidden. Those who went to Spain to serve on for many people in the world. either side of the war from Canada did so in defiance of their government and at their own risk. About a third died in the action in Spain. Several suffered political or professional ostracism because of their Spanish experi- That is the basis upon which these individuals were not only not ences. Many of the eastern Europeans who participated in the accorded the respect and gratitude due to those who fought on campaign were executed in the purges of eastern Europe in 1949. behalf of their country but were in some cases prosecuted because they had broken the law. With respect to the Canadian experience, approximately 1,500 Canadians served the republican cause during the Spanish civil Whether the law was right or wrong is not the issue. I think there war. They served in several military formations and the unofficial are a lot of laws passed in this House that some people in the House section became to be called the Mackenzie-Papineau section in do not agree with. However, that is not a reason for simply breaking honour of William Lyon Mackenzie and Louis Joseph Papineau them. We need to respect the rule of law. who were leaders of the failed 1837 rebellion against the British ruling classes in Upper and Lower Canada. That is the position of the Royal Canadian Legion. The legion studied this issue and stated: The Mac-Paps eventually became a separate battalion, but fewer It was an offence under Canadian law at the time to fight on any side during that than a third were Canadians. Most were Americans, as were their war. first commander and their first political commissar. Both of these men were killed in fighting along the Ebro River. D (1920)

Mark Zuehlke, in a recent book, says that the group sent a cable The legion was referring, of course, to the Spanish civil war. to Prime Minister King, who was of course the grandson of William Lyon Mackenzie. The cable read: It continued: 424

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Private Members’ Business The legion supports the rule of law and does not view it as appropriate to advocate a The international brigades, including the Mackenzie-Papineau position at this late date which would in effect legitimize that which was illegal at the battalion, fought bravely on the front lines and we must recognize time. This could set an untenable precedent. the nobility of their contribution.

There were many idealistic and heroic acts during the Spanish I must remind this House that the Spanish civil war was not like civil war. We know about the skill, courage and sacrifice of Dr. any other war past or future. All wars are unique, iniquitous Norman Bethune, and the dedication of Jean Watts of Toronto and actually. However, this one marked in a most particular way the Florence Pike of Falkland, the only two Canadian women to have involvement of civilians in an armed political conflict, in spite of served in the International Brigades. We know about the wounds the inaction of their government, in fact in spite of its orders to the suffered by playwright Ted Allan and the hundreds who served and contrary. They were labourers, teachers, journalists, and intellectu- died. It is fitting that these individuals be remembered by their als, who left their occupations behind in order to engage in a battle friends, supporters and communities for their idealism and sacri- for the defence of freedom. fice, and some have been thus honoured. The Spanish civil war is far more than a mere civil conflict, a Regrettably, it is not appropriate to grant them the status of simple internal matter within Spain, as the governments of the day Canadian veterans. Consequently, in view of all the many factors to claimed it was. This conflict will remain the symbol of the be considered, I cannot support this motion. commitment of men and women from all over the world to safeguarding freedom. [Translation] The legacy of that civil war is precisely that international Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Mr. Speaker, commitment to preserve freedom. There were few professional I am pleased to speak today to the motion introduced by my soldiers in the ranks of the Spanish republican forces; most were colleague, the member for Kamloops, regarding recognition of people who believed in freedom and were prepared to sacrifice veterans of the MacKenzie-Papineau Battalion. themselves to preserve it.

I, too, like the member for Châteauguay, would like to see the D (1925) Canadian government finally recognize members of this battalion as full-fledged veterans. The Spanish civil war is also and perhaps particularly so the commitment by intellectuals to the very essence of a political Despite the battle they waged against fascism, a battle that now conflict. It was first the Spanish intellectuals who refused to give in seems avant-garde, these soldiers of freedom are still not yet to the military coup. The Frederico Garcia Lorcas, the Pablo recognized as real veterans. Picassos and the Joan Miros fought for liberty. Ernest Hemingway, André Malraux and George Orwell traded pen for gun. Canada also took part in the fight against fascism in Europe, a few years after the Mac-Paps fought in Spain, and I therefore think Was the Mackenzie-Papineau Battalion not also led by someone that it is necessary, imperative really, that the Mac-Paps be who lived by the pen rather than the gun? What else but the simple recognized as real freedom fighters. belief that our most precious possession needed defending at all cost would cause Edward-Cecil Smith to leave his paper in favour of the trenches? The devotion of these men and women was complete and it was primarily governments that waged an all-out battle against fascism in Europe. Some 1,300 Canadians joined about 10,000 French, It was the ardent defenders of freedom who went to fight 3,000 Americans, and Czechs, Yugoslavs and British citizens for alongside the Spanish whose government, the government they had the sole purpose of stopping fascism in its tracks in Madrid. just freely chosen, had been toppled by the military. It was these people whose courage, convictions and determination tested the mettle of the Condor legion sent especially by Hitler in support of Today we know that these freedom fighters were too thin on the the new strong men of Europe and the weapons and military tactics ground and did not have the back-up they needed, because not long that would soon rout all the armies of Europe. after their return to Canada, all of Europe was battling fascism, and did so until the bitter end. It was these defenders of liberty who understood long before governments the stakes involved in this little war, the stakes The fascists, having triumphed in Spain and already wielding involved for the future of Europe and for the protection of freedom. power in Germany and Italy, set their sights on all of Europe, This is the commitment to freedom we are being asked to recognize bolstered by their victory over the international brigades and the by giving the members of the Mackenzie-Papineau Battalion the Spanish republicans. status of veterans. 425

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Private Members’ Business Canada must act now, before it is too late to do so. Is Canada, very small group of remaining veterans. There are about 40 with the United States, not on the short list of countries refusing members of the Mac-Paps who are still alive. It is important that to recognize the involvement of their citizens in this war? The list we remember what they did. It is important that we right a wrong in may be short, but in my opinion there are still too many names history. It is important that all parties and all members of this on it—Canada’s in particular. House stand up and give recognition to the work and the commitment the Mac-Paps have made. Some oppose this motion for reasons of cost or potential administrative problems. Others because they fear it might encour- I ask other members of the House to put aside partisan politics, age our fellow citizens to become involved in any sort of conflict. to put aside what may have happened back in 1936 and to say that We must not forget our history and we must remember that, as these Canadians must be recognized. What better place to do that parliamentarians, we make decisions that soon will come under the than in the House of Commons. There are members of the scrutiny of historians. community, members of their families, their children and their grandchildren who are watching this debate. They are watching to Let us therefore assume our responsibilities and recognize the see what we do in the House of Commons to give acknowledge- great valour in the commitment of the members of the Mackenzie- ment to the sacrifice these people have made, many of whom have Papineau Battalion. now died.

[English] I call on members of the House to do the honourable and right thing, to recognize the Mac-Paps and to see what we can do to grant Ms. Libby Davies (Vancouver East, NDP): Mr. Speaker, I am some form of recognition to this truly heroic and courageous group very honoured to rise today in the House to speak in support of my of Canadians. colleague’s motion, M-75, regarding the Mackenzie-Papineau Battalion. The Deputy Speaker: I advise the House that if the hon. I have had personal experience with members of the Mac-Paps member for Kamloops speaks now he will close the debate. who have worked so courageously to bring forward this issue. I would like to congratulate the member for Kamloops for bringing Mr. Nelson Riis (Kamloops, NDP): Mr. Speaker, it is an honour forward this motion to provide understanding and education about to say a few closing words in this debate on Motion No. 75, an this issue and to bring forward to Canadians the wrong that was effort to give appropriate recognition to the MacKenzie-Papineau done to the 1,300 volunteers who very bravely went to fight brigade. fascism before it was understood even by the Canadian government at the time. It is fair to say that Canada has shown leadership in the past by When we read the history of the Mac-Paps we see the courage acknowledging past wrongs and issuing apologies. In some cases that these men and women had and the dedication they displayed in we have provided financial compensation. I refer particularly to the fighting fascism. The fact that they were then vilified and casti- Japanese Canadians who were treated so inappropriately during the gated by not just the Canadian government but by the RCMP and second world war. There was an apology and compensation was by society generally is something that is a real black mark in the provided, similarly for first nations peoples humiliated in residen- history of Canada. tial schools. There was an appropriate apology and an indirect form of compensation was indicated. We have seen nations apologize I think what this motion does is bring this issue back to the and acknowledge the past wrongs of the Holocaust, apartheid in Canadian people, to say that we must give recognition to this noble South Africa, and one could go on and on. and heroic group of Canadians who were willing to stand up to be counted, to make a personal sacrifice, to go to another country It says an awful lot about a country that can admit it has made because they believed so strongly in defending democracy not only errors. Previous governments had debates around some of these in Canada but also abroad. issues but they made inappropriate decisions. They were in error. They made mistakes. It takes a great deal of courage for a person to D (1930 ) admit to making mistakes and then to move on. It takes some courage for a government and a parliament to say we made a One of the real tragedies of this situation is that when many of mistake to those who volunteered to fight fascism even before we these brave Canadians tried to enlist in the Canadian Armed Forces as a country did. during the second world war, they were denied and told they were politically unreliable, these Canadians who had made this commit- I appeal to my colleagues from all sides of the House when they ment. vote on this motion to set aside minor problems which have been identified and issues that would make the implementation of this This is a motion where members of this House can remember the acknowledgement difficult. Do the right thing. For the handful of history here. It allows us to give recognition to what is regrettably a veterans who are living today in Canada, do the right thing and 426

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Adjournment Debate indicate that we appreciate the fact that they led the way to In the northeastern part of my province of New Brunswick, the combating fascism for our country and in the world. unemployment rate is 23%. One person in four is trying to find a job, and finding nothing. There are thousands of families living in D (1935 ) poverty.

The Deputy Speaker: Pursuant to order made earlier this day, It was even announced yesterday that the unemployment rate in the question on the motion is deemed to have been put and a New Brunswick was around the 13% mark. Often, the hon. recorded division deemed demanded and deferred until Monday, members over there do not believe me when I say that people are May 25, 1998 at the expiry of the time provided for Government suffering because of the changes to employment insurance. This Orders. National Council on Welfare report confirms this, in black and white. ______The time to do something is now. This government must start working for the people of this country and must address the subjects of concern to all Canadians, such as the elimination of ADJOURNMENT PROCEEDINGS poverty, job creation, and a health system that meets everyone’s needs. [Translation] Let us start on this right now by reviewing the employment insurance eligibility criteria. Canadians have suffered enough. A motion to adjourn the House under Standing Order 38 deemed With $15 billion, we can put contribution rates back to 60% and to have been moved. cover 70% of workers.

EMPLOYMENT INSURANCE I did some calculations earlier. A person working 420 hours in a fish plant or who has a low paying seasonal job with a minimum Mr. Yvon Godin (Acadie—Bathurst, NDP): Mr. Speaker, I rise salary of $7.50 an hour, for example, will receive $3,150 divided today in response to the reply given on March 26, 1998, by the by 14 and multiplied by 55, the percentage under employment Secretary of State for International Financial Institutions to my insurance. He will get $123.75 a week. Nobody can live on that. All question on employment insurance. the same, with the considerable surplus that is in the employment insurance fund, this is unacceptable. I had asked why the federal government was refusing to use the surplus in the employment insurance fund to help all the unem- What is the government waiting for? Do the Liberals want the ployed from coast to coast. Right now, fewer than 40% of poverty rate to climb? Let us change the employment insurance unemployed workers are receiving EI benefits. This is all the more criteria in order to remedy— serious when one realizes that the surplus in the employment insurance fund is up around $15 billion. The Deputy Speaker: I am sorry to interrupt the hon. member. The Parliamentary Secretary to the Minister of International Trade Why is this government allowing the surplus in the employment has the floor. insurance fund to mount up when people throughout the country are suffering because of the changes to EI eligibility criteria? It is D often forgotten where this surplus comes from. It comes from the (1940) workers and employers of this country who pay EI premiums. [English] As the program’s name indicates, this is insurance for the difficult times when one loses one’s job. Everyone hopes not to Mr. Julian Reed (Parliamentary Secretary to Minister for have to turn to this insurance, but the nature of work being what it International Trade, Lib.): Mr. Speaker, the government is is today, it is sometimes unavoidable. committed to job creation and economic growth and it is making considerable progress on that front. Evident from a steadily Does this government not acknowledge that more than 60% of declining unemployment rate, we intend to see this downward unemployed people do not qualify for insurance? They are not trend continue. The EI premium rate must ensure that there is entitled to their own money. Not because the government lacks sufficient revenue each business cycle to pay EI costs at relatively money, either, as there is a surplus of $15 billion in the fund. It is stable rates. hard to understand why the government refuses to act on this serious matter. The current surplus makes prudent provision against rate hikes in the event of unforeseen economic and global changes. It also Yesterday, the National Council on Welfare announced that child allows the government to address unemployment where it is most poverty was at its highest in 17 years. Their report emphasized the severe. For example, similar in concept to the 1997 and 1998 new direct link between increased poverty and the changes in employ- hires program, the 1998 budget gives employers who hire more ment insurance. young Canadians in 1999 and 2000 an EI premium holiday. 427

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Adjournment Debate We must also remember that just three years ago the federal The minister for employment and investment, Mr. Farnworth, government’s deficit was $42 billion. At that time the government from British Columbia has written to the Minister for International looked at all aspects of the fiscal situation and there is no denying Trade calling on the federal government to hold hearings in all that EI surpluses played a role in restoring fiscal health. This was regions of the country and has advised the federal minister not to not done in isolation, however, and complemented other difficult assume that the MAI will automatically cover provincial measures. decisions. Canadians want to know why the Liberals are so afraid to debate EI premium rates have been declining since 1994. This year’s this issue of the MAI. I have been involved in a number of debates decrease from $2.90 to $2.70 will save Canadians $1.4 billion in in my own riding and in Vancouver where not one Liberal would 1998 and premiums will continue to decline as the fiscal situation show up to the debate. permits. D (1945 ) MULTILATERAL AGREEMENT ON INVESTMENT We are calling on the government today to be honest about the Ms. Libby Davies (Vancouver East, NDP): Mr. Speaker, MAI, to tell Canadians why it is that it is pushing it through. We opposition to the multilateral agreement on investment, the MAI, want to say to the government that the opposition is increasing. has been massive and is still growing. There will be such opposition that we believe the deal will not go through. It is not just the citizens of Canada who are realizing that the MAI is a very bad deal. Also our provincial governments are Mr. Julian Reed (Parliamentary Secretary to Minister for beginning to realize what a bad deal it is in terms of provincial International Trade, Lib.): Mr. Speaker, economic isolationists jurisdiction. all over the world are opposed to agreements like the MAI. There are those who believe that one can build a wall around the country In March of this year I asked a question of the Prime Minister, and operate its economic system within that wall and in so doing expressing increasing concern that, for example, in my province of bring prosperity, good health and happiness to all its people. British Columbia government initiatives like the jobs and timber accord and legislation to protect young people from the exploita- That was tried at the beginning of 1917 in the Soviet Union. At tion of tobacco companies are threatened by the MAI. the point of the collapse of that regime, the financial state was so severe that the country is still in the throes of going through a The response I received from the government was pathetic. What serious catharsis in terms of recovery. I was told by the government is: ‘‘There is nothing in the negotiations that would threaten the ability of Canada to function Canada has learned in recent years that our economy is certainly and operate its own house’’. dependent on international interaction and international trade. Forty per cent of the jobs created in this country are created Canadians know and understand differently. More and more because Canada exports. Agreements are absolutely essential. Canadians are understanding that the fundamental impact of the MAI will be to undermine our democratic institutions and to We learned a long time ago that Canada works best if there are undermine the ability of elected governments to set public policy in rules. We are not a large country that can simply operate in the the public interest. jungle. We have investors in other countries who are small In British Columbia the provincial government is so concerned businessmen. They cannot go over there with batteries of lawyers about the impact of the MAI that an all-party committee to to engage in litigation. It is much more satisfactory if we have the undertake public consultation has been struck. The mandate of the rules set up and we understand where we are going. As a result special committee is to inquire into and make recommendations Canada is prospering. regarding all aspects of the MAI through broad public consultation. Canada will continue to prosper as long as we continue to reach Members of the committee will be appointed shortly and the out and interact with all nations of the world. committee is expected to report to the provincial legislature in British Columbia in the coming year. DISASTER RELIEF

In speaking to this issue in B.C. the minister responsible, Mr. Farnworth, said make no mistake, the MAI is not dead. While he Mr. Jay Hill (Prince George—Peace River, Ref.): Mr. Speak- expressed optimism that the MAI treaty was not signed in Paris er, I rise this evening on a matter of equity for all Canadian when it was anticipated, he does point out, and I and many other farmers. Canadians would concur, it is imperative that we take advantage of this delay to continue to press the federal government to have full On February 19 and on subsequent occasions in the House I public debate and hearings and finally to stop this deal from going asked the Minister of Agriculture and Agri-Food why he has not through. extended disaster relief to farmers in the Peace River region of 428

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Adjournment Debate British Columbia and Alberta who do not qualify under the disaster the $50 million special subsidiary Quebec program was established financial assistance arrangements. unilaterally by the federal government without the co-operation of the Quebec government. These farmers have endured two devastating years of crop losses due to excess moisture. These arrangements are known as the I was pleased to see recently that the Alberta minister of DFAA. Farmers in the maritimes who suffered last summer under agriculture, the hon. Ed Stelmach, called his bluff. He formally the worst draught in a decade have also been denied disaster relief asked the federal agricultural minister that a special subsidiary by the federal government. program be established for Alberta farmers in the Peace River region. Throughout the past two years we have seen special disaster relief programs set up outside the DFAA on four different occa- I have just learned that Minister Stelmach’s request has been sions. The precedent has been set. The federal government has denied. I am unaware of what excuse the minister of agriculture shown that compassion and compensation are available outside the used other than maybe his compassion does not exist west of DFAA criteria. Manitoba.

For the Saguenay and the Red River floods special subsidiary The truth is that the government is making up the rules as it goes programs were established outside the DFAA for farmers suffering along. If it is to design special subsidiary programs to address losses. More recently the federal government shelled out an extra Quebec and Ontario farmers who do not qualify under the regular $50 million again outside the DFAA for part time Quebec farmers DFAA rules, it should change the criteria for western and eastern with losses resulting from this January’s ice storm. Then again in farmers as well. March the minister of agriculture proudly proclaimed an additional $20 million in federal funds outside the DFAA for part time Mr. Ovid L. Jackson (Parliamentary Secretary to President Ontario farmers with losses from the ice storm. These were farmers of the Treasury Board, Lib.): Mr. Speaker, we realize that farmers who do not qualify and did not qualify under the regular DFAA in northern Alberta and British Columbia have experienced two rules. wet seasons in a row and have suffered significant production and income loss. Let me point out that in each of these four cases farmers were deserving of the special arrangements that were made to get them We are also aware of the drought condition that impacted on through the devastation caused by these disasters. What is difficult parts of the maritimes and Ontario in 1997. However assistance to understand, however, is that the government will not apply the under the standing federal-provincial disaster financial assistance same rules and compassion to all disaster besieged farmers. They arrangement does not apply to the situations cited by the hon. have done it not once, not twice or three times but four times. member because it does not cover income losses. It deals with reconstruction and does not provide assistance where insurance is available, particularly crop insurance. The federal government has indicated that when the DFAA is not sufficient, when it does not adequately provide financial disaster relief to farmers, the rules can be changed and special programs The extension of DFAA assistance to Quebec part time farmers can be established. is based on the same rules and the same procedures that applied in previous major disasters such as the Edmonton tornado, the Saguenay floods and the Manitoba Red River flood. The magnitude For Peace River and maritime farmers the DFAA is insufficient of these disasters in terms of the broad economic impact were such to meet their needs. The minister of agriculture has stated in the that a comprehensive subsidiary agreement covering agriculture House that these farmers have been treated exactly the same for and industry were implemented. coverage as farmers in other areas. This is simply not true. Until Peace River and maritime farmers receive the same kind of We believe the existing combination of crop insurance, net subsidiary assistance programs as their counterparts have in the income stabilization account, NISA, and companion programs has Saguenay region, Manitoba, Quebec and Ontario, this injustice will the best potential to provide the needed support for all Canadian continue. producers in cases of drought and excessive field moisture.

D (1950 ) [Translation]

These are the simple facts. In trying to justify his inequitable The Deputy Speaker: The motion to adjourn the House is treatment of these farmers the minister has also indicated to the deemed to have been adopted. The House stands adjourned until House that special subsidiary programs have not been put in place, 2 p.m. tomorrow, pursuant to Standing Order 24(1). particularly in Alberta and B.C., simply because those provinces have not asked for it. He made this ridiculous excuse even though (The House adjourned at 7:52 p.m.) 429 430 431

CONTENTS

Tuesday, May 12, 1998

ROUTINE PROCEEDINGS Motions Nos. 18 and 20 ...... 6835 Mr. Rocheleau ...... 6835 Government Response to Petitions Mr. Johnston ...... 6835 Mr. Adams...... 6819 Motions Nos. 22 and 23 ...... 6835 Committees of the House Mrs. Chamberlain ...... 6836 Public Accounts Mr. Rocheleau ...... 6837 Mr. Grose...... 6819 Mr. McCormick ...... 6838 Mr. Martin (Winnipeg Centre) ...... 6839 Centennial Flame Research Award Mr. Breitkreuz (Yorkton—Melville) ...... 6840 Mr. Alcock...... 6819 Mr. Breitkreuz (Yorkton—Melville) ...... 6841 Questions on the Order Paper Mr. Obhrai ...... 6842 Mr. Adams...... 6819 Business of the House Mr. Muise ...... 6820 Ms. Catterall...... 6843 Mr. Cummins ...... 6821 Motion ...... 6843 (Motion agreed to) ...... 6843 GOVERNMENT ORDERS Canada Labour Code Canada Labour Code Bill C–19. Report stage ...... 6843 Bill C–19—Time Allocation Motion Mr. Cummins ...... 6843 Mr. Boudria ...... 6821 Mr. Duncan ...... 6845 Mr. Epp ...... 6821 Mr. Wilfert ...... 6846 Motion agreed to ...... 6822 Mr. Hill (Prince George—Peace River) ...... 6846 Bill C–19. Report stage ...... 6822 Mr. Boudria ...... 6822 STATEMENTS BY MEMBERS Mr. Hill (Prince George—Peace River) ...... 6823 Mr. Boudria ...... 6823 Canada World Youth Mr. Dubé (Madawaska—Restigouche) ...... 6823 Mr. PeriŇ ...... 6847 Mr. Boudria ...... 6823 Parkdale Clean–Up Day Mr. White (Langley—Abbotsford) ...... 6823 Ms. Bulte ...... 6847 Mr. Boudria ...... 6823 Mr. Epp ...... 6823 CRTC Mr. Boudria ...... 6823 Mr. Abbott...... 6847 Mrs. Ablonczy ...... 6824 Member for Longueuil Mr. Strahl ...... 6824 Mr. St–Julien ...... 6847 Mr. Wilfert ...... 6825 Mr. Martin (Winnipeg Centre) ...... 6826 Police Week Mr. Myers ...... 6826 Mr. Myers...... 6848 Mr. Anders ...... 6827 Agriculture Mr. Elley ...... 6828 Mr. Hilstrom...... 6848 Mr. Anders ...... 6828 Division on Motion No. 9 deferred ...... 6828 Trade ...... Division on Motion No. 28 deferred ...... 6828 Mr. Maloney 6848 Mr. Rocheleau ...... 6828 Student Summer Employment Motion No. 10 ...... 6828 Mrs. Redman...... 6848 Mrs. Chamberlain ...... 6829 Surrey Youth Recognition Awards Mr. Elley ...... 6829 Mr. Cadman...... 6849 Mrs. Chamberlain ...... 6829 Mr. Johnston ...... 6829 Ukrainian Heritage Mrs. Chamberlain ...... 6829 Mr. Sekora...... 6849 Mr. Johnston ...... 6830 David Levine Mr. Martin (Winnipeg Centre) ...... 6830 Mr. Plamondon...... 6849 Division on Motion No. 10 deferred ...... 6831 Mr. Rocheleau ...... 6831 Sports Motions Nos. 11 to 17 ...... 6831 Mr. Riis...... 6849 Mrs. Chamberlain ...... 6833 Canadian Nurses Mr. Johnston ...... 6834 Mr. Thompson (Charlotte)...... 6850 Division on Motion No. 11 deferred ...... 6834 Division on Motion No. 13 deferred ...... 6835 Lucien Bouchard Mr. Johnston ...... 6835 Mr. Pillitteri...... 6850 432

Liverpool Regional High School Mr. Rock ...... 6855 Mr. Keddy...... 6850 Mr. Dumas ...... 6855 Mr. Rock ...... 6855 International Nurses Day Mrs. Dalphond–Guiral ...... 6850 India Mr. Mills (Red Deer)...... 6855 Quebec City Conferences of 1942 and 1943 Mr. Gray ...... 6856 Mrs. Jennings...... 6850 Mr. Mills (Red Deer) ...... 6856 Canadian Armed Forces Mr. Goodale ...... 6856 Mr. Thompson (Wild Rose)...... 6851 Poverty Mr. Ménard ...... 6856 ORAL QUESTION PERIOD Mr. Martin (LaSalle—Émard) ...... 6856 Calgary Declaration Hepatitis C Mr. Bélanger ...... 6856 Mr. Manning...... 6851 Mr. Dion ...... 6856 Mr. Rock ...... 6851 Mr. Manning ...... 6851 RCMP Mr. Rock ...... 6851 Mr. Ramsay...... 6856 Mr. Manning ...... 6851 Mr. Scott (Fredericton) ...... 6856 Mr. Rock ...... 6851 Mr. Ramsay ...... 6856 Mr. Hill (Macleod) ...... 6852 Mr. Scott (Fredericton) ...... 6857 Mr. Rock ...... 6852 Aboriginal Affairs Mr. Hill (Macleod) ...... 6852 Mr. Earle...... 6857 Mr. Rock ...... 6852 Mrs. Stewart (Brant) ...... 6857 Mr. Earle ...... 6857 Poverty Ms. McLellan ...... 6857 Mr. Duceppe...... 6852 Mr. Pettigrew ...... 6852 Young Offenders Act Mr. Duceppe ...... 6852 Mr. MacKay...... 6857 Mr. Pettigrew ...... 6852 Ms. McLellan ...... 6857 Mr. Crête ...... 6852 Mr. MacKay ...... 6857 Mr. Pettigrew ...... 6853 Ms. McLellan ...... 6857 Mr. Crête ...... 6853 Ms. McLellan ...... 6857 Mr. Pettigrew ...... 6853 Trade Ms. Leung...... 6857 Nuclear Testing Mr. Reed ...... 6858 Mr. Blaikie...... 6853 Mr. Gray ...... 6853 Immigration Mr. Blaikie ...... 6853 Mr. Reynolds...... 6858 Mr. Gray ...... 6853 Ms. Robillard ...... 6858 Sugar Quotas Varennes Tokamak Mr. Bergeron...... 6858 Mrs. Wayne...... 6853 Mr. Goodale ...... 6858 Mr. Reed ...... 6853 Mrs. Wayne ...... 6853 Health Mr. Reed ...... 6854 Ms. Wasylycia–Leis ...... 6858 Mr. Rock ...... 6858 Trade Mr. Strahl...... 6854 Taxation Mr. Boudria ...... 6854 Mr. Power...... 6858 Mr. Strahl ...... 6854 Mr. Martin (LaSalle—Émard) ...... 6859 Mr. Gray ...... 6854 Nuclear Testing Mr. Shepherd...... 6859 Poverty Mr. Goodale ...... 6859 Mrs. Gagnon...... 6854 Mr. Pettigrew ...... 6854 Points of Order Mrs. Gagnon ...... 6854 Media Leaks Mr. Pettigrew ...... 6854 Mr. Blaikie...... 6859 Trade GOVERNMENT ORDERS Miss Grey...... 6855 Canada Labour Code Mr. Boudria ...... 6855 Bill C–19. Report stage ...... 6859 Miss Grey ...... 6855 Mr. Hill (Prince George—Peace River) ...... 6859 Mr. Gray ...... 6855 Hepatitis C THE ROYAL ASSENT Mr. Dumas...... 6855 The Acting Speaker (Mr. McClelland) ...... 6860 433

GOVERNMENT ORDERS Mr. Bergeron ...... 6879 Mr. Blaikie ...... 6879 Canada Labour Code Mr. Harvey ...... 6879 Bill C–19. Report stage ...... 6860 Mr. Nunziata ...... 6879 Mr. Penson ...... 6860 Motion No. 2 negatived ...... 6880 Mr. Elley ...... 6862 Ms. Catterall ...... 6880 ...... Mrs. Ablonczy 6863 Mr. Nunziata ...... 6880 Mr. Mills (Red Deer) ...... 6864 Motions Nos. 10, 11, 12, 13, 14, 15, 16 and 17 negatived. 6880 Division on Motion No. 18 deferred ...... 6865 Ms. Catterall ...... 6880 Division on Motion No. 22 deferred ...... 6866 Mr. Nunziata ...... 6880 Mr. Rocheleau ...... 6866 Motions Nos. 6 and 8 negatived ...... 6881 Motion No. 19 ...... 6866 Ms. Catterall ...... 6881 Mr. Johnston ...... 6866 Mr. Strahl ...... 6881 Motion No. 25 ...... 6866 Mr. Bergeron ...... 6881 Mr. Rocheleau ...... 6866 Mr. Blaikie ...... 6881 Motion No. 26 ...... 6866 Mr. Harvey ...... 6882 Business of the House Motion No. 3 negatived ...... 6883 Ms. Catterall ...... 6883 Mr. Adams...... 6866 Mr. Strahl ...... 6883 Motion ...... 6866 Mr. Bergeron ...... 6883 (Motion agreed to) ...... 6866 Mr. Blaikie ...... 6883 Canada Labour Code Mr. Harvey ...... 6883 Bill C–19. Report stage ...... 6866 Mr. Nunziata ...... 6883 Mr. Dubé (Madawaska—Restigouche) ...... 6866 Motion No. 4 negatived ...... 6884 Motion No. 27 ...... 6866 Ms. Catterall ...... 6884 Mr. Johnston ...... 6866 Mr. Strahl ...... 6884 Motion No. 29 ...... 6866 Mr. Bergeron ...... 6884 Mr. Rocheleau ...... 6866 Mr. Blaikie ...... 6884 Mr. Harvey ...... 6884 THE ROYAL ASSENT Mr. Nunziata ...... 6884 The Acting Speaker (Mr. McClelland) ...... 6867 Motion No. 30 negatived ...... 6885 Ms. Catterall ...... 6885 GOVERNMENT ORDERS Motions Nos. 9, 18, 20, 22, 23, 25, 27 and 28 negatived . . 6885 Ms. Catterall ...... 6885 Canada Labour Code Mr. Strahl ...... 6885 Bill C–19. Report stage ...... 6868 Mr. Blaikie ...... 6885 Mr. Rocheleau ...... 6868 Mr. Harvey ...... 6885 Mrs. Chamberlain ...... 6869 Mr. Nunziata ...... 6885 Mr. Johnston ...... 6869 Motion No. 19 negatived ...... 6886 Mr. Martin (Winnipeg Centre) ...... 6870 Ms. Catterall ...... 6887 Mr. Dubé (Madawaska—Restigouche) ...... 6870 Motion No. 26 negatived ...... 6887 Mr. Martin (Winnipeg Centre) ...... 6870 Ms. Catterall ...... 6887 Mr. Dubé (Madawaska—Restigouche) ...... 6872 Mr. Strahl ...... 6887 Mr. Gouk ...... 6873 Mr. Bergeron ...... 6887 Mrs. Chamberlain ...... 6873 Mr. Blaikie ...... 6887 Mr. Wilfert ...... 6873 Mr. Harvey ...... 6887 Mr. Gouk ...... 6874 Mr. Nunziata ...... 6887 Mr. Duncan ...... 6876 Motion No. 21 negatived ...... 6888 Division on Motion No. 19 deferred ...... 6876 Ms. Catterall ...... 6888 Division on Motion No. 25 deferred...... 6876 Motion No. 24 negatived ...... 6888 Division on Motion No. 26 deferred ...... 6877 Motion for concurrence ...... 6888 Mr. Gouk ...... 6877 Mr. MacAulay ...... 6888 Mr. Johnston ...... 6877 Ms. Catterall ...... 6888 Motions Nos. 21 and 24 ...... 6877 Mr. Strahl ...... 6888 ...... Division on Motion No. 21 deferred ...... 6877 Mr. Bergeron 6888 ...... Division on Motion No. 24 deferred ...... 6877 Mr. Blaikie 6888 ...... Mr. Rocheleau ...... 6877 Mr. Harvey 6888 Mr. Nunziata ...... 6888 Motion No. 31 ...... 6877 Motion agreed to ...... 6889 Division on Motion No. 31 deferred ...... 6878 Motion No. 1 negatived ...... 6879 Canada Grain Act Ms. Catterall ...... 6879 Bill C–26. Report Stage ...... 6889 Motions Nos. 5, 7 and 31 negatived ...... 6879 Ms. Catterall ...... 6889 Ms. Catterall ...... 6879 Mr. Strahl ...... 6889 Mr. Strahl ...... 6879 Mr. Bergeron ...... 6890 434

Mr. Blaikie ...... 6890 Mr. Nunziata ...... 6898 Mr. Harvey ...... 6890 Motion No. 13 agreed to ...... 6899 Mr. Nunziata ...... 6890 Ms. Catterall ...... 6899 Motion No. 1 negatived ...... 6891 Mr. Strahl ...... 6899 Ms. Catterall ...... 6891 Mr. Bergeron ...... 6899 Motion No. 2 negatived...... 6891 Mr. Blaikie ...... 6899 Motion for concurrence ...... 6891 Mr. Harvey ...... 6899 Mr. Vanclief ...... 6891 Mr. Nunziata ...... 6899 Ms. Catterall ...... 6891 Motion No. 9 agreed to ...... 6900 Mr. Strahl ...... 6891 Ms. Catterall ...... 6900 Mr. Bergeron ...... 6891 Motion No. 14 agreed to ...... 6900 Mr. Blaikie ...... 6891 Ms. Catterall ...... 6900 Mr. Harvey ...... 6891 Motion No. 10 negatived ...... 6901 Mr. Nunziata ...... 6891 Ms. Catterall ...... 6901 Motion agreed to ...... 6892 Mr. Strahl ...... 6901 Mr. Bergeron ...... 6901 DNA Identification Act Mr. Blaikie ...... 6902 Bill C–3. Report stage ...... 6892 Mr. Harvey ...... 6902 Ms. Catterall ...... 6892 Mr. Nunziata ...... 6902 Mr. Strahl ...... 6892 Mr. Strahl ...... 6902 Mr. Bergeron ...... 6892 Motion No. 11 negatived ...... 6903 Mr. Blaikie ...... 6892 Ms. Catterall ...... 6903 Mr. Harvey ...... 6892 Motion No. 12 negatived ...... 6903 Mr. Nunziata ...... 6892 Motion for concurrence ...... 6903 Motion No. 1 negatived ...... 6893 Mr. Scott (Fredericton) ...... 6903 Ms. Catterall ...... 6894 Ms. Catterall ...... 6903 Motions Nos. 4 and 6 negatived ...... 6894 Mr. Strahl ...... 6903 Ms. Catterall ...... 6894 Mr. Bergeron ...... 6903 Mr. Strahl ...... 6894 Mr. Blaikie ...... 6903 Mr. Bergeron ...... 6894 Mr. Harvey ...... 6903 Mr. Blaikie ...... 6894 Mr. Nunziata ...... 6903 ...... Mr. Harvey 6894 Motion agreed to ...... 6904 Mr. Nunziata ...... 6894 Motion No. 2 negatived ...... 6895 PRIVATE MEMBERS’ BUSINESS Ms. Catterall ...... 6895 Mr. Strahl ...... 6895 MacKenzie–Papineau Battalion Mr. Bergeron ...... 6895 Motion ...... 6904 Mr. Blaikie ...... 6895 Mr. Bryden ...... 6904 Mr. Harvey ...... 6895 Mr. Martin (Winnipeg Centre) ...... 6906 Mr. Nunziata ...... 6895 Mrs. Ablonczy ...... 6907 Motion No. 3 negatived ...... 6896 Mr. Turp ...... 6909 Ms. Catterall ...... 6896 Ms. Davies ...... 6910 Motions Nos. 7 and 8 negatived ...... 6896 Mr. Riis ...... 6910 Ms. Catterall ...... 6896 (Divisions deemed demanded and deferred) ...... 6911 Mr. Strahl ...... 6896 Mr. Bergeron ...... 6896 ADJOURNMENT PROCEEDINGS Mr. Blaikie ...... 6896 Employment Insurance Mr. Harvey ...... 6897 Mr. Godin (Acadie—Bathurst) ...... 6911 Mr. Nunziata ...... 6897 Mr. Reed ...... 6911 Motion No. 5 negatived ...... 6898 Multilateral Agreement on Investment Ms. Catterall ...... 6898 Ms. Davies...... 6912 Mr. Strahl ...... 6898 Mr. Reed ...... 6912 Mr. Bergeron ...... 6898 Disaster Relief Mr. Blaikie ...... 6898 Mr. Hill (Prince George—Peace River) ...... 6912 Mr. Harvey ...... 6898 Mr. Jackson ...... 6913 435 MāāAāāIāāL PāOāSāTāE Canada Post Corporation/Société canadienne des postes Postage paid Port payé Lettermail Poste-lettre 03159442 Ottawa

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CONTENTS (Table of Contents appears at back of this issue.)

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8497

HOUSE OF COMMONS

Tuesday, September 29, 1998

The House met at 10 a.m. religious television broadcasters. The petitioners call upon parliament to review the mandate of the CRTC and direct the CRTC to ______encourage the licensing of religious broadcasters.

Prayers MULTILATERAL AGREEMENT ON INVESTMENT ______Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Mr. Speaker, the final petition I wish to present relates to the multilateral agreement on investment. The petitioners request parliament to ROUTINE PROCEEDINGS impose a moratorium on Canadian participation in MAI negotiations until a full public debate has taken place. D (1000 ) D (1005 ) [English] MARRIAGE CRIMINAL RECORDS ACT Mr. Jay Hill (Prince George—Peace River, Ref.): Mr. Speak- Mr. Lee Morrison (Cypress Hills—Grasslands, Ref.): Mr. er, there have been consultations among the parties and I believe Speaker, I have two petitions to present this morning. The first you will find unanimous consent for the following motion. petition, with 175 signatures, comes from my constituency, primarily from the districts of Leader, Prelate and Mendham in Saskatche- I move: wan. That following the conclusion of debate on Bill C-284, standing in the name of the member for Calgary Centre, the question be deemed put, a recorded division The petitioners wish to point out that the concept of marriage is a requested and deferred to the completion of Government Orders on Tuesday, voluntary union of an unmarried male and an unmarried female and October 6. that it is the duty of parliament to ensure that marriage as it has The Deputy Speaker: Does the hon. member have the unani- been known and understood in Canada should be preserved. mous consent of the House to propose this motion? The petitioners therefore call upon parliament to enact Bill Some hon. members: Agreed. C-225, an act to amend the Marriage Act and the Interpretation Act so as to define in statute that a marriage can only be entered into (Motion agreed to) between a single male and a single female.

* * * BILL C-68

PETITIONS Mr. Lee Morrison (Cypress Hills—Grasslands, Ref.): Mr. MARRIAGE Speaker, the second petition comes primarily from residents of Mount Albert, Ontario. Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Mr. Speaker, I have several petitions to present today. The first petition The petitioners call upon parliament to recognize that Bill C-68 draws to the attention of the House the definition of marriage as the was supported by misleading statistical data when it was presented majority of Canadians understand it. Accordingly, the petitioners to parliament, that there is no evidence that the criminal use of call upon parliament to enact Bill C-225 to amend the Marriage Act firearms is impeded by restrictive firearms legislation, that the and the Interpretation Act to define marriage as being between a enforcement of Bill C-68 would be a major burden on police single male and a single female. officers and that the search and seizure provisions of Bill C-68 would constitute a breach of traditional civil rights and would be an CRTC affront to all law-abiding Canadians. Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Mr. The petitioners therefore call upon parliament to repeal Bill Speaker, the second petition comes from a large number of C-68 and all associated regulations with respect to firearms and constituents and concerns the decision of the Canadian Radio-tele- ammunition and pass new legislation designed to severely penalize vision and Telecommunications Commission not to licence four the criminal use of any weapon. 439

8498 COMMONS DEBATES September 29, 1998

Government Orders This brings the tally to 4,026 signatures on petitions of this have asked that the House repeal Bill C-68 and redirect the funds nature which I have recently presented in the House. for the registration and licensing scheme to more effective means of reducing violent crime and improving public safety, such as MARRIAGE more police and crime prevention programs, women’s crisis centres, suicide prevention centres and increased resources for Mr. Tom Wappel (Scarborough Southwest, Lib.): Mr. Speak- fighting organized crime and street crime. er, I have seven petitions, all on the same subject matter. They total approximately 450 signatures. MARRIAGE The first petition comes from my riding of Scarborough South- Mr. Jack Ramsay (Crowfoot, Ref.): Mr. Speaker, 70 of my west. The others are from New Westminster, British Columbia; constituents have asked me to present their petition supporting Bill Calgary, Alberta; Saskatoon, Saskatchewan; Winnipeg, Manitoba; C-225 which would define in statute that a marriage can only be LaSalle, Quebec; and Lower Sackville and Fall River, Nova Scotia. entered into between a single male and a single female.

All of the petitions call upon parliament to enact my Bill C-225, PROPERTY RIGHTS an act to amend the Marriage Act and the Interpretation Act so as to define in statute that which is already in federal common law, Mr. Jack Ramsay (Crowfoot, Ref.): Mr. Speaker, I would like namely that a marriage can only be entered into between a single to present a petition asking the House to support private member’s male and a single female. Bill C-304 which would strengthen the protection of property rights in the country. Mr. Dale Johnston (Wetaskiwin, Ref.): Mr. Speaker, I have a petition to present on behalf of residents of Wetaskiwin and other * * * areas in central Alberta. The petition deals with the concept of marriage as only being a voluntary union between a single male QUESTIONS ON THE ORDER PAPER and a single female. Mr. Gar Knutson (Parliamentary Secretary to Prime Minis- The petitioners call upon parliament to enact Bill C-225, an act ter, Lib.): Mr. Speaker, I ask that all questions be allowed to stand. to amend the Marriage Act and the Interpretation Act so as to define in statute that a marriage can only be entered into between a The Deputy Speaker: Is that agreed? single male and a single female. Some hon. members: Agreed. BILL C-68 ______Mr. Darrel Stinson (Okanagan—Shuswap, Ref.): Mr. Speak- er, I am pleased to table a petition today from B.C. residents who recognize that registering firearms does nothing to fight violent GOVERNMENT ORDERS crime. [Translation] The petitioners want Bill C-68 to be repealed and the money spent on effective anti-crime measures, including prevention and DNA IDENTIFICATION ACT more policing. BILL C-3—TIME ALLOCATION MOTION YOUNG OFFENDERS ACT Hon. Don Boudria (Leader of the Government in the House Mr. Jack Ramsay (Crowfoot, Ref.): Mr. Speaker, I would like of Commons, Lib.): Mr. Speaker, I move: to present a number of petitions calling for significant changes to That in relation to Bill C-3, an act respecting DNA identification and to make the present Young Offenders Act. Over 350 petitioners call upon consequential amendments to the Criminal Code and other Acts, not more than one further sitting day shall be allotted to the consideration of the third reading stage of parliament to make the protection of society the number one the bill and, 15 minutes before the expiry of the time provided for the government priority in amending the Young Offenders Act through measures business on the allotted day of the third reading consideration of the said bill, any such as reducing the minimum age of young offenders, publishing proceedings before the House shall be interrupted, if required for the purpose of this violent young offenders’ names, increasing the penalties for crimes order, and in turn every question necessary for the disposal of the third reading stage of the bill shall be put forthwith and successively without further debate or committed by youth and ensuring parental responsibility. amendment. D (1010 ) The Deputy Speaker: Is it the pleasure of the House to adopt the motion? BILL C-68 Some hon. members: Agreed. Mr. Jack Ramsay (Crowfoot, Ref.): Mr. Speaker, I would also Some hon. members: No. like to put forward a number of petitions regarding the issue of firearms registration and firearms control. Almost 150 petitioners The Deputy Speaker: All those in favour will please say yea. 440

September 29, 1998 COMMONS DEBATES 8499

Government Orders Some hon. members: Yea. Steckle Stewart (Brant) Stewart (Northumberland) Szabo The Deputy Speaker: Telegdi Thibeault All those opposed will please say nay. Torsney Ur Valeri Vanclief Some hon. members: Nay. Volpe Whelan Wilfert Wood—138 The Deputy Speaker: In my opinion the nays have it. And more than five members having risen: NAYS The Deputy Speaker: Call in the members. Members D (1055) Abbott Ablonczy (The House divided on the motion, which was agreed to on the Alarie Anders following division:) Asselin Axworthy (Saskatoon—Rosetown—Biggar) Bachand (Richmond—Arthabaska) Bailey (Division No. 230) Bellehumeur Benoit Bergeron Bernier (Tobique—Mactaquac) Bigras Blaikie YEAS Brien Brison Members Cadman Cardin Casson Chrétien (Frontenac—Mégantic) Adams Anderson Crête Cummins Assad Assadourian Augustine Axworthy (Winnipeg South Centre) Davies de Savoye Bakopanos Barnes Debien Desjarlais Beaumier Bélair Desrochers Doyle Bélanger Bellemare Dubé (Madawaska—Restigouche) Duceppe Bennett Bertrand Dumas Duncan Bevilacqua Blondin-Andrew Earle Elley Bonin Bonwick Epp Gauthier Boudria Bradshaw Gilmour Girard-Bujold Brown Bryden Godin (Acadie—Bathurst) Goldring Bulte Caccia Calder Caplan Gouk Grewal Carroll Catterall Grey (Edmonton North) Guimond Chamberlain Chan Hanger Harris Charbonneau Chrétien (Saint-Maurice) Hart Harvey Clouthier Coderre Hill (Macleod) Hill (Prince George—Peace River) Cohen Collenette Jaffer Johnston Copps Cullen Jones Keddy (South Shore) DeVillers Dhaliwal Konrad Laliberte Dion Discepola Dromisky Drouin Lalonde Laurin Duhamel Easter Lebel Lefebvre Eggleton Finestone Loubier Lunn Finlay Folco MacKay (Pictou—Antigonish—Guysborough) Mancini Fontana Fry Manning Marceau Gallaway Godfrey Marchand Mark Graham Gray (Windsor West) Martin (Esquimalt—Juan de Fuca) Mayfield Harb Harvard McDonough McNally Hubbard Ianno Iftody Jackson Mercier Meredith Jennings Jordan Mills (Red Deer) Morrison Karetak-Lindell Keyes Muise Nystrom Kilger (Stormont—Dundas) Kilgour (Edmonton Southeast) Obhrai Pankiw Knutson Kraft Sloan Penson Perron Lastewka Lavigne Picard (Drummond) Power Lee Leung Price Ramsay Lincoln Longfield Reynolds Riis MacAulay Mahoney Malhi Maloney Ritz Rocheleau Manley Marchi Sauvageau Scott (Skeena) Martin (LaSalle—Émard) Massé Solomon Stinson McCormick McGuire St-Jacques Stoffer McLellan (Edmonton West) McWhinney Tremblay (Rimouski—Mitis) Turp Mifflin Mills (Broadview—Greenwood) Venne Wasylycia-Leis Minna Mitchell Wayne White (Langley—Abbotsford) Murray Myers Williams—103 Nault Normand O’Brien (Labrador) O’Brien (London—Fanshawe) O’Reilly Pagtakhan Paradis Parrish Patry Peric PAIRED MEMBERS Peterson Pettigrew Phinney Pickard (Chatham—Kent Essex) Pillitteri Pratt Proud Provenzano Redman Reed Alcock Byrne Richardson Robillard Rock Saada Canuel Dalphond-Guiral Scott (Fredericton) Sekora Gagliano Gagnon Serré Shepherd Grose Marleau Speller St. Denis St-Hilaire Tremblay (Lac-Saint-Jean) 441

8500 COMMONS DEBATES September 29, 1998

Government Orders The Deputy Speaker: I declare the motion carried. discussions to please carry them on outside the Chamber so those who wish to hear the debate will be able to do so. The hon. member [English] for Waterloo—Wellington has the floor.

THIRD READING Mr. Lynn Myers: In deciding whether to make an order in this instance the judge will consider the offender’s criminal record, the The House resumed from September 21, consideration of the nature of the offence and the circumstances surrounding its com- motion that Bill C-3, an act respecting DNA identification and to mission which are all relevant factors in identifying violent make consequential amendments to the Criminal Code and other predators at a very early stage. acts, be read the third time and passed; and of the amendment.

The Deputy Speaker: Order, please. Perhaps hon. members The data bank will capture penitentiary inmates who pose a high who are carrying on discussions in the Chamber could have them risk of future violent reoffending. Bill C-3 will authorize DNA outside so the business of the House could resume. I am sure there samples to be taken retroactively from designated dangerous are hon. members who wish to debate this bill. offenders, repeat sex offenders and serial murderers. The last group of offenders was added to Bill C-3 by the Standing Committee on D (1100 ) Justice and Human Rights in response to concerns that offenders like Clifford Olson should be captured by the data bank. Mr. Lynn Myers (Waterloo—Wellington, Lib.): Mr. Speaker, I will be sharing my time with the Parliamentary Secretary to By targeting offenders already in custody the data bank will offer Minister of Labour. the hope of solving long outstanding crimes where police have no leads. It will make the most dangerous offenders think twice about I have been closely following both sides of this debate and I rise committing a violent offence again because their genetic imprints today to speak in support of Bill C-3. As the former chairman of the will be in the data bank for future and quick identification. Waterloo regional police I have a keen interest in this area and in this debate. The Standing Committee on Justice and Human Rights studied We have heard from several hon. members that a DNA bank will Bill C-3 in depth and supported it. Members of the House have increase public protection for all Canadians. The police community closely examined it and have had an opportunity to study the expert has told us that a data bank will help law enforcement agencies legal opinions concerning its constitutionality. The legal experts identify suspects where they have no leads, that it will assist in have advised us that Bill C-3 in its current form is consistent with identifying offenders who commit serious crimes across all police Canada’s Constitution. However some members continue to dis- jurisdictions in Canada, and that it will help prevent future violent count this fact. They insist on delaying passage of the bill by crime. repeatedly arguing that it can be easily amended. In so doing they are forgetting about the supreme court and the Canadian Charter of To ensure the police have the most effective tool possible Bill Rights and Freedoms. C-3 has been drafted in accordance with the Constitution. Bill C-3 will authorize the courts to order persons convicted of designated Amending the bill to permit the taking of DNA samples at the offences to provide DNA samples for inclusion in the data bank. time of arrest or charge is a radical proposal that disregards the Upon conviction for a primary designated offence or a serious basic rights and freedoms guaranteed by the charter. Any accused violent offence the court will issue an order requiring the offender person in Canada has the right to be presumed innocent and to provide a DNA sample for the data bank, except in the most protected from unreasonable search and seizure. Bill C-3 reflects a exceptional circumstances. clear statement from our highest court that the taking of DNA samples constitutes a search and seizure which requires prior In the case of a conviction for a secondary designated offence judicial authorization. Before the police can search anyone’s home which includes robbery and break and enter, offences that Clifford or business premises they must first obtain judicial authorization to Olson for example was convicted of in his early criminal career, the do so. court upon application by the crown may issue an order for the DNA sample to be taken for data banking purposes. D (1105) Some hon. members: Oh, oh.

The Deputy Speaker: Order, please. An hon. member has the A search of a person’s bodily substances is much more serious floor and it is very difficult for the Chair to hear the hon. member than searching a home or business because it interferes with bodily because of the loud conversations that are being carried on in the integrity and undermines human dignity. Therefore the taking of a House. DNA sample for law enforcement purposes demands high standards of justification. Taking a sample on the off chance that it I remind hon. members that there are lobbies where these might help the police crack an old and cold case simply does not discussions can take place. I invite members who are having meet those standards. 442

September 29, 1998 COMMONS DEBATES 8501

Government Orders I emphasize that the requirement for prior judicial authorization The hon. Claude Bisson said the following in his legal opinion: before DNA samples can be seized following conviction is one of the key features of Bill C-3. It ensures that the charter rights An enactment authorizing—the taking of bodily sample without a prior judicial authorization will not be, under the charter, a reasonable exercise of the power of of all Canadians are protected. We must not overlook the fact that parliament. the police already have authority to take a DNA sample from a person for investigative purposes at the time of arrest or charge, Therefore, the guaranteed rights of a person by the charter having been infringed, or at any other time, as long as they first obtain a warrant allowing the legislation would be invalidated because section 1 of the charter would not save such legislation—.There is no equation to be made between the—taking of them to do so. fingerprints upon arrest and the taking—also upon arrest and without judicial authorization—of bodily samples.

The DNA warrant legislation has been commended by the Fingerprinting is not a search and seizure; the taking of bodily substances and Supreme Court of Canada and has survived all constitutional samples is and, as such, should not be performed without the greatest safeguards, the challenges to date. The most important reason the scheme has first of it being a judicial intervention. survived is that it provides for judicial oversight of the collection of DNA samples. Finally, this is what the hon. Charles Dubin concluded: ‘‘the proposal to allow automatic seizure of bodily samples for DNA We must be mindful that the police have never had an automatic analysis upon arrest appears to me to serve little social purpose’’. right to search and seize in Canada. This is because we have placed a high premium on our reasonable expectation of privacy, on the The fingerprinting and DNA warrant provisions that already security and the dignity of the person, and on the right to be free exist allow proper identification of arrested persons and provide from unnecessary state interference with those rights. It is these police with the ability to obtain samples for DNA analysis from an basic rights that make Canada one of the best countries in which to individual who they reasonably believe is a party to a designated live. offence.

Bill C-3 builds on the solid foundation of the DNA warrant The only additional purpose of automatic seizure of bodily scheme and provides the police with the added capacity to compare samples on arrest would appear to be to increase a pool of DNA samples obtained from crime scenes with DNA samples from contributors to the DNA data bank. convicted offenders.

D Last week, for example, we heard the misguided suggestion that (1110 ) taking samples upon charge would be constitutionally defensible. It is not. On the contrary, the legal experts have clearly and emphati- However the significance of this law and the enforcement cally stated that this is not true. interest, based on the chance of a match between a person arrested and an unsolved crime, pales when compared with the intrusive Last May the government publicly released independent legal nature of a seizure of bodily samples and does not outweigh the opinions on this issue from three of the most experienced legal need for prior judicial authorization. minds in the country: former Justice Martin Taylor of the British Columbia Court of Appeal, former Chief Justice Charles Dubin of As parliamentarians we cannot dismiss these legal opinions as the Ontario Court of Appeal and former Chief Justice Claude being overly cautious, paranoid or even out of touch with the Bisson of the Quebec Court of Appeal. frontline police objective to better protect the public.

These opinions are comprehensive and fully consistent with the Let me conclude by saying we all share the goal of better public views of the Canadian Bar Association and representatives of the protection for all Canadians. We also recognize the need to Ontario attorney general, the New Brunswick attorney general, the implement the DNA data bank quickly to prevent violent crime. Privacy Commissioner of Canada and the federal Department of Through the comprehensive review of Bill C-3 by the standing Justice. committee, our review of the legal opinions of the eminent judges and the extensive debate in the House the government has listened I would now like to turn to what these eminent judges had to say to all sides of the debate. In the end the government has carefully about the proposal being put forth by the police community. I quote balanced the competing views we have heard to develop proposals the hon. Martin Taylor when he said: that will uphold the Constitution.

—I am of the opinion that legislative extension of police authority under Bill C-3 to sanction the taking of DNA samples without judicial warrant in the case of persons We have a responsibility to give the police a tool they can work charged or arrested but not tried and convicted would be held contrary to the with, but we also have the responsibility to put forward a balanced guarantees contained in one or more of ss. 7, 8 and 11(d) of the charter, would not be saved by s. 1 of the charter, and would therefore be found unconstitutional and of no piece of legislation that will not be thrown out after the first force or effect under s. 52 of the Constitution Act. constitutional challenge. Bill C-3 strikes this proper balance. 443

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I would encourage all members of the House to join me in D (1115 ) supporting Bill C-3 so we can move forward in implementing an effective DNA data bank for all Canadians. Mrs. Brenda Chamberlain (Parliamentary Secretary to Min- ister of Labour, Lib.): Mr. Speaker, I rise today to lend my support [Translation] to Bill C-3, the DNA identification act.

Mr. Ghislain Lebel (Chambly, BQ): Mr. Speaker, I listened Bill C-3, as it stands now, is a good first step in increasing public with great interest to what my colleague said, still I have a major safety for all Canadians. Protecting Canadians is and always has concern about this bill. been a priority for this government. I feel that the DNA database that will be created as a result of this bill will help police fulfil both aspects of their jobs. It will help them to protect Canadians while The principles put forward are genuine, right and straightfor- upholding the law. ward. The problem with this kind of evidence is that it is hard to contradict or rebut by ordinary citizens or lawyers defending themselves. This engineering evidence is so elaborate and compli- Extensive consultation went into the creation of this bill. Law cated that it has to be made by a scientific consulting firm. Such enforcement officers, legal experts and those concerned with the means of rebuttal are generally not available to the defence. That is protection of privacy all contributed to Bill C-3. The bill has been the danger presented by this kind of legislation. drafted to reflect their contributions and their concerns.

Granted, there are those who argued and who continue to argue I am totally in favour of the principles, but we must ask the that Bill C-3 needs to be stronger, that DNA samples should be question. Recently, in Quebec, evidence was fabricated by crooked taken at the time of arrest. I have felt this way too. However, in cops in the well-known case of the Matticks brothers. So, I wonder responding to this argument there are a few things to keep in mind. how the defence could rebut evidence like what would be required under Bill C-3 if it were dealing with, say, officers like the ones involved in the case I just referred to. That is my only concern. As First, in order for this DNA databank to be effective in increas- for the rest, the principles, I am in favour. ing public safety, it must be developed in accordance with the Constitution. One former justice and two former chief justices all agreed that taking DNA samples on arrest or charge without prior I would therefore ask for reassurances concerning the tools judicial authorization would be unconstitutional. These legal ex- available to an honest defence to rebut evidence made by the crown perts and others have all said that if Bill C-3 were amended to allow on the basis of Bill C-3. DNA samples to be taken at the time of arrest or charge the legislation would be found to be unconstitutional. [English] If this bill were to violate the Constitution it would fail, Mr. Lynn Myers: Mr. Speaker, I thank the hon. member criminals would go free and this entire process of researching, opposite for the question. I certainly agree with his premise that drafting, amending and debating Bill C-3 would have been a this is a very complex issue and one that requires real balancing on complete waste of our time and of taxpayer money. the part of the government in this important area. Second, we must remember that the Criminal Code already allows the police to take a DNA sample from a person at the time of Sometimes it is very tricky to ensure the competing interests are charge or any other time as long as they obtain a warrant to do so. balanced in a way that is fair and equitable, but I think in the great This legislation introduced in 1995 has been praised by the scheme of things we as a government have been able to do this. Supreme Court of Canada and has survived constitutional challenges to date. In response to part of the hon. member’s question, through my experience of 10 years with the Waterloo regional police I can say Bill C-3 builds on the existing legislation by allowing samples to that the police of the country are great professionals who do a great be taken from individuals once they are convicted of serious job on behalf of all Canadians, wherever they may be. The police offences, including murder, sexual assault or break and enter, all do the type of work that all of us should be proud of not only as heinous crimes. parliamentarians but as people who live in this great land of ours, Canada. The bill also allows for samples to be taken retroactively from those deemed to be dangerous offenders and from those convicted It is absolutely crucial that we support the police whenever and of more than one sexual offence or murder. These are the criminals however possible, knowing full well that they put their lives on the who could very well have committed crimes other than those they line for each and every one of us. were convicted for. 444

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Government Orders We owe it to the victims and to their families to explore every This is a good piece of legislation, one that will work to further single option in catching the criminals who hurt them. The protect public safety for all Canadians and one that will withstand retroactive taking of samples will enable us to see if the criminal legal scrutiny. It will make the streets of Guelph—Wellington safer responsible has already been caught. Just think of the peace of for my family, my neighbours and my entire community. It will do mind that victims and their families would have once they knew the same for all communities right across this great land of ours. that the criminal responsible for hurting them or their loved ones had already been convicted and was behind bars. It is an important first step, one that I hope the government will build on and I look forward to all members of parliament support- Third, taking fingerprints and the collection of DNA samples are ing the legislation. not the same. We all know that police take fingerprints at the time of arrest. However, the Supreme Court of Canada considers the Mr. Deepak Obhrai (Calgary East, Ref.): Mr. Speaker, I rise taking of bodily samples to be a search. To allow a sample to be today to voice my opposition to Bill C-3, an act respecting DNA taken based on a police officer’s belief that a person is guilty of a identification. given crime without the permission of a judge would be a warrantless search or seizure and therefore unconstitutional. This morning we saw a very sad spectacle in the House of Commons where a closure motion was put on Bill C-3. If I Finally, Bill C-3 is an important first step. This is ground remember correctly, when those members were on this side in breaking legislation that requires a cautious approach. Once this opposition they were the ones screaming the loudest when the has been put into practice and tested we may be able to proceed former Tory government did the same thing with closure motions. further. Taking samples for the databank when a criminal is Today what do they do? The same thing, they put closure. No convicted as opposed to when a suspect is charged will not prevent wonder Canadians find respect for politicians at the bottom of the police from doing their job. On the contrary, it will provide professions. them with an important and effective investigative tool that will allow them to do their job which is, as I mentioned previously, to protect Canadians and public safety and to uphold the law. The parliamentary secretary did mention certain things as being the first step. She said Bill C-3 was just a first step. However, as with Bill C-68, it will be watered down to where it actually Bill C-3 is a good start. Under this legislation young offenders becomes ineffective. She says this bill if thrown out would be a will be treated in the same way as adults with the exception that waste of taxpayer money. This watered down bill is a waste of their DNA profiles will be retained for a shorter period of time. taxpayer money because was does it do? It does a half job. It does This is in keeping with the length of time for which their police not give our law enforcement agencies the full tools they need to record is retained. fight crime.

D (1120) She has taken the position that she is tough on crime. The record of being tough on crime is not there. The Young Offenders Act is Bill C-3 allows law enforcement officers in Canada to co-operate watered down. Bill C-68 is watered down. Bill C-68 has been with their colleagues in other countries for the purpose of criminal changed to a degree where it is supposed to stop crime but it is not, investigation. This will allow Canadian police to access informa- it is infringing on the rights of Canadians. tion in foreign DNA databanks to help solve crimes committed here in Canada and vice-versa. The government transforms simple legislation into the most complicated legislation costing Canadian taxpayers a lot of money As a parent I would never support a piece of legislation that I felt and does not do the job it is supposed to do. would put my family at risk. As the member of parliament for Guelph—Wellington I would not support Bill C-3 if I thought it D would not protect my neighbours and my community. I am not one (1125 ) to be soft on crime or on criminals. I firmly believe that people who are guilty should serve hard time if they have committed a serious The parliamentary secretary said Canada is the best place to live offence. in the world as stated by the United Nations. Yes, when you look at other factors, but Canadians today are demanding that streets be However, I also believe that a person is innocent until proven safe. On that this government has a terrible record. guilty. Canada is a democracy based on the principles of peace, order and good government. The UN has recognized our great I am firmly committed to restoring confidence in our justice nation as being the best country in the world because of the wide system. Canadians need to know what it is to have a true sense of range of opportunity and high standard of living we provide to our security. This can be achieved only by strengthening our law citizens. To create a law that would violate someone’s basic human enforcement agencies. How do you do that? By giving them all the rights would not only be unconstitutional, it would be un-Canadian. tools they need to protect and apprehend the perpetrators of the That is something I could not support. most violent crimes. 445

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DNA identification is an example of one of those desperately D (1130 ) needed tools. If this process is used to its full potential, DNA identification could very well be the single most important By having a system that only applies to convicted felons who development in fighting crime since the introduction of finger- commit a narrow definition of listed crimes, we are truly doing a printing. disservice to all Canadians seeking safer streets. The fact of the matter is that DNA is a modern identification tool which is to the 1990s what fingerprinting was to the early 1900s. We fully support the concept of DNA identification because it gives our law enforcement authorities one more weapon in their battle to combat crime. However, if Bill C-3 is passed unamended Many American states have DNA data banks, including South it will give Canadians a false sense of security and therefore I Dakota which takes DNA testing once a charge has been laid. A cannot support this inadequate piece of legislation. few years back Great Britain implemented a system that called for DNA seizure after a charge had been laid and the list of offences is far wider than what Bill C-3 covers. The bottom line is that Bill C-3 has such limited scope that I cannot in good conscience support it. Bill C-3 requires those We should never allow ourselves to be so stubborn that we could convicted of certain designated offences to provide samples of not turn our backs on a good idea simply because it is not a made in bodily substances for DNA analysis. The problem with this is that Canada idea. Today we fingerprint all those who are charged for a the offender must be convicted prior to the processing being crime. instituted. This will result in the databank being of limited use to police for suspects and persons charged. The government has been saying, and this is where I differ, that a fingerprint is not a seizure. A fingerprint is from our body. In here it is saying that taking bodily fluids is a seizure. For the sake of The Canadian Police Association has raised concerns over this crime and making streets safe, it is a justifiable seizure. If this is specific issue too. Police officers rightly point out that offenders the case then why can this government not expand the very little arrested and charged with an offence would likely flee while on bail role it has given to the DNA collection? While it may be true that if they knew that DNA linking them to other offences would be DNA seizure involves the invasion of personal privacy, it does obtained on conviction. serve a greater role in solving and controlling crime.

The government has stated this is within the charter of rights and At the end of the day parliamentarians must be able to look the Constitution. I say it is more important to give tools to ensure Canadians straight in the eyes and tell them that we have done that victims have more rights than criminals. That is extremely everything in our power to protect them. I do not see how we can do important to recognize. I say to the Supreme Court of Canada as this by voting in favour of this legislation. well remember it is more important to recognize the rights of Canadians and victims than it is to recognize the rights of criminals Mrs. Brenda Chamberlain (Parliamentary Secretary to Min- which this government keeps doing time after time and destroying ister of Labour, Lib.): Madam Speaker, the past speaker referred a good piece of legislation dealing with that problem. to the fact that the Reform Party cannot support this piece of legislation. That makes me very sad. This group of people claim to be law conscious and believe that we must move forward to try to Bill C-3 has offences that are split into two groups. The first do what we can to protect society. I understand this has been a very group automatically leads to DNA testing. Crimes listed under the big plank in the Reform Party’s platform. Again we see it breaking first category include sexual assault, murder and sexual exploita- promises and moving away from the good of Canadians. That is a tion. The second group permits seizure only if the court is satisfied very sad thing. that to do so is in the best interests of the administration of justice. As a government we know we have to enact laws that will Here is the problem. This is left to the courts again and we know withstand constitutional challenges. We are told that at this time the courts have been lenient with criminals. The courts have been this bill will do that. It is important to do that. The Reform Party looking at the rights of the criminals over the rights of the victims says to go ahead. It will do anything. It does not matter. It does not and Canadians to make the streets safe. matter if it is legal. As a government we cannot behave like that. We must work within a legal framework. We must be respectful of the law. We must be respectful of Canadian citizens whom we We see that Bill C-3 has limited applicability in that it applies represent. only to certain offences. However, even for this limited list it is not guaranteed that the taking of DNA will be authorized. It is clear It is strange that the hon. member talked about the best place in that an effective, no-nonsense system of DNA identification is the world to live. However he said it with such disdain and desperately needed in this country. Does Bill C-3 under the current negativity. The Reform Party has made it also a plank in its act fulfil this needed desire? platform to deal with the dark side, to fearmonger, to not move 446

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Government Orders ahead. That is unfortunate because we cannot continue to do that. process, through a public debate on the subtleties and scope of this We have to move ahead. We have to do things that are right for legislation. Canadians and that will help them. It is very important that Canadians be allowed to express their Reform says that this is a false sense of security. My question for views and have a say in how their government operates. This is the hon. member is, how could Reform possibly not support DNA why the government held public consultations right across the identification for criminals? country, before drafting and tabling its legislation last year. When the bill was referred to the Standing Committee on Justice and Mr. Deepak Obhrai: Madam Speaker, it looks like my speech Human Rights before second reading, the committee heard over 30 went over the top of my colleague’s understanding. witnesses and diligently reviewed all the information submitted. Since it was introduced, Bill C-3 has been examined openly and We said yes, we believe in this concept. We agree that we need transparently. It really reflects Canadians’ viewpoints. tools to fight crime. The problem with the DNA bill is that it is a watered down bill that will not give us these tools. We support this Genetic analysis is a powerful investigative tool, and the bill concept. We want the government to make this bill tougher so that provides strong measures to protect against its possible abuse. The Canadians feel protected. government has heard testimony from top experts, who said that genetic evidence can reveal much more about an individual than a D (1135 ) breath sample, a finger print or even a blood sample. Given the power of genetic analyses, the issue of privacy is of considerable concern to our government. We must therefore act with the utmost It is interesting that my colleague on the other side says that we care. should stay within the law. In the last week and a half we have seen the Prime Minister and the Minister of Finance not obeying the law of the land, specifically the Minister of Finance when he— D (1140)

Mrs. Brenda Chamberlain: Madam Speaker, I rise on a point of order. That statement is unfounded and untrue. As regards the protection of privacy, I would like to explain what the government considers to be the problems and how Bill C-3 represents, in my opinion, a solid and balanced approach. Mr. Deepak Obhrai: Madam Speaker, we have seen the Minis- ter of Finance trying to go into the EI fund to use it for other purposes even though that is not allowed under the law and is I would first like to raise the issue of keeping the samples. illegal. It is quite surprising that my colleague on the other side Scientists have put forward solid arguments showing that biologi- would not recognize that. cal samples must be kept for the genetic data bank to take advantage of future technological progress. In answer to the hon. member’s question, I repeat again that the Reform Party supports the concept of DNA testing but it has a In addition, a forensic science expert from the RCMP told the problem with this bill. If this legislation is made really tough, then committee last March that significant progress had been made in the government will get our support. recent years in DNA identification technology. Smaller samples, including those found in decayed matter, can now be examined. [Translation] These technological advances prove that genetic analysis is Mr. Nick Discepola (Vaudreuil—Soulanges, Lib.): Madam clearly one of the most active and rapidly evolving scientific areas. Speaker, over the last few months, I have followed this debate with With developments in the technology, today’s DNA profiles could great interest. As members of this House were told last week, Bill become outmoded. C-3 will help the police in a number of ways, across the country and even internationally. Bill C-3 provides therefore that samples will be kept. Canada’s Having a DNA data bank will provide police with a strong tool in national DNA data bank will thus mirror the technological progress its fight against crime. It will also allow Canada to be a leader in made the world over, and Canada will be able to send DNA the use of DNA identification technology and to then establish a information for medical and legal purposes to other laboratories national DNA data bank. and data banks throughout the world.

The Solicitor General of Canada deserves to be congratulated for The question of who will have access to the samples and to the the caution he showed in asking that the bill be carefully reviewed DNA profiles arises. Drawing on the bill passed in July 1995 on by a committee of the House made up of members from all parties. warrants authorizing samples to be taken for DNA analysis, Bill Personally, I also congratulate him for involving Canadians in the C-3 includes protective measures and provisions on these samples. 447

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Government Orders Up to now, statutory provisions on warrants have withstood all guaranteeing that the bill will be applied in such a way as to legal challenges under the charter and have provided a solid basis maintain that balance. for the creation of the DNA data bank. Once the data bank is in operation, the Privacy Commissioner Bill C-3 therefore contains strict rules on biological sampling will be able to carry out an audit at any time. He is already and DNA identification and on the retention of DNA profiles in authorized by the Privacy Act to monitor the use of personal order to protect personal information. information in the hands of the federal administration.

I repeat, personal information will be protected under this law. In addition, Canadian forensic laboratories are in the process of The RCMP will be responsible for the secure storage of all drawing up accreditation standards. Once these standards are in biological samples. Access to DNA profiles and samples will be effect, forensic laboratories can be audited by an independent body limited strictly to those responsible for the operation and mainte- as well, in order to guarantee compliance with internationally nance of the data bank. recognized quality assurance standards.

So that information is not misused, the bill provides explicitly There are already provisions, such as those in the Privacy Act, to that only the name associated with the profile will be supplied to ensure that information, including DNA information, cannot be police authorities during criminal investigations. provided to another country unless an agreement is in place with that country. The Privacy Act also prevents personal information The bill also makes it an offence under the Criminal Code and from being provided to another country for any purpose other than the DNA Identification Act to misuse any profiles or samples and law enforcement or investigation. provides for criminal sanctions against offenders. When the RCMP becomes responsible for the DNA bank, its The DNA data bank will respect the right to privacy of all operations will have to comply with RCMP internal standards, and innocent people at the crime scene or of law-abiding citizens who these, I am proud to say, are among the most stringent in the world. volunteer to provide DNA samples to the police. In addition, the RCMP works in close collaboration with a number of international groups and committees in this area, including the In fact, the bill contains provisions for the destruction of FBI-sponsored Technical Group on DNA Analysis Methodology information in the crime scene index pertaining to a victim or which provides Canada with state of the art technology and makes individual no longer considered a suspect after a police investiga- it possible for our country to ensure that its standards are in line tion. with those in effect elsewhere in the world.

This is an important safeguard designed to ensure that the data I would now like to explain to you why sampling must be done at bank does not contain the DNA profiles of innocent people. the time of sentencing, not at the time the person is arrested or charged, as some have proposed. The bill also allows those required to give samples to state their preference as to the bodily substance to be taken. We have looked into this matter in great detail, both in the Standing Committee on Justice and Human Rights and as a The police must take these preferences into account, but are not government. During consultations on the bill, and during the in any way obliged to act on them, being required to consider other committee hearings, many individuals and groups of experts told factors as well. our government most emphatically that sampling at the time of arrest was problematical.

D (1145) DNA identification alone rarely leads to a conviction. In fact, crime scenes do not always yield DNA evidence. A number of For instance, the Ontario Court of Justice ruled that the taking of factors—alibis, motives, fingerprints and eyewitness statements— hair samples violated charter provisions, and forensic experts said are taken into consideration in criminal cases. However, in the face that blood was best suited to DNA analysis. of insistence by the police community, which asked it to consider the possibility of amending the bill, the government consulted legal Bill C-3 accordingly leaves it up to the police to decide on the experts to find out whether samples could be taken without a most suitable samples to be taken. warrant when an arrest is made or when charges are laid without contravening the provisions of the Canadian Charter of Rights and Clearly, the bill has been drafted with extreme care. The Freedoms. Government of Canada is convinced of its ability to strike a balance between public safety on the one hand and the protection of Three eminent former justices of the courts of appeal of Quebec, privacy on the other. In addition to the protective measures and Ontario and British Columbia considered the matter in an indepen- sanctions set out in Bill C-3, there are other mechanisms aimed at dent investigation. 448

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D (1150) mentary Secretary to Minister of Labour. I agree with almost all the comments she made during her presentation this morning. They unanimously upheld the government’s position. Under the law, taking samples during arraignment would contravene the This bill represents the second phase of the government’s DNA provisions of the charter. strategy. The first phase, Bill C-104, was put in place two and a half years ago when amendments were made to the Criminal Code to create a DNA warrant system. That system provides for a provin- I repeat, taking samples when charges are laid would contravene cial court judge to issue a warrant allowing police to collect the provisions of the charter. In Canada, the accused is presumed samples of bodily substances when a person is suspected of innocent and must be protected from all unreasonable searches or committing a designated offence. seizures. We heard from those on the front lines who tell us that the use of Let there be no doubt on this point. The government must DNA evidence has been a very powerful investigative tool. It is continue to act cautiously and with forethought in this matter. We already proven to be one of the most accurate methods of obtaining want to take the approach most favourable to all Canadians. solid identification in criminal investigations.

It serves no purpose to intrude in the personal privacy of The warrant system is working well. I remind members opposite everyone arrested, when genetic imprints may not even be neces- that it can be obtained on arrest and charge. With reasonable and sary. There is no point pondering this question further when the probable grounds warrants will be issued. legal experts have told us on many occasions that there would be too great a risk of a challenge under the charter. The second phase of the DNA initiative further demonstrates that the government is committed to fighting crime, especially Finally, we cannot endanger the establishment of a genetic data violent crime, as described in our safer communities agenda. For bank—whose purpose is to better serve Canadians—by being over the benefit of those who may not be familiar with this bill I would zealous. like to take the opportunity to outline some of its major components. Sampling at sentencing will permit the effective application of legislation and protect individual rights during a criminal inves- D (1155 ) tigation. This bill provides the legal authority for the RCMP to set up and Let us therefore pass a bill that will be effective rather than a text maintain a national DNA bank. I know that all members of this that will surely not stand up to court challenges. The police know House support the maintenance of a DNA bank. how easily the Constitution is used to dismiss charges. This DNA databank will consist of two indices or databases. The I think that all members will share my view that it is contrary to first database is called the crime scene index and will contain DNA public safety to have cases thrown out on technicalities. profiles from bodily substances found at the scene of a crime.

It is therefore up to all members to play a constructive role in The second database which is known as the convicted offenders creating a DNA bank that will strike a balance between protection index will contain the DNA profiles obtained from persons con- of the public and privacy rights under the charter. victed of certain crimes. Police will be able to cross reference information in one index and help one another to solve the We are obviously on the right track in our fight to protect unsolved crimes. Hundreds of victims and their families who Canadians against crime. With Bill C-3, I believe that our govern- thought they would never see justice done will find the justice they ment has struck the right balance. seek through this legislation.

I therefore have no hesitation in supporting this bill and I I am supporting this legislation because it is preventive in recommend that all my colleagues in the House do likewise. nature. At the committee hearings Chief Brian Ford, chair of the law amendments committee of the Canadian Association of Chiefs of Police, said: [English] Madam Chair, members of the committee, we support Bill C-3. This is important legislation and we encourage you to favourably recommend its passage to Mrs. Judi Longfield (Whitby—Ajax, Lib.): Madam Speaker, I parliament. Bill C-3 is unlike other criminal legislation because it is fundamentally am pleased to rise and speak on Bill C-3, an act respecting DNA preventative in nature. This makes Bill C-3 very special. identification and to make consequential amendments to the Crimi- The theory of prevention in Bill C-3 is that when a person actually knows that his nal Code and other acts. I would also like to commend my or her DNA has been recorded this person is unlikely to reoffend, knowing that the colleague, the hon. member for Guelph—Wellington, the Parlia- prospects of detection and conviction are so high. This deterrent is pure prevention. 449

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Government Orders So in passing this bill, parliament should know that it is police and other law enforcement agencies to strengthen the bill in preventing crime, not just giving police more tools to investigate. the future. However, I think we have to do it one step at a time. I would hate to see the bill thrown out simply because it does not go I agree with Chief Ford. Should the prevention of crime not be as far as some people would hope. our first responsibility as law makers? Our police forces need this bill. I am an ardent supporter of the police and I am supporting this I would like to examine the proposal that DNA sampling is no legislation because it gives them the tools necessary to fight crime different than collecting fingerprints. I would argue very funda- and keep Canadian communities safe. I know, and as I have said mentally that while the actual process may not seem intrusive, the before, all Canadians agree that we need a DNA databank in data collected is very different from that of a fingerprint. A Canada. fingerprint is one form of identification and it is very narrow in its scope. Once we have collected a DNA sample, then a person’s entire genetic make-up is available for one and all. I quoted Chief Ford and I would not want to mislead members of the Canadian public. While Chief Ford indicated that this bill was worthy of support, he also was very forceful in indicating that the This also raises other concerns. I have reviewed much of the police associations feel it does not go far enough. I have felt this testimony that went on at the committee meetings. I would remind also. I believe there is some merit to what they are saying but as the members that this debate is not one day in the House of Commons. member for Guelph—Wellington pointed out earlier, have to be This has been going on for a long period of time. The scope of the very mindful of our Canadian Constitution. I am not willing to put committee has made it possible for all members from all parties to the excellent aspects of this bill in jeopardy through a constitution- talk to the minister and to cross-examine witnesses. al challenge. I think that is something we need to work out. They have raised some very valid points, but I continue to say that as much as I support many of the points and would like to see The main disagreements that have been articulated by Chief this bill go a lot further, that is not sufficient to delay passage of a Ford, Scott Newark, Neal Jessop, members of the Canadian police associations arise when we are talking about when DNA samples very important tool in the hands of police authorities. are collected. I think there is a certain amount of merit in being able to say that when there is probable cause, whether the person has Madam Speaker, how much time do I have left? been convicted or not, the collection of DNA samples may be proper. The Acting Speaker (Ms. Thibeault): Eleven minutes.

I remind members of the House that currently as a result of the Mrs. Judi Longfield: Madam Speaker, I will not be using all of first part of legislation talking about DNA, this is available to the 11 minutes remaining. police. It is not automatic as they would wish but if they could show probable cause, then the police are able under the current The results of DNA testing could bring some very difficult warrant system to collect the DNA samples they feel they need. questions forward. If as a result of DNA testing it was discovered They can be run with the inclusion of this new bill through a DNA that someone had AIDS or another communicable disease, what is bank. the liability of police enforcement agencies or those taking the samples to then get that information out? This raises some ques- Currently police will tell us that the warrant system is working tions that need to be dealt with. very well but it lacks one major component and that is the actual creation of a database. Bill C-3 creates this database that will allow There have been some very critical issues raised. I am a strong police to take what has already been working well, the warrant supporter of giving police the tools they need to protect us because system of collection, one step further. that is the role of law enforcement agencies. However, I would remind members that as legislators it is important that we also protect the rights of the innocent. One of the pillars of our justice D (1200 ) system is that everyone is innocent until they are proven guilty. We have to remember that. Members of the police association and others, most particularly members of the Reform Party, argue that the scope of offences for This is something that we need to continue to monitor. I think it automatic DNA data banking should be expanded. I think they have is worthy of continued debate as we go along. I would like to valid concerns. I would like to see the scope of those offences for congratulate the members of the committee. I hope that all which automatic DNA testing is done expanded. members of Canadian society realize that we on the government side are very concerned and want to see things progress in a fair While I have a great deal of sympathy, I do not feel that the and logical way. concerns raised are enough to provide opposition to the bill. The creation of the data bank is vital and this bill brings it to fruition. I will now turn over the remainder of my time to my colleague, We need to support it and, as legislators, we need to work with the the hon. member for Mississauga West. 450

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Government Orders The Acting Speaker (Ms. Thibeault): Colleague, I am afraid repeat offenders or those who have served their time and paid their it is too late for you to ask for that privilege as you went over penalty to society. The data bank is there to help the police in their the 10 minutes allotted to you, unless you would like to ask the investigative process. House to agree unanimously. I think that one of the most important fundamental aspects of Mrs. Judi Longfield: Madam Speaker, when I asked how long I this is that it will provide a balance for police forces, both the had and you said 11 minutes, I assumed you thought I was taking national force and local forces right across this country, to access 20 minutes. I have 10 minutes left in the 20-minute allotment, the information and to access it quickly. other 10 to go to my colleague. If it requires unanimous consent, then I would ask for unanimous consent. Who among us would not like the opportunity to prevent some of the tragedies we have seen in the past, such as the Bernardo case D (1205 ) and the Homolka case? However, in that particular case would a DNA bank with information filed upon a charge have assisted the police? In fact when hon. members study the entire case they will The Acting Speaker (Ms. Thibeault): Is there unanimous note that the arrest was not made and that charges were not filed, so consent to proceed as such? there would not have been an opportunity to know in advance or to have this information on file in advance. Upon conviction is a Some hon. members: Agreed. totally different story.

Mr. Steve Mahoney (Mississauga West, Lib.): Madam Speak- D (1210 ) er, I must admit that I am somewhat surprised there was unanimous consent, but I am also appreciative of it. Could we think for one minute about filing this information upon arrest or upon charge? That would be the other point. Should it This is really a fundamental Canadian issue and I think we simply be done upon an individual being detained? What do we do should look at it from that perspective. I appreciate some of the concerning people coming into this country? There is potential for concerns that some of my colleagues have expressed on this side of abuse when someone is held in detention and a DNA sample is put the House, as well as in opposition, about the timing of the in the data base to be compiled in some central bureaucratic collection of DNA material and the issue surrounding whether or computerized storage compartment and used in whatever capacity. not it should be available upon charge or only upon conviction. I The potential for abuse is serious. It is not a step we need to take. appreciate that there have been concerns expressed about that and much of the debate around this whole legislation has been on the timing issue. An hon. member: That’s a red herring.

There is something very fundamental about Canada and it is Mr. Steve Mahoney: It is not a red herring. The member probably one of the main reasons we continually get rated as the opposite said that it is a red herring. That is one of the differences best country in the world in which to live. I know some members, in this country. It is one of the reasons we are judged to be such a particularly members opposite, get tired of hearing us talk about well balanced country. We do not knee jerk. We do not have an over that, but it happens to be a reality. One of the fundamental reasons reaction or a simplistic solution. that we achieve that success, that rating in international circles, is the fairness that exists in our laws. The national data bank proposed in this bill will help police to better protect Canadians. Will it solve all the problems? No. But it They are not perfect. There is no question that if allowing the is time we used the technology and the modern method of police to gather DNA evidence on every charge would prevent collecting this data to help police do their job. We believe that this certain crimes from occurring, then one would say, from a common may not be a panacea, that in a simplistic world members of the sense perspective, not necessarily from a legal point of view or a Reform Party might think this would be an easy way to target constitutional point of view, that that might have some merit. I everybody, to number everybody, to put all their data into a file. I understand that. But when one balances that with the basic premise do not want to be an extremist or a radical by using terms like that innocence is clearly one of the rights in our justice system, police state because I do not think it applies, but I really think that until proven guilty, how far does one go? I guess that is the real we have to analyze the benefits and the purpose of data collection. issue that the government is wrestling with, that human rights activists wrestle with, that lawyers and obviously parliamentarians The Criminal Code already allows police to take a DNA sample wrestle with. from a person at the time of charge or any other time as long as they first obtain a warrant to do so. This particular bill will go some distance toward ensuring that at least those who are convicted of a crime—and this is critical—will If we want to talk about red herrings, let us go back to the debate have information in a data bank. I think that will help in terms of on gun control which members opposite love to do. The issue they 451

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Government Orders like to fly is that the police will be able to knock on doors at any country, perhaps through the refugee process and is being de- time they want, day or night, because they suspect the person tained, the DNA sample would be taken. That is why I said his might have a loaded pistol and want to do a full search. Members comments were a red herring. opposite know that is not true, yet through their association with the American gun associations and the gun lobby in general they continually put out this kind of information. It gets people all What we are asking for, what the Canadian Police Association is excited and whipped up. We saw the demonstration on the front asking for and what any responsible, reasonable Canadian is asking lawn of Parliament Hill last week. for is that the DNA sample be taken at the time of a charge, not as the member was putting forward as though there would be a DNA sample taken just because a person was taken into custody and held The amount of misinformation about issues like that is quite for a period of time. astounding. Members opposite know there is a requirement for a warrant to be issued, or you open your door and allow them to come in. There is none of this jackboot mentality where police The conclusion of his speech was quite enlightening when he officers can show up at three in the morning, kick the door down referred to the concerns there are about Bill C-68. I am saying that and run into the homes of law-abiding Canadian citizens. there will not be a jackboot mentality and that the police will need some probable cause for the terribly onerous law and the provisions in Bill C-68. His justification of that is exactly the justification that In this case there is a definite comparison. The DNA sample we make for having the DNA sample taken at the time of charge. I could be taken if permission were granted. Perhaps that issue could believe the police forces in Canada are typically very responsible in be dealt with. Clearly, the sample can be taken if police obtain a the way they enforce the law. warrant to do so. What is involved in the process? The police must go before a judge, a man or woman that I presume the Parliament of Canada has some faith and trust in, to seek a warrant to collect For him on one side of the coin to say it is bogus, that the police the sample at the point of a charge being laid. will not be doing things under Bill C-68, under the so-called gun control law, and make a case for that is to make a case for our point that in this instance the samples should be taken at the time of I really believe that innocent until proven guilty is one of the charge. fundamental tenets of democracy and freedom in Canada. That does not mean that in any way whatsoever we would condone or be soft on crime. Quite the opposite. Some of the changes in the How can the member square the round peg he has created? justice ministry of this government are absolutely groundbreaking, precedent setting and are saying to criminals that we are not Mr. Steve Mahoney: Madam Speaker, I appreciate the com- prepared to allow them to take control of our streets and our ments but as usual the member and some of his colleagues tend to communities. We are going to be tough. be rather selective in their hearing process.

This bill will put in place a data collection system for DNA I did not say at any time—and Hansard will so record—that this samples taken appropriately, taken in fairness and taken in justice. bill allows the police to take DNA samples. I said the Criminal It will ensure that Canada is still a wonderful, safe, free and Code of Canada already allows police to take a DNA sample from a democratic country but with strict rules. We will fight crime with person at the time of charge if they have a warrant. That is the this legislation and other bills as they are needed. critical distinction the member so easily overlooked.

D (1215) The point is that we are creating a framework for storing DNA samples and for using that information in the investigation of serious criminal offences. If a convicted criminal—and I empha- Mr. Jim Abbott (Kootenay—Columbia, Ref.): Madam Speak- size the word convicted—reoffends and his DNA samples are in a er, does the member understand what is in the bill? I believe I heard database, the police will be able to identify the perpetrator at the him just say that the bill would allow for DNA samples to be taken crime scene through the use of modern technology and the database at the point of the charge being made. In fact the problem with the of DNA samples. They will know who they are looking for. If that bill is that the DNA sample, as he should know, will be taken at a person was convicted, is now out either on parole or has completed time of conviction. a sentence and reoffends, it will allow the police to use this facility to expedite their investigation dramatically. The reason I said red herring a couple of minutes ago is very straightforward. He was trying to make out that anybody who is The member opposite should not try to interpret my comments in held, like for example the student who was held by the RCMP at this place in any way other than the spirit in which they were given, the APEC fiasco for 14 hours, would have his DNA taken. I believe which is that innocent until proven guilty is a fundamental tenet of the example he used was that when somebody comes into the the Canadian justice system and one that I support. 452

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D (1220 ) brought this in during the late sixties, the whole approach has been to say maybe the presiding judge did not know what he was talking about or maybe the person has changed over this last period of Mr. Jim Abbott (Kootenay—Columbia, Ref.): Madam Speak- time. er, this bill is very interesting in that it has direct connection to Bill C-68 and section 745, which was to change the whole issue as to when a convicted murder could apply for parole. Bill C-68, section D (1225 ) 745 and DNA are all inextricably linked in a pattern. The government has shown us that it is weak-kneed when it comes to making streets safe for law-abiding Canadian citizens and to protecting Under section 745 the murderer convicted of first degree murder Canadian citizens and their property. is permitted to apply for parole after 15 years. The justice minister at that time brought forward a half-hearted motion, which unfortunately was passed, where if persons were convicted of more than In my judgment the most contentious part of this bill lies in the one first degree murder they could not apply. However, if it was comments of the solicitor general when he was before committee. just one first degree murder they could apply. He said:

Taking samples after an offender has been convicted of designated offence balances our concern for the safety of all Canadians with our need to respect the I believe the leaders of the Canadian Police Association at that rights protected by Canada’s Charter. We cannot ignore that the accused has the right time were really upset by this half-hearted measure to take away to be presumed innocent and protected from unreasonable search and seizure. section 745. I believe they were influenced by the justice minister saying that if the association would give him its unqualified support for Bill C-68 he would see what he could do about section The speakers this morning have been waxing rather eloquent. 745. They have said that taking these samples would ‘‘undermine human dignity’’. I am not sure what that meant, but that is what they said. Another speaker said that it would not only be unconsti- That is pure speculation on my part because I am sure I do not tutional but un-Canadian. know what was going on behind closed doors. It strikes me as passing strange that no matter whom I spoke to in the Canadian Police Association, particularly members in the lower levels, they Hyperbole or extreme statements are sometimes part of the were all saying that the application of Bill C-68 and the cost of the rhetoric in the debates that happen in the House, but for Liberal useless registry was a stupid way to spend money. Yet they flipped members to pretend for a split second that we are making extreme and said they supported Bill C-68. statements and calling this un-Canadian when they should be taking action to create safer streets and protect victims and society at large is a bit thick. Historically the government has said its support for Bill C-68 comes from the Canadian Police Association. The Canadian Police Association knows what it is talking about. Whether the Canadian Let us take a look at the connection between Bill C-68, section Police Association was influenced or not by some behind the 745 and DNA. In the Bill C-68 issue I note that Liberals go out of scenes talk about section 745 we will never know. their way to constantly quote the Canadian Police Association. At the time when debate on Bill C-68 was at its peak, the Canadian Police Association, after much internal wrangling, decided that it It is interesting that the same Canadian Police Association which would come out in favour of and in support of Bill C-68. the government quotes in support of Bill C-68 had this to say about Bill C-3 in a letter dated September 16 to members of parliament. The signatory, Neal Jessop, the president of the Canadian Police It was interesting that at exactly the same time there was also a Association, wrote: debate with the former justice minister who is now Canada’s Minister of Health. The former justice minister also had on his I am writing to you in relation to Bill C-3 and the creation of a national DNA data plate demands from Canadians at large that section 745 of the bank. As you know, Bill C-3 is awaiting third reading and it is our understanding that Criminal Code be repealed. Section 745 permits a judge to say, as a it will likely pass such a stage shortly after parliament resumes this fall. consequence of a first degree murder, that the person has been convicted of first degree murder—we must remember it is premed- The Canadian Police Association represents approximately 35,000 frontline police officers across Canada. It is because of our practical, hands on experience that itated murder—and as a consequence sentenced to 25 years or life. the government has come to rely on our advice on issues such as gun control, search warrants and parole reform. It is the same experience that leads us to the conclusion that Bill C-3, as currently drafted, is seriously flawed, and will needlessly allow The public at large assumes that means 25 years. How wrong Canadians to be put at risk. they are. The judge may even say as a result of a particularly heinous crime that it is with no chance of parole for 25 years. Again The CPA has lobbied for the creation of a DNA data bank for many years. Since the beginning, we stressed the important impact a bank could have on public safety, a goal wrong. Because of the historic soft-headed approach of the Liberal that we worked towards every day whether it be on the streets or on Parliament Hill. We government going back to the time of Warren Allmand who said then, as we say now, that for this initiative to work samples must be taken from 453

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Government Orders suspects when arrested. In doing so, we will maximize the potential crime prevention from him. He has said that this bill will pass as it presently is. It is a aspects of the bill which is a goal we all share. real shame that there is not the ability within our parliamentary process as currently constructed by the Prime Minister for there to Let us be clear. A properly structured DNA data bank will save billions of dollars, but more importantly it will save lives and significantly reduce victimization. This, be legitimate dissent within his own ranks. It is a real shame that in our opinion, should be the goal of any criminal justice legislation the government the Liberals are whipped into a position by the party whip to make passes. As an elected official, this should be your main consideration when you are sure that they vote that this ineffective bill will end up passing. called upon to vote on Bill C-3.

Consider the following scenario. In the Ottawa area, there are currently a number For someone to say the bill is unconstitutional is an opinion that of unsolved outstanding cases of homicide or sexual assault. Assume that a person is may be backed up with some fact. But to call the bill un-Canadian arrested for a break and enter and, unknown to the police, is responsible for some of those unsolved crimes. Like 90% of all offenders, this individual is released on bail when the purpose of the bill, of taking the DNA sample upon without DNA samples being taken (if C-3 is enacted). Knowing that he faces charge, is going to give us the opportunity to interdict people and detection on the other charges if he returns, the offender flees to B.C. and a warrant create a situation where we can return them from various jurisdic- for break and enter is issued by the Ottawa court. Two months later he is picked up tions as required, is beyond my ability to comprehend. on other matters by police in B.C. who check CPIC and discover the existing B and E warrant. When they check with Ottawa to see if he should be returned, the answer according to today’s practices will be no. Remember that police do not know whom they are dealing with. To show how the spin works, it was interesting that about six weeks ago the spinmeisters for the Liberals were going on about Any woman this individual encounters will be at risk. This is unacceptable the fact that if we take the sample and we actually conduct the lab because it is entirely preventable. While this may be a mere anecdote for some, it is a tests, it is going to be far too expensive. It is going to cost $5,000 reality for us. each.

This issue is paramount to Canadian police officers, and by virtue the CPA. We have obtained an independent (unlike the hand picked judges who wrote decisions I find this number to be somewhat suspicious. I say that because supporting the government’s position) legal decision that states our position on this this is the same government that told us in order to come up with issue is constitutionally sound. We attempted to work with the Department of Justice and they were unable to understand the significance of our position, perhaps because the registry program on Bill C-68 that the cost was only going to be they have never had to look into the eyes of a sexual assault victim or a grieving $85 million, whereas now it is actually admitting that it will cost at family member. We now turn to you, our elected representatives, to do what is right least a quarter of a billion dollars. for Canadians. If you choose not to, we as police officers will be forced to explain to that grieving family member that his or her government had the information and the ability to prevent such an act of violence, but they chose not to. D (1235 )

Do not underestimate the importance of this issue to the CPA. We are not, and never have been, averse to take every public opportunity to inform the public when the government creates and passes flawed legislation. We will do that again The Liberals got everyone on side with the $85 million. For regarding Bill C-3. We will make sure that Canadians understand that their Liberals a million here, a million there pretty soon adds up, but it government is risking their lives. We will make sure that if one of your constituents was only $85 million. They got a fair number of people on side is harmed because of this flawed legislation, they will know who to ask for an with that lowball number. explanation.

Please accept our offer to work with you and develop legislation that would Either the government was incompetent and did not realize how enhance public safety and still remain constitutionally valid. Despite contradictory much this useless registry is actually going to cost, or it was not rhetoric from the Department of Justice, it is an achievable goal. As an MP, we urge giving Canadians the facts required to know that it will cost at least you to take this opportunity to come to your own conclusion, not that as dictated by the Prime Minister. a quarter of a billion dollars. As a matter of fact, estimates are in the neighbourhood of $1 billion to $1.2 billion for this registry program. D (1230) If the government can fudge and exaggerate the figures on the justification for the registry program under Bill C-68, I can This is the same organization that this government chooses to imagine what it is doing to scare people off with a high figure on quote in support of its flawed Bill C-68. I ask members very being able to actually conduct the lab work when the sample is simply, if the CPA is right, and I do not believe it is, but if the CPA taken. We can see there is within Canada, as there should be, a fair is right in its support of Bill C-68 and if the government is going to lack of trust of the numbers the government chooses to use to continue to quote that source, why will the government not quote justify its actions from time to time. the source, the CPA, and the CPA’s position on Bill C-3?

It is a shame when Canadians who the justice minister herself It is because the Minister of Justice and the Solicitor General, said are concerned about their safety on the streets. The justice working under the Prime Minister of Canada, are taking directions minister herself has said that Canadians are losing confidence in 454

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Canada’s justice system. As a matter of fact I choose to call it D (1240 ) Canada’s legal system. We have to get some justice back into it. The difficulty is that the Canadian charter in some instances does Canadians have lost faith. To those who still believe there is get in the way not only of good law, such as this would be in some hope the Liberals will come around and actually work to put strengthening this DNA data bank, it even gets in the way of the protection of law-abiding Canadian citizens, their well-being Corrections Canada. The inmates are running the show as a result and their property ahead of the rights of criminals, I have a bridge of the charter of rights. There is going to have to come a day when, in Brooklyn I would like to talk to them about. and perhaps this bill would be as good a one as any, whether we call it the notwithstanding clause or whatever is brought into effect. This bill will be passed today because the Prime Minister has said so. Shame on the Liberals for being whipped into shape to pass The charter with all of its good points has unnecessarily hand- this bill as presently constructed. cuffed the ability of peace officers, whether they are in Corrections Canada or are police officers, from being able to do what is fair and Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Mad- reasonable. We therefore have a charter industry populated by am Speaker, the member is probably right that this bill will be some very expensive, hundreds of dollars an hour lawyers who are passed. However it will be passed today not because someone has constantly digging this thing up and taking things apart. dictated from on high but because Liberals want to see a DNA bank in this country to improve the enforcement of the laws against It strikes me that the safety of the people of Canada, their criminals who perform acts that are contrary to all decency and families and their property should come before these other consid- humanity. erations. I realize and admit that this is a rather extreme statement, but we have to reach a point where we are going to have to ask who The Reformers obviously do not want to see that type of a comes first, the criminal or the law-abiding citizen? system because they have made it clear they intend to vote against the bill. Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Madam Speaker, I listened to the previous question with great I would like the hon. member to make a comment. I too have interest, even more so than the response by the hon. member. discussed with the Canadian Police Association that it would like the legislation to allow samples of blood to be taken before This ongoing government position really astounds me. It reflects someone is convicted. I have a big concern with this and would like the charter constipation that seems to exist on the government side the member to comment on it. of the House when it comes to certain important pieces of legislation. What do we tell Canadians 10 years down the road if this legislation, with that provision in it which is constitutionally risky, There is a fear that somehow these judges may decide to strike is challenged and defeated in the Supreme Court of Canada? The down a piece of legislation because hypothetically a lawyer out result would be that 10 years of convictions of possible murderers there somewhere in Canada lurking in the bushes might decide to and sexual assaulters would be overturned. There would be nothing challenge based on a constitutional infringement. That is absolute- we could do to go back and recoup those convictions which had ly asinine. I can guarantee that it will happen because that is what been based on what the courts in ten years might decide was tainted lawyers do. In this instance, with regard to this particular bill, to evidence. fear that this might somehow be challenged under a charter infringement is ridiculous. I want a DNA bank so we can deal with those horrendous crimes. I am not prepared to risk 10 years of convictions. And I am not prepared to vote against the bill because it does not have a My question for the hon. member is with regard to the use of provision in it that would do that. DNA data banks and when and at what point in time should the police be permitted to take this piece of evidence and use it not only in the investigation they are pursuing but also use it in I wonder if the hon. member would comment on that. comparison to the DNA data bank that will eventually come into fruition. Mr. Jim Abbott: Madam Speaker, I really respect the intervention by the member. I know she feels very strongly that way. I Why would we in this House not pursue the goal to arm the commend her for her conviction and I know she is sincere. police rather than to give them a toothless piece of legislation, one that goes to some degree in the direction that we want? Why would It strikes me that within the criminal justice system many we not go all the way with DNA? Why would we in this House not aspects of it are handcuffed by virtue of our Canadian Charter of like to give the police an opportunity to do their jobs, to do the very Rights and Freedoms. The vast majority of Canadians highly value best they can to protect Canadians in their communities and to do that document, as they should. the very best they can to raise the alarm and work toward a justice 455

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Government Orders system that truly does reflect the will and desire to protect people Taking even a small portion of that money and putting say, $100 in their communities? million toward a proper DNA registry program is clearly the route to go. That is an effective and intelligent use of Canadian taxpayer money. Mr. Jim Abbott: Madam Speaker, that is a very good question but I do not have a clue what the answer is. Look at the window dressing about Bill C-68 for example where the government keeps Mr. Paul DeVillers (Simcoe North, Lib.): Madam Speaker, I on claiming that it is going to make the streets safer. I am sure I do will be sharing my time. I am pleased to speak in support of Bill not know how. C-3 which proposes the creation of a national DNA databank which will be maintained by the RCMP. Look at the chagrin, the problems and the pressure there was on the families of the victims of Clifford Olson when he went through There has been some discussion recently about the timing of the that circus and those families were put through the excruciating taking of bodily samples in order to supplement the databank. In parole hearing under 745. Just to keep the record straight, if the my view this is an area which clearly demonstrates the great care justice minister of the day had done his job in a timely manner, that has been taken to ensure that the national DNA databank meets Clifford Olson would not have been able to put those victims on the all constitutional requirements. spot the way he did. The focus of my remarks today will be on that one aspect of the bill, the timing of the collection of the DNA samples for the D (1245 ) purpose of the national DNA databank.

I lay that completely at the feet of the former justice minister. [Translation] Now we take a look at this DNA databank which is another half measure. I have absolutely no idea. Nowadays, law enforcement officials, both in Canada and throughout the world, are turning increasingly to DNA identifica- Let me state our position very clearly. The protection of the tion in the fight against crime. people of Canada, the law abiding citizens, their persons and their property must be the primary and paramount objective of this But as the Ontario Court of Appeal recently observed in Terceira, Chamber. Until we get rid of this bunch on the other side, I do not it is important to remember that matching DNA profiles in the have any hope that is ever going to happen. context of a criminal proceeding does not resolve the ultimate question of the accused’s guilt. Mr. Peter MacKay: Madam Speaker, I could not help but notice that in the remarks by the hon. member there was reference made to It does, however, make it possible to establish important circum- Bill C-68. That bill can be compared to the faint hope clause stantial evidence that can be considered along with other evidence because it really should be called the false hope clause. In fact, this in support of the crown’s contention that the accused was at the bill is not going to do exactly what we are talking about here, scene of the crime and committed the offence. protect law abiding citizens, because it is aimed specifically at law-abiding citizens. [English]

What does the hon. member think or what is his party’s position DNA sampling is an important and powerful investigative tool. with respect to the application of the infrastructure that is now in However, its intrusive nature has been clearly recognized by the place with respect to gun registration, the computer terminals, the highest courts in the land. As such, Bill C-3 must reflect the state of hook-ups, the incredible spiralling cost that we now know exceeds our constitutional law. In other words, the taking of bodily $135 million or $134 million and is going to perhaps double again substances must be done in accordance with constitutional prin- by the time that this is actually implemented, even with the delay ciples. that we have seen in anticipation that the Alberta Court of Appeal will strike it down some time within the next few days? As originally introduced in the House, Bill C-3 stipulated that bodily substances would be taken after the person is convicted, discharged under section 730 or, in the case of a young person, I wonder what the hon. member would say to the suggestion of found guilty under the Young Offenders Act of a designated applying this infrastructure, the computers, to the use of registering offence. Some organizations came before the committee to urge criminals under this new Bill C-3. that the bill be amended to provide the police the authority in legislation to take DNA samples on arrest or at the time charges are Mr. Jim Abbott: Madam Speaker, I think that is an outstanding laid similar to the authority they have to take fingerprints without idea, absolutely. There is going to be at least a quarter of a billion prior judicial authorization under the Identification of Criminals dollars uselessly spent according to the numbers provided by the Act. In their view there should not be the intervention of a judge to Liberals on this useless so-called gun control program. decide whether it is appropriate to seize the bodily samples. 456

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Government Orders

D (1250 ) dian Bar Association, and representatives of the solicitors general of Ontario and New Brunswick, among others. The proponents of this proposal believe that if the police could take DNA profiles from persons charged with designated offences, [English] the databank would be more effective simply because it would hold more DNA profiles. They question why it was necessary to wait for The opponents of the proposal were clear that it would have been a conviction to take the DNA samples for inclusion in a national inconsistent with existing constitutional authorities and would have DNA databank when this was not the case in the United Kingdom. jeopardized the viability of the national DNA databank. In the end They also contended that the collection of bodily substances for on this issue the committee approved the bill as it had been forensic DNA analysis is no more intrusive on a suspect’s privacy originally drafted. The taking of samples would occur only follow- than is the collection of fingerprints. ing conviction.

At the same time, other parties came before the committee However, that did not end the matter. The proponents of the seriously questioning the constitutionality of this proposal and they collection at charge option continued to press for amendments to presented firm views that the taking of bodily samples without the bill at report stage to provide for the collection of DNA samples prior judicial authorization constitutes a seizure that is likely to be at the time of charge. In an attempt to make this more palatable it unconstitutional. was suggested that the samples would not be analyzed until a person was convicted or unless that person failed to appear at trial. On March 11, 1998 the committee heard from officials of the Department of Justice who had carefully reviewed the legal issues Unfortunate statements were made suggesting that if the bill was relating to this proposal and they stated that the taking of bodily not amended the legislation would be useless. Similarly it was samples from an accused constitutes a search. stated that without these changes long unsolved crimes would never be solved. These arguments were intended to scare Cana- [Translation] dians and could of course lead to the worst excesses all the way to the end justifies the means. Department of Justice officials also stressed that the supreme court has established a clear distinction between fingerprinting and D (1255 ) the taking of physical evidence for DNA analysis. They argued that the court had assigned great importance to the invasiveness of the second type of procedure and had expressed its great respect for Not only was this wrong, it seemed to miss the point. Bill C-3 is physical integrity and the individual’s right to retain control over not meant to allow warrantless searches for the purposes of his or her bodily substances. in Borden, 1994, and Stillman, 1997. supplementing the databank. Bill C-3 is meant to create a databank through appropriate, legitimate and constitutional means. It is a [English] databank which can produce leads which the police can pursue in order to solve serious crimes without fearing any evidence resulting from such information would be found inadmissible at trial Fingerprinting and taking bodily samples for the purpose of because it had originated from an unconstitutional search. DNA testing are simply not the same and they cannot be equated. In other words, one should not contend that the taking of bodily substances upon arrest is constitutional on the basis that the taking I said that these kinds of statements were exaggerated because of fingerprints in those circumstances has been ruled constitution- they imply that the large number DNA profiles from dangerous al. criminals would be lost to the databank if they were not taken at the time of charge. There is a considerable difference between being charged with an offence and being convicted of an offence. To permit the taking of such bodily samples simply on the basis Moreover, the very same DNA samples could be taken later in the of a police officer’s belief that the person has committed a criminal justice process under Bill C-3 from those persons con- designated offence without complying with the requirements that victed of a designated offence. The only advantage, therefore, there be prior judicial authorization would constitute a classic considering that under Bill C-3 or the new proposal the bodily example of a warrantless search or seizure which would prima samples would not be analyzed until after the person was con- facie be unconstitutional. victed, would be administrative convenience. This would not be sufficient justification to permit the violation of one’s privacy and [Translation] of a seizure of one’s genetic material.

Justice officials were not the only ones raising the point that The truth is that under the scheme set out in Bill C-3 the police there was a very strong possibility sampling at the time a suspect will be equally able to solve long unsolved crimes because the was arrested would be considered unconstitutional. The same DNA analysis would occur only following the conviction in either reservations were expressed by the criminal section of the Cana- case. 457

8516 COMMONS DEBATES September 29, 1998

Government Orders Mr. Jim Hart (Okanagan—Coquihalla, Ref.): Mr. Speaker, Mr. Paul DeVillers: Mr. Speaker, once again I can see the I listened with interest to the member’s speech. The people of Reform Party is engaging in lawyer bashing. It was joined by the Okanagan—Coquihalla strongly support the taking of fingerprints hon. member for Pictou—Antigonish—Guysborough in a similar in criminal cases. They also strongly support a relatively new practice. technology, the taking of DNA samples when it comes to the possibility of solving a crime. Mr. Peter MacKay: I am a lawyer.

I challenge the member on the issue that these measures are Mr. Paul DeVillers: That gives you a prerogative. intrusive. There are literally hundreds of unsolved cases of rapes and murders in Canada that police could go now and find the evidence if they were able to use the DNA system to solve these That is not the point. The point is that the rule of law applies, that crimes. As the member has pointed out, that would work only if due process applies. That may be inconvenient and it may get in the they are a felon or if they have had a criminal record before. That is way of the plans and aspirations of the Reform Party in certain the only way the Liberal DNA databank system is going to work, if cases, which is joined by the Tories in this case. However, that is it is a previously convicted felon. what the charter of rights is there to protect. Those are the rights of all Canadian citizens whom we are trying to protect. I had to jump up when I heard another Liberal member stating that the Paul Bernardo case could have been solved sooner. Paul Once a person is convicted, then certainly the DNA would go Bernardo did not have a criminal conviction. He would not have into the data bank. That will be a very effective tool for police in been in the DNA databank. future crime solving.

I challenge the Liberals on this. They are afraid of a constitution- Mr. John Bryden (Wentworth—Burlington, Lib.): Mr. Speak- al challenge in the supreme court. The Government of Canada, if it er, I am glad to have the opportunity to speak in this debate. It gives did happen, should on behalf of the people of Okanagan—Coqui- me occasion to raise with all members what I think is quite an halla and other Canadians fight for a simple and very understand- important issue which spins off from the debate about DNA able rule, that the rights of law abiding citizens of Canada outweigh sampling. the rights of the perpetrators of crime or those accused of crime. Taking a hair sample or a saliva sample or a blood sample is not out of the question. To think it is is totally irrational and not serving I will first address the DNA sampling issue as I see it. If I were Canadians. on the other side of the Chamber and if I were listening to groups like the Canadian Police Association, I would indeed take the stand I hear from those on the other side. Fair is fair. Mr. Paul DeVillers: Mr. Speaker, it is exactly the rights of law-abiding Canadian citizens that the charter of rights is there to protect. Those are the rights of innocent people we are trying to There are some good grounds for believing that if DNA samples protect from the invasion or intrusion of the taking of samples were taken on charge there would be advantages in tracking down without any conviction and on suspicion only of a police officer or criminals and bringing more safety to our streets. I do not think a crown attorney. The government is proposing in this bill that the there is any doubt that the more tools we can give our law samples be taken only after conviction so that the rights and enforcement officers, tools which they demand and want, the better liberties of those innocent law abiding Canadians are protected. they can carry out their jobs.

D However, I must be frank with members opposite and tell them (1300 ) why I cannot support that position. I sympathize with what they are saying, but I cannot support it. And this is me speaking, not the Mr. Randy White (Langley—Abbotsford, Ref.): Mr. Speaker, government. The reason is that DNA sampling takes personal as we try to put some logic and common sense into some of the identification to a much higher level than just fingerprinting. bills before the House, I hear once again from the government side the argument about the legal community and the Canadian Bar We heard people say earlier in the House that DNA sampling on Association, but I do not hear the argument on behalf of victims, charge is not much different from taking fingerprints. They said victims’ rights and the law-abiding Canadian citizen. that taking fingerprints had not been a problem with respect to the charter of rights. Actually, there had been a problem. When the I wonder what the member opposite thinks about the notwith- breathalyzer test procedure was first introduced it was challenged standing clause in the Constitution. Notwithstanding the comments before the supreme court, which found that while on the surface it he has made about the Constitution, why could this government not would appear that forcing people to give breath or blood samples stand up for a change and say ‘‘Notwithstanding what we perceive appeared to be contrary to their charter rights, there was an element might be a problem, we are going to proceed in this way and we are of reasonableness in the procedure, the good it did for society, going to take DNA samples at the time we have an accused’’? which permitted the courts to uphold the principle of taking a 458

September 29, 1998 COMMONS DEBATES 8517

Government Orders breathalyzer test or a blood sample at the time of charge, or at least Nazi Germany, what distresses us most is not just the death it led forcing them to be taken. to, it is the fact that human beings were reduced to numbers.

If we go from fingerprinting to breathalyzer testing to DNA I say that DNA itself is nothing more than a human bar code of sampling, we go into an enormous domain that goes much beyond the 1990s. Before we engage in using this as a tool for the police we simply blowing into a container. The problem with DNA sampling have to have a very serious debate, not just with parliamentarians, is that it is the ultimate fingerprint. not just with the police, but also with church leaders and others. I would think the Jewish community might have something to say about this whole question. D (1305 ) Nevertheless, the real point that I came before the House to DNA sampling is based on the fact that each one of us as discuss was not the DNA sampling because it is an ethical issue. I individuals contains unique sets of DNA markers on our chromo- did not expect to change the minds of those opposite because they somes. Consequently, any sample is believed, at least so far science are charged to be in the opposition and to speak in opposition to tells us, to be uniquely identifiable with an individual. One can see government bills. But one of the things that disturbs me in this where this could be an enormous crime fighting tool. whole debate is that I, like every MP, received correspondence from the Canadian Police Association, lobbying heavily to have But a DNA sample is like a tattoo that we all carry. All that has to DNA sampling accepted at charge rather than after conviction. I happen is for an authority to peel away a tiny bit of skin, reveal the have no problem with the Canadian Police Association lobbying tattoo, put it on the record and there it remains. for this because it is very concerned about successful law enforcement. This is where the difficulty comes about. It was only 55 years ago that a similar tattooing procedure existed in Europe. I do not Where I have the problem is that the letter I received from the want members opposite to get excited about this because I am not Canadian Police Association contained a threat. What it basically casting aspersions on their position. But the reality is that at one said was that if I as a parliamentarian did not agree with the time in European history tattooing became a useful tool of the Canadian Police Association, that if I chose not to—that is, not to police forces to keep track of undesirables in society. These support the position of the Canadian Police Association—the letter undesirables were Jews, gypsies and the mentally infirm. tells me that ‘‘we as police officers will be forced to explain to the grieving family members that his or her government had the information and the ability to prevent such an act of violence but We know where that led in the end. That led to a genocide that chose not to’’. this world has not forgotten and I hope never will. It was a systematic genocide. It was conducted with the agreement of the state, using police forces. D (1310 )

The problem is that when we come to something like the What is happening is that the Canadian Police Association has absolute identification of us as individuals, we become that much taken it upon itself, in this instance and in other instances, to apply closer to that type of state interference in our personal and private political pressure on the people in this Chamber to do what the lives which led to the atrocities that finally occurred in Nazi Canadian Police Association thinks is right. Germany. Also I refer to the campaign that was conducted by the Canadian I am not saying that this could happen in Canada, although we Police Association during the last election in which it took out huge have to always remember in a democracy that there is always the billboards showing pictures of known murderers and compared danger that if we allow the state too much intrusion into the privacy those people to the local Liberal MPs who rejected the private of the individual, into the identity of the individual, we run the very member’s bill that would have made retroactive the legislation serious risk of becoming a cipher, of becoming a tattoo, and if the regarding the faint hope clause. It would have made it retroactive state or the police get a little out of control, then the rights of so that no convicted killers could go before the early parole citizens can indeed be destroyed. procedure which then existed. Our justice minister changed that provision but did not make it retroactive. The billboards occurred It is an ethical issue that disturbs me. I am not saying that a DNA during the election campaign. They were propaganda and they lied. sampling at charge is necessarily not the thing to do. What I am saying is that it is too early for us as as a parliament to make that During an election we accept a bit of stretching the truth. It grand a decision. We have to go out into the community and, over occurs not only among politicians during an election, but among time, talk to the people who are concerned about ethics in society: the special interest groups that back one political party or another. talk to the church, talk to all those who are worried about the We accept that. However, what was happening in this case was that human dignity of being an individual, rather than a number. When we had a police body engaging in an attempt to influence politi- we look back at the tattooing that was done during the period of cians. 459

8518 COMMONS DEBATES September 29, 1998

Government Orders This is an issue of great concern to parliamentarians. The British country, so the person can then flee the jurisdiction and therefore parliamentary tradition is that the legislators, the courts and the be held unaccountable. police are supposed to be separate. I cannot interfere in a police investigation or with the courts. The courts cannot interfere with D (1315 ) the politicians, and so it should have been with the police. It has always been our tradition that the police do not attempt to put direct pressure on politicians. This scenario is a real one. It is something that will happen without a doubt. This is now occurring in Toronto as well. The Toronto police association is attacking local politicians over their attitude toward I ask the hon. member to address that situation and tell us how the special investigation unit. that gives any assurance whatsoever to Canadians that this legislation goes far enough to address that. I suggest that this is a serious threat to our fundamental democracy in parliament and every parliamentarian has to be very Mr. John Bryden: Mr. Speaker, the hon. member was so lengthy concerned. The reason we have our own police force in the House in framing his question it was difficult for me to follow it. The of Commons and not a state police force, the RCMP or any other danger with extending the legislation as proposed by the opposition body, is because of the tradition that parliament has to keep the to taking samples upon charge is that it would encourage police to police and the military separate from politics. I hope the police go on a fishing expedition. association hears my remarks and considers very carefully what it has been doing in the past. We have to protect the rights of the people who may be assumed to be the type that would commit crimes. We believe in this country Mr. Peter MacKay (Pictou—Antigonish—Guysborough, that you are innocent until convicted and we must not lose sight of PC): Mr. Speaker, it is very interesting to hear the hon. member that. We must be very careful on how wide a mandate we give the opposite from the Liberal Party talking about the arm’s length police as far as their powers of arrest are concerned. independent relationship between the RCMP and the Prime Minis- ter’s Office and government given the facts that are now being Mr. Jim Hart (Okanagan—Coquihalla, Ref.): Mr. Speaker, I examined regarding the APEC summit. think Canadians in general listening to the member’s comments that somehow Nazi Germany and tattooing are associated with My question specifically relates to this legislation. I was a DNA testing would think that is a stretch. I think it is totally member of the justice committee when we debated the bill at that irrational. level. We know that DNA evidence is inculpatory as well as exculpatory. It is evidence that can be used to free individuals, not On this side of the House we will continue to fight for increased only to convict them. health care so people can get the help they so desperately need. I think that is a principle we can all agree with. The debate over intrusiveness has drawn a lot of fire from both sides of the House. Intrusiveness for whom? Intrusiveness for an I question whether seizing DNA is really an invasion of a individual charged and arrested? I would think that many individu- person’s privacy. DNA samples is like the member said, it is using als in this country, given the opportunity to clarify the situation, a series of numbers from the chromosomes to make an identifica- would voluntarily want to give their DNA if they truly felt they had tion. nothing to do with a particular criminal matter. It is very similar to fingerprinting, for instance. The difficulty My question specifically surrounds the assertion that this type of here is that you cannot see that it is very similar to fingerprinting in evidence is going to protect Canadians to the full extent that it that sense because it is more precise. It is the new technology we could, given the fact that if an individual is picked up on a charge in have available today and Canadians believe it should be used to one part of the country, this legislation, in its current form, will not solve crime. It is probably one of the best tools we have. allow the police to take a DNA sample to cross-reference it to an outstanding matter to which there may be DNA evidence at the Why does this government continue to mislead the public in crime scene that was entered into the DNA data bank. This suggesting that this is an invasion of a person’s privacy when it is hypothesis was brought forward by the police community. not? It is a sample of hair or saliva. It is not going to give any information except whether that person matches the DNA found at If an individual is picked up in one part of the country and a crime scene. It does not talk about their mental health, their charged with an offence, the police cannot take the DNA. If there is health in any other way or release any other personal— existing DNA at another crime scene, a murder or a rape, the individual will be released because presumably there will be no The Deputy Speaker: I am afraid the time for questions and evidence to hold him based on the seriousness of that particular comments is about to expire. The hon. member for Wentworth— crime. We do not have returnable warrants in most parts of the Burlington can have a brief reply. 460

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Government Orders Mr. John Bryden: Mr. Speaker, following that logic, why I sit here in the House and listen to members across talking about should the government not take DNA samples of every individual constitutional issues, the Canadian Bar Association and on and on at birth and order DNA samples from every individual that exists it goes, what if, maybe, could be, but I never once heard a so that any time a crime is committed that tattooing mark is discussion about victims or potential victims. available to the authorities? That is too big a power for police to have and that is too big a power even for government to have. I would not support it. I guess it does not come as a surprise to anybody why we still have the faint hope clause in this country, section 745, why prisoners now vote, why prisoners are entitled to overtime pay, and The Deputy Speaker: It is my duty to inform the House that the why we outlawed pepper spray for the law abiding Canadian citizen five hours allotted for 20 minute speeches with 10 minutes for yet we use it on university kids if they get in the way. questions and comments has now expired. We are into 10 minute speeches without questions or comments. What is wrong over there with the mentality? Let us look at some of this mentality and some of the quotes I just heard. ‘‘This could Mr. Randy White (Langley—Abbotsford, Ref.): Mr. Speaker, lead to the atrocities of Nazi Germany’’. I cannot believe Liberal how come the House leader of the official opposition misses out on members actually believe that. I am telling this government here the 20 minute part? and now that every day in my community the people walking out of prison are sex offenders, murderers, drug addicts and bank robbers. I think I have heard it all in here today. I want to talk a little They are all sitting in there at night and come out in the day but the about some of the comments in a minute. What a lot of people do government does not have the courage to take a DNA sample of not understand here is that the DNA legislation does not apply to these people. In my community we have people who are victims some 14,000 prisoners currently sitting in our prisons. every single week.

Once again the government feels that it is not quite appropriate I do not know how anybody can compare tattooing with DNA. to take DNA samples of those people. I will tell members the That is out of the blue. A Liberal member opposite says it is too effects that will have on our country. It does, however, say it will early in this stage of parliament to make such a decision. When is take DNA samples of prisoners currently serving time for multiple the time to make a decision? How many people in my riding have murders, multiple sex offences and dangerous offenders. Keep to suffer as a result of indecision? When is it, the year 2006, 2010, those three categories in mind here. when enough victims are stacked up in this country so that the public puts on the pressure and then there is change? I have seven federal penitentiaries within half an hour’s driving distance of my house in Abbotsford, British Columbia. We have D (1325 ) around 100 released prisoners on day parole, UTA and ETA at any given time. Are all these opposition parties here crazy? Are we making these stories up? D (1320 )

Sumas Centre is a day care facility with no fences, no guards, I made a presentation after forcing this government to have a and the inmates are basically walking our streets. They have a 7 or review on the Sumas Centre in my riding. At that time in March 8 o’clock curfew at night. I have long talked to the government there were approximately 43 unlawfully at large prisoners. We had about increasing security there. In the last 10 months, from April all types of robberies committed by these individuals, three sexual 14, 1997 to February 1998 we have had four sexual attacks in my assaults, no notice being taken. It fell on deaf ears over there. area by residents of this facility. We have had well over 55 unlawfully at large from that facility and not one of them has had a I went to the review commission and I asked why not stop here DNA sample taken from them. and do something. DNA would be a good idea. Then when these individuals walk out and perpetrate a crime we will know immedi- A person who sexually assaulted a lady and robbed her store was ately. In fact, many of them do not get caught perpetrating crimes from this facility and had 63 prior convictions. There was not one so we would probably find out faster if, when and where these DNA sample taken from this person. people were. Nothing happened with that.

When I stand up here I ask what part of this message do they not Since I spoke to them just a few short months ago we have had understand. Perhaps they do not have enough prisons in their 13 more unlawfully at large prisoners. Some are sex offenders. We ridings. Perhaps it has not affected them like it has many of us. had not taken DNA samples of them. Why? They were not multiple However, this DNA sample is important. It is important to victims sex offenders. Two qualify and one does not. There is a brilliant of crime and important to people who will become victims. concoction of reasoning to me. 461

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Government Orders James Armbruster has 63 prior convictions, one sex offence ment, reasonably cost effective. There are methods of approach relating to his grandmother, and he is not DNA sampled. Why? here that we could have spent a bundle on, but the minister and the He did not have two victims. But now he does. Royal Canadian Mountain Police have made a real attempt to get the data bank up and running in a cost effective way and I think we I do not know if it makes much sense trying to convince those in should take note of that. a majority government when they refer to the potential of this leading to the same atrocities of Nazi Germany. How do you argue Dominating the discussion and leading up to this point in the with that kind of reasoning? It is absolute nonsense. House has been concern over the charter or civil liberty implications of the data bank. In fact it is true to say that those concerns We are sincerely in trouble in this country with logic such as this have shaped the data bank itself, the design of it, and how the DNA from across the way that is so illogical to victims of crime and will be used. potential innocent people. I can say right away and I think all members accept that the Mr. Derek Lee (Scarborough—Rouge River, Lib.): Mr. privacy provisions contained in the bill are as good as we can make Speaker, I have been following the debate today on this bill to them. Doubtless there are always privacy concerns, but the protec- adopt legislation which would create a DNA databank for Canada. tion of the information is as watertight as we can make it in the public interest. The DNA analysis and the samples do have to be used for the purpose intended. That means real people doing real This was a major piece of work for us sitting on the House of jobs. The police community will have to have access to the Commons justice committee earlier this year. As have all col- sampling and to the analysis, but there are serious penalties leagues on the justice committee, I have had an opportunity to look attached to the misuse of that information. at the legislation from several perspectives and now we have a debate in the House. I accept, and colleagues all around the House note, that a DNA sample is capable of revealing an awful lot of information about a It is quite useful to all of us in the House to have an opportunity human being. Its use in the data bank is solely for the purpose of to look at the different aspects of the bill from a public interest identification, nothing else. The material will have to be monitored point of view. I think we have done our very best to make this bill and disposed of as quickly as the public interest will allow. as good as we can, as good as it can be, so it will serve the public interest. What are the charter concerns? I want to focus on the big one because I think there has been some misunderstanding of what the The perspectives of the opposition are useful here today. They charter hurdle has been. Why were we not able to construct a DNA like the principle of the bill, but they are suggesting the bill could data bank that allowed the taking of a sample at the time of charge be better. That is the way the opposition is supposed to operate or at any time for that matter? Why did we insist that it be taken around here, and I urge them to continue. All of us here in only at the time of conviction? government and in opposition are listening and looking for ways to improve the content of our legislation all the time. It is not the privacy concern. We have a privacy concern here no matter who the sample has been taken from. Whether the person is D (1330 ) a convicted person or not, we still have a privacy issue. It is not privacy that is our hurdle. I believe the big charter problem, the big What does the bill do? We have heard that it creates a DNA data hurdle is the current intrusiveness of the sampling process. bank for the first time for Canadians. We have not had one up until now. We do use DNA in criminal investigations and in court D (1335 ) prosecutions. We have embarked on that road. We have made amendments to our Criminal Code, and successfully so. At this point in time in order to get a DNA sample something actually has to be physically taken from the human body. It has to It is important to remember that although we are setting up a be scraped, it has to be gouged, it has to be expressed, a hair has to DNA data bank for certain classes of DNA samples, we do have be yanked out by the root. The physical integrity of the human body outside of that DNA data bank a process for obtaining DNA has to be intruded upon in order to get that sample. samples on warrant for criminal investigations. That will continue. Just because the DNA data bank proposed here will not have a I am comfortable with the concept that at this point in our history DNA sample from a particular class of convicted criminals or some our charter protects our bodily integrity from that type of state other category, it does not mean that the police are not using DNA intrusion, unless we consent to it or unless the law allows it in some in criminal investigations and in the public interest. other way. I do not think we have made a case here that will allow under our charter the state to gouge or pull or scrape or express a I would also point out that the manner in which the DNA data piece of a person’s body simply because a person has been charged bank is being created here is, from the point of view of govern- on the basis of reasonable grounds. That is the hurdle. 462

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Government Orders Let us talk about what the future may bring. It may come to tomorrow. If that is the case, then I would suggest the three pass, it may already be here or we may be very close to it, that independent legal opinions that were submitted late by the govern- technology and science may allow the taking of a DNA sample ment on this bill are simply redundant and meaningless. without that degree of intrusiveness. The simple pressing of a finger or a palm against a plate may allow the taking of a DNA sample. If that is the case, if that is the degree of intrusiveness, I add as well that I have listened to many of the speakers today. then we may indeed have something similar to a fingerprint. We They do not seem to understand that their concerns over the take fingerprints now not on conviction but at charge. intrusive nature of taking a blood sample, a hair sample or a saliva swab have already passed the constitutional test. It is there in the Criminal Code now for something that is not always tried by We have to get to the point where the sampling process is simply indictment, impaired driving. At least one of the former judges not intrusive, as non-intrusive as the taking of a fingerprint, and we who submitted a legal opinion on this bill referred to that fact. If it are not quite there yet. There are half a dozen ways to get a is not a constitutional violation to take a blood sample in connec- sufficient sample for an analysis here and none of them are quite as tion with an impaired driving charge which may be tried by simple as the thumbprint. We have not got that yet. indictment or summary conviction, then why would it be unconstitutional now to take a blood sample, the most intrusive of three I am told and at committee we seemed to have information methods of taking a DNA sample from a human being? which indicated that technology is moving at a pace now where we may be able to extract a sufficient DNA sample from something We examined these two very strongly presented arguments similar to blowing into a breathalyser or taking a palm print. When against going beyond what the bill does now, which is the intrusive we get there, society and the law may accept that we can take DNA nature of it as well as the privacy of the individual. We heard many samples at charge or at birth or whenever. This is an issue times from witnesses as well as from members of the committee. I Canadians doubtless are going to have to address in the future. believe we heard it here today during this final debate that the extensive nature of the information gained from a DNA sample is I will leave the subject matter there. The 10 minutes has run by what causes people to be concerned about allowing this to occur. rather quickly. As a legislator, if I am still around in this place in a few years, one never knows, but the House will doubtless have an We know every day there are blood samples taken and lodged in opportunity to enhance and upgrade the DNA provisions of the Criminal Code just as we have done for the last five or 10 years. We clinics and in a bank somewhere. The detrimental or negative will get another kick at the cat, and no offence to the cats of impact of having those samples somewhere in a data bank has not Canada. I hope we do get there and I hope the DNA data bank resulted in the negative aspects which many witnesses and mem- created by the bill gets off and running quickly so the RCMP can do bers of the government have put forward would occur if we went their best to enhance public safety as intended by the bill. beyond where the bill takes us today.

Mr. Jack Ramsay (Crowfoot, Ref.): Mr. Speaker, I have just a My colleague from Scarborough—Rouge River referred to couple of points I would like to put on the record in this final another point, the rapid advancement of the technology to take reading debate of Bill C-3. I would like to follow up on the closing DNA samples. There may come a day when we will leave a sample remarks of the hon. member for Scarborough—Rouge River. on the barbershop floor that will be suitable for DNA testing. We know that a blood sample is taken when every child is born. The sample is lodged somewhere in a data bank at least for a certain During the examination of the bill by the justice committee of period of time. which we were both members, the record will show that the justice officials who appeared before the committee on two different occasions indicated there was a necessity to go slow on the taking When we examine the privacy aspect and the intrusive nature, of DNA samples. There must be some degree of reluctance to move and I can refer hon. colleagues back to the record of the witnesses into the area we are asking the government to take the bill. At a who appeared before the committee, there is just not an arguable, later date we could do that. I think this was the inference by my sustainable, logical, comprehensive debate on either of these two hon. colleague who spoke last, let us give this some time and let us issues to deny further advancement of the taking of DNA samples advance the bill into these areas after some time has elapsed. at the time of charge. It simply does not exist.

D (1340 ) My hon. colleague from the Tory party who sits on the committee has touched upon the real reason we are not going as far as we should be going to satisfy the needs of the Canadian Police To me the inference of this is that the judges may rule something Association and other law enforcement spokespersons as well as unconstitutional today that they are going to rule constitutional members in the opposition parties. There is fear and concern and a 463

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Government Orders degree of timidity with regard to what the Supreme Court of The DNA identification act will make Canada one of only a Canada will say. handful of countries in the world to have a national DNA data bank. I am pleased to inform the House that the ground breaking legislation this measure supports will signify Canada as a mover in D (1345 ) the world community on a very special base as one of a handful of countries that has gone forward with this type of legislation.

I go back to my opening comments. If we are to go slow or to go into the area we want the bill to cover at a later date because of a This new legislation strengthens our commitment to combat fear that if we bring it in too early the supreme court will strike it crime, especially violent crime in Canada. The plan that was down, we are really saying that what it declares unconstitutional developed early in July 1995 gave provincial judges the power o today it will not declare unconstitutional tomorrow as it gets used put together warrants which allowed police, after they collected to it and as it becomes part of our legal system, the legislation and samples, to identify people who had committed serious offences. the process. That is wrong. What is constitutional today must be We have stepped forward today by adding a law which will usefully constitutional tomorrow. How can what is constitutional today be put together a framework for DNA samples in a data bank. unconstitutional tomorrow?

D (1350 ) I do not understand or comprehend that argument. Inasmuch as we have opened the door and entered the room of taking samples This is another concrete step toward protecting Canadians from from those who are convicted and incarcerated for designated violent criminals. We should make no mistake. Bill C-3 gives primary offences, we have taken that step and will take samples Canadian police access to a powerful tool in its fight against crime. from certain individuals. As we all know, forensic DNA analysis has been instrumental in securing convictions. It has also been crucial in helping to exoner- What is the difference in going beyond that? Why is there a ate wrongly condemned people, but it also raises potential privacy reluctance to go beyond that and include all primary designated and charter concerns because it has the ability to reveal much more offences in that category? I do not understand. When we asked that of a person than what a fingerprint would reveal. question before the committee the answers were not comprehensi- ble to me and were not justifiable in refusing to move further into Given the magnitude of these issues surrounded by the use or that area. potential misuse of DNA information, the government has taken steps to ensure that a detailed and careful study of the legislation has taken place. I wrap up my comments by saying we all know the bill is moving in the right direction. However, the role of the opposition is to leave its concern indelibly marked on any document it does not feel is in The legislation was referred to the Standing Committee on the best interest of Canadians. Justice and Human Rights before second reading. The government also went to Canadians to hear what they wanted to say. Bill C-3 reflects the views of Canadians across the country. The reflections The government is to move this bill forward and it will pass. I came from a broad spectrum of Canadians which included police hope members of the Senate will take a hard look at what we have associations, victims groups, legal organizations, provincial attor- been asking for, what the Canadian Police Association has been neys general, academics, privacy experts and medical people. The asking for and what others have been asking for. Some good work committee was vigilant in making sure it heard from those with comes out of the other place regardless of our feelings about its concerns over the charter and from those whose overriding concern make-up and constitution. When it gets to the Senate I hope the was public safety. The goal has always been to protect Canadians committee that looks at it will examine our concerns and why from violent criminals. opposition members could not endorse the bill.

Some other issues were discussed as well. The data bank will Perhaps the government is right. Perhaps in time all our require- include two indexes: a scene of the crime index containing DNA ments will be met. The problem is that it is a matter of safety, of profiles from actual crime scenes and a convicted offenders index concern and of providing the police with the tools they could have containing profiles of offenders convicted of designated offences. now but will not have on the passage of the bill. This is a With this structure, stored DNA information can be cross-refer- shortcoming we cannot accept and must object to. We will do so by enced in order to identify linkages and to help solve serious crimes the way we vote on the bill in the House. in any police jurisdiction anywhere in the country.

Mr. Jerry Pickard (Chatham—Kent Essex, Lib.): Mr. Speak- Sharing information is the key to successful arrests of offenders. er, it is a privilege for me today to speak to Bill C-3 which provides Bill C-3 sets out the circumstances where samples can be taken and for the establishment of a national DNA data bank. stored in a data bank. Where a person has been convicted of a 464

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S. O. 31 primary designated offence the court will, except in most excep- the convicted offenders index and the samples themselves will be tional circumstances, make an order requiring that person to submit strictly limited to those directly involved in the operation of the bodily substances for data bank purposes. Where a person has been data bank. convicted of a secondary designated offence and where the crown makes an application to the court, the bill lets the judge make an There is no question that this law is very appropriate at this time. order requiring the offender to provide bodily substances for DNA It will provide a service to Canadian police officers so that they banking purposes. In making that order the court must satisfy that it will be able to pursue and follow up in a much more scientific way has the interest of administration and justice in order. on actions of violent crime in the country. I recommend that every member of the House support the bill in the name of criminal The primary and secondary designated offences listed in the bill justice. were developed on the basis of the serious nature of the offences and the likelihood of finding DNA evidence at the scene of the crime. DNA samples are most likely to be found at crime scenes of * * * primary offences like those of murder and sexual assault. On the other hand, DNA evidence is less likely to be found at the scenes of [Translation] secondary offence crimes such as those of robbery or arson.

Taking samples after an offender has been convicted balances an SUPPLEMENTARY REPORT OF THE AUDITOR overriding concern for the safety of all Canadians. It also takes into GENERAL OF CANADA account the need to respect the rights protected by Canada’s charter. The accused has the right to presume innocence and The Speaker: I have the honour to lay upon the table the protection from unreasonable search and seizure. I think members supplementary report of the Auditor General of Canada to the would agree with that statement. House of Commons, Volume II, for September 1998.

The issue of when DNA samples should be taken has garnered [English] much attention throughout the development of the bill. The vast majority of Canadians we spoke with said that taking samples from Pursuant to Standing Order 108(3)(e), this document is deemed convicted persons is the only way to respect the rights of all to have been permanently referred to the Standing Committee on Canadians under the charter. The majority of those consulted also Public Accounts. took the position that taking samples at the time of arrest or charge would pose a very serious risk of being struck down as unconstitutional. Legal experts from the Department of Justice and three of ______Canada’s most eminent justices have told the government that taking samples before a conviction would be unconstitutional. I think we can all agree developing legislation that will be thrown out by the courts is not useful for the justice system and not useful for Canadians who look to parliament to develop appropriate STATEMENTS BY MEMBERS legislation.

D (1355) [English]

Bill C-3 will not only capture serious offenders following HUMANITARIANS conviction. It will also permit DNA samples to be collected from high risk violent offenders under penitentiary sentence who were Mr. Jerry Pickard (Chatham—Kent Essex, Lib.): Mr. Speak- convicted before the bill comes into law. Samples will be taken er, I am privileged to recognize Heather Bondy and Crystal Smith, retroactively from the designations of dangerous offenders, re- two outstanding humanitarians from Chatham—Kent Essex. peated sex offenders and murderers who have killed more than once. Collection of DNA samples from these offenders will give police valuable information to help them solve outstanding crimi- Heather is the driving force behind Chatham Outreach for nal cases. Hunger. She has raised thousands of dollars and collected tonnes of food, hospital and school supplies which have been taken to the Young offenders will be treated in the same way as adults with Dominican Republic, Zaire and Uganda where she has personally respect to taking DNA samples for the purpose of data banking. delivered that aid. Heather is presently planning to deliver tens of The DNA extracted from a sample will be analysed with the thousands of dollars in aid to Haiti. resulting profile entered into the convicted offenders index of the data bank. Crystal Smith, a 20 year old student, works in an orphanage in Ukraine that houses many victims of Chernobyl. The orphanage Bill C-3 authorizes the RCMP to establish and maintain a data was called ‘‘The Place that God Forgot’’. Thanks to Crystal, it is bank. It is worth noting that access to DNA profiles contained in now the place that God remembers. 465

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S. O. 31 I thank Heather and Crystal for their great work. All the citizens HEALTH of this country are very supportive of their efforts. I add a thanks to Air Canada, British Airways and the Department of National— Ms. Bev Desjarlais (Churchill, NDP): Mr. Speaker, the Liber- als have allowed health care to deteriorate and the lives of The Speaker: The hon. member for Calgary East. Canadians are at risk. Nowhere is the problem more severe than among the first * * * nations where diseases such as TB, diabetes and HIV are rampant. This problem is aggravated by unacceptable housing conditions in FIRST MINISTERS CONFERENCE many first nations. Families live in overcrowded houses without modern sewage facilities and are deprived of safe drinking water. Mr. Deepak Obhrai (Calgary East, Ref.): Mr. Speaker, at the December 1997 first ministers meeting the premiers and the Prime It is reprehensible for the government to allow these third world Minister agreed to begin a process which would result in a better, conditions to persist. The government must honour its obligations more efficient social union for all Canadians. to the first nations and take meaningful action to alleviate this crisis. Since then the provinces and territories have been hard at work negotiating on issues vital to Canadians such as education, social * * * welfare and health. They have unanimously agreed to an arrangement in the design of social programs in areas of provincial jurisdiction. In short, the provinces have embarked on a project WILLIAM HANCOX which seeks to improve their partnership with the federal govern- John McKay (Scarborough East, Lib.): ment. Mr. Mr. Speaker, I rise today to invite you and my colleagues in this House to pay tribute How has the Prime Minister responded to these overtures? By to the late Detective Constable William Hancox who was killed on stating ‘‘If the premiers do not want to take what I am offering, duty August 4 of this year. they take nothing’’. This is Liberal co-operative federalism in Billy Hancox was not a man the world would call a hero. He was action. not a famous general, a superior athlete or a noted statesman. He The official opposition congratulates the premiers of Canada for was our neighbour, a decent man whose wife Kimberley and working on behalf of all Canadians and we call upon the Prime daughter Sandra will remember his kindness and happy nature. His Minister to begin doing the same. son Sean, born after his death, will tragically never know him. Billy Hancox wanted to be a police officer to serve and protect * * * the rest of us in the community and he lost his life doing so. Every time he went to work he knew there were risks but he accepted that D (1400 ) responsibility. We should expand our understanding of the word hero to include ARTHRITIS Billy Hancox, his wife and his family who represent everything that is honourable in Canadian society. Mrs. Rose-Marie Ur (Lambton—Kent—Middlesex, Lib.): Mr. Speaker, September is arthritis month in Canada. * * * Arthritis is a painful, debilitating disease that threatens the independence and quality of life of more than four million people THE ENVIRONMENT in Canada. More than 600,000 Canadians are disabled by it. Direct and indirect costs associated with arthritis and related disorders in Mr. David Pratt (Nepean—Carleton, Lib.): Mr. Speaker, Canada are nearly $18 billion a year. climate change is the greatest global environmental threat we face. It is imperative that we have an international plan to reduce With no cure yet, some symptoms and consequences can be greenhouse gases and meet the climate change challenge head on. lessened through research, education and healthier lifestyles. Last week this government co-hosted with Brazil a ministerial September is the month we recognize the Arthritis Society’s clean development mechanism forum. The purpose of the forum efforts and its thousands of volunteers. For 50 years the Arthritis was to listen, ask questions and move toward an international Society has contributed over $100 million for research, striving to consensus on what needs to be done to implement the CDM. find a cure. The CDM is one of the international mechanisms agreed on in I ask the House to join me in wishing the Arthritis Society a very the Kyoto protocol which will help parties to achieve their emis- successful month. sion reduction obligations. 466

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S. O. 31 By working in a global partnership we can successfully reduce years. He was well respected by his constituents and he was a our greenhouse gas emissions while continuing to develop our friend to many he served. economies in a sustainable manner. The forum is an example of this government’s commitment to working co-operatively with all I would like to thank John for his many years of public service countries seeking to develop a global climate change solution and ask that this House offer condolences to his family. which will work for developed and developing countries and the environment. This can be a win-win-win situation for all. * * * [Translation] * * * THE LATE PRIVATE GILLES DESMARAIS THE SENATE Mr. Benoît Serré (Timiskaming—Cochrane, Lib.): Mr. Ms. Val Meredith (South Surrey—White Rock—Langley, Speaker, it is with great sadness that I rise today to inform the Ref.): Mr. Speaker, the Prime Minister’s arrogance in appointing a House of the death of Gilles Desmarais, a Canadian serviceman senator for Alberta has left a bad taste not only in Alberta but in who was serving with the NATO peacekeeping force in Bosnia. British Columbia. Private Desmarais died on Friday, September 25, 1998, after being This approach, this total disregard for the citizens’ desire to elect accidentally electrocuted in a Canadian camp. a senator, does nothing for unity in our country. How can the Prime Private Desmarais was 23 years old. He was born in Noëlville, in Minister expect co-operation from any of the provinces when he my riding, and had been serving in Bosnia since early July. He was shows such contempt for the people and their provincial govern- scheduled to return to Canada at the end of January 1999. ments? [English] In B.C. we experienced this contempt during the salmon dispute with the U.S. Atlantic Canada saw this arrogance with the east He was a three year veteran of the regular Canadian Forces, coast fishery. Manitoba saw it with the Red River flood and the having also previously served as a reservist with the Second federal election call. Ontario seems to be in constant conflict with Battalion of the Irish Regiment in Sudbury, Ontario. the federal government. [Translation] This past spring the 10 provincial premiers met to discuss a social union and amazingly came out of this meeting with almost I wish to extend to the family and friends of Private Desmarais unheard of agreement with all 10 premiers on a social accord. What my most sincere condolences. My thoughts and prayers are with was the Prime Minister’s response? Outright refusal to consider them as they go through this difficult time. this agreement. [English] Prime Minister, how can this arrogant, combative approach help I take this opportunity to salute all our Canadian Forces troops Canadian unity? serving on peacekeeping missions. These fine women and men put their lives at risk on a daily basis for their country and for— * * * The Speaker: The hon. member for Lotbinière. JOHN EAKINS * * * Mr. John O’Reilly (Haliburton—Victoria—Brock, Lib.): Mr. Speaker, I rise today to pay tribute to a dedicated and hardworking [Translation] former member of provincial parliament from my riding, the late John Eakins. SCRAPIE

D (1405 ) Mr. Odina Desrochers (Lotbinière, BQ): Mr. Speaker, 11,000 sheep have been arbitrarily destroyed since January 1997. Who will John Eakins passed away in Hamilton on September 16, 1998 put an end to this carnage, which imperils the entire sheep industry while undergoing cancer therapy treatments where he was staying in Quebec? to be closer to his family. No one in the Liberal government opposite can answer this Mr. Eakins was first elected to the Ontario legislature in the question, as this government has put the management responsibil- riding of Victoria—Haliburton in 1975 and served five terms until ity in the hands of the Canadian Food Inspection Agency, and this he retired before the 1990 election. From 1985-87 he was Minister agency lacks transparency on this issue. Information is either of Tourism and Recreation and after that Minister of Municipal diluted or non-available. Affairs. Officials of this federal agency—this commando created by the Prior to entering politics Mr. Eakins served as a councillor in the Minister of Agriculture and Agri-Food—are traumatizing sheep town of Lindsay for three years and mayor of the town for six farmers by harassing them on the phone, showing up unannounced 467

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S. O. 31 to inspect their sheep barns, threatening punitive action or Let us follow in the footsteps of Wilfrid Laurier, the first French providing them with incomplete information. Canadian to become Prime Minister of the country.

Enough is enough. The federal government must act and stop putting forward measures that do nothing except show how incom- * * * petent and arrogant the minister is. D (1410) * * * INTERNATIONAL YEAR OF THE OCEAN [English] Mrs. Suzanne Tremblay (Rimouski—Mitis, BQ): Mr. Speak- er, the United Nations has declared 1998 International Year of the VICTIMS OF VIOLENCE Ocean, in an effort to raise public awareness of the importance of our oceans and of the vital nature of the marine world. Mr. Chuck Cadman (Surrey North, Ref.): Mr. Speaker, last Friday night my wife and I presented our son’s memorial scholar- In the Lower St. Lawrence region, the marine world impacts on ship to a young aspiring musician. Our son had similar dreams. His our cultural and social reality, and it is an essential component of drums are now silent in the basement and we think what if? Young our economic life, partly because of its fishery resources and its adults leaving the nest, a ritual he was denied. potential for the tourist industry. On Saturday we attended the annual soccer tournament held in his memory. More than 300 boisterous young boys. His goalie The riding of Rimouski—Mitis is known internationally in the gloves were cremated with him. We remember. field of marine sciences. In addition to the Institut maritime du Québec—the only institution to provide a college education pro- On Sunday his mother presented trophies and then attended a gram—we have distinguished professors and researchers at the bridal shower for one of his friends. Pain only a mother can know. INRS-Oceanology, UQAR’s department of oceanography, the Fish- Soon we will mark the sixth anniversary of the evil which cut his eries and Oceans Research Centre, and the Maurice-Lamontagne young life short. Institute.

I am privileged to be able to speak in this place not only for my While respecting and preserving marine resources is definitely a family but for thousands of other families that endure a similar collective responsibility, the government must act as a leader in grief in silent anonymity. improving management, at the international level, of the world’s oceans. Our laws allow too many excuses for violence, everything from a disadvantaged childhood to drug abuse. Predators forget. Fami- * * * lies do not. Our considerations belong with them, the silent ones. MAISON PARENT-ROBACK * * * Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, [Translation] Lib.): Mr. Speaker, I take great pride in reporting that the Maison Parent-Roback was officially opened last Sunday in Montreal. SOCIÉTÉ SAINT-JEAN-BAPTISTE It groups together 12 provincial women’s groups working to Mr. Denis Paradis (Brome—Missisquoi, Lib.): Mr. Speaker, improve the conditions of women in such varied areas as the last Saturday, in Orford, a municipality located in Brome—Missis- economy, culture, health and the campaign to eradicate violence quoi, Prime Minister Jean Chrétien became a lifetime member of against women. the Société Saint-Jean-Baptiste, in the diocese of Sherbrooke. It is also worthy of mention that the secretary of state responsi- Like Sir Wilfrid Laurier before him, the Prime Minister re- ble for the status of women has contributed a total of $795,000 minded us that French Canadians have played a prominent role in since last April to 9 of these 12 provincial women’s groups. the history of our country, as one of the two founding nations. The corporation selected the name Parent-Roback for the build- I would like to mention the hard work of Micheline Dupuis and ing in order to pay tribute to the work and friendship of two Marcel Bureau, with the 11,000 members of the Société Saint- pioneers in the women’s movement, Madeleine Parent and Léa Jean-Baptiste in Sherbrooke, of Gaston Deschamps, with the Roback. 33,000 members of the society in the diocese of Valleyfield, and of Léo Gagné, with the 6,000 members of the society in the diocese of We are very proud of this government for its support of this type Quebec City. of project for the women of Quebec and Canada. 468

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Oral Questions [English] These memorial windows were donated to CFB Cornwallis by naval recruits who wanted to commemorate all those lost on our JUSTICE navy ships during the battle of the Atlantic. Since the closure of the base the residents have demanded the Mr. Bill Casey (Cumberland—Colchester, PC): Mr. Speaker, return of the stained glass windows for display in their new naval seven years ago James Mills was murdered while a prisoner of the museum. Sadly the Minister of National Defence has steadfastly federal prison in Renous, New Brunswick. Yes, he was convicted of refused to return these windows to their rightful place. a crime but he was not condemned to death. I ask all members of the House to look up at the beautiful For seven years the Mills family has waited for justice to be windows and imagine what this place would look like if they were served. For seven years the file has been passed from corrections removed and replaced by a sheet of plexiglas. Perhaps now they Canada to the RCMP to the New Brunswick crown prosecutor. understand why the residents of Cornwallis want so desperately to display the windows in their chapel. I understand that on two previous occasions the RCMP turned the file over to the crown prosecutor and recommended that D (1415 ) charges be laid. Mr. Minister, perhaps you believe the battle over the stained Recently the RCMP have reported they have turned over new glass windows is over, but let me tell you, for the residents of evidence to the crown prosecutor. Hopefully with the new evidence Cornwallis the battle has just begun. the crown prosecutor can now take action that will finally give the Mills family some closure. ______

I sincerely commend the solicitor general for his personal attention to this file and for pressing for further investigation. ORAL QUESTION PERIOD

Now I ask the solicitor general to do all he can to ensure that the [English] appropriate authorities follow through to once and for all resolve the murder of James Mills. EMPLOYMENT INSURANCE

* * * Mr. Preston Manning (Leader of the Opposition, Ref.): Mr. Speaker, the law on employment insurance is clear. If there is a surplus because the government has been overcharging employers LAND MINES and workers, then the money belongs to them and it is illegal for the Prime Minister to take that money and use it for something else. Mr. Ted McWhinney (Vancouver Quadra, Lib.): Mr. Speaker, the land mines treaty, opened for signature in Ottawa last Decem- Why does the Prime Minister not obey the law and give those ber and quickly signed by more than 120 states, has now entered excess funds back to the workers and employers to whom they into legal force, the 40th ratification having occurred this month in belong? record time. Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- It may be argued on doctrinal legal authority that the treaty er, there is a debate going on at this moment in preparation for the because of the number of state adherents has now become part of budget and how to deal with the finances of the nation in the next the general principles of international law and binding as such even budget. Some representations have been made to the government on non-adhering states. that it would be more advisable perhaps to cut income tax than to do that because it will go into the pockets of the taxpayers and not Apart from this a challenge of Canadian diplomacy may be to to the corporations. persuade the holdout states to declare significant parts at least of There is a debate. I know that the Leader of the Opposition does the new treaty as fully binding upon them in the conduct of their not want that money to be used to cut income tax. We know that. It foreign policy. is part of the debate.

* * * Mr. Preston Manning (Leader of the Opposition, Ref.): Mr. Speaker, why is the government even contemplating breaking the law? If the Prime Minister loots the employment insurance fund, VETERANS AFFAIRS who precisely is he taking this money from? He is taking it from the small business person, the factory worker, the construction Mr. Mark Muise (West Nova, PC): Mr. Speaker, since being worker, the clerk, the waitress, to whom these funds belong. elected to represent West Nova I have worked diligently with World War II veterans and residents of Cornwallis for the return of Who will stand up for the rights of these workers and employers their stained glass windows. if the Prime Minister will not? 469

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Oral Questions

Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- D (1420 ) er, it is pretty nice to have a problem like this one when we have run the nation in such a way that we have a problem with Mr. Speaker, if the government cannot— surpluses. If we had operated a government the way that it was operated before, we would still be at a 11.4% unemployment level. The Speaker: I would ask the hon. member to go to his question, Now we are at 8.3% and it is going down, and 1.2 million new please. jobs have been created in Canada in the last five years. Mr. Monte Solberg: Mr. Speaker, instead of trying to change We have the problem that the government has probably been too the law to raid the money they are not entitled to by law, why do good to the satisfaction—- they not just obey the law and give that money back to workers and employers? Obey the law.

The Speaker: The hon. Leader of the Opposition. Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- er, there are some people who think it would be better if the money Mr. Preston Manning (Leader of the Opposition, Ref.): Mr. was to go into the taxpayers’ pockets rather than into the coffers of Speaker, we are talking about to whom do these surpluses belong. some corporation. Sixty per cent of the money is going to the We are talking about obeying the law. We are talking about funds corporations and 40% to the taxpayers. Some think it might be that were contributed in trust. We are not talking about general better to give it to those who earned the money working on an revenues and we are not talking about some Liberal slush fund that hourly basis. the government can spend however it pleases. [Translation]

Will the Prime Minister tell his tax addicted finance minister to Mr. Gilles Duceppe (Laurier—Sainte-Marie, BQ): Mr. keep his hands off the employment insurance fund? Speaker, since the Minister of Finance was caught helping himself to the EI surplus, the only excuse he has managed to come up with Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- is that a broad debate is necessary to determine the use to which er, I think that the Minister of Finance has been pretty good. I see this surplus should be put. that we have reduced the deficit from $42 billion to zero. I see that we have less than 1% inflation. I see that the Financial Times of Will the Prime Minister admit that the real debate, the one that is London has said that in terms of finance management, we are the urgently required, is not about what to do with the money lifted top dogs of the G-7. from the pockets of workers, the unemployed and small businesses, but about why the Minister of Finance took money that was not his Mr. Monte Solberg (Medicine Hat, Ref.): Mr. Speaker, the to take? government is calling for a debate to cover up its planned raid on Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- the $6 billion EI overpayment. We are no more entitled to debate er, I would point out to the hon. member that, if we had stuck with the raiding of the EI fund than we are entitled to debate the raiding the legislation passed by the Conservative government, premiums of the Prime Minister’s own personal RRSP. The EI fund is not his on January 1, 1994 would have been $3.30 on every $100, but we money to spend. That is what the law says. reduced them in successive budgets to $2.70.

Why does the Prime Minister not respect the law and give Before taking any further decision, the Minister of Finance workers and employers that money back? Respect the law. wants to have everyone’s opinion. But apparently the Bloc Quebe- cois would like the money to go to companies rather than em- Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- ployees. er, the consolidation of this fund with the consolidated revenue of Canada was done long before we formed the government. There is Mr. Gilles Duceppe (Laurier—Sainte-Marie, BQ): Mr. no slush fund. It is just the money available to the government for Speaker, my reading of the situation is that the Minister of the operation of the government. The Minister of Finance and Finance—aided and abetted by the Prime Minister—dipped into rightly so is doing something that did not exist before, having a the pockets of workers, the unemployed and small businesses. public debate before preparing his budget. He should realize that the only reason there is a surplus is that there are unemployed workers who no longer qualify for benefits, As usual, like the past five years, the Reform Party is all over the even though they have paid their premiums, and that some workers place. are paying more than they need to. These are average folks whom the Prime Minister probably does not know, having spent so much Mr. Monte Solberg (Medicine Hat, Ref.): Mr. Speaker, what time on Bay Street. the Prime Minister is saying is that the end justifies the means and they will break any law they have to in order to get their hands on Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- taxpayers’ money. er, people understand that 1.2 million new jobs have been created 470

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Oral Questions since this government was elected in 1993. They understand that Also, we have been working closely with the Minister of Finance the level of unemployment has dropped from 11.4% to 8.3%. for a number of years. This co-operation between the Minister of Finance and myself, under the direction of the Prime Minister and And they understand that, because the fund has been very well together with the support of our colleagues, has led to the national administered, we now have a surplus, which we are going to child benefit, aimed at eliminating family poverty. administer, as we have always done, with care so as to serve the interests of all taxpayers. We have also set up a transition program, the Transitional Job Fund, in regions where the unemployment rate is too high. We have Mr. Paul Crête (Kamouraska—Rivière-du-Loup—Témis- created a fund to help students who had problems completing— couata—Les Basques, BQ): Mr. Speaker, yesterday, the Minister of Human Resources Development said in this House that he was The Speaker: I am sorry to interrupt the hon. minister, but I now trying, with the help of Statistics Canada, to figure out why the give the floor to the hon. leader of the New Democratic Party. participation rate in the employment insurance system has been dropping, to the point where only two out of every five Canadians out of work now collect benefits. Ms. Alexa McDonough (Halifax, NDP): Mr. Speaker, my question is for the Prime Minister. Does not the minister not yet realize that, while he is trying to find out why an increasingly smaller number of unemployed All workers in this country pay employment insurance pre- persons qualify for benefits, his colleague, the Minister of Finance, miums. Despite their contributions, however, three out of five has already made off with the fund and is now wondering how to unemployed persons do not receive any benefits. Yet the Minister spend money what belongs to the unemployed? of Finance is drooling at the prospect of getting his hands on a slice of the employment insurance pie. Hon. Pierre S. Pettigrew (Minister of Human Resources Development, Lib.): Mr. Speaker, first of all, we must understand Before he gets his hands on the whole thing, has this government that contributions to the employment insurance fund are not made given even one thought to the Canadians who contributed to this exclusively by workers, but also by employers and major busi- fund and yet are getting nothing from it? nesses. So, enough of the Bloc’s demagoguery.

We are fully aware that we must take— Right Hon. Jean Chrétien (Prime Minister,Lib.): Mr. Speaker, the Minister of Finance, the Minister of Human Resources Devel- opment and myself have said we want a debate on what should be Some hon. members: Oh, oh. in the next budget. There are all kinds of ideas on this. Some people feel the best thing to do would be to make the fund available to The Speaker: The hon. Minister of Human Resources Develop- workers and not to employers. ment has the floor. We are going to look at things, we are going to get everyone’s Hon. Pierre S. Pettigrew: So, we are aware that the participa- opinion, and we are going to find a reasonable solution, as we tion of workers in the employment insurance system is extremely always do, one that has the interests of workers and of the Canadian important to ensure the program’s integrity, and that is why we economy at heart. want to make sure we fully understand the figures and numbers before taking appropriate action. [English] Mr. Paul Crête (Kamouraska—Rivière-du-Loup—Témis- couata—Les Basques, BQ): Mr. Speaker, what I understood is Ms. Alexa McDonough (Halifax, NDP): Mr. Speaker, 800,000 that the Minister of Human Development Resources is holding the Canadians who are unemployed in this country today are not bag while the Minister of Finance is digging into it with both receiving any employment insurance benefits. That is because the hands. government has changed the rules to make them ineligible.

How can the minister explain that, with the powers vested in him The Prime Minister talks about choices, about a debate of what by law, he was unable to stop the Minister of Finance from to do with the employment insurance fund but he never talks about plundering the employment insurance fund? reinvesting any of those funds in supporting the unemployed and their families. Is he saying that improving access or improving D (1425) benefits are not among the choices?

Hon. Pierre S. Pettigrew (Minister of Human Resources Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- Development, Lib.): Mr. Speaker, I want to point out to Bloc er, we are having a debate at this time. We want to make sure that Quebecois members that a decision has yet to be made. the money is used for the interests of the workers. 471

8530 COMMONS DEBATES September 29, 1998

Oral Questions We have all sorts of programs being discussed to maintain what Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- we have been able to do. We want to carry on helping those who er, perhaps the leader of the Conservative Party should talk to the need it most. That has been the policy of this government. We member of parliament for the city of Saint John about its problem. are having a public debate at this time and would like the contribution of her party. The reality is that 1.2 million new jobs have been created since October 1993. The level of unemployment that existed at the time The government will make a decision that will be part of the of the Conservative government was 11.4%. Now it is 8.3% and federal budget next February. going down. We will not take the advice of the leader of the Tory party and go Mrs. Elsie Wayne (Saint John, PC): Mr. Speaker, yesterday the back to the good old days of the Tories. finance minister said that this government will not ‘‘give up that area of its financial manoeuvring’’ when asked about the surplus in the EI fund. * * *

The EI fund was not set up to be the finance minister’s wriggle ABORIGINAL AFFAIRS room. He is not being asked to give up something that belongs to him. The money in the fund is paid by Canadian workers and Mr. Mike Scott (Skeena, Ref.): Mr. Speaker, on August 24 employers. That money does not belong to the finance minister or Leona Freed wrote to the Minister of Indian Affairs and Northern to any member of this government. Development and the Minister of Health complaining about the sewage system on her reserve. That letter was illegally leaked back When will this government stop treating the EI fund like its to her chief and council and she is facing a lawsuit as a result. personal line of credit and give back a tax break to the employers and the employees? Yesterday— The Speaker: Colleagues, I appeal to you. We are having a Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- tough time hearing the questions and the answers. er, the leader of the Conservative Party is not interested in having a tax cut for employees only. She is very keen that we give the money The hon. member for Skeena. to the employers. If we do that, 60% of the money will go to the employers and only 40% will go to the employees. If that is the Mr. Mike Scott: Mr. Speaker, on August 24 Leona Freed wrote position of the Conservative Party, fine. We know it prefers to give to the Minister of Indian Affairs and Northern Development and money to business instead of to employees. the Minister of Health complaining about the sewage system on her reserve. Her letter was illegally leaked to the chief and council and Mrs. Elsie Wayne (Saint John, PC): Mr. Speaker, I want to tell she is facing a potential lawsuit as a result. you that I heard here today from the Prime Minister about how the government has created jobs. Let me say that we have never had as Yesterday the Minister of Indian Affairs and Northern Develop- high an unemployment rate in the city of Saint John in the last 25 ment accused the Minister of Health of leaking that letter. We years as we have today. would like to know from the Minister of Health: Is that true? Did your office leak that letter? The Minister of Veterans Affairs, all the merchant navy vets who are on a hunger strike and who want their compensation— The Speaker: Colleagues, please address the Chair when you are asking your questions and giving your answers.

Some hon. members: Oh, oh. The hon. Minister of Health.

D (1430 ) Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, a letter of August 24 was received by a Health Canada official from The Speaker: The hon. leader of the Conservative Party. Leona Freed complaining about a broken sewer pipe that was apparently draining into a creek. She was worried about it being a health threat and she demanded immediate action. Mrs. Elsie Wayne: Mr. Speaker, the Minister of Veterans Affairs told the members of the merchant navy, who are on a The Health Canada official, anxious to solve this problem, hunger strike and who want fair compensation, ‘‘I am not offering forwarded a copy of this letter to the tribal council which is anything’’. The Minister of Health told the innocent victims of responsible for fixing it, and then set to work on getting the tainted blood that the file was closed. problem fixed.

Is the government now telling Canadian workers that the EI fund Sending on that letter was not in keeping with protocol. That is its personal piggy bank, open for taxpayer contributions but official has written to Leona Freed to express regret. We have closed for payroll taxes? re-circulated the protocol to remind all officials— 472

September 29, 1998 COMMONS DEBATES 8531

Oral Questions The Speaker: The hon. member for Skeena. young people go on unemployment. What interests us is helping them enter the labour market. Mr. Mike Scott (Skeena, Ref.): Mr. Speaker, it is good to see the minister acknowledging wrongdoing. Mr. Michel Gauthier (Roberval, BQ): Mr. Speaker, unlike what is happening opposite, every Bloc Quebecois member without Given the government’s past performance with regard to confi- exception is asking the minister to look after the unemployed. dentiality we would like to know: Is the minister aware that this is a breach of privacy? It was found to be so in the spring when the Some hon. members: Right. Minister of Indian Affairs and Northern Development violated Bruce Starlight’s privacy. What is the government going to do to Mr. Michel Gauthier: Does the Minister of Human Resources ensure this does not happen again? We do not want to be back here Development realize that, through his incompetence and lack of in six months with the same problem. concern, he has made the unemployed the government’s cash cow, no more no less? Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, the letter that was sent to the health official was copied to the Reform Hon. Pierre S. Pettigrew (Minister of Human Resources Party’s critic, the member for Skeena. It was also copied to the Development, Lib.): Mr. Speaker, what our government has done provincial minister. It was about a leaking sewage pipe. There was is put a lot more money in the pockets of the unemployed in terms nothing on its face to demonstrate confidentiality. of active measures to get them into the labour market.

The Health Canada official acted in good faith to get the problem We have invested more than any other government in training. fixed. I have already said that he has expressed regret and we have We reached with the Government of Quebec an agreement on circulated the protocol. manpower under which we will transfer $500 million annually to the province to provide training. In the meantime, the problem has been fixed. What we are left with is the Reform Party messing around with this issue. We have established a modern system adapted to today’s labour market and we intend to continue serving Canadians well.

* * * * * * [Translation] [English]

EMPLOYMENT INSURANCE SOCIAL INSURANCE NUMBERS Mr. Michel Gauthier (Roberval, BQ): Mr. Speaker, three Mr. John Williams (St. Albert, Ref.): Mr. Speaker, the auditor unemployed individuals in five are no longer entitled to employ- general tabled his report today with the usual stories of misman- ment insurance benefits. In Canada now only one young unem- agement in government. We find that there are millions of social ployed young person in four is entitled to benefits. The insurance cards circulating in Canada with no legitimate owners. In employment insurance reform is a catastrophe. a sample test of 3,600 cards the auditor general found that one-third were being used to defraud the government of millions of dollars. D (1435) My question is for the Minister of National Revenue. Will he tell After we thought we had hit the bottom of the barrel with Doug Canadians how many millions of dollars we are paying on these Young, we now realize that things are worse than ever for the fraudulent cards and why he has not stopped this abuse already? unemployed. Hon. Pierre S. Pettigrew (Minister of Human Resources Given the responsibilities of the Minister of Human Resources Development, Lib.): Mr. Speaker, we have read the auditor Development under the Employment Insurance Act, will he ex- general’s report very carefully and we agree completely with the pressly oppose any change to the law? auditor general’s recommendations. We need to improve the integrity of the social insurance number. My department has Hon. Pierre S. Pettigrew (Minister of Human Resources already begun to work on every one of the recommendations of the Development, Lib.): Mr. Speaker, I want to tell the former leader auditor general, both the recommendations on the social insurance of the Bloc Quebecois how committed the government is to young number and on the registry. We intend to continue to have good Canadians. collaboration with him.

This is why we set up, outside the employment insurance fund, a Mr. John Williams (St. Albert, Ref.): Mr. Speaker, all I can say youth employment strategy in order to help young people gain is thank goodness for the auditor general, but I do not know what to entry into the labour market. The hon. member is asking us to help say about the government. It issued temporary cards with no expiry 473

8532 COMMONS DEBATES September 29, 1998

Oral Questions date. It has issued 600,000 temporary cards, yet there are only My department has already initiated discussions with the prov- 200,000 legitimate users in Canada. inces among others. We should be getting a great deal of information. For instance, when a death occurs, we will now be getting We have already heard the minister say they are going to fix this, more information, through the partnership we are in process of but why has this not already been fixed? We have spent millions of creating, which will make our system more effective. dollars paying these fraudulent claims which should have been stopped years ago. When is the government going to be accountable for that type of inaction? * * * [English] Hon. Pierre S. Pettigrew (Minister of Human Resources Development, Lib.): Mr. Speaker, we have already begun work on the integrity of the system. It is very important that we actually APEC SUMMIT improve it. We are following up on the recommendations of the auditor general. Mr. Bob Mills (Red Deer, Ref.): Mr. Speaker, yesterday the foreign affairs minister said ‘‘Canada is very concerned about the As the member knows, much of the information comes from the use of the Internal Security Act to restrict the freedom of speech provinces, for instance when a Canadian citizen dies. Along with and the freedom of assembly in Malaysia’’. He was talking about the provincial governments we are improving the situation. They Malaysia. are feeding information into our systems so the kind of anomalies and frauds the hon. member is referring to will not happen too Why did he not express those same sentiments of freedom of often. speech and freedom of assembly when it came to APEC?

D (1440 ) Hon. Lloyd Axworthy (Minister of Foreign Affairs, Lib.): Mr. Speaker, the fact of the matter is, that is exactly what we did during APEC. We are working hard at improving the system alongside the provinces and I am confident that it will be better very shortly. This government provided substantial support to ensure that a people’s summit was held. The people’s summit brought together [Translation] Canadians and people from around the world to discuss APEC, those who were in favour and those who were against. The people’s Mr. Serge Cardin (Sherbrooke, BQ): Mr. Speaker, according summit had an opportunity to present its findings to ministers and to Human Resources Development Canada data, there are more to the Prime Minister. It was the most open people’s summit ever than 311,000 people over 100 years old in Canada. It would also held under APEC. seem that there are three times more temporary social insurance numbers than there are temporary residents in Canada. Mr. Bob Mills (Red Deer, Ref.): Mr. Speaker, a long, long time ago, when the foreign affairs minister was a young man, he Does the Minister of Human Resources Development realize believed in human rights and democracy. When he was a kid he that, by failing in the management of social insurance numbers, he even marched in civil rights marches in Alabama. Back then there is becoming a party to real or potential frauds? was a bigoted sheriff. His name was Bull Connor. He sicced the dogs on the protesters. The Speaker: The question, as it stands, is not acceptable. I would ask the hon. member to please move to his supplementary. What happened? Why did this 1960s hippie turn into a 1990s sheriff Bull Axworthy? Mr. Serge Cardin (Sherbrooke, BQ): Mr. Speaker, not only should there be an RCMP investigation to shed light on this issue, Hon. Lloyd Axworthy (Minister of Foreign Affairs, Lib.): Mr. but will the minister recognize it is his duty to explain to the public Speaker, I have to admit that at heart I really am still a hippie. why it was only after the auditor general became involved that it was discovered that the minister had lost control over social insurance numbers? * * *

Hon. Pierre S. Pettigrew (Minister of Human Resources [Translation] Development, Lib.): Mr. Speaker, my department has been working very hard on this issue for quite some time now. SCRAPIE

I want to assure this House and the Canadian public that we Ms. Hélène Alarie (Louis-Hébert, BQ): Mr. Speaker, with each totally agree with the auditor general’s recommendation that the passing day, the sheep producers in Quebec become increasingly integrity of the social insurance numbers and log must be im- distressed. They are losing money and hope. Each day’s delay proved. brings a pile of worries. 474

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Oral Questions

D (1445) The Speaker: The hon. member for Edmonton North.

Does the minister intend finally to give them some help and what Miss Deborah Grey: This foreign affairs minister talks about does he plan to do for all those whose herds have been infected with free speech and democracy all around the world but just does not scrapie since January 1997? happen to do it at home. [English] Why is it that he cannot practice at home what he preaches abroad? Hon. Lyle Vanclief (Minister of Agriculture and Agri-Food, Hon. Lloyd Axworthy (Minister of Foreign Affairs, Lib.): Mr. Lib.): Mr. Speaker, as I continually inform the hon. member, we Speaker, I take it that this is a question coming from the resident are working with the unfortunate incident of the scrapie disease in biker of the House of Commons. the sheep flock in the province of Quebec in as equitable manner as we have in every other province. We are compensating them in the Some hon. members: Oh, oh. same way as we would with reportable diseases across Canada. The Speaker: Perhaps we could leave our outside activities out To date we have already compensated the affected producers to of the House of Commons. the tune of over $2 million. Hon. Lloyd Axworthy: Yes, Mr. Speaker, I would be more than happy to. I hope members will understand on this very crucial * * * question that during the APEC meetings the Government of Canada went to great lengths first to hold a year long consultation STEEL INDUSTRY inviting Canadians from all walks of life to participate in exactly what they thought the direction of APEC should be. Mr. Carmen Provenzano (Sault Ste. Marie, Lib.): Mr. Speak- er, my question is for the Minister for International Trade. Second, we supported a people’s summit. Third, we told all the leaders and their delegations that there Is the minister aware that the Canadian steel industry is being would be demonstrations and that we would establish the proper seriously threatened by unprecedented steel imports at dumping sort of setting in which Canadians could express themselves. prices from Japan, Korea, Russia and other foreign producers? If Furthermore, we maintain that right of free speech not only so, what action is the minister prepared to take to protect this everywhere in the world but here in Canada. important sector of our economy? D (1450) Hon. Sergio Marchi (Minister for International Trade, Lib.): Mr. Speaker, let me thank the hon. member for his question as well Miss Deborah Grey (Edmonton North, Ref.): Mr. Speaker, the as for his leadership vis-à-vis Algoma Steel in Sault Ste. Marie. minister talks tough here on the floor of the House of Commons but what we see on TV is quite a different picture than that. I am certainly aware of the difficulties faced by our steel producers given the excess capacity in the world market. I recently When the minister is visiting a foreign dictatorship he does not met with the Canadian Steel Association, which is working on joint talk about those except maybe privately he lets us know that. He proposals with other industries in the NAFTA partners. missed a chance to show dictators from around the world what real democracy should look like. I assure the member and the House that the Canadian government will continue to work with the association as well as with our Just what lesson did the minister hope these foreign dictators NAFTA partners to come up with the right remedies. would learn when he pepper sprayed peaceful protesters? Hon. Lloyd Axworthy (Minister of Foreign Affairs, Lib.): Mr. * * * Speaker, frankly the premise of the hon. member’s question is absurd. APEC SUMMIT The whole question about what happened on the UBC campus is under investigation by a commission. It will determine who is Miss Deborah Grey (Edmonton North, Ref.): Mr. Speaker, a responsible. purely riveting statement from another Liberal. Even hippies at heart should have the right to protest peacefully. I want to make very clear to the hon. member, because I do not think she understands, that during all these meetings we were able I would like to make a comment about this foreign affairs to demonstrate very clearly that the openness of this country was minister who supposedly supports Canadian values of free speech expressed at APEC. We raised issues that Canadians asked us to and democracy when he is travelling around the world, but at home raise. it is a very— To use a comment of a previous speaker, her question was a lot Some hon. members: Oh, oh. of— 475

8534 COMMONS DEBATES September 29, 1998

Oral Questions The Speaker: The hon. member for Acadie—Bathurst. The number of unemployed workers has dropped, as has the number of people on welfare, because we had the right policies. We know what the facts are, and the member will not alter reality by * * * choosing to ignore them. [Translation] * * * EMPLOYMENT INSURANCE [English]

Mr. Yvon Godin (Acadie—Bathurst, NDP): Mr. Speaker, APEC SUMMIT when he was Leader of the Opposition, the Prime Minister wrote ‘‘By lowering premiums and increasing the penalties for those who Mr. Peter MacKay (Pictou—Antigonish—Guysborough, voluntarily leave their job, it is obvious that the government is not PC): Mr. Speaker, last night the Prime Minister proved once and very concerned about the victims of the economic crisis. Instead of for all that his government really is the home of the whopper when getting at the root of the problem, it targets the unemployed’’. he said that his government had never been involved in scandal in the last five years. Now the Minister of Finance has his eye on the surplus in the EI fund. Will the Prime Minister keep the promise he made in the We now know that all but one of the RCMP public complaints spring of 1993 and come to the assistance of Canada’s unemployed commissioners were appointed by the Prime Minister. Why should workers? Canadians have any faith that the public complaints commissioner will get to the bottom of the APEC peppergate scandal when this is Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- not arm’s length or accountable? er, that is exactly what we have done. We have created 1.2 million Hon. Andy Scott (Solicitor General of Canada, Lib.): Mr. new jobs in Canada since being elected to office. Speaker, I think it is very inappropriate for a member of parliament to say that anybody who wants to do public service for their The rate of unemployment has dropped from 11.4% to 8.3%. The country to get to the truth in this matter can somehow not be Minister of Human Resources Development has implemented all independent. I do not accept that premise and I do not think sorts of programs to help people adjust to the workplace and get Canadians accept it either. ready for new jobs. D (1455 ) That has been the focus of this government for the past five years, and it continues to be our focus. Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Mr. Speaker, not even the Prime Minister’s imaginary Mr. Yvon Godin (Acadie—Bathurst, NDP): Mr. Speaker, 60% homeless friend believes that the government is not involved in this of unemployed workers do not qualify for EI because you have APEC matter. The mandate of the RCMP Public Complaints forced them to go on welfare. Commissioner is not holding him back. He admitted as much yesterday in his statement. Some hon. members: Oh, oh. Will he commit to making a ministerial statement in the House The Speaker: My colleague, I must ask you to put your remarks to convene a public inquiry if the commission confirms next week through the Chair. that its mandate does not include the involvement of political interference? Mr. Yvon Godin: Mr. Speaker, as with the GST and pay equity, the Prime Minister seems to have forgotten the promise he made to Hon. Andy Scott (Solicitor General of Canada, Lib.): Mr. unemployed Canadians. Speaker, the kind of interference the hon. member is suggesting is exactly the kind of interference he is condemning. To use the Prime Minister’s own words, the government should quit targeting the employed and get at the root of the problem. The * * * problem is that over 60% of unemployed workers in this country do not qualify for benefits. [Translation]

Will the government use the fund surplus to increase access to SCRAPIE EI, instead of forcing people to go on welfare? Mr. Denis Coderre (Bourassa, Lib.): Mr. Speaker, my question is for the Minister of Agriculture and Agri-Food. Right Hon. Jean Chrétien (Prime Minister, Lib.): Mr. Speak- er, if the hon. member bothered to look at the facts, he would see Since January 1997, nearly 12,000 sheep have been slaughtered not only that the number of unemployed workers has dropped, but because of scrapie. also that the number of people on welfare has decreased in all provinces of Canada since we formed the government. Some hon. members: Oh, oh. 476

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Oral Questions The Speaker: The hon. member for Bourassa has the floor. [Translation]

Mr. Denis Coderre: Mr. Speaker, on this side of the House we CHILEAN REFUGEES are serious. Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Mr. Since January 1997 in Quebec, nearly 12,000 sheep have been Speaker, my question is for the Minister of Citizenship and slaughtered because of scrapie. We are wondering about the way Immigration. the food inspection agency handled the matter, and especially how While the Government of Quebec is examining the cases of they treated the producers. Chilean refugees, the federal Minister of Immigration is sending them back to their country before Quebec has even finished its What does the minister plan to do today to respond to the analysis. legitimate demands of producers and to this problem, which has gone on too long? Can the Minister show some compassion and humanity, and stay the deportations of the Chilean refugees until Quebec has finished [English] looking at their files? Will she have a heart? Hon. Lucienne Robillard (Minister of Citizenship and Im- Hon. Lyle Vanclief (Minister of Agriculture and Agri-Food, migration, Lib.): Mr. Speaker, I wish to inform the hon. member Lib.): Mr. Speaker, we all know that this is a difficult situation. As for Hochelaga—Maisonneuve that we are working on this matter in a result of the actions of everyone to date we are making consider- close collaboration with the Government of Quebec. He may not be able headway and achieving success in the eradication of this aware of this, but I have not received any request from the disease. Government of Quebec to stay the deportations of Chileans. As I said a minute ago, the affected producers have already I believe that Canada is honouring its humanitarian traditions. It received over $2 million in compensation. I have asked for a has accepted applications from all these individuals. They were review of the compensation levels. That is taking place. entitled to an independent hearing by two board members, who found that they were not refugees, and they had the possibility of Unfortunately the industry is not able to discuss that until appealing to the Federal Court. October 16, but this Friday I will be meeting with industry representatives to discuss new and continuing measures in order to Now they have reached the stage of having to exit the country if help eradicate this disease and to assist the affected producers. they wish to apply— The Speaker: I am sorry but I must give the floor to the hon. member for Winnipeg North Centre * * * * * * FISHERIES [English] Mr. Gary Lunn (Saanich—Gulf Islands, Ref.): Mr. Speaker, last week the minister of fisheries claimed success in negotiating PHARMACEUTICALS with foreign nations to have observers on foreign fishing vessels Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): while fishing off Canada’s east coast. What he did not tell us was Mr. Speaker, the auditor general reported today that the board that once again he gave our stocks away, lucrative shrimp, to which sets the prices Canadians pay for patented prescription drugs foreign nations by moving a boundary which is under moratorium. relies essentially on information provided by the very drug companies that sell those drugs without checking the facts and without What does the minister have to say to Canadian shrimp fisher- regard for the impact on consumers. men after giving their shrimp away to foreign nations while their boats are left at home tied up at the docks? D (1500 )

Hon. David Anderson (Minister of Fisheries and Oceans, When will the government begin pricing drugs in the interests of Lib.): Mr. Speaker, I welcome the hon. member back from Paris, Canadians instead of in the interests of international drug conglom- but he has lost sight of the problem of shrimp fishermen. erates? Will the Minister of Health specifically take steps to ensure that We have dramatically increased the quota for east coast fisher- drug pricing decisions are transparent and at least that information men this year. In one of our major areas off the coast of Newfound- from the drug companies is checked for accuracy? land it has in fact doubled this year. The shrimp species is in abundance and the east coast fishermen are enjoying that abun- Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, I dance at this time. was happy to see that the auditor general himself observed that the 477

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Tributes Patented Medicine Prices Review Board, has been, as he put it, a exterior concealed a sensitive man who took a close interest in constraining influence on the price of patented medicines in those around him. Canada. That is a good thing. The Maison des Citoyens, of which he was rightly proud, was As to recommendations for change, the member may know that built while he was mayor of Hull, and its agora today bears his the board itself is in the middle of public discussions and consulta- name. Gilles was a man of discipline, who defended his point of tions about changes in its mandate and the way it does business. view with determination, but knew when to step back into line We will be happy to look at the auditor general’s observations as when his views were not shared. And step back into line he did, but part of that. I will make sure that the board and its chair take them not without good reason, for if his beliefs were questioned, Gilles carefully into account. Rocheleau did not hesitate to set aside his personal interests and take up the challenge. So it was that he joined the Bloc Quebecois in 1990. * * * This is a path many Quebeckers have taken. Gilles Rocheleau PRESENCE IN GALLERY was therefore also, if not primarily, a fighter. Sovereignists were The Speaker: I would like to draw to hon. members’ attention happy to have him on their side, having seen what a strong the presence in the gallery of three distinguished visitors. opponent he could be. The militant federalist Gilles Rocheleau became a staunch sovereignist. First I would like to welcome to our House of Commons the hon. Dr. Peter David Phillips, Minister of Transport and Works of Gilles Rocheleau was also a man of some experience, having Jamaica. worked in many arenas, but he always kept the respect of his friends. He was not afraid to speak his mind, to put it mildly. He Some hon. members: Hear, hear. would not stand for duplicity and his tongue sometimes got away The Speaker: Colleagues, I would also like to welcome on your from him, but never out of spite. He was not politically correct, but behalf the Hon. Trevor Sudama, Minister of Planning and Develop- he said what he was thinking, whether he was right or wrong. ment for Trinidad and Tobago. I offer my condolences to his children, and to Hélène Roy, his Some hon. members: Hear, hear. wife and partner, who is with us today. I know that all those who knew him will never forget him, especially the people of Hull. On The Speaker: Colleagues, I would like you to welcome to our their behalf, I thank him. House of Commons His Excellency Rinchinnyamyn Amarjargal, Minister of Foreign Affairs of Mongolia. Hon. Marcel Massé (President of the Treasury Board and Some hon. members: Hear, hear. Minister responsible for Infrastructure, Lib.): Mr. Speaker, this year, the people of Hull—Aylmer lost a man who had devoted his The Speaker: Colleagues, we will now begin our tributes to a entire public life to the service of his fellow citizens. former member of parliament, Mr. Gilles Rocheleau. I would ask the first speaker to be the leader of the Bloc Quebecois. Gilles Rocheleau served the City of Hull for 14 years as alderman and mayor. He then went on to represent his fellow * * * citizens in the Quebec National Assembly for seven years, serving first of all under Claude Ryan and then as a minister under Robert [Translation] Bourassa.

THE LATE GILLES ROCHELEAU Finally, in 1988, his fellow citizens elected him to this Parlia- Mr. Gilles Duceppe (Laurier—Sainte-Marie, BQ): Mr. ment to defend their interests on the federal scene. Gilles, as he was Speaker, I met Gilles Rocheleau in 1990. I had heard about him fondly referred to by everyone in the Outaouais, was a man with long before that, however, because he had been active in politics definite ideas and no hesitancy to express them, but he will long be for many years. remembered by all, primarily for his love and legendary devotion to his fellow residents of west Quebec. D (1505) On behalf of the Government of Canada, I offer sincere condo- He was a municipal councillor in Hull from 1967 to 1974, mayor lences to his wife and family. of Hull from 1974 to 1981, an MLA and then a minister in the Quebec government from 1981 to 1988. He served as a Liberal MP D in Ottawa from 1988 to 1990, and then as a member of the Bloc (1510) Quebecois from 1990 to 1993. Mr. Rahim Jaffer (Edmonton—Strathcona, Ref.): Mr. Speak- One thing never changed. Gilles Rocheleau was a forthright man er, I also wish to pay tribute to Gilles Rocheleau, who died on June who always said what he thought. An admittedly sometimes rough 27, 1998. 478

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Tributes A native of Rigaud, Quebec, Gilles Rocheleau devoted his life who had dealings with him when we were in government found his to serving the people of the Outaouais region. He was mayor of work to always be constructive. Hull from 1974 to 1981, and was elected to the House of Commons for the Outaouais region in 1988, where he sat until On behalf of the Progressive Conservative Party I extend my 1993. condolences to his family and hope that Mr. Rocheleau will agree to pass on to us from above some of his fine qualities. What struck He represented the riding of Hull—Aylmer in the Quebec me most about him, obviously, was his huge disappointment—it National Assembly, and was also appointed minister. He was a was existential—at the failure of the Meech Lake accord. I think all Liberal member in Ottawa from 1988 to 1990. Then, until 1993, Quebeckers working to bring about national reconciliation at the Mr. Rocheleau sat with the Bloc Quebecois and contributed to that time were struck by the decision Mr. Rocheleau made. I think we party’s advancement. could learn something from it for future use.

The efforts of Mr. Rocheleau were invaluable, and they did not The Speaker: We lost another of our number recently as well, go unnoticed. Paul Tardif. Tributes to him will now follow.

On behalf of the Reform Party, my most sincere sympathies to * * * the Rocheleau family. THE LATE PAUL TARDIF Hon. Lorne Nystrom (Qu’Appelle, NDP): Mr. Speaker, on behalf of my party, I would like to pay tribute to Gilles Rocheleau, Mr. Eugène Bellemare (Carleton—Gloucester, Lib.): Mr. who was the member for the riding of Hull—Aylmer in the House Speaker, I would like to pay tribute to Paul Tardif, who died on of Commons. August 2 at Ottawa, at the age of 90.

I knew him well, because we were both members at the same When he was the federal member for Russell, that riding ran time. I recall that he was a two career man. He was a business man from Ottawa to east of the present riding of Glengarry—Prescott— for many years and then he was in politics for 25 years. Russell. D If I am not mistaken, he was a provincial MLA in Quebec City (1515) and mayor of the fine city of Hull. He then became a member of the Paul Tardif was elected four consecutive times to the House of House of Commons for two parties: the Liberal Party and then the Commons, and sat from 1959 to 1968. In all, he devoted 31 years of Bloc Quebecois, of which he was a founding member, along with his life to politics, first as a school board member, then as a City of Lucien Bouchard and others. Ottawa alderman and councillor, and finally as an MP. He went on from there to become a citizenship court judge. He was a good MP, and I think the Outaouais has lost a great defender. He was widely known. For a number of years, when I [English] came to Ottawa, I lived in Aylmer. He was very popular, widely known and a strong defender of Quebec. Mr. Tardif had a charming, colourful and gregarious personality. He was a master of grassroots politics and a master communicator. On behalf of my party, I offer my condolences to his family and The media loved him. His constituents adored him. Those who friends. knew Mr. Paul Tardif were always proud to be associated with him.

Mr. André Harvey (Chicoutimi, PC): Mr. Speaker, I pleased to [Translation] say a few words about Mr. Rocheleau on behalf of the Progressive Conservative Party. While I did not have the opportunity to work Mr. Lee Morrison (Cypress Hills—Grasslands, Ref.): Mr. within the same party with him, I can say he deserved our full Speaker, I am pleased to have this opportunity to honour the respect. memory of Mr. Paul Tardif, a former MP, who died on August 3, 1998. I am not going to review his career, because my colleagues Born and educated in Ottawa, Mr. Tardif devoted his life to speaking before me have so. What struck me especially about him serving the people of his native city. In 1959,, he was elected to the was his involvement, at a very early age, in the social and House of Commons for Russell in a byelection, and returned in economic activities of his region. 1962, 1963 and 1965. He retired undefeated in 1968. From 1968 to 1978, he was a citizenship court judge. At 27 or 28, he was I believe the chairman of the Association des hommes d’affaires. This was an indication of his passion in the Before entering federal politics, Mr. Tardif sat on the school defence of the interests of his region. board from 1937 to 1943, and served in the municipal government as alderman, controller and finally deputy mayor. He then became involved at various levels of government, in Quebec City, among other places, and then in Ottawa. His involve- Mr. Tardif was known for his lively wit, charm and public-spirit- ment was marked by the effectiveness of his interventions. People edness. He clearly understood the saying that all politics are local 479

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Government Orders politics. An attentive listener, he could always find time to talk He was first elected in a 1959 byelection and re-elected in 1962, with anyone, anywhere. He was a true man of the people. 1963 and 1965, while John Diefenbaker was in power. If I am not mistaken, he was deputy speaker of this House for a time. Mr. Tardif’s efforts have been very much appreciated. On behalf of the Reform Party, my deepest sympathies to his family. On behalf of my party, I wish to extend my condolences to his family and to his many friends. Mr. Odina Desrochers (Lotbinière, BQ): Mr. Speaker, I am [English] pleased today to pay tribute to Paul Tardif, a former member of this House, who died in August at the age of 90. Mr. Jim Jones (Markham, PC): Madam Speaker, on August 3 of this year Canada lost a fine example of excellence in citizenship. He sat in this place from 1959 to 1968. Born in 1908, Mr. Tardif Paul Tardif held office as a school board trustee and an Ottawa city was a Quebecker born and bred, his father hailing from Kamouras- alderman before serving as a Liberal member of this House for the ka in the Lower St. Lawrence region. riding of Russell.

Mr. Tardif always liked politics and worked hard to defend the Success in Russell was not to be ours during Paul Tardif’s watch. public’s interests. At the tender age of 29, he was elected a school In light of the fact that he was known for his keen mind and jovial board trustee, a position he held from 1937 to 1943. He also served wit, I know he would take it as high praise if I referred to him as a as alderman for Ottawa’s Victoria ward from 1942 to 1948, in thorn in the side of the Progressive Conservative Party. addition to holding the position of controller in that city from 1949 to 1959. He was first elected in a 1959 byelection, just one year after the Diefenbaker sweep. He followed that up with three successive election wins, each with an overwhelming majority. The electoral It was during this period that Mr. Tardif frequently crossed success he enjoyed is only possible when candidates are able to swords with the well-known Charlotte Whitton, former mayor of transcend the process and compel people to vote with their hearts. Ottawa. In the hearts of the people of Russell and Ottawa is where Paul Tardif remains. With his school board and municipal experience, he decided to go into federal politics. He entered the House of Commons on On behalf of the PC Party caucus I would like to extend our October 5, 1959, having won a by-election in Russell as a Liberal. thoughts and prayers to the family of a man who defined the term public servant. He was re-elected in the general elections of 1962, 1963 and 1965. He therefore served in the government of the Right Hon. ______Lester B. Pearson.

On June 22, 1967, he was appointed assistant deputy chairman of the House of Commons Committees of the Whole, having distin- GOVERNMENT ORDERS guished himself by his initiative, energy and integrity. In 1968, he left federal politics and was made a citizenship judge, a position he [English] held until his retirement in 1978. DNA IDENTIFICATION ACT D (1520) The House resumed consideration of the motion that Bill C-3, an Throughout his political career, Mr. Tardif was known as act respecting DNA identification and to make consequential someone who listened to what the public had to say and was very amendments to the Criminal Code and other acts, be read the third much in touch with the grassroots. He was deeply attached to his time and passed; and of the amendment. community. Mr. Rob Anders (Calgary West, Ref.): Madam Speaker, we can hear the jackboots marching. A time allocation measure has On behalf of my colleagues in the Bloc Quebecois, I would like been brought in on Bill C-3 and there is absolutely no good reason to extend my deepest condolences to his friends and family. for it. Indeed, we did not have a situation where the opposition was trying to run up as many members as possible to speak to this bill. Hon. Lorne Nystrom (Qu’Appelle, NDP): Madam Speaker, I This was clearly a matter of the bill being earnestly debated also want to pay tribute to Paul Tardif, a former member of this because we saw honest problems with it. House. I will tell the House how many times the government has Mr. Tardif was not a member of Parliament in 1978, when I was brought in time allocation and I will point out how useless this last elected, because he did not run in that election, but I clearly measure was. In the 35th Parliament some sort of restriction was remember his good reputation as a member who represented his brought in, either time allocation or closure, 35 times. In the last riding well and he was well respected by everyone here. Parliament there were 32 time allocation motions and three closure 480

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Government Orders motions, which brings the total to 35, which matches the 35th It fits in with what it did at the APEC conference in Vancouver. It Parliament. likes to restrict freedom of speech. It is certainly doing it to members of parliament and to the opposition in the House today. In the first year of the 36th Parliament there have been seven time allocation motions. That means that this government has Who wants it? Who wants some of these things with regard to brought in either time allocation or closure 42 times since it took time allocation? Who does it serve? Nobody but the government. It office in 1993. There have been 39 time allocation motions and is a public relations exercise to try to quell the debate on an issue, three closure motions. There was absolutely no good reason for it. to try to silence it. The government is shutting down honest debate. In terms of Bill C-3, maybe it serves the bar associations or the When I hear the comments of people with regard to this bill I odd lawyer or two who happen to feel they are going to get more think of my seatmate. He was a member of the RCMP who has said money or more cases from this. It certainly does not help the that the police in this country should be able to effect these tools average citizen and the victims of crime. They do not want it. The immediately. He says that they should not have to have a loophole Canadian taxpayers do not want it. or a restriction with regard to the use of some of this technology. Who will slip through the cracks as a result of some of these D (1525 ) things? That is another fundamental question. For example, the people who have been assaulted once, if they have been assaulted He brings forward a legitimate complaint, something that I know by somebody who has committed only one rape or one murder. he has brought forward in committee a number of times. I know Those are the types of people who are going to suffer. There are a that his concerns are absolutely legitimate. I do not question lot of people out there who are included in that category of victims. anything he has to say with regard to this because I know that his By improving the legislation we would be able to address those interests are at the heart of the Canadian public. things.

The member for Langley—Abbotsford talked about the people The government does not want to hear that. It wants to close its in his riding who are suffering as a result of the seven penitentiaries ears and stifle the debate. Maybe it feels that it has done its duty, that are within a half hour drive of his riding. He talked about that it has come through with this legislation. Even though there are honest, legitimate concerns that he has. good and legitimate arguments that the opposition is putting forward to make this legislation better, it wants to ram it through What do people across the way talk about? They talk about what and not take any of those things into consideration. the bar associations and the lawyers want. The victims slip through the cracks. The police officers who The opposition is not running on and on about this. All we want the tools to do the job slip through the cracks. The taxpayers wanted to ensure was that there was legitimate debate on this bill. who are being ill-served by this type of thing slip through the Everything I heard this morning brought forward by all opposition cracks. The opposition falls through the cracks as well because our parties were legitimate suggestions to improve this legislation. It is ability to do our job is restricted by these closure and time a step in the right direction but it needs to be better. The idea to allocation motions. The press, whose job it is to provide informa- bring in time allocation on something like this is wrong. tion to the Canadian public, slips through the cracks. Nobody benefits but the government. Government members need to hear the questions that are important when we consider things like time allocation, restricting Will it solve the problem it intends to address? This legislation is debate, or when we pass any piece of legislation. a move in the right direction, but we were trying to make it better than it is. That is our job. All of us in the House have an interest to What fruit will it bear? What fruit does it bear when there is not a try to improve the country and make it a better place. Canada is long list of people who want to run on with the debate, when number one in our hearts and concerns and we were trying to make perfectly legitimate points are being made with regard to Bill C-3 the legislation better than it is. Time allocation and not accepting and the DNA data bank? What type of fruit does it bear when they some of the amendments and suggestions the opposition has made try to restrict debate? They bring forward closure. They end debate. with regard to Bill C-3 does not solve the problem that the How does that serve the Canadian public? How does that improve legislation can be better. Indeed it brushes it over and tries to rush it the legislation? through.

It is our job as the official opposition to question the government D (1530) and to try to improve legislation. Forty-two times since the government was elected in 1993 it has brought in time allocation Are they attacking a strawman? The government always tosses and closure to restrict our freedom of speech, to restrict our ability in a strawman. It says that the opposition, for example, is not to constructively criticize government legislation and to make it addressing real concerns. Real Canadians are victims of crime. better. They toss a strawman or a red herring into the argument by saying 481

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Government Orders that there may be some potential problem with a constitutional Both organizations have appeared before the Standing Commit- aspect or some sort of suggestion on behalf of a bar association or a tee on Justice and Human Rights. Both are sincere in their views group of lawyers that do not happen to like something. and both believe that a DNA data bank would be more effective if it was broader in scope. With respect, both have closed their eyes to the constitutional dangers of what they proposed. I can guarantee that in a large enough group of lawyers, as a matter of fact two, there will be some disagreements on opinion and if they have enough money to fund it they will continue with D (1535 ) the debate for as long as it takes for the money to run dry. While the Canadian Association of Chiefs of Police has taken the That alone, the whole idea of a red herring or a strawman, is not high road on this issue, the Canadian Police Association has enough to stifle debate on Bill C-3. I have heard very good persisted in a questionable campaign against Bill C-3. The CPA arguments on behalf of the opposition side of the House today for claims that if the bill is not amended in keeping with its wishes it why we need further debate and why improvements need to be will only be a matter of time before the government will be blamed included in the legislation. for a murder or a rape or a child sex scandal.

Forty-two times closure and time allocation have been used in In a letter recently written to all members of parliament the CPA the House of Commons since the Liberals took power in 1993. It is had the nerve to criticize the independent legal opinions concerning a shame that it has happened on something like Bill C-3 because this issue which were obtained by the government simply because there was absolutely no justification for it. The types of arguments they were obtained by the government. Or, was it simply because that are being put forward by the opposition were merely to they support the legal advice provided to the standing committee improve the legislation to make it a better piece of work. by the justice department experts when they appeared before it and that of their counterparts from the ministry of the attorney general of Ontario and the department of justice of New Brunswick? Or, Mr. Gurbax Singh Malhi (Bramalea—Gore—Malton— was it because they cannot bear that the legal opinions completely Springdale, Lib.): Madam Speaker, I am very pleased to rise to discredit the ones obtained by the association? speak in support of Bill C-3 which, when it comes into force, will permit the creation of a national DNA data bank in Canada. The CPA seems to suggest that the government’s outside legal opinions are less independent than the one obtained by the CPA. Is There has already been much public debate on the need for such it suggesting some indirect pressure was brought to bear on the legislation. I believe there is consensus in the House and across the legal minds that provided the government with their opinions? country in support of the creation of a national DNA data bank as proposed in Bill C-3. On Friday, May 1, 1998, the Department of Justice released the legal opinions of three of the most respected legal minds in Canadians know that in 1995 parliament enacted amendments to Canada, three former court of appeal justices, regarding the issue the Criminal Code which introduced the DNA warrant scheme into of when DNA samples can be collected for the purposes of the our criminal law. This legislation has been successfully used in the national DNA data bank. three years since in the investigation of serious crimes such as sexual assault and murder. Criminals who might otherwise have Former Justice Martin Taylor of the British Columbia Court of gone undetected and unpunished have been brought to justice. Appeal and former Chief Justices Charles Dubin of the Ontario Court of Appeal and Claude Bisson of the Quebec Court of Appeal I do not intend to use my time today to add to the reasons we each concluded independently that the proposal to permit the police should all agree that Canadian law enforcement should be provided to take DNA samples from persons at the time of charge for the a tool which will allow it to take fuller advantage of forensic DNA purposes of the national DNA data bank would not survive charter science. Rather my comments today will focus on one issue, scrutiny. perhaps the most controversial issue dealt with in this important legislation, the timing of the collection of bodily substances for The CPA has chosen to close its eyes and ears to the advice of inclusion in the national DNA data bank. legal experts. It continues to urge changes to the bill which would clearly be unconstitutional. It ignores the clear signs which exist for all to see. It is as though it has embarked on a high speed chase It is no secret that the Canadian Police Association and the on black ice in a school zone and ignored the signs that warn of a Canadian Association of Chiefs of Police would have favoured a school crossing ahead as it hurtled carelessly forward. scheme which permitted police to take DNA samples for the purposes of the DNA data bank from suspects at the time of charge rather than following conviction. This is what the government The government cannot act dangerously. It has the duty to proposes. anticipate the results of the legislation it presents to parliament and 482

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Government Orders to consider that if the legislation is found unconstitutional the them by way of modern technology, to find some conclusive results in terms of justice will be tragic. evidence to convict people and bring them to court.

Let us consider, for example, that any evidence resulting from a The bill falls far short of providing our law enforcement people match of DNA profiles in the national DNA data bank would likely with the facilities and the analysis they need to bring some of these be thrown out in a criminal case. As well, persons convicted on the cases to conclusion. It is hard on families who know that only for basis of such evidence could ask to have their convictions over- DNA samples a suspect may be wandering the streets. turned and they might seek compensation for having been wrongly convicted. It is clear that the DNA profiles of these persons would I suggest to the government that DNA is no different from have to be removed from the data bank. Canadians would be fingerprinting. In the past when the government of the day wanted shocked by such a disaster, especially when it could have been to institute fingerprinting as a normal investigative tool I am sure avoided. there was an outcry that it was an infringement on a person’s right to have their fingerprints taken. I am sure a similar debate went on at that time and that it was considered to be the most intrusive D (1540) measure on an individual’s person.

I will close my remarks by saying that Bill C-3 promises the I also suggest that it is now a matter of course, a matter of fact. It proper blueprint for a national DNA data bank in Canada, one is just a natural thing that happens: suspects are charged, finger- which is respectful of constitutional requirements and effective. printed and become part of the collective knowledge of our system. We are overreacting to the business of DNA being intrusive. It is not intrusive to take a fingernail clipping. It is not intrusive to prick The views of the police in this matter are self-evident. Members a finger to get a drop of blood. I mean, come on. of the House must carefully weigh, in deciding how they will vote on the legislation, the likelihood of the government’s proposal surviving an obvious constitutional challenge as opposed to the D (1545 ) chances of the police scheme meeting the existing constitutional requirements. We are not talking about a hospital stay overnight. We are not talking about cutting a finger open. That is not what we are talking Ms. Val Meredith (South Surrey—White Rock—Langley, about. It is very simple and easy to get the required sample. Ref.): Madam Speaker, I would like to take the opportunity to speak about two aspects of what has happened this afternoon and to I would suggest that the day will come. Perhaps this government Bill C-3. will not be the vehicle that will institute it but the day will come when DNA sampling is banked, when it is part of the normal course of investigation once a charge is laid. First I will speak about time allocation which the government has used once again. I cannot believe the government would continue a practice that it started in the last parliament. There were Why are we wasting time? Why are we reluctant to take that 32 time allocations in the 35th parliament, and government mem- step? Is it because it may be challenged in the supreme court? So bers have already done it seven times in this parliament. what? Is the government not going to make legislation on behalf of the Canadian public, legislation that is good and beneficial for the future of this country because it is afraid it might end up in the It is abhorrent to me and to Canadians that we have a govern- supreme court? The role of this House, the role of the legislators ment that is afraid of free speech, afraid of the opportunity for who sit here is to make the law. If we are not going to make the law elected parliamentarians to come into the House to debate issues because we are afraid of the courts, then there is something serious that are important to Canadians. Canadians deserve their elected here that we had better address. officials having the opportunity to debate these issues, to debate government legislation, to make sure that the end product is the If we have a government that is going to refuse to address the best that it can be for Canadians. If the government cannot stand issues of the day and be aggressive and forthcoming in solving the criticism and is afraid of being honest and open with Canadians problems we face in this country because of fear, then it does not then government members have no business sitting there. deserve to be here. The government does not deserve to take this country into the 21st century if it is living in the 19th century. Bill C-3 establishes a DNA data bank. I do not think Canadians have any problem with establishing a DNA data bank. However, I Canadians are looking for a government that has guts, that has think Canadians including the people in my riding have a problem some fortitude to challenge things that are wrong in the Canadian with a data bank only collecting DNA samples from people who system and to do things in a progressive manner, to move into the have been convicted. After the fact will not help the police solve 21st century and provide our police with a tool that is available the crime. I know people in my constituency would like the police from technological advancement. Are we going to be driving to have everything at their disposal, everything that is available to horses and buggies, walking around, taking trains rather than flying 483

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Government Orders and going to the moon? Technological advancements such as DNA third reading of Bill C-3, which provides for the establishment of offer us opportunities. We are remiss if we do not take advantage of Canada’s national DNA data bank. them. Bill C-3 will make Canada one of only a handful of countries in People in law enforcement should have this tool available for the world to have a national system of this kind. It is important to their use in investigating crime and in laying charges, not just for recognize that this is ground breaking legislation and a major use i after a person has been convicted. It is a little bit late to wait milestone of the government’s safer communities agenda. for that. Public safety is a priority of this government. To that end, Bill I hope the government will consider the arguments. It would be C-3 is an important part of our commitment to Canadians. We unusual for the Liberals to do so. They have invoked closure so know that Canadians want a data bank for better public protection. they are obviously not willing to listen to the other side, not willing to listen to a debate and not willing to listen to logic. They have The intention of this legislation is to create an effective law made up their minds. They really do not care what Canadians think. enforcement tool, one that stands the test of time. We must be It is typical of the arrogant attitude of the government. careful in creating this data bank so that it is a tool that balances public safety needs with the privacy rights which are highly valued I hope that members on the government side will stop, look at by Canadians. the legislation, realize that it is a missed opportunity, that there is something there, that the timing is such that we can move on and The government has heeded the call from those on the front lines will change their minds and make some adjustments to the bill. It who have told us that this new law must help them to do their jobs. has never happened before to my knowledge. I do not expect this We have taken the advice of those who have told us that it must not government to be any different from the previous government. It infringe upon basic rights under the charter. We have listened to would be nice if Canadians could feel that open, honest debate those who have told us that we must get on with the business of occurred in this House and that the government really took into putting this valuable enforcement tool in place. I believe that we account the comments, the positive and creative criticism from the have found the right balance in Bill C-3. opposition, and would make some attempt to improve legislation. Since the bill was introduced last year, members of this House This is a good idea but it needs to be broadened and expanded. I have proceeded cautiously in their consideration of this proposed am remiss in saying that I doubt there will be anyone in the official legislation. The government has welcomed this debate. Given the opposition who will be supporting it, simply because we feel it is scope of the issues surrounding the potential misuse of DNA not good enough to support. It is bad legislation. We do not get profiles and samples as well as the legal and ethics concerns, it is anywhere by supporting something that is not going to meet the vital that a bill of this nature be debated thoroughly, taking all needs of the law enforcement community. views into account.

If we support this bill and if it is enacted, which it probably will This is the very reason why Bill C-3 was referred to the all-party be anyway, then the government will put it aside and leave it alone. Standing Committee on Justice and Human Rights before it It will miss the opportunity of doing something very constructive proceeded to second reading. The solicitor general did so at the in allowing our law enforcement people to have another tool to help time of introduction because he had the very expectation that we them in protecting Canadians on a day to day basis. would come out of this exercise with a better bill. He expected that amendments would be made to improve it and in fact encouraged the committee to focus on making the bill better. In my view, this is D (1550 ) exactly what has been achieved.

I think it is negligent on the part of the government to continue The committee examined this bill thoroughly. The policing this kind of posturing, the attitude that it knows best, that what it community, those on the front lines included, provided their views. decides is good for all Canadians. It is not willing to listen to any This government listened to those views and we acted on them. kind of critique. Last week we heard from critics in this House who asked the Again, I would urge the government to reconsider, to look at very same questions that were brought and debated before the improving this legislation. Make it a piece of legislation that will committee. We have heard those same concerns time and time actually do some good for the Canadian public. It may be a cold again. We have addressed them in the amended bill before us today. day before I see that but I hope this government is listening. We must not lose sight of the benefits of Bill C-3 and of the Mr. Lou Sekora (Port Moody—Coquitlam—Port Coquitlam, value it will bring as one of the most powerful investigative police Lib.): Madam Speaker, I am pleased to address the House today on tools to date. To do that, we need only to reflect on the 484

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Government Orders development of Bill C-3 from the time it was introduced one year offenders no matter what police jurisdiction they are in. It will also ago. have a deterrent effect as criminals will know that because their DNA profiles are already in the data bank they can no longer slip From there we can easily see how it has been improved as a through the cracks. result of extensive consultations at every stage along the way. Perhaps more important, it becomes apparent why this bill provides Throughout the development of Bill C-3 the federal government that bodily samples be taken for DNA testing at the time of has sought the advice and expertise of many groups and individu- conviction and not at the time of arrest or charge. als. I want to make the point that those on the front lines have been consulted from the very beginning and throughout the process. D (1555 ) In addition the standing committee held 15 hearings on the bill The introduction of the DNA identification act marks the second and heard from representatives of 17 different organizations. Those phase of the government’s DNA strategy. The government recog- 17 organizations, which included police, victims, and officials in nized early in the process that the first important step involved our legal communities, represented thousands upon thousands of laying out the requirements for when DNA samples could be Canadians. obtained in order to be used in criminal investigations. While it is true that one of the critics of this bill, the Canadian As a result in 1995 amendments to the Criminal Code allowed Police Association, may represent 35,000 front line police officers, police to obtain DNA samples from suspects by using a warrant. we have heard from even more who support this bill wholehearted- That first step provided the police with an extremely effective tool ly. that has helped them solve many serious crimes. We have considered all views represented in our country. Our It has been effective because it has been used to help eliminate consultations revealed strong support for the creation of a national suspects and secure convictions. It has been effective because it has data bank. been instrumental in obtaining guilty pleas therefore sparing victims the trauma of testifying. It has been effective because it has There were also a number of concerns about fundamental values helped to reduce overall court costs. It has also withstood constitu- that make Canada unique and are reflected in the rights guaranteed tional challenges. to all Canadians by our charter. These include individual rights to privacy and equality under the law, as well as public protection. To With the DNA warrant legislation now firmly in place in respond to those concerns and to improve the strength of the bill, a Canadian law and in the police investigation process, the govern- number of amendments were made since the legislation was first ment is now in the midst of the next phase of its DNA initiative. We introduced. are now creating the framework for storing DNA samples and for using that information in the investigation of serious crimes. D (1600 )

A national DNA data bank will be an important tool to help I would like to share some of those concerns and changes. police link a suspect with evidence left at a crime scene. The ability Various interest groups, including the privacy commissioner, the to store and later retrieve DNA profiles will shorten investigations Barreau du Québec and the National Action Committee on the and help prevent further violence by repeat offenders. This means Status of Women, have suggested that the bill did not contain better public safety for all Canadians. sufficient safeguards.

Bill C-3 will authorize police to collect DNA samples from The Acting Speaker (Ms. Thibeault): It is my duty, pursuant to offenders convicted of designated criminal offences. These include Standing Order 38, to inform the House that the questions to be the most serious personal injury crimes such as homicide and raised tonight at the time of adjournment are as follows: the hon. sexual offences. They are crimes that are most likely to be member for Regina—Lumsden—Lake Centre, Railways; the hon. associated with DNA evidence found at the crime scene. member for Acadie—Bathurst, Employment Insurance; the hon. member for Davenport, Environment. Samples will be analysed with the resulting profile entered into the convicted offenders index of the data bank. The data bank will Mr. Darrel Stinson (Okanagan—Shuswap, Ref.): Madam also have a crime scene index containing DNA information Speaker, I rise today to speak to Bill C-3 with mixed emotions. I retrieved from crime scenes. The purpose of having this structure is say that because this bill does not go far enough in addressing the to ensure that the DNA profiles in each index can be cross concerns of the law-abiding citizens of this country. referenced and a match in the system can be identified. Since I was elected to this House in 1993 I have listened to hon. The benefits of using the system like the one we have laid out in members on the other side of the House who have stood here time Bill C-3 are very clear. Stored DNA information will help the after time to proclaim how concerned they are about the judicial police more quickly identify suspects where they may otherwise system in this country, how concerned they are about the victims of not have had any leads. It will allow them to identify repeat crime in this country, how they are going to work toward stopping 485

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Government Orders crime in this country. Since 1993, I am sorry to say, I have seen The Liberals stand day after day to say that Canada has been them do absolutely nothing with regard to this. voted as the best country in the world in which to live. By being here today the Liberals are pulling off a sick, sad joke on the law-abiding citizens of this country. We have seen it time after They have come up with Bill C-3, respecting DNA. We all agree time. that DNA sampling is good. It has to come into play. There is no argument. But when we go through the bill and we see again our caring, sharing Liberal government on that side decide that the We live in a democracy, a great democracy. The Liberals like to rights of criminals far outweigh the rights of victims, I have to tell us about this great wondrous democracy called Canada. In this wonder exactly what it is doing and how it keeps getting away with House of Commons, to which we have been sent, duly elected by this. people in our constituencies to represent them, we have today a thing called closure in regard to this bill. It is by the same bunch I have said time and time again that the first priority of any that sat over here and said they would never do what the Conserva- government has to be the protection of its law-abiding citizens. I tives did when in power. That same bunch has moved time will say it again in this House. This government has no intention of allocation and closure in this House more times than any previous supplying that. To me this bill shows it. government in the history of Canada. Some democracy. That is some way to look after the law-abiding taxpaying citizens of this country. They are the people who pay the government’s wages and In this bill there is the authority to deny the taking of DNA it shuts the door. samples from any individual if it is believed that by doing so it will impact the individual’s privacy and security. This is somebody who has been picked up with regard to a crime. The government says The Liberals will stand and say they do not understand how we they do not have to take this. The government says it infringes upon could not vote in favour of this bill, that there is a little section in their constitutional right. Never mind the rights of the victims, it the bill that is good. There is a little section that is good, that can be infringes upon this individual’s rights. covered in four words, while the remaining 36 pages are total garbage. If I am picked up, accused of committing a crime, and I know I am innocent, I will be the first one there to roll up my sleeve. I will They want us to accept this. They would love us to stand here let them take the hair. I will let them take fingerprints. In fact they and sell out our principles for those three little words that are good can take fingerprints today. Is that not an infringement? They take in this bill. I absolutely refuse to do that. It is a shame that they play breathalyser tests for drunk drivers. Is that not an infringement? politics this way. Maybe it is time it changed. I think in the next They take blood samples today. Is that not an infringement? election it will change because people are sick and tired of things like this coming down the tube. I have to shake my head at the stupidity of what is going on here. The Liberals does not seem to understand. They forget the many Some hon. members: Oh, oh. victims who have come into this House, the many victims who have been to their offices and talked to them. Mr. Darrel Stinson: They can laugh all they want over there, but the time is coming. Even some of them have not agreed with D (1605) this. They will go along with it because they are whipped into shape to do it. It is unbelievable. I want to speak of the concerns of the rape victims in this country who have had to sit and wait. They can sit and smile over there, but We have a multitude of unsolved crimes in this country. We they know it is true. The victims have been to their offices to beg spend hundreds of millions every year trying to solve these crimes. and plead for something to happen with regard to this DNA bill so Yet with DNA sampling, most of these crimes could be solved at a they can go on with their lives. They want to know whether they minimal expense and it would clear up a whole backlog. It would have been infected with a disease or if there will be an impact on clear up our courts. It would clear up a multitude of sins that have their families. They do not want to wait 12 months for the results. been committed in this country. But not for this government. It That is what this bill does not allow. This is the sharing, caring would not like to see that. government of this country? It is a shame. Again I have to come back to whether the government’s first We have information from the police associations that this bill concern is for the criminal lawyer or whether it is for the does not go far enough. It is a joke. The government gets support, law-abiding citizens of this country. I do not think I have to ask too the screaming and the hollering from the criminal lawyers, and it many people on this side of the House who it is for. They do not decides that maybe it can pick that up and run with it. It tries to leave too much doubt over here. I would sincerely like the people offset this because it might be against somebody’s constitutional from the other side of the House to sit down with some of these rights. victims when they come to them. 486

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Government Orders Ms. Shaughnessy Cohen: Been there, done that. However, Canadians do not want to give police powers that violate their rights to privacy and their rights pursuant to our Constitution. Mr. Darrel Stinson: Yes. Been there, done that. Have you? You have not listened one little bit though, have you? The intention of this legislation is to create an effective law enforcement tool, a tool that will stand the test of time. I believe D (1610 ) that Bill C-3, as written today, will do just that. I also believe that legislation of this kind needed to be developed very carefully and was developed very carefully. It was also studied very carefully in Ms. Shaughnessy Cohen: I read more than you do. the justice committee last term.

Mr. Darrel Stinson: There is absolutely no concern at all. I It is my view that Bill C-3 balances the needs of Canadians who cannot believe it. Yet we will hear the same thing from the justice want public safety as their top priority with the need to take into minister tomorrow about how caring she is. Although we never consideration the privacy rights that Canadians value. know over there, do we? Criminal penalties have been included as a safeguard for any I just have to say that this is a disgrace. misuse or abuse of this data information bank and I do not think the Reform Party is objecting to that. However, in addition to that, the Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.): Madam bill was drafted in accordance with Canada’s Constitution. It has Speaker, the self-righteous prattle is certainly coming hard and been drafted to ensure that the rights of all Canadians will not be strong from the other side. I wonder if the last speaker and the other infringed. It upholds one of the primary considerations in our legal speakers from the Reform Party on this debate today have ever system, one which I think the rhetoric today has left behind, and heard of the Constitution or the charter of rights and freedoms that is that an accused has the right to be presumed innocent and to because there is a balance that has to be struck here. be protected from unreasonable search and seizure.

We have struck this balance before. Recently we struck a balance Bill C-3 reflects the views of the highest court in the land which with Bill C-68, which was upheld today by the Alberta Court of has said that the taking of DNA samples constitutes a search and Appeal, in spite of Reformers telling us last week, loud and strong, seizure that requires judicial authorization. We see this in the most that they thought it was going to fail. straightforward searches that police now conduct of homes or offices. Even for those, police must first get a warrant to search. This government respects the constitutional balance that has been created in this country between parliament and the courts, and When asked for a bodily sample to be taken from an individual it respects the fact that the charter of rights and freedoms exists to person, the importance of the court’s authorization cannot be protect all Canadians, including Canadians who are accused of understated. A search of a person’s bodily substances needs to be crimes but who have not yet been proven guilty. taken more seriously than the search of a home or an office because it involves bodily integrity and it undermines human dignity. This balance is seen in Bill C-3. While the debate on Bill C-3 has interested me, I must say it is about time that we see an end to it. It D is time to bring this debate to close. It is time that we move to make (1615 ) this bill law. We know that Bill C-3 will place Canada at the forefront in the use of DNA technology in criminal investigations The supreme court has made that clear. Therefore, taking a DNA in the world. sample from a person for investigative purposes clearly demands a high standard of justification. Canada will become one of only a handful of countries to have a DNA data bank. We know that once that bank is in place it is going DNA samples taken from every suspect without a warrant, as the to be a major milestone in policing technology and investigative opposition would suggest, no matter how minor the offence not procedures. only would waste valuable law enforcement time and resources, but also would not meet the standards that have been clarified by Public safety is a priority for this government, but public safety our courts. We cannot forget the fact that police can already take a and privacy rights have to be balanced, understood and seen to be DNA sample from a person at the time of arrest or charge so long as in sync with one another. To that end, Bill C-3 is an important part they obtain a warrant to do so. Reform does not raise this because it of our commitment to Canadians. It is a major achievement, a does not fit its assault on the government. significant part of our government’s safer communities agenda, and safer communities, after all, are what all Canadians want. The fact of the matter is that that DNA warrant legislation came in in the last parliament. It has been used very successfully in a Canadians want the police to be able to use a tool like the DNA wide range of cases. Warrants have been given upon the right data bank to help ensure that safe communities stay that way. grounds being ready. 487

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Government Orders The Criminal Code already provides a way of allowing police exists between our party and the government. The government to obtain a DNA sample from a person they suspect of having feels that the taking of DNA should be restricted to very narrow committed a very serious offence, by using a DNA warrant. This circumstances, such as multiple murderers and people who have provision is consistent with the charter, giving the police the committed sexual offences. In these cases DNA samples can only assurance that their case will not later be thrown out of court. It be extracted after the conviction has taken place. This does not help gives individuals the assurance that indeed it is taken very the police. It does not help the victims groups. seriously by police when they are about to invade someone’s privacy. We suggest that DNA samples be taken beforehand. Why? It serves two purposes. Number one is very important in that it helps Our colleagues are obviously overlooking the fact that DNA to exonerate the innocent. We have not heard much about this from warrant legislation has been in place for three years. They are the other side. It is a double edged sword. One would argue from ignoring the fact that the Supreme Court of Canada has com- the other side that this is restricting people’s personal freedoms. mended that legislation. We would argue that there is a larger public good here.

DNA warrants are well used by police. They have been helping The larger public good refers to the protection of innocent people investigations tremendously. They have been used to eliminate and the conviction of the guilty. The only thing Bill C-3 does in its suspects and secure convictions. They have been instrumental in current form is it helps to convict those individuals who have obtaining guilty pleas, thereby sparing victims the trauma of committed the most heinous of crimes. testifying. They have been cost effective because they have helped to reduce overall court costs. D (1620 )

The DNA warrant legislation has also survived all constitutional The way the bill is configured, it can act as a shield behind which challenges to date. It has survived those challenges because the the guilty can hide themselves. It does little to protect the innocent. legislation provides that judicial authorization be obtained for the If we were more aggressive with this bill, if we were able to take collection of DNA samples. DNA samples from people before they were convicted, then those DNA samples could be used to exonerate the innocent and convict There is no doubt that over the past few years we have made the guilty. That is what we are trying to do here. enormous progress in our efforts to contribute to a safe, just and peaceful society. The addition of forensic DNA analysis and the We in this party are trying to put faith back into the justice ability to store DNA profiles will help us target those who commit system. When we speak to Canadians, they have lost a lot of faith. the most serious of crimes and hold them accountable. It is not that they have lost faith in the Canadian police departments and the RCMP. They have a lot of faith in the men and women who Canadians can continue to enjoy the safety of their streets and put their lives on the line every day to protect us and keep us safe. It have a sense of security knowing that police forces across the is in the process and the management of our justice system and the country have access to some of the most sophisticated tools implementation of the laws of this land that the Canadian people worldwide, but have restraints on their actions so that they cannot are having less faith in all the time. violate the privacy of individuals. Bill C-3 could be a strong bill. Members from my party have put I urge all members of the House to support Bill C-3 so that we forth constructive suggestions, such as that the DNA be taken right can proceed to create Canada’s first national DNA data bank. from the word go, right from when a person is picked up and is suspected of having committed a crime, and that the breadth upon which the different types of offences that this can be applied to be Mr. Keith Martin (Esquimalt—Juan de Fuca, Ref.): Madam extended beyond multiple murderers and multiple sex offenders. Speaker, it is a pleasure today to speak on Bill C-3. Had we had this bill a few years ago and had it been appropriate- After listening to my hon. colleague’s comments, we certainly ly applied, Clifford Olson would not have been able to kill the understand her concerns and the concerns of others from the number of people he killed. He committed 80-odd offences before government and those civil libertarians who suggest that the taking he even murdered one person. If this bill had been in place in the of DNA is somehow a gross infringement on people’s rights and manner in which we would like, Clifford Olson would have been has to be taken in a very narrow definition. This is what Bill C-3 behind bars and a lot of people’s lives would have been saved. A lot does. That is the part we actually oppose. We believe that the taking of families would not be enduring the pain and suffering that they of DNA samples as defined in this bill is too restrictive. endure to this day.

Let us look at the larger public good. That is what we are talking This bill needs a number of other amendments. The data bank about and where a great deal of disagreement concerning this bill that exists today is far too limited. The data bank should be formed 488

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Government Orders in such a way that the information is kept a long time after the In order to have an effective crime prevention strategy, it has to person is convicted. That does not exist in Bill C-3. start in the first eight years of life. We know scientifically that in the first eight years of life the building blocks of a normal psyche The information, if utilized, would enable the police to pick up are developed. Events such as being exposed to sexual abuse, somebody very quickly if their bodily fluids were found at the site violence at home or improper nutrition damage the building blocks of a crime, in which case again we would be preventing further of a normal psyche and at adolescence it is very difficult for that crimes from occurring. The government somehow fails to see this. child to engage appropriately with the environment. Unfortunately Although we understand its concerns in dealing with civil liberties, many run afoul of the law. we would argue that a higher good and the greater good is the protection of innocent civilians, including those who are falsely Programs such as the Moncton head start program, in which the picked up for a crime they never committed. member for Moncton has taken such a leadership role, the programs in Hawaii and the Perry Preschool Program in Michigan There is a positive side to this bill in that it can be used to protect have clearly demonstrated that early intervention programs can be and also release the innocent. We would not get cases such as the highly cost effective. On balance these programs save about Guy-Paul Morin case, which has been such a tragedy for him and $30,000 per child. They lower dependence on welfare and keep the Morin family. kids in school longer. They have lowered teen pregnancy rates. They can have a dramatic effect at lowering child abuse. The program in Hawaii reduced child abuse by 99% in a cost effective A lot of other aspects with respect to Bill C-3 can be dealt with fashion. here. I would ask that the government listen to the police departments who would like to see the DNA data bank go forth, as we With the fragmented nature of social programs in the country, would, but in a much stronger and effective fashion. the federal government has an enormous opportunity to work with its provincial counterparts to implement a provincially managed The government needs to pursue the issue of crime prevention. but shared funded national head start program. One message apart The Minister of Justice to her credit recently implemented a crime from what we have spoken about in Bill C-3 would be to implement prevention strategy dealing with kids from zero to six, I believe, in the program using existing resources. Edmonton. This is a head start program. I would strongly urge the government to implement our motion that was passed in May of The government could do what was done in Hawaii. It could use this year calling for a national head start program. trained volunteers and the medical community starting before a woman becomes pregnant. Trained volunteers could be used for the One of the great things that one can do, and the cabinet ministers child at birth up to age four and the schools could be used when the can certainly take advantage of this in their position, is to take the child is between the ages of four and eight. leadership role that is desperately needed. Although the rights and responsibilities of various areas are divided up and parcelled off If the government did that we would have a dramatic positive among three levels of government, the federal government has the effect in decreasing youth crime and in improving the social unique opportunity to call together its provincial counterparts in a welfare for the most underprivileged in the country. It would save number of areas, put their minds together and come to the table to the taxpayer billions of dollars and provide a more secure and safe develop a comprehensive plan which people across the country environment for all Canadians. would benefit from. Mr. Paul Bonwick (Simcoe—Grey, Lib.): Madam Speaker, in One of those areas is in the justice area and is associated with the last 10 days I think I have heard it all. Bill C-3. It is the national head start program. The Minister of Justice along with the Ministers of Health and HRD, can take a leadership role. They can call together their provincial counterparts I truly wonder if there is no depth to the rhetoric, the repetitive here in Ottawa or anywhere in this country and look at what is redundancy of the Reform Party members. They told us on the one already on the table with respect to early detection and crime hand last week that it is not okay to ask people to register deadly prevention strategies. Keep what is good, throw out what is bad, firearms. Today they tell us it is okay to take bodily fluids from a use existing resources and deal with crime prevention. potentially innocent person. This is from one end of the spectrum to the other. I am absolutely amazed. They cite time and time again examples from the U.S. I cannot be any clearer on this. This is not D (1625 ) the United States. It is Canada. We do things differently here.

This should not be done when a person is 13, 14 or 15 years of Today I am extremely proud to stand up and show my support for age when they may be suffering from conduct disorders, have run Bill C-3. This is a good bill. As we have heard in the House time afoul of the law, have endured years of sexual abuse, violence or and time again, DNA analysis cannot be compared to a fingerprint perhaps have been subjected to alcohol while in utero with which involves only a minor intrusion on privacy or the removal of resulting fetal alcohol effects. It should be done before that. bodily fluid. An argument that equates fingerprints with DNA is 489

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Government Orders simply a flawed argument. Fingerprints only reveal an impression better public safety for Canadians, something that quite obviously of a person’s extremities and allow that person’s identity to be Reform is prepared to compromise. confirmed. The DNA data bank will let police quickly identify suspects DNA samples reveal far more. A DNA sample is a part of a where they have been unable to do so in the past. They will be able person and it contains that person’s genetic blueprint. Because of to match profiles in the system to find repeat offenders no matter that important distinction, Bill C-3 ensures that DNA information what jurisdiction they are in. Other suspects could be eliminated is safeguarded and used only for the purposes of forensic DNA more quickly and the information will be stored so that police have analysis. In doing so it sets out very limited and controlled access access to it when it is needed. to the data bank. It prohibits any improper use of information and limits access to only those directly involved in operation and Clearly the government is satisfied that Bill C-3 has been maintenance. carefully drafted and on the basis of extensive consultation with various interest groups. Contrary to what we have heard in the D House, taking samples for the data bank at the time of conviction (1630 ) will not prevent police from doing their job. Instead it will give police an effective investigative tool that will comply with our The opposition in the House seems to think the police have constitutional requirements as defined by the Supreme Court of automatic rights to search and seizure. That has never been the case Canada. in Canada because Canadians place a high priority on a reasonable expectation of privacy, on security and dignity of the person, and I believe Bill C-3 is a much stronger bill as a result of the on the right to be free from unnecessary state interference in those extensive consultation and debate that has taken place. As it rights. Taking samples automatically when a suspect is charged currently stands it is the government’s view that Bill C-3 is would be constitutionally indefensible. fundamentally sound. There is no question that the use of DNA evidence has been a significant breakthrough in the criminal justice Not only has the government taken the advice of those who have system. We must not forget that we are dealing with a powerful tool said that the legislation to create a national DNA data bank must and one that must be safeguarded against potential abuse. not infringe upon our charter of rights. We have also listened to those who have said that it is important that this legislation be put The creation of a data bank that can be upheld in the courts will in place as soon as possible. go a very long way toward protecting Canadians from violent and repeat offenders, and that is what we are here to do. The bill has seen introduction and reintroduction. It has been the subject of thorough review by the Standing Committee on Justice There is also no question that Bill C-3 has been and will continue and Human Rights, yet I hear my Reform colleagues talk about to be an important priority for the government. Public safety is one closure and time allocation. They talk about limiting their right to of the government’s top priorities. We will stand behind that offer constructive criticism to the bill, yet they spend 70% of their commitment 100%, unlike our Reform colleagues. speeches talking about time allocation rather than actually talking about Bill C-3. If they have something positive to add, why do they I believe all parties are motivated by the same goals: to establish not add it? a national DNA data bank system that helps our law enforcement personnel protect the public. The question is how do we get there? The bill has been reviewed by some of Canada’s most respected judges. The opposition seems to be dismissing the validity of the The government’s position is prudent, responsible and ultimate- intense scrutiny under which Bill C-3 has been developed. We ly the best one for Canadians. It is a position that balances the need cannot lose sight of the fact of the benefits of Bill C-3 and the value of law enforcement to protect the public safety, the interests of it will bring as one of the most powerful investigative police tools human rights and the democratic values of all Canadians, some- known to date. thing time and time again my Reform colleagues seem to lose sight of. The Liberal government and the police community have the same objective: to provide Canadian law enforcement officials D (1635) with practical and effective access to DNA technology to solve crimes and to protect the public. The legal opinion of three former justices from three different provinces are entirely consistent with the opinion of the Depart- A national DNA bank will be an important tool to help police ment of Justice and legal opinions, including legal counsel for link a suspect with evidence left at a crime scene. The ability to several provinces who testified before the standing committee. The store and later retrieve DNA profiles will shorten investigations legal opinions underline the danger of including provisions in Bill and help prevent further violence by repeat offenders. This means C-3 which would not withstand a charter challenge. To effectively 490

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Government Orders implement a DNA data bank, we need to do it right, and that is what The total cost of the DNA data bank, we are told, would be in the the government is doing. $15 million to $18 million range. We see Bill C-68 implemented at a proposed cost of $85 million on the premise that it may save one life, The costs have now escalated to two, three, four times that. No It is better to have a law that works than one that is certain to be one is sure. Again in order to save one life we are wondering why struck down by the courts, which the Reform seems to have no the implementation of a DNA data bank, which has proven to save regard for. I am confident that Bill C-3 finds the appropriate lives and convict criminals in the long run, would not be a good balance and I support it. I urge the members of the House to support buy. Bill C-3.

Unlike Bill C-68 costs can be recouped. The conclusive nature of Enough of party propaganda, enough of arm twisting and using DNA evidence often results in substantial savings for police in special interest groups. Support it. It is a good bill. We can proceed their investigations and the courts since that investigation can be and create one of our nation’s most valuable policing investigative narrowed down and a trial simplified. Therefore in the long term tools to date. This is a good bill and I am proud to stand here today this is a cost effective tool and a great protection to society. By to speak to it. analysing the DNA of all persons charged with violent offences we could have numerous samples in that data bank. We should think of the added security this would mean to Canadians. Mr. Gerry Ritz (Battlefords—Lloydminster, Ref.): Madam Speaker, it is certainly a pleasure to rise today to speak on behalf of my constituents of Battlefords—Lloydminster regarding Bill C-3, There are hundreds of unsolved assaults, rapes and homicides the DNA data bank. where DNA evidence has been left at the scene. DNA identification now offers us an unparalleled opportunity to solve many of these cases. They have a real opportunity to strengthen our hand-cuffed The Reform Party continues to be firmly committed to restoring justice system and they refuse to change. confidence in our justice system and providing Canadians with true security in their homes. This means providing the law enforcement agencies with the latest technological tools to detect and apprehend People’s lives are at stake here as well as their quality of life criminals. DNA identification is certainly this type of tool. If used living in safer neighbourhoods. It is interesting to note that the to its full potential, the DNA data bank could be the single most taking of a blood sample in the case of a suspected impaired driver important development in fighting crime since fingerprinting. does not raise much concern. In fact society applauds that policy. Why is it different, then, in the case of DNA samples left at the scene of a crime? We take blood samples for purposes of determin- Bill C-3, in its present form, denies police the quality tools they ing impairment. There is no difference. need to fight and solve crime. At best Bill C-3 is a half measure aimed to placate Canadians. D (1640 )

DNA data banks are currently in use in the United States, Great Britain and New Zealand. DNA forensic analyses have been The invasion of privacy has already taken place. The Criminal instrumental in securing convictions in hundreds of cases in Code looks after that. Is there a difference here? I think not. The Canada and have helped in the release of wrongly convicted authority to take samples is already in the Criminal Code and persons. overrules the privacy issue.

Bill C-3 in its current form gives law-abiding Canadians a false The Canadian Police Association prepared and submitted a legal sense of security. The Reform Party cannot support the bill in its opinion to the justice committee concluding that there would be no current form because of that. We do support the creation of a DNA constitutional concern about taking samples at the time of charge. data bank, but the current scope of the bill is much too limited. It seems the government would rather protect the interests of crimi- We all want to fight and reduce crime and reduce the time it nals over those of law-abiding citizens, not an equitable trade-off I takes to solve a crime. We have a tremendous backlog in our courts. am sure. If the fear is over the data bank and the keeping of blood or fluid samples, we just have to look at the thousands of samples taken by doctors and nurses each day and kept in some sort of bank. These The government cites finances as one of the reasons why it is not bank files are not being exploited so why would a DNA data bank willing to expand the DNA data bank and allow for samples to be constitute any more of a risk? taken at the time of charge rather than conviction. The Reform Party proposed that samples be taken at the time of charge and not analysed until conviction. This would have satisfied the concern of This is certainly a major and very important piece of legislation. the Canadian Police Association regarding offenders who are The government must justify to the Canadian Police Association released on bail pending trial and constitute a flight risk. and Canadian voters the reasons for invoking time allocation for 491

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Government Orders the seventh time to ram through a work in progress. Canadians falsely accused. It can clear them quickly and clear the air forever. deserve better from their elected officials. It will absolutely clear the person of having something hanging over his head of which he has been accused and the thinking that he Mr. Peter Goldring (Edmonton East, Ref.): Madam Speaker, I just may possibly be guilty. rise today to speak to Bill C-3 representing the constituents of D Edmonton East. (1645) The bottom line is really the most important and it is that DNA A member earlier in the House compared data bank registering has the potential to assist the police in their work and to save lives. to tattooing during World War II. I thought at that time it was an It is a tool of today. It is a tool that certainly is used internationally outrageous comparison. How could this possibly be compared to in many countries. It is a tool as important as fingerprinting was something that evil done during the war? More likely I would when fingerprinting was first started and possibly is more descrip- compare it to the simple registering we have with our social tive than fingerprinting. security numbers. I think that would be a more apt comparison as a reference. DNA is a tool that is useful. It is a tool police departments want. It is a tool that will be good for Canadians and I believe it is a tool Do we need to wait for another Olson before the government gets that we must have now for all Canadians. serious and insists on a sample from all persons charged with indictable offences? The legislation is based on the false idea that The Acting Speaker (Ms. Thibeault): Is the House ready for DNA is useful in investigating some offences, mainly sexual, but the question? does not help others. Some hon. members: Question.

The fact is that offenders like Clifford Olson commit both types The Acting Speaker (Ms. Thibeault): The question is on the of offences. He was convicted of more than 80 offences before he amendment. Is it the pleasure of the House to adopt the amend- killed his first known victim. DNA, if taken on these previous ment? charges, would have linked him to the first victim and led to his arrest. None of the convictions were for charges that the legislation Some hon. members: Agreed. covers. They were for theft, break and enter and armed robbery. Police and victims groups favour making the legislation more Some hon. members: No. inclusive, but the government does not listen to their concerns. The Acting Speaker (Ms. Thibeault): All those in favour of the amendment will please say yea. Samples should be retained in the same way fingerprints are kept on file, essentially forever. Samples should be taken on charge just Some hon. members: Yea. as with fingerprints. Collections of samples should be the same for the same offences as for fingerprinting. We should obtain DNA as The Acting Speaker (Ms. Thibeault): All those opposed will routinely as we obtain fingerprints. please say nay. Some hon. members: Nay. We take blood samples in certain cases. We utilize blood samples in the case of impaired driving and other charges. We take The Acting Speaker (Ms. Thibeault): In my opinion the nays breath samples for liquor offences. Taking breath samples is a have it. permanent record because the result of being over in the test will go on a permanent record. And more than five members having risen:

We must make the best use of this tool but the Liberal bill is The Acting Speaker (Ms. Thibeault): The vote will be deferred unduly restrictive. It costs only $50 to $60 to get a sample into the until 5.15 today. database. This is a drop in the bucket when compared to the costs, even the estimated costs, of what the gun registration program is SUSPENSION OF SITTING expected to be. Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): Mad- Obtaining DNA is not an onerous process and involves no real am Speaker, I rise on a point of order. The House is now through invasion of the privacy of the person. It can come from saliva or with debate and so I suggest you seek unanimous consent that the from a single hair or a drop of blood. DNA identification does not House suspend until the calling of the vote. endanger privacy since the information is just a series of numbers and tells nothing about the person’s health or mental capabilities. The Acting Speaker (Ms. Thibeault): Is that agreed? Some hon. members: Agreed. DNA can also exonerate a person suspected of a crime. I think that point is one of the most important. It can clear those who are (The sitting of the House was suspended at 4.48 p.m.) 492

September 29, 1998 COMMONS DEBATES 8551

Government Orders

D (1710) Blaikie Blondin-Andrew Bonin Bonwick Boudria Bradshaw [Translation] Brien Brown Bryden Bulte Caccia Calder SITTING RESUMED Cannis Cardin Carroll Catterall Cauchon Chamberlain The House resumed at 5.15 p.m. Chan Charbonneau Chrétien (Frontenac—Mégantic) Clouthier Coderre Cohen The Acting Speaker (Ms. Thibeault): It being 5.15 p.m., the Collenette Comuzzi House will now proceed to the taking of the deferred division on Copps Cullen the amendment to the motion for third reading of Bill C-3. Davies de Savoye Debien Desjarlais Desrochers DeVillers Call in the members. Dhaliwal Dion Discepola Dromisky Drouin Dubé (Lévis-et-Chutes-de-la-Chaudière) D (1745) Duceppe Duhamel Dumas Earle [English] Easter Eggleton Finlay Folco Fontana Fournier (The House divided on the amendment, which was negatived on Fry Gallaway the following division:) Gauthier Girard-Bujold Godfrey Godin (Acadie—Bathurst) Godin (Châteauguay) Graham (Division No. 231) Guimond Harb Hubbard Ianno Iftody Jackson YEAS Jennings Jordan Karetak-Lindell Keyes Members Kilger (Stormont—Dundas) Kilgour (Edmonton Southeast) Knutson Kraft Sloan Abbott Ablonczy Anders Bachand (Richmond—Arthabaska) Laliberte Lalonde Bailey Benoit Lastewka Laurin Bernier (Tobique—Mactaquac) Borotsik Lavigne Lebel Breitkreuz (Yellowhead) Brison Lee Lefebvre Cadman Casey Leung Lill Casson Cummins Lincoln Longfield Doyle Dubé (Madawaska—Restigouche) Loubier MacAulay Duncan Elley Mahoney Malhi Epp Gilmour Maloney Mancini Goldring Gouk Grewal Grey (Edmonton North) Manley Marceau Hanger Harris Marchand Marchi Hart Harvey Marleau Martin (LaSalle—Émard) Hill (Macleod) Hill (Prince George—Peace River) Martin (Winnipeg Centre) Massé Jaffer Johnston McCormick McDonough Jones Keddy (South Shore) McGuire McLellan (Edmonton West) Kenney (Calgary-Sud-Est) Konrad McWhinney Ménard Lowther Lunn Mercier Mifflin MacKay (Pictou—Antigonish—Guysborough) Manning Mark Martin (Esquimalt—Juan de Fuca) Milliken Mills (Broadview—Greenwood) Matthews Mayfield Minna Mitchell McNally Meredith Murray Myers Mills (Red Deer) Morrison Nault Normand Muise Obhrai Nystrom O’Brien (Labrador) Pankiw Penson O’Brien (London—Fanshawe) O’Reilly Power Price Pagtakhan Paradis Ramsay Reynolds Parrish Patry Ritz Scott (Skeena) Stinson St-Jacques Peric Perron Strahl Thompson (New Brunswick Southwest) Peterson Pettigrew Wayne White (Langley—Abbotsford) Phinney Picard (Drummond) White (North Vancouver) Williams—66 Pickard (Chatham—Kent Essex) Pillitteri Plamondon Pratt Proctor Proud NAYS Provenzano Redman Reed Richardson Members Riis Robillard Adams Alarie Robinson Rocheleau Anderson Assad Rock Sauvageau Assadourian Asselin Scott (Fredericton) Sekora Augustine Axworthy (Winnipeg South Centre) Serré Shepherd Bachand (Saint-Jean) Baker Solomon Speller Bakopanos Barnes St. Denis Steckle Beaumier Bélair Bélanger Bellehumeur Stewart (Brant) Stewart (Northumberland) Bellemare Bennett Stoffer Szabo Bergeron Bertrand Telegdi Thibeault Bevilacqua Bigras Torsney Tremblay (Rimouski—Mitis) 493

8552 COMMONS DEBATES September 29, 1998

Government Orders

Ur Valeri Chrétien (Frontenac—Mégantic) Clouthier Vanclief Vautour Coderre Cohen Venne Volpe Collenette Comuzzi Wappel Wasylycia-Leis Copps Cullen Whelan Wilfert Wood —193 Davies de Savoye Debien Desjarlais Desrochers DeVillers PAIRED MEMBERS Dhaliwal Dion Discepola Dromisky Drouin Dubé (Lévis-et-Chutes-de-la-Chaudière) Duceppe Duhamel Alcock Byrne Dumas Earle Canuel Crête Easter Eggleton Dalphond-Guiral Finestone Finlay Folco Gagliano Gagnon Grose Guay Fontana Fournier Marleau Saada Fry Gallaway St-Hilaire St-Julien Gauthier Girard-Bujold Tremblay (Lac-Saint-Jean) Turp Godfrey Godin (Acadie—Bathurst) Godin (Châteauguay) Graham Guimond Harb The Speaker: I declare the amendment defeated. Harvard Hubbard Ianno Iftody Jackson Jennings Mr. John Harvard: Mr. Speaker, I would like to be counted in Jordan Karetak-Lindell the vote in support of the government. Keyes Kilger (Stormont—Dundas) Kilgour (Edmonton Southeast) Knutson Kraft Sloan Laliberte The Speaker: I have announced the results and your vote will Lalonde Lastewka not be counted on the last vote but will be counted on this one. Laurin Lavigne Lebel Lee Lefebvre Leung The next question is on the main motion. Lill Lincoln Longfield Loubier MacAulay Mahoney Mr. Bob Kilger: Mr. Speaker, I would propose that you seek Malhi Maloney unanimous consent to apply in reverse the results of the vote just Mancini Manley Marceau Marchand taken to the motion now before the House, adding the member for Marchi Marleau Charleswood St. James—Assiniboia. Martin (LaSalle—Émard) Martin (Winnipeg Centre) Massé McCormick McDonough McGuire The Speaker: Is there agreement to proceed in such a fashion? McLellan (Edmonton West) McWhinney Ménard Mercier Mifflin Milliken Some hon. members: Agreed. Mills (Broadview—Greenwood) Minna Mitchell Murray Myers Nault (The House divided on the motion, which was agreed to on the Normand Nystrom following division:) O’Brien (Labrador) O’Brien (London—Fanshawe) O’Reilly Pagtakhan Paradis Parrish (Division No. 232) Patry Peric Perron Peterson Pettigrew Phinney YEAS Picard (Drummond) Pickard (Chatham—Kent Essex) Pillitteri Plamondon Members Pratt Proctor Proud Provenzano Adams Alarie Redman Reed Anderson Assad Richardson Riis Assadourian Asselin Robillard Robinson Augustine Axworthy (Winnipeg South Centre) Rocheleau Rock Bachand (Saint-Jean) Baker Bakopanos Barnes Sauvageau Scott (Fredericton) Beaumier Bélair Sekora Serré Bélanger Bellehumeur Shepherd Solomon Bellemare Bennett Speller St. Denis Bergeron Bertrand Steckle Stewart (Brant) Bevilacqua Bigras Blaikie Blondin-Andrew Stewart (Northumberland) Stoffer Bonin Bonwick Szabo Telegdi Boudria Bradshaw Thibeault Torsney Brien Brown Tremblay (Rimouski—Mitis) Ur Bryden Bulte Valeri Vanclief Caccia Calder Vautour Venne Cannis Cardin Carroll Catterall Volpe Wappel Cauchon Chamberlain Wasylycia-Leis Whelan Chan Charbonneau Wilfert Wood —194 494

September 29, 1998 COMMONS DEBATES 8553

Government Orders NAYS Mr. Bob Kilger: Mr. Speaker, if the House would agree, I propose that you seek unanimous consent that members who voted Members on the previous motion be recorded as having voted on the motion Abbott Ablonczy now before the House with Liberal members voting nay. Anders Bachand (Richmond—Arthabaska) Bailey Benoit Bernier (Tobique—Mactaquac) Borotsik The Speaker: Is there agreement to proceed in such a fashion? Breitkreuz (Yellowhead) Brison Cadman Casey Some hon. members: Agreed. Casson Cummins Doyle Dubé (Madawaska—Restigouche) Duncan Elley Mr. Chuck Strahl: Mr. Speaker, Reform Party members present Epp Gilmour Goldring Gouk will vote yes. I would like to note the absence of the member for Grewal Grey (Edmonton North) Peace River for this vote. Hanger Harris Hart Harvey Hill (Macleod) Hill (Prince George—Peace River) [Translation] Jaffer Johnston Jones Keddy (South Shore) Kenney (Calgary-Sud-Est) Konrad Mr. Stéphane Bergeron: Mr. Speaker, Bloc Quebecois mem- Lowther Lunn bers are opposed to the motion. MacKay (Pictou—Antigonish—Guysborough) Manning Mark Martin (Esquimalt—Juan de Fuca) Matthews Mayfield [English] McNally Meredith Mills (Red Deer) Morrison Muise Obhrai Mr. John Solomon: Mr. Speaker, members of the NDP vote no Pankiw Penson Power Price on this motion. Ramsay Reynolds Ritz Scott (Skeena) [Translation] Stinson St-Jacques Strahl Thompson (New Brunswick Southwest) Wayne White (Langley—Abbotsford) Mr. André Harvey: Mr. Speaker, members of our party will White (North Vancouver) Williams—66 vote against this motion.

PAIRED MEMBERS [English] (The House divided on the amendment, which was negatived on the following division:) Alcock Byrne Canuel Crête Dalphond-Guiral Finestone (Division No. 233) Gagliano Gagnon Grose Guay Marleau Saada YEAS St-Hilaire St-Julien Tremblay (Lac-Saint-Jean) Turp Members Abbott Ablonczy Anders Bailey The Speaker: I declare the motion carried. Benoit Breitkreuz (Yellowhead) Cadman Casson Cummins Duncan Elley Epp (Bill read the third time and passed) Gilmour Goldring Gouk Grewal Grey (Edmonton North) Hanger Harris Hart Hill (Macleod) Hill (Prince George—Peace River) * * * Jaffer Johnston Kenney (Calgary-Sud-Est) Konrad Lowther Lunn Manning Mark Martin (Esquimalt—Juan de Fuca) Mayfield McNally Meredith CANADA SMALL BUSINESS FINANCING ACT Mills (Red Deer) Morrison Obhrai Pankiw Ramsay Reynolds The House resumed from September 28 consideration of the Ritz Scott (Skeena) Stinson Strahl motion that Bill C-53, an act to to increase the availability of White (Langley—Abbotsford) White (North Vancouver) financing for the establishment, expansion, modernization and Williams—47 improvement of small businesses, be read the second time and referred to a committee; and of the amendment. NAYS Members Adams Alarie The Speaker: The House will now proceed to the taking of the Anderson Assad deferred recorded division on the amendment to the motion at Assadourian Asselin Augustine Axworthy (Winnipeg South Centre) second reading stage of Bill C-53. Bachand (Richmond—Arthabaska) Bachand (Saint-Jean) 495

8554 COMMONS DEBATES September 29, 1998

Private Members’ Business

Baker Bakopanos Proctor Proud Barnes Beaumier Provenzano Redman Bélair Bélanger Reed Richardson Bellehumeur Bellemare Riis Robillard Robinson Rocheleau Bennett Bergeron Rock Sauvageau Bernier (Tobique—Mactaquac) Bertrand Scott (Fredericton) Sekora Bevilacqua Bigras Serré Shepherd Blaikie Blondin-Andrew Solomon Speller Bonin Bonwick St. Denis Steckle Borotsik Boudria Stewart (Brant) Stewart (Northumberland) Bradshaw Brien St-Jacques Stoffer Brison Brown Szabo Telegdi Bryden Bulte Thibeault Thompson (New Brunswick Southwest) Torsney Tremblay (Rimouski—Mitis) Caccia Calder Ur Valeri Cannis Cardin Vanclief Vautour Carroll Casey Venne Volpe Catterall Cauchon Wappel Wasylycia-Leis Chamberlain Chan Wayne Whelan Charbonneau Chrétien (Frontenac—Mégantic) Wilfert Wood —212 Clouthier Coderre Cohen Collenette PAIRED MEMBERS Comuzzi Copps Cullen Davies de Savoye Debien Alcock Byrne Desjarlais Desrochers Canuel Crête DeVillers Dhaliwal Dalphond-Guiral Finestone Dion Discepola Gagliano Gagnon Doyle Dromisky Grose Guay Drouin Dubé (Lévis-et-Chutes-de-la-Chaudière) Marleau Saada Dubé (Madawaska—Restigouche) Duceppe St-Hilaire St-Julien Tremblay (Lac-Saint-Jean) Turp Duhamel Dumas Earle Easter Eggleton Finlay The Speaker: I declare the amendment negatived. Folco Fontana Fournier Fry D (1750) Gallaway Gauthier Girard-Bujold Godfrey Godin (Acadie—Bathurst) Godin (Châteauguay) [Translation] Graham Guimond Harb Harvard The Deputy Speaker: Order, please. The House will now Harvey Hubbard proceed to the consideration of Private Members’ Business as Ianno Iftody Jackson Jennings listed on today’s Order Paper. Jones Jordan Karetak-Lindell Keddy (South Shore) Keyes Kilger (Stormont—Dundas) ______Kilgour (Edmonton Southeast) Knutson Kraft Sloan Laliberte Lalonde Lastewka Laurin Lavigne PRIVATE MEMBERS’ BUSINESS Lebel Lee Lefebvre Leung Lill Lincoln [English] Longfield Loubier MacAulay MacKay (Pictou—Antigonish—Guysborough) Mahoney Malhi CRIMINAL RECORDS ACT Maloney Mancini Manley Marceau Marchand Marchi The House resumed from May 15 consideration of the motion Marleau Martin (LaSalle—Émard) that Bill C-284, an act to amend the Criminal Records Act and the Martin (Winnipeg Centre) Massé Canadian Human Rights Act (offences against children), be read Matthews McCormick McDonough McGuire the second time and referred to a committee. McLellan (Edmonton West) McWhinney Ménard Mercier Mr. Gerry Ritz (Battlefords—Lloydminster, Ref.): Mr. Mifflin Milliken Mills (Broadview—Greenwood) Minna Speaker, it is a pleasure to stand here this evening and speak in the Mitchell Muise final hour of debate on the private member’s bill put forward by my Murray Myers colleague from Calgary Centre. It is of profound importance for the Nault Normand Nystrom O’Brien (Labrador) health and well-being of our most important resource in Canada, O’Brien (London—Fanshawe) O’Reilly our children. Pagtakhan Paradis Parrish Patry Governments at all levels often say that they recognize the Peric Perron Peterson Pettigrew importance of children’s welfare for the future of the country, but Phinney Picard (Drummond) they often have a strange way of showing it. Our income tax Pickard (Chatham—Kent Essex) Pillitteri Plamondon Power structure encourages two income families and common law rela- Pratt Price tionships, although there is overwhelming empirical evidence that 496

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Private Members’ Business both these situations are among the least desirable for the healthy but these days many Canadians feel that they have become the development of children. driving force.

Many members of this House have probably bought into United Many Canadians feel that the balance has been upset and now the Nations documents that are supposed to protect the rights of the justice system assumes that criminals are always remorseful and child. Because of manipulation by special interest groups, many will automatically respond to things like day parole and psychiatric subsidized by the Canadian taxpayer, these charters actually seem counselling. Far from it. to undermine the ability of and the responsibility for parents to guide and nurture their children. Rightly or wrongly, the perception has been created that the justice system has been skewed to give every consideration to the In a recent news article the Secretary of State for Children and criminal and little is being done to heal the wounds of the victims. Youth said ‘‘We feel our activities are child centred. Our main concern is what happens to children, and the issue of parents is Many Canadians have expressed the desire to see more done on very, very, I would say, controversial’’. If the concern really was the side of prevention. They want more police officers on the street, for the child, then the well-being of parents and their families more direct and immediate consequences for all criminal acts, would be front and centre, not considered an annoyance by this more onus being placed on parents for the actions of minors, a government. greater emphasis on making criminals pay the full price for their crimes and less of a push to get them back on the street. The term ‘‘child centred’’ also appears in education literature that was popular a few years ago. The philosophy that letting kids While opposing sides may argue about the efficiency of incarcer- decide what they wanted to learn, when they felt like learning it, ating versus rehabilitating criminals, police are aware that a rash of was somehow going to lead to happier, well adjusted students. The property crimes, for example, usually points to the recent release of result, as we now know, is that a lack in direction and in an a criminal who favours that sort of action. It is a fact of life. appreciation of the responsibilities that adults were supposed to provide them, many children felt no obligation to learn at all. Many There is no end of statistics to show the tendency of various jurisdictions across Canada are retreating from the failed experi- criminals to reoffend and these are often used by people to prove ment of trying to turn innocent children into miniature adults. their pet theories about justice.

I am not claiming that there is a direct connection, but the policy I do not want to get into a numbers game, nor do I want to argue of absolving adults of their responsibilities to behave properly whether criminals need more or less jail or whether one kind of seems to be the other side of the coin. We seem to have forgotten punishment is more effective than another. That is not what Bill the social impact of giving individuals a free ride when it comes to C-284 is all about. It is not about tormenting a particular type of the consequences of their actions. We often seem so concerned criminal for the rest of their life or imposing more jail time on about the rights of the convict that we completely ignore the loss of someone who has supposedly served their time and is now trying to dignity, privacy and the enjoyment of life that these criminals visit make a life for themselves. upon their victims and families. It is true that Bill C-284 does target a particular kind of criminal D (1755 ) and seeks to put at public disposal an item of personal information that our system has a method of keeping from the public under ordinary circumstances. Members on this side of the House recognize that all legislation must be concerned with balance. Some may interpret this as being unnecessarily intrusive, but this bill seeks to safeguard a particular kind of victim and is an The administration of justice requires not only a presumption of attempt to bring balance to the system on that victim’s behalf. innocence for the individual charged with a crime, but that any punishment that results from a rightful conviction must fit the We recognize that criminals have certain rights and that the crime. criminals who have served time for their crimes may have earned a certain relief from further punishment. However, the victims who There is a process in place for dealing with criminal activity that we are concerned with here, like many victims who survived the has to include mitigating circumstances. We may stop a lot of violation against them, often serve a lifetime sentence themselves. thieves by ordering their hands to be cut off, but our society has They carry those emotional scars for life. decided that sort of punishment is too extreme. The victims who this bill concerns itself with are usually We believe in mercy and we believe that people should get a helpless, vulnerable and find it difficult to comprehend or deal with chance to atone for their transgressions at a later date. At one time what is done to them. These victims are our children and our these were a couple of elements among many in our justice system, families. 497

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Private Members’ Business The perpetrators of this most hideous crime are known as It follows therefore that the proposals put forward by the hon. pedophiles or sex offenders. Despite what our deepest revulsion member may adversely affect Canadians with criminal records urges us to do to these people, we try to remember that we must even after they have successfully turned their lives around and been have balance. given the benefit of a pardon. Therefore by proposing solutions as he has done the member is contradicting the apparent intent of the The members of this House should understand that Bill C-284 is legislation which at its inception was duly considered and approved not about the punishment of that individual based on suspicion or by those who went before us and by the members of the other place. prejudice, it is about directing convicted criminals away from situations in which they have proven they cannot be trusted. While we might all benefit from his industrious example and emulate his thoughtful efforts, we must carefully consider what he We are not asking that pardoned sex offenders be barred from is saying. He clearly believes that the reasoning applied in drafting society, but that people in positions of responsibility over children our current Criminal Records Act and indeed the human rights act be given the opportunity to discover the true history of the potential was somehow faulty. This is a level of intervention we must all take employees they are looking at hiring. seriously. I find that my attention is immediately engaged when it becomes necessary to amend our human rights act to accomplish a This bill does not call for the public broadcast of anyone’s legislative change that is otherwise put forward as a positive criminal history. It merely allows for responsible parties to find out reform. Most often we discuss issues in terms of generalities or as if an individual had ever been pardoned for a sexual offence, and they say now at the macro level. then only if that individual actually applies for a job working with children. However, in our jobs there can be insufficient time to respond fully to the concerns of individual constituents. This is particularly When we consider the words of Correctional Services Canada problematic when the issue concerns those citizens who do not that there is evidence of a substantial increase in the risk for sexual have experience in dealing with the mechanism of government and re-offending for that group of offenders with a prior history, and who feel powerless in the face of bureaucratic rules. Also left out when we discover that the National Parole Board does not even are those who do not have an organized or sophisticated proponent keep track of the more than 16,000 pardons it hands out by type of to speak loudly for their rights. crime, then we can say that there is a very small price to pay in terms of curtailing the freedoms of this group. The hon. member for Calgary Centre has taken the time to be I would like to close by saying that the solicitor general already just such an advocate by responding to reports of harm done in a has the legal authority to override a pardon if it is in the interest of few individual cases. I am not saying for a moment that harm has the administration of justice. not befallen Canadians or that individual tragedies are unimpor- tant. They are. In particular I recognize the level of concern we I believe it is only just that we work to prevent the tragedy of must bring to bear on the protection of young Canadians from child victimization any way that we can, and this bill gives us one sexual predators. Nothing that may occupy our time in this place is more tool to accomplish that end. I urge everyone in this House to more important than the safety of those least able to defend support the bill. themselves.

D (1800) Nonetheless, difficulties may arise from the pursuit of solutions based on specific experiences however distressing and tragic. I Mr. Lynn Myers (Waterloo—Wellington, Lib.): Mr. Speaker, I could offer as examples some of the most recent cases of deplor- rise today to address a very important issue on behalf of the able, repeated and devastating child sexual abuse where the residents of Waterloo—Wellington. It is obvious the hon. member predators had no previous record to be found, pardoned or other- for Calgary Centre has worked very hard to bring this matter to the wise. In others, the organizations responsible for the offenders’ attention of the House as a votable item. His desire to improve the involvement in positions of trust had not only made no effort to law, to redress the anomaly he perceives in the legislation and his investigate the offenders’ backgrounds but also had actively suggestions for reform outlined in the bill before us today are shielded them from complaints and possibility of investigations. In examples of the impact private members can have in the Parlia- light of these examples, it is possible that the proposal put forth ment of Canada. through Bill C-284 may be either incomplete or somewhat misdi- rected. The hon. member is doing the House and the government a service by identifying an area of the Criminal Records Act that I believe that more and more the role of the private member may affects the process of granting pardons and the subsequent treat- be to respond to the needs and aspirations of individual citizens. ment of both the pardoned records and the pardoned individual. He This is why I believe the effort of the member for Calgary Centre in points out that the current provisions of the act could favour the identifying a possible source of inequity and harm and in pardoned individual to the possible detriment of society at large. proposing legislative solutions is so important. By sponsoring the 498

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Private Members’ Business initiative before us today, my honourable colleague has fulfilled his A further complication is that the pardoned record sought in the most important obligation as a private member. interest of a children’s safety offence may form part of a series of charges and dispositions. Should these more or less related convictions also come to light? I think not. What problem has my colleague identified and what solutions does he propose? The purpose of Bill C-284 is to amend the Criminal Records Act to provide for the automatic revelation of the Perhaps the most significant flaw in the hon. member’s bill is pardoned criminal records of offences relating to the sexual that it ignores that the Criminal Records Act already provides for exploitation of children should the offender thereafter seek a disclosure and indeed revocation of pardoned records where neces- position as a caregiver, coach or in another role in which he or she sary and appropriate. might have power and influence over young people. Under section 6 of the act the solicitor general may at any time Bill C-284 is limited in focus to a single primary objective. It disclose a pardoned record to any person where the minister is seeks to address concerns over the current act which requires that satisfied that it is desirable to do so in the interests of the the records of those who are granted a pardon be sealed and set administration of justice or for any purpose related to national or international safety or security. This is a very broad test if not an aside to be revealed only in a very particular circumstance and only onerous standard to meet. Any person or organization may make an on the approval of the Solicitor General of Canada. The proposal application for the unsealing and disclosure of an ex-offender’s suggests a pardon that could be set aside in a much more casual pardoned record. way at the stroke of a bureaucratic pen. We must proceed very cautiously in this regard. Further, under section 7.2 of the act a pardon will be automatically revoked if the person is ever again convicted of an indictable D (1805) federal offence. It does not end there. Under section 6.2 of the act there can be limited disclosure of the existence of a pardoned record to police forces under specified circumstances. It should be noted that regardless of the disposition of a criminal record reference to the particulars of a case may exist in various locations and be under the control of various authorities. When the I mention all of this because the bill before us today seeks to Criminal Records Act was passed the limited effect of pardons provide corrective solutions to a factor that may not be as granted under its auspices was acknowledged. problematic as it first appears. Let us be clear that there are already a number of straightforward mechanisms for disclosing or revok- ing a pardoned record in appropriate circumstances. Many people As I am sure other hon. members will mention, only the release have advocated more substantial reform during the past decade. of federal records is directly constrained through the granting of a Specific proposals have been developed which identify other pardon. provisions under the current act which would benefit from review and amendment.

There may be local court and police records that persist and certainly the original media coverage and local knowledge of the Representatives of some provincial governments have made crimes in question remain unimpeded except by the passage of their views known, as has the voluntary sector active in the time. Such historical records are becoming more available through criminal justice system. These wider reforms are intended to the search capabilities of our society’s increasingly sophisticated address identified inconsistencies as well as important areas of electronic research tools. The benefits of a pardon are limited but possible improvement which have been put forward. the hon. member nonetheless seeks today to remove even this relief from certain pardoned offenders. If the outcome of the member’s work to date has been that the government is moving ahead to complete a review of outstanding issues focusing particularly on the areas to which my friend has My colleague’s proposal for the revelation of records in a narrow drawn our attention, I suggest this has been an indication of the and specific fashion may prove difficult to implement. I reiterate close collaboration between private members and the government. that there is no single exclusive record keeping system in the This would amount to proof of the effect that one member speaking country. Due to the federal nature of our political arrangements, for the rights of private citizens and constituents can have in records of criminal occurrences including records of arrest, trial, changing the laws in Canada. conviction and conditional release and supervision may exist in many places. As mentioned, media reports are more likely to exist in cases that may be of such a serious and shocking nature that they In wrapping up I return to a theme which I commented on earlier, may lend themselves to media sensationalization. These are the the important role of private members’ bills and the often unher- records the hon. member seeks to remove from the protection of alded accomplishments of those members who identify problems. I pardons under the Criminal Records Act. thank the hon. member for bringing that to our attention. 499

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Private Members’ Business

D (1810) for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on—conviction for an [Translation] offence for which a pardon has been granted.

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Mad- The Quebec charter of human rights and freedoms more specifi- am Speaker, the aim of Bill C-284 is to provide for a specific cally provides that individuals may not be discriminated against instance where public interest so requires for a limited disclosure upon hiring on the basis of criminal background. Let me read you of a record of conviction for an offender who has been pardoned section 18.2 of the charter, which provides for an exception that is where the conviction was for a sexual offence against a child. Thus extremely important and interesting in relation to our debate today. when a sexual offender applies for a position of trust with respect to It reads as follows: a child or children, the employer could have access to the individu- No one may fire, refuse to hire or penalize a person in any other way in his or her al’s criminal record. job by reason solely of the fact that this person has been convicted of a criminal or penal offence— Before looking at the individual clauses in detail, I think it would be a good idea to look at the clauses individually. What follows is very important. I read on: —provided this offence has no relation to the job or a pardon was granted. Clause 1 amends the preamble to the Criminal Records Act by providing for an exception whereby a criminal record may be The phrase ‘‘provided this offence has no relation to the job’’ is disclosed where public interest so requires it. extremely important.

Clause 2 amends section 6 of the Criminal Records Act by As we can see, the right to non-discrimination is not an absolute requiring—and this is very important—the minister to disclose right; in some cases, the lawmaker saw fit to include exceptions. information on the criminal history of a job applicant pardoned for For example, section 15 of the Canadian Human Rights Act states: a sexual offence against a child. It is not a discriminatory practice if (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is Clause 3 amends the Canadian Human Rights Act by providing established by an employer to be based on a bona fide occupational requirement; that a hiring policy based on a criminal history is not discriminatory where the job involves young children. This means an employer may refuse to employ an individual who does not meet the skill requirements without this being The aim of Bill C-284 is to protect society and especially considered a discriminatory practice. children against potential repeat offenders. Crimes involving violence against young children are probably the most repugnant of D (1815) all. People find such acts both shocking and incomprehensible. It is difficult to comprehend how an individual can sully youth in this manner and, more importantly, then want to put themselves in a On the other hand, recognition of the employee’s right to not be position to repeat the offence with young people in a job involving penalized for having committed a criminal act under section 18.2 the care of children or such like. of the Quebec charter does not prevent the employer from acting. In fact, where the alleged offence is related to the job, the employer may take appropriate measures to bypass or sanction an employee The member for Calgary Centre is legitimately attacking this whose duties are directly linked to a criminal past. This applies to scourge. He proposes that someone who has committed a sexual positions considered ones of trust by the public, such as those held offence against a child be never permitted to obtain work that by peace officers, teachers and even lawyers. would put children in his care or put him in a position of authority over a child. Under the Criminal Records Act, rehabilitation and pardon are synonymous. It is therefore to be expected that an individual who We have already examined this in the past. Society has already has been given a pardon may enjoy unrestricted freedom. Rehabi- looked as these problems, but there are perhaps loopholes in the litation should ensure that such an individual is no longer a threat to law, and the hon. member’s work is important. public safety. However, this is not always the case, even where rehabilitation has occurred. Certain illnesses, as I shall mention, Our community recognizes that everyone has the right to be free are hard to treat. from all forms of discrimination on the basis of social conditions. In this respect, section 2 of the Canadian Human Rights Act states: Nevertheless, as responsible lawmakers, we must make sure that The purpose of this act is to extend the laws in Canada to give effect—to the principle rehabilitation does not lead to recidivism. For example, some that every individual should have an equal opportunity with other individuals to make experts say that pedophilia is incurable and that no psychological 500

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Private Members’ Business treatment can correct this deviance. If this were true, all penal D (1820) corrective measures would be ineffective. Given that pedophiles are not in prison for life, it is reasonable to fear that on their release [English] some form of recidivism is possible. I would first like to praise the member for Calgary Centre for It is probably because of this uncertainty, which young people tabling such a pertinent piece of legislation. Bill C-284 which could pay for, that the lawmaker established ways to supervise and proposes to amend the Criminal Records Act and the Canadian monitor sexual criminals after their release. I think the government Human Rights Act with respect to sexual offences against children member covered this earlier, but unfortunately, this monitoring and is important in the sense that it focuses on one of the highest supervision is not foolproof. priorities this assembly should have: the protection of children from abuse. Section 161 of the Criminal Code provides that the court may Indeed, as parliamentarians we have the responsibility to fulfil prevent a sexual offender from taking or keeping a job or volunteer the fundamental role of government to ensure the protection of our work that would put him in a position of trust or authority with citizens. This is especially true for the most innocent in society, our persons under 14 years of age. children.

The effectiveness of the process in section 161 of the Criminal [Translation] Code is, however, contingent on the good faith of the offenders who want to comply with the court order. One only has to visit the Millions of them, throughout the country, are counting on us to courthouse on days when the court is sitting to realize that many find the path that will safely lead them to the adult world. orders are breached. Section 161 is a good section, it is a start, but it is too discretionary. It puts the onus on the offender to declare With the innocence and the openness that are their trademarks, certain things. Follow up is a problem, because follow-up is based children successfully meet sports, recreational and educational on the good faith of the offender. challenges; they take part in community activities with enthusiasm and creativity; they fill us with joy and contentment and give A question arises here: Are we to enable employers to anticipate meaning to the role of guide and protector that society has the bad faith of certain offenders by allowing them to have access bestowed on us, today’s adults. to offenders’ records and to deny employment as a result? I think this is a question raised by the bill, and with all I have said, we We must not betray the trust that children put in us. Better still, must say yes to this question in order to protect children. we must earn that trust. To this end, it is imperative that we shield their efforts and their valuable contribution to the building of In conclusion, non-discrimination implies the right to not be tomorrow’s society. subjected to an illegal distinction based on criminal offences for which one has been pardoned. Non-discrimination is not, however, Unfortunately, children are all too often the victims of the trust an absolute concept. Public safety may justify specific measures and the authority they bestow upon us with such spontaneity and which take individuals’ characteristics into consideration, their candour. criminal background for instance, as well as giving consideration to those whom we wish to protect. As a mother, I am always disturbed by statistics such as those telling us that one girl out of three is the victim of a sexual assault In the case of Bill C-284 introduced by the hon. member for before reaching the age of 18, and that one out of every six boys Calgary Centre, those we wish to protect are children, and I wholly suffers the same fate before the age of 16. support that objective. This is even worse when you consider that we, in this country, have the means to deal with sex offenders who, as you know, have Since the safety of children necessitates unceasing vigilance and one of the highest recidivism rate among criminal offenders. since the right to non-discrimination is not an absolute concept, in that the public interest could justify restriction of that right, a These statistics suggest that we are sorely failing as legislators. controlled disclosure of the records of sex offenders could be The bill proposes a way to increase our vigilance by creating a fair justified. For this reason, I can tell the hon. member introducing balance between the right of offenders to return to society, and the this bill that the Bloc Quebecois is in favour of it. right of our children to remain full members of our society and to be safe. Ms. Diane St-Jacques (Shefford, PC): Madam Speaker, it is with great interest that I take part in the debate on Bill C-284. Some may wonder about the right to privacy. As the sponsor of this bill explained when he introduced his legislation in the House, Let me say from the outset that this bill should get the unani- the privacy commissioner has already ruled that the act he adminis- mous support of the House, on behalf of all the children in this ters does not prevent the disclosure of personal information when country. this is done in the public interest. 501

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Private Members’ Business [English] painful and sometimes disastrous effects of an experience they should have and could have been spared. It is without a doubt in the public interest for children not to be exposed to those who have abused them in the past and who are Permit me, if you will, to point out the government’s position in likely to do so again in the future as the relevant statistics so clearly this regard: ‘‘The experiences of Canada’s children, especially in show. the early years, influence their health, their well-being, and their ability to learn and adapt throughout their entire lives’’. [Translation] This quote from the speech from the throne brings us back to the Who is targeted by this initiative? Any adult convicted of a point and encourages us to assume our responsibilities towards sexual offence against a child who applies for a new job and could those who represent our nation’s future. I therefore encourage the again be tempted to use a position of trust and authority to abuse, government to support this bill, which invites us to assume our once too often, young victims placed under his care. responsibility as lawmakers and to help all victims according to the widely shared principle of prevention. That is the only purpose of this bill. The proposed changes are explicitly aimed at people applying for a position of trust and authority with respect to children. In this regard, we will recall that the government made a commitment to provide an additional $850 million annually to Who among us has never had to put a loved one under the improve the Canadian child tax benefit. I congratulate it on this, supervision of a day care centre, a sports monitor or a recreation although I maintain that the benefit should be indexed. leader? Beforehand, we enquire about the reputation of the agency or the group in question. That said, would it not be ironic to hear our leaders say, on one hand, that they want to invest in our children while, on the other, This reputation, which is crucial to the survival of any organiza- refusing to take the measures necessary to protect this investment. tion dealing with children, can easily be tarnished by unscrupulous individuals who readily take advantage, to commit more offences, Yet there is no point in hoping that the government can success- of the position of trust the organization or group put so much fully build a true partnership with the private and volunteer sectors energy and patience into building up. for the development of our children, if it does not first and foremost take the necessary steps to protect both the organizations in Make no mistake about it: when such a crime occurs, it is as question and the young people they serve. much a tragedy for the organization as it is for the actual victims. Therefore, we have to provide these organizations with the tools I would like to point out, if I may, that this bill dovetails they need to maintain a flawless reputation and significantly perfectly with the youth justice strategy announced by the Minister contribute to the harmonious development of the Canadian society. of Justice this past May. [English] At that time, one of the recommendations she made was publication of the names of all young offenders convicted of We all know that Canadians need to believe that organizations in serious sexual assault charges. which they entrust their children’s safety have taken all the necessary actions to protect them. What is being proposed here is merely an extension of that measure to adults, along with a framework for doing so. People D (1825 ) must not draw the conclusion that what is involved is a blanket disclosure. On the contrary, these amendments would apply only The bill would enable those responsible for children to make within the context of an offender’s applying for a position of trust fully informed decisions about whom they hire by having the with respect to children. As well, disclosure would not be done capacity to identify and eventually keep out those who present without his knowledge, because the bill stipulates that applicants more of a risk when in a position of trust. are to be informed. Let us be clear. Bill C-284 does not propose that sex offences against children can never be pardoned. It does not propose either In closing, I am calling on all members of this House for that if one makes a mistake such as this it should be forever on unconditional support of Bill C-284, hoping that we can place the one’s criminal record. What the bill proposes is that if one sexually interests of our children foremost, before any partisan differences. abuses children the person could effectively be prevented from holding a position of care or authority over children again. [English]

[Translation] Mr. Grant McNally (Dewdney—Alouette, Ref.): Madam Speaker, it is an honour to be able to speak in support of my Children must remain our absolute priority. They are the ones colleague’s bill, Bill C-284. The member for Calgary Centre has that will have to deal throughout their entire lives with the often done a lot of hard work on this very important issue. 502

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Private Members’ Business Many in society are concerned about the safety of our children. Why is Bill C-284 necessary? Essentially it sends a message that Many are concerned about ensuring that those responsible for the protection of our children is of paramount importance. What children will not abuse their position of trust. Many are concerned more valuable resource do we have, as other members have alluded about how difficult it is for children’s organizations to know whom to earlier in this chamber, than our children? Not only as individu- it is they are hiring and to be sure they are not putting children als, as families, but as a society we must protect our children. at risk. These are the concerns which Bill C-284 intends to address. We see that many statistics and reports have been made that show that individuals who have committed these types of offences The bill would enable those responsible for children to make are more likely to offend again. I am not saying that all do, but fully informed decisions about whom they hire. Bill C-284 will research shows that individuals are more likely to offend again if give parents with children and third party care the assurance that they have committed these types of offences before. those responsible for looking after their children have not abused this position of authority in the past. I would also like to mention the point of privacy which was brought forward by the government member. In a May 1996 Bill C-284 is specific in its intent to better protect our children discussion paper the Privacy Commissioner explained that the from those who have been abusive toward them in the past. Bill Privacy Act does not prevent the release of personal information if C-284 proposes to allow for the limited disclosure of an individu- it is in the public interest to release such information. In fact the act al’s criminal record if the individual has been convicted of a sexual specifically permits the release of personal information in the offence against a child and later applies for a position of trust with public interest. respect to children.

In April 1996 an RCMP protocol manual said that they defined D (1830 ) public interest as evaluated on the basis of whether it is specific, current and probable, and where there is a possible invasion of privacy balanced against the public interest consideration may be Such a disclosure will include an individual’s criminal record for given to who would be receiving the information and whether any a previous sexual offence against a child or children, even if one controls can be placed on the further use or release of this had served one’s sentence and had later received a pardon which information. had removed the notice of conviction from the individual’s criminal record. I would submit to members of this House that the disclosure provisions of Bill C-284 fall well within the accepted protocol for I am glad to note that this is a votable bill and that so many the release of personal information of which one’s criminal record members are speaking in favour of this very important bill. is a part.

It is certainly in the public interest for children not to be exposed to those who have abused children in the past and are more likely to I would like to close by noting a particular case that happened in do so again. It is in the public interest for parents to have the town I lived in when I was a youngster. In fact, this story was confidence in those who are caring for their children. brought to mind by an article written in the Ottawa Citizen back in November of last year by an individual whose name is Abby Drover. For those who have suffered from sexual abuse, she As a former teacher and child care worker I know the importance characterized it as a life sentence. that working with children has and the position of trust individuals in those positions are entrusted with. I emphasize that the limited disclosure, which I mentioned earlier, will only take effect when an I remember this particular case because of its gruesomeness. I do individual applies for a position of trust with respect to a child or to not want to go into the details of it, but just say that those who children, a point which we hope the government takes note of. would commit such offences against children violate not only our children but us as a whole and as a society. We must put the emphasis on protecting our children because they are the most I also support this bill for other reasons. This bill does not valuable resource that we have. propose that sex offences against children can never be pardoned. This bill does not propose if one makes a mistake such as that, it should be forever on one’s record. Rather, Bill C-284 proposes that D (1835 ) if one does sexually abuse children, that person should effectively be prevented from holding a position of authority with children again. Those responsible for children will be able to see that a job As the father of four young children, I speak strongly in support applicant has abused such a position of trust in the past and thus be of this bill. I urge all members when we vote on this very important more judicious in their hiring practices. bill next week to give it their full support. 503

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Adjournment Debate Mr. Eric Lowther: Madam Speaker, I rise on a point of order. ADJOURNMENT PROCEEDINGS I was wondering if it would be agreeable to the House that I might seek unanimous consent to conclude debate on this particular bill in the time remaining. [English] The Acting Speaker (Ms. Thibeault): Is there unanimous consent? A motion to adjourn the House under Standing Order 38 deemed to have been moved. Some hon. members: Agreed.

RAILWAYS Mr. Eric Lowther (Calgary Centre, Ref.): Madam Speaker, I want to thank all hon. members for the support that has been given to this bill. It clearly demonstrates that we can work occasionally in Mr. John Solomon (Regina—Lumsden—Lake Centre, NDP): a non-partisan way. I also appreciate the comments. Madam Speaker, on June 2 I urged the transport minister to ask CN for a standstill on rail line abandonments until Justice Estey’s I just conclude on some of the points that were made here today report is received at year end. This question was precipitated by and give a clarification on some key themes that were repeated. CN’s announced closing of the Imperial subdivision in my riding.

In Canada today almost 99% of those who apply for pardons The transport minister said he was counting on the goodwill of actually get a pardon. It is almost a case that if you want one, you the railways not to abandon lines until the grain transportation get one. Currently there is no information kept as to what kind of review by Justice Willard Estey was complete. So much for crimes are pardoned and which ones are not. goodwill. Both CN and now the CPR have announced their intention to close branch lines under the new process implemented with changes to the Canadian Transportation Act. We know for a fact that pedophiles have a high rate of recidivism and we put people at risk who are in their care, particularly children This request seemed reasonable because every day in question of course. This is what the bill is trying to address which is what we period the government told us it was waiting for the MacKay report have talked about. on the bank mergers. Well why wait for MacKay but not Estey? That is what I want to know and so do the farmers in Saskatchewan. Another key thing we have talked about is that this is in the public interest, so much so that it overrides the privacy concerns of For the record, the mandate of Justice Estey’s review includes the Privacy Commissioner and he has even said so. ‘‘ensuring that Canada has the world’s most efficient, viable, and competitive grain handling and transportation system to meet the It is an important bill to support. Sometimes what happens with ongoing and long term expectations and demands of all custom- specific bills like this is that the government says it has to do a ers’’. much more comprehensive review of the issue. Things go on hold and we live with the status quo. Sometimes when we go with the I guess there are a number of ways to do that but the way the comprehensive review, the idea is that it is too comprehensive and Liberal government has approached the entire grain transportation something more specific is needed so nothing ever happens. system is not one of them. Here is what the Liberals did instead: They spent millions of taxpayers’ dollars to upgrade CN’s rail This bill, if it can help one child being delivered from abuse and lines. Then they privatized the CN. Then CN announced it would not having to experience the life sentence that abuse is, is worth us abandon those lines for a salvage value of between $25,000 and putting in place. If we want to do a more comprehensive review on $80,000 per mile, lines that will cost $1 million per mile to rebuild. a go forward basis, I have no problem with that.

D (1840 ) My appeal to the House is that even if this just stops the abuse of one child then is it not worth it to move this bill along and make the larger changes if need be in the future. The Liberal government also changed the Canadian Transporta- tion Act to remove the federal transport minister’s ability to say no to rail line abandonments. Now when asked to support a standstill The Acting Speaker (Ms. Thibeault): Pursuant to an order he can say ‘‘my hands are tied’’. It is a great trick. Houdini ties his made earlier today, the question is deemed put and the recorded own hands. Just like Houdini, maybe the minister could untie them division is deemed demanded and deferred until Tuesday, October again by making amendments to the CTA, like the ones suggested 6, 1998 at the expiry of the time provided for Government Orders. by the Government of Saskatchewan. 504

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Adjournment Debate I do not have time to go into the list today of what the Canada has the world’s most efficient, viable and competitive government has proposed, but if there is no action from the Liberal grain transportation and handling system to meet the ongoing and side of the House, I will introduce a private members’ bill to deal long term expectations of our customers. Mr. Estey’s recommenda- with those amendments myself. tions will not affect the economics of the operation of any prairie branch lines. Those lines with low or declining traffic owing to the A major cost associated with this policy of rail line abandon- closures of elevators by the grain companies will remain classified ments is the increased wear and tear on Saskatchewan, Alberta and as uneconomical. Manitoba highways. Justice Estey during public consultation meetings in Saskatchewan said that roads are the biggest single issue However, the rail network rationalization process was designed facing this review. to encourage commercial purchases of low traffic density lines. In the event that commercial transfers are not possible, it will allow The provincial transportation ministers agreed at their May for provincial and municipal governments to preserve these lines meeting on a proposal for federal participation in a national by purchasing them at net salvage value. highways program. Canada is the only OECD country without one. They suggested that the federal government take the $300 million it Rail network rationalization in Saskatchewan is to be driven by already spends on various highway programs, add $500 million the decisions of the grain companies. As grain companies divert more from the debt reduction fuel tax, for a total of $800 million grain to newer or expanded loading facilities, country elevators are which the provinces would then match. This proposal was endorsed closed and traffic disappears from these branch lines. The province by the premiers. As yet we do not know what happened to it from of Saskatchewan has not exercised its right under the Canada the federal government. Transportation Act to acquire these lines at net salvage value. A number of new developments have occurred. A number of recent developments on the rail issue should be brought to the In closing, I would emphasize that the rail rationalization attention of the House today. It concerns me because it makes it process has proven to be very successful. At the urging of the seem like the tail is wagging the dog a bit. Minister of Transportation, the railways have not proceeded with the discontinuance of lines if community groups have expressed The Sask wheat pool announced the closure of 235 elevators in interest in acquiring them. For every line discontinued six lines 170 locations on September 15. Then the CPR announced six have been transferred. Therefore, the government does— branch line closures on September 17. Then the transport minister told his provincial counterparts on September 25 that there can be The Acting Speaker (Ms. Thibeault): I am afraid I must no official moratorium on rail line abandonments. But CN officials interrupt the parliamentary secretary, but his time has expired. told me months ago which elevators the wheat pool would be closing. The wheat pool told CN that it would not tell me as a D member of parliament and it did not announce it for another four (1845) months publicly. I wonder, did they tell the transport minister? Did they tell Justice Estey? [Translation]

To conclude, I believe that most participants in the grain transportation system have confidence in Justice Estey’s work. EMPLOYMENT INSURANCE That is why we should wait for the report. I worry that the federal government is undermining his work though by letting the railways Mr. Yvon Godin (Acadie—Bathurst, NDP): get away with announcing closures now and that the wheat pool is Madam Speaker, doing more or less the same thing. last April, I asked a question about employment insurance eligibility. I encourage the Minister of Transport to step up his efforts with the railways, consider amendments to the transportation act to give There is a problem in the maritime regions with all the cuts in himself back some clout in this regard, and to keep fighting the cod and crab fishing quotas and even a moratorium on cod fishing. Minister of Finance so that we can get a national highways program We have talked several times, here in the House of Commons, in our country. about the hardship experienced by fish plant workers. For the past three years, the federal government has had to send money to the Mr. Stan Dromisky (Parliamentary Secretary to Minister of provinces for what is called the black hole, which stretches from Transport, Lib.): Madam Speaker, I am pleased to respond to the February to May. matters raised by the hon. member for Regina—Lumsden—Lake Centre on June 9, 1998 regarding the discontinuance of operations People wonder if they will have to live like that for the rest of over railway lines. their lives. Will fishers and fish plant workers have to experience that kind of hardship for the rest of their lives? Will all seasonal Mr. Estey, who is studying all aspects of the grain industry in workers have to experience that kind of hardship for the rest of western Canada, has been asked to recommend ways to ensure their lives? 505

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Adjournment Debate Who can live on $165 a week? Not the Minister of Finance, Rather than trying to set up temporary programs for those affected I can guarantee that. Neither the Minister of Finance nor the Prime by the collapse of the fishery we are trying to give workers the tools Minister can live on $165 a week less taxes. and programs they need to get on with their lives. This summer we announced $730 million in fishery restructuring and adjustment Today, in fact, I asked the Prime Minister a question. In February measures for the Atlantic groundfishery. These measures include 1993, when he was in opposition, he had taken the time to send a early retirement, active employment measures and economic de- letter to a Canadian. In it, he said that when—he did not say if—he velopment. was elected in the fall, he would make sure that something was done about EI, as well as the GST and pay equity. But what kind of D (1850 ) Prime Minister do we have? What are the Liberals now doing for Canadians? They are making find-sounding promises that they We also have the transitional jobs fund which has been very cannot keep. beneficial to Canadians living in areas of high unemployment. The transitional jobs fund has already created over 31,000 jobs. In New The EI fund belongs to workers. It is not there to reduce taxes. It Brunswick alone we helped create over 2,300 jobs for New belongs to workers and businesses. Is it not their fund? Morally, the Brunswickers and we expect to create more. government has no right to touch the money. Simply providing passive income support through regular EI It is disgraceful what is happening in our country, how the benefits is not a sufficient response to the unemployment problem. government wants to grab the money in the EI fund so that it can That is why we have worked with the provinces and territories to proudly tell us how it has balanced the budget. It has balanced the develop labour market arrangements tailored to local and regional budget and reduced the deficit to zero. How has it done this? On the needs. These arrangements are aimed at providing real solutions backs of workers. for unemployed Canadians.

It is not true that workers will put up with this. It is no different I wish to remind the member that we are transferring $228 from an insurance company. Suppose that today you purchase an million over three years to the Government of New Brunswick so insurance policy for your car and that, ten years from now, you that New Brunswickers can access programs that better respond to have an accident. You have paid insurance for ten years, and when the particular labour market challenges of New Brunswick than you go to collect, you are told: Sorry, the insurance company has was possible in the past. In addition, many social assistance used the money for something else. recipients will have access to these programs. This is an insurance policy that belongs to workers. It is time the This is just a highlight of the steps we have taken to help Atlantic Minister of Human Resources Development stopped letting the Canadians and Canadians in the member’s own province, and I can Minister of Finance push him around. He should stand up to him, assure the House that we will continue in our efforts. do the job he is supposed to do, and assume his responsibilities.

It is unacceptable. Today the Prime Minister told me I did not * * * know what I was talking about. I would encourage the Prime Minister to pay a visit to my riding. We would love to see him. ENVIRONMENT Let the Minister of Human Resources Development come to my region, where winter finds 46% of workers on EI because there is Hon. Charles Caccia (Davenport, Lib.): Madam Speaker, last no work. summer Canadians suffered from increased smog levels causing breathing problems, increased hospital admissions and premature The government should assume its responsibilities and quick. deaths.

[English] Smog results from the burning of oil and coal creating nitrogen oxides and volatile organic compounds together with other sub- Ms. Bonnie Brown (Parliamentary Secretary to Minister of stances which lead to the formation of ground level ozone which is Human Resources Development, Lib.): Madam Speaker, we are then part of the smog phenomenon. Scientists identify nitrogen all concerned about unemployed workers in Atlantic Canada and oxides from the burning of fossil fuels not only because it forms we are working to improve their prospects. In response to the smog but also because it is a component of acid rain. member’s comments regarding access to EI, let me point out that nearly 80% of unemployed workers in New Brunswick receive EI We have here a domestic problem as well as an international one benefits contrary to what the member continues to assert. because at the Lennox plant in eastern Ontario, Ontario Hydro has not installed the equipment needed to reduce nitrogen oxide Second, I point out that the government is taking strong steps to pollution. In addition new United States pollution regulations help unemployed fishers and fish plant workers in Atlantic Canada. designed to reduce smog could force Ontario Hydro to install 506

September 29, 1998 COMMONS DEBATES 8565

Adjournment Debate emissions abatement equipment if it wants to export power to the Davenport for raising this important issue which the Minister of the United States. Environment has taken seriously.

Selective catalytic reduction technology is available to reduce In September 1997 the federal Minister of the Environment smog and Ontario Hydro should bite the bullet and install it. From expressed her concerns regarding the Ontario Hydro situation in a an international perspective one must remember that in 1991 letter to her provincial counterpart, Norm Sterling. She encouraged Canada and the United States signed the air quality agreement Mr. Sterling to ensure that Ontario Hydro took full account of whereby each country is responsible for the effects of air pollution environmental issues as it developed its recovery strategy. it causes in the other country. Canada and the United States also agreed to consult and deal with any existing transboundary air pollution problems. As the House may know, Ontario has laid up some of its nuclear power plants and is using more of its fossil fuel fire power plants Therefore what we do in Canada to reduce nitrogen oxide is like the Lennox plant to ensure Ontario’s energy demand is met. desirable not only to improve air quality and prevent health The member will be pleased to know that Ontario Hydro has problems but also to make a case to the United States that it should indicated that it plans to modify two of the units at Lennox so that do its part in reducing air pollution. However the reverse also they will operate on natural gas, which of course is a cleaner fuel applies. than oil.

Last week we learned of a significant announcement by the In Mr. Sterling’s response to the minister he ensured that they United States Environmental Protection Agency that 22 eastern United States will be required to cut nitrogen emissions by 28% would look at the mitigation of the environmental impacts of starting in the year 2003. Such steps could lead to a substantial Ontario Hydro’s recovery plan and that it would be a major reduction in smog formation. consideration for the all-party select committee on Ontario Hydro nuclear affairs formed by the provincial government as would the investigation of the economic and environmental viability of Will Canada reciprocate? This is why I am asking the Minister of alternative energy supply options. the Environment what progress has been made to ensure Ontario makes every effort to minimize air pollution through the reduction of nitrogen oxide emissions. Our Minister of the Environment is prepared to discuss this issue again with Mr. Sterling to further impress upon him the need to Unfortunately Ontario Hydro has apparently made the decision ensure that the electricity supplied by Ontario Hydro is generated not to outfit an oil burning power plant in eastern Ontario with the in a manner that is both safe and environmentally sound and to next generation of pollution control devices which permit the encourage him to consider actions to further reduce air pollution in reduction of nitrogen oxides. Ontario.

As I did on March 30, I would like to inquire of the parliamenta- Mr. Sterling’s ministry has placed a cap on nitrogen oxides and ry secretary whether the Minister of the Environment will ask her sulphur dioxide emissions from Ontario Hydro facilities and the Ontario counterpart to intervene with Ontario Hydro and see to it company has indicated that it will continue to meet those demands. that its decision is reversed; that the nitrogen oxide reducing Minister Sterling is also aware that further reductions in those equipment is installed at the Lennox plant, thus permitting Canada emissions will be necessary in order to address both domestic and to keep its international commitment; and to reciprocate to the transboundary acid rain and smog issues. United States Environmental Protection Agency initiative of issuing new tough standards for emission of nitrogen oxides aimed at reducing smog levels as reported today in a national newspaper. The Acting Speaker (Ms. Thibeault): The motion to adjourn the House is now deemed to have been adopted. Accordingly, this D (1855) House stands adjourned until tomorrow at 2 p.m. pursuant to Standing Order 24(1). Ms. Paddy Torsney (Parliamentary Secretary to Minister of the Environment, Lib.): Madam Speaker, I thank the member for (The House adjourned at 6.57 p.m.) 507 508

CONTENTS

Tuesday, September 29, 1998

ROUTINE PROCEEDINGS Ms. Catterall ...... 8513 Mr. Abbott ...... 8513 Criminal Records Act Mr. MacKay ...... 8513 Mr. Hill (Prince George—Peace River)...... 8497 Mr. Abbott ...... 8514 Motion ...... 8497 Mr. MacKay ...... 8514 (Motion agreed to) ...... 8497 Mr. Abbott ...... 8514 Petitions Mr. DeVillers ...... 8514 Marriage Mr. Hart ...... 8516 Ms. Catterall...... 8497 Mr. DeVillers ...... 8516 CRTC Mr. White (Langley—Abbotsford) ...... 8516 Ms. Catterall...... 8497 Mr. DeVillers ...... 8516 Multilateral Agreement on Investment Mr. MacKay ...... 8516 Ms. Catterall...... 8497 Mr. DeVillers ...... 8516 Marriage Mr. Bryden ...... 8516 Mr. Morrison...... 8497 Mr. MacKay ...... 8518 Bill C–68 Mr. Bryden ...... 8518 Mr. Morrison...... 8497 Mr. Hart ...... 8518 Marriage Mr. Bryden ...... 8519 Mr. Wappel...... 8498 Mr. White (Langley—Abbotsford) ...... 8519 Mr. Johnston ...... 8498 Mr. Lee ...... 8520 Bill C–68 Mr. Ramsay ...... 8521 Mr. Stinson...... 8498 Mr. Pickard ...... 8522 Young Offenders Act Supplementary Report of the Auditor General of Canada Mr. Ramsay...... 8498 The Speaker...... 8523 Bill C–68 Mr. Ramsay...... 8498 STATEMENTS BY MEMBERS Marriage Mr. Ramsay...... 8498 Humanitarians Property Rights Mr. Pickard...... 8523 Mr. Ramsay...... 8498 First Ministers Conference Questions on the Order Paper Mr. Obhrai...... 8524 Mr. Knutson...... 8498 Arthritis Mrs. Ur...... 8524 GOVERNMENT ORDERS Health DNA Identification Act Ms. Desjarlais...... 8524 Bill C–3—Time Allocation Motion William Hancox Mr. Boudria...... 8498 Mr. McKay...... 8524 Motion ...... 8498 Motion agreed to ...... 8499 The Environment Third Reading Mr. Pratt...... 8524 Mr. Myers...... 8500 The Senate Mr. Lebel ...... 8502 Ms. Meredith...... 8525 Mr. Myers ...... 8502 Mrs. Chamberlain ...... 8502 John Eakins Mr. Obhrai ...... 8503 Mr. O’Reilly...... 8525 Mrs. Chamberlain ...... 8504 The Late Private Gilles Desmarais Mr. Obhrai ...... 8505 Mr. Serré...... 8525 Mrs. Chamberlain ...... 8505 Scrapie Mr. Obhrai ...... 8505 Mr. Desrochers...... 8525 Mr. Discepola ...... 8505 Mrs. Longfield ...... 8507 Victims of Violence Mrs. Longfield ...... 8508 Mr. Cadman...... 8526 Mrs. Longfield ...... 8509 Société Saint–Jean–Baptiste Mr. Mahoney ...... 8509 Mr. Paradis...... 8526 Mr. Abbott ...... 8510 Mr. Mahoney ...... 8510 International Year of the Ocean Mr. Abbott ...... 8511 Mrs. Tremblay...... 8526 509

Maison Parent–Roback APEC Summit Mrs. Jennings...... 8526 Mr. Mills (Red Deer)...... 8532 Mr. Axworthy (Winnipeg South Centre) ...... 8532 Justice Mr. Mills (Red Deer) ...... 8532 Mr. Casey...... 8527 Mr. Axworthy (Winnipeg South Centre) ...... 8532 Land Mines Scrapie Mr. McWhinney...... 8527 Ms. Alarie...... 8532 Mr. Vanclief ...... 8533 Veterans Affairs Mr. Muise...... 8527 Steel Industry Mr. Provenzano...... 8533 ORAL QUESTION PERIOD Mr. Marchi ...... 8533 APEC Summit Employment Insurance Miss Grey...... 8533 Mr. Manning...... 8527 Mr. Axworthy (Winnipeg South Centre) ...... 8533 Mr. Chrétien (Saint–Maurice) ...... 8527 Miss Grey ...... 8533 Mr. Manning ...... 8527 Mr. Axworthy (Winnipeg South Centre) ...... 8533 Mr. Chrétien (Saint–Maurice) ...... 8528 Mr. Manning ...... 8528 Employment Insurance ...... Mr. Chrétien (Saint–Maurice) ...... 8528 Mr. Godin (Acadie—Bathurst) 8534 Mr. Chrétien (Saint–Maurice) ...... 8534 Mr. Solberg ...... 8528 Mr. Godin (Acadie—Bathurst) ...... 8534 Mr. Chrétien (Saint–Maurice) ...... 8528 Mr. Godin (Acadie—Bathurst) ...... 8534 Mr. Solberg ...... 8528 Mr. Chrétien (Saint–Maurice) ...... 8534 Mr. Solberg ...... 8528 Mr. Chrétien (Saint–Maurice) ...... 8528 APEC Summit Mr. Duceppe ...... 8528 Mr. MacKay...... 8534 Mr. Chrétien (Saint–Maurice) ...... 8528 Mr. Scott (Fredericton) ...... 8534 Mr. Duceppe ...... 8528 Mr. MacKay ...... 8534 Mr. Chrétien (Saint–Maurice) ...... 8528 Mr. Scott (Fredericton) ...... 8534 Mr. Crête ...... 8529 Scrapie Mr. Pettigrew ...... 8529 Mr. Coderre...... 8534 Mr. Crête ...... 8529 Mr. Coderre ...... 8535 Mr. Pettigrew ...... 8529 Mr. Vanclief ...... 8535 Ms. McDonough ...... 8529 Fisheries Mr. Chrétien (Saint–Maurice) ...... 8529 Mr. Lunn...... 8535 Ms. McDonough ...... 8529 Mr. Anderson ...... 8535 Mr. Chrétien (Saint–Maurice) ...... 8529 Mrs. Wayne ...... 8530 Chilean Refugees Mr. Chrétien (Saint–Maurice) ...... 8530 Mr. Ménard ...... 8535 Mrs. Wayne ...... 8530 Ms. Robillard ...... 8535 Mrs. Wayne ...... 8530 Pharmaceuticals Mr. Chrétien (Saint–Maurice) ...... 8530 Ms. Wasylycia–Leis ...... 8535 Aboriginal Affairs Mr. Rock ...... 8535 Mr. Scott (Skeena)...... 8530 Presence in Gallery Mr. Rock ...... 8530 The Speaker...... 8536 Mr. Scott (Skeena) ...... 8531 The Late Gilles Rocheleau Mr. Rock ...... 8531 Mr. Duceppe...... 8536 Employment Insurance Mr. Massé ...... 8536 Mr. Gauthier...... 8531 Mr. Jaffer ...... 8536 Mr. Pettigrew ...... 8531 Mr. Nystrom ...... 8537 Mr. Gauthier ...... 8531 Mr. Harvey ...... 8537 Mr. Gauthier ...... 8531 The Late Paul Tardif Mr. Pettigrew ...... 8531 Mr. Bellemare...... 8537 Social Insurance Numbers Mr. Morrison ...... 8537 Mr. Desrochers ...... 8538 Mr. Williams...... 8531 Mr. Nystrom ...... 8538 Mr. Pettigrew ...... 8531 Mr. Jones ...... 8538 Mr. Williams ...... 8531 Mr. Pettigrew ...... 8532 GOVERNMENT ORDERS Mr. Cardin ...... 8532 Mr. Cardin ...... 8532 DNA Identification Act Mr. Pettigrew ...... 8532 Bill C–3. Third reading ...... 8538 510

Mr. Anders ...... 8538 Mr. Bergeron ...... 8553 Mr. Malhi ...... 8540 Mr. Solomon ...... 8553 Ms. Meredith ...... 8541 Mr. Harvey ...... 8553 Mr. Sekora ...... 8542 Amendment negatived ...... 8554 Mr. Stinson ...... 8543 Mr. Stinson ...... 8544 PRIVATE MEMBERS’ BUSINESS Ms. Cohen ...... 8545 Mr. Stinson ...... 8545 Criminal Records Act Ms. Cohen ...... 8545 Bill C–284. Second reading ...... 8554 Mr. Stinson ...... 8545 Mr. Ritz ...... 8554 Ms. Cohen ...... 8545 Mr. Myers ...... 8556 Mr. Martin (Esquimalt—Juan de Fuca) ...... 8546 Mr. Bellehumeur ...... 8558 Mr. Bonwick ...... 8547 Ms. St–Jacques ...... 8559 Mr. Ritz ...... 8549 Mr. McNally ...... 8560 Mr. Goldring ...... 8550 Mr. Lowther ...... 8562 Suspension of Sitting Division deemed demanded and deferred ...... 8562 Ms. Catterall...... 8550 (The sitting of the House was suspended at 4.48 p.m.). . . . 8550 ADJOURNMENT PROCEEDINGS Sitting resumed Railways The House resumed at 5.15 p.m...... 8551 Mr. Solomon...... 8562 Mr. Harvard ...... 8552 Mr. Dromisky ...... 8563 Mr. Kilger ...... 8552 Employment Insurance (Bill read the third time and passed) ...... 8553 Mr. Godin (Acadie—Bathurst) ...... 8563 Ms. Brown ...... 8564 Canada Small Business Financing Act Bill C–53. Second reading ...... 8553 Environment Mr. Kilger ...... 8553 Mr. Caccia...... 8564 Mr. Strahl ...... 8553 Ms. Torsney ...... 8565 511 MāāAāāIāāL PāOāSāTāE Canada Post Corporation/Société canadienne des postes Postage paid Port payé Lettermail Poste-lettre 03159442 Ottawa

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Ce document est disponible en français

Available on the Parliamentary Internet: http://www.parl.gc.ca (Committee Business – Senate – 40th Parliament, 3rd Session)

This report and the Committee proceedings are available online at www.senate-senat.ca

Hard copies of this document are also available by contacting the Senate Committees Directorate at 613-990-0088 (Toll free: 1-800-267-7362) or at [email protected] 514

TABLE OF CONTENTS

ORDER OF REFERENCE ...... 1

MEMBERSHIP ...... 2

INTRODUCTION...... 5

OUR STUDY AND ITS CONTEXT ...... 9

THE SCOPE OF OUR STUDY ...... 24

WITNESSES WE HEARD FROM ...... 26

GENERAL OBSERVATIONS ...... 26

WITNESS CONCERNS IN RELATION TO THE CRIMINAL CODE ...... 27

THE COMMITTEE’S FINDINGS WITH RESPECT TO SPECIFIC CRIMINAL CODE CONCERNS ...... 32

WITNESS CONCERNS AND COMMITTEE FINDINGS IN RELATION TO THE DNA IDENTIFICATION ACT ...... 45

RECOMMENDATIONS REGARDING RESOURCING FOR THE NATIONAL DNA DATA BANK AND THE RCMP, ONTARIO AND QUEBEC FORENSIC LABS ...... 65

CREATION OF MISSING PERSONS, UNIDENTIFIED HUMAN REMAINS AND VICTIMS INDICES AT THE NATIONAL DNA DATA BANK ...... 75

APPENDIX 1 – Designated Offences in the Criminal Code ...... 81

APPENDIX 2 – RECOMMENDATIONS ...... 87

APPENDIX 3 - WITNESS LIST ...... 93 515

516

ORDER OF REFERENCE

Extract from the Journals of the Senate, Tuesday, March 16, 2010:

The Honourable Senator Carstairs, P.C. moved, seconded by the Honourable Senator Joyal, P.C.:

That the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine and report on the provisions and operation of the DNA Identification Act (S.C. 1998, c. 37); and

That the papers and evidence received and taken and work accomplished by the committee on this subject since the beginning of the Second Session of the Fortieth Parliament be referred to the committee; and

That the committee report to the Senate no later than October 28, 2010 and that the committee retain all powers necessary to publicize its findings until 90 days after the tabling of the final report.

The question being put on the motion, it was adopted.

Gary W. O‘Brien Clerk of the Senate

517

MEMBERSHIP

THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

40TH PARLIAMENT, 3RD SESSION

The Honourable Joan Fraser Chair

The Honourable John D. Wallace Deputy Chair

and

The Honourable Senators:

W. David Angus George Baker, P.C. Pierre-Hugues Boisvenu Claude Carignan Sharon Carstairs, P.C. *James S. Cowan (or Claudette Tardif) Serge Joyal, P.C. Daniel Lang *Marjory LeBreton, P.C. (or Gérald J. Comeau) Jean-Claude Rivest Robert William Runciman Charlie Watt *Ex Officio Members

Other Senators who have participated from time to time on this study during the 3rd Session of the 40th Parliament: The Honourable Nancy Greene Raine, Terry M. Mercer, Dennis Patterson, Maria Chaput, Richard Neufeld, Dennis Dawson, Robert W. Peterson, Marie-P. Poulin (Charette).

Other Senators who have participated from time to time on this study during the 2nd Session of the 40th Parliament: The Honourable Tommy Banks, Larry W. Campbell, and Pierre Claude Nolin

518

The committee wishes to acknowledge the special contribution and excellent work of Ms. Jennifer Bird, Analyst from the Library of Parliament in the preparation of this report.

The committee would also like to thank the following staff for their excellent work in the preparation of this report:

From the Library of Parliament: Cynthia Kirkby, Analyst Carolina Mingarelli, Analyst

From the Committees Directorate: Jessica Richardson, Clerk of the Committee, 2nd Session of the 40th Parliament Lynn Héroux, Administrative Assistant, 2nd Session of the 40th Parliament

Shaila Anwar, Clerk of the Committee, 3rd Session of the 40th Parliament Tracy Amendola, Administrative Assistant, 3rd Session of the 40th Parliament

From the office of the Chair of the Committee: Céline Éthier, Policy Advisor

519

520

INTRODUCTION

On 26 February 2009, this committee received an Order of Reference from the Senate1 to study the provisions and operation of the DNA Identification Act (―the Act‖).2 The Order of Reference was issued in accordance with section 13 of the Act, which mandated a review of this statute by a parliamentary committee within five years after the Act came into force.

The DNA Identification Act constituted one of the two key components of Bill C-3, An Act respecting DNA identification and to make consequential amendments to the Criminal Code and other Acts.3 When it came into force on 30 June 2000,4 the DNA Identification Act created a national databank to facilitate the forensic identification of individuals in relation to crimes that had been committed. It also established a legal framework to regulate the storage, and in some cases, the collection and disposal of both deoxyribonucleic acid (DNA)5 profiles6 and the biological samples from which they had been derived. The legislative framework established by the DNA Identification Act was designed to complement the system for DNA collection provided by the Criminal Code (―the Code‖).7 Amendments to the Criminal Code’s DNA collection scheme, empowering courts to authorize the taking of DNA samples from individuals convicted of certain ―designated offences‖8 outlined in the Code, constituted the second key component of Bill C-3.

Section 13 of the DNA Identification Act states:

Within five years after this Act comes into force, a review of the provisions and operation of this Act shall be undertaken by any

1 See Senate, Debates, 2nd Session, 40th Parliament, 26 February 2009 at p. 285, available on-line at: http://www.parl.gc.ca/40/2/parlbus/chambus/senate/deb-e/pdf/013db_2009-02-26-E.pdf. 2 S.C. 1998, c. 37. 3 Ibid. 4 The DNA Identification Act came into force in two stages. Sections 2, 3 and 12 of the Act came into force on 8 May 2000, through an Order Fixing May 8, 2000 as the Date of the Coming into Force of Certain Sections of the Act, SI/2000-37, and the remaining sections (1, 4 to 11 and 13 to 25) came into force on 30 June 2000, through an Order Fixing June 30, 2000 as the Date of the Coming into Force of Certain Sections of the Act, SI/2000-60. 5 Deoxyribonucleic Acid (DNA) is a nucleic acid or macromolecule contained in the chromosomes of all known living organisms as well as in some viruses. It contains the genetic instructions or code necessary to allow organisms and these viruses to develop. 6 A DNA profile is a digital file that summarizes selected elements of genetic information located on human chromosomes. 7 R.S.C. 1985, c. C-46. 8 What constitutes a ―designated offence‖ is defined in section 487.04 of the Criminal Code. 5

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committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose.

In its original form, section 13 required a review of the Act to be conducted by either a committee of the House of Commons or a committee of both Houses of Parliament. However, in 2000, with the coming into force of Bill S-10,9 section 13 of the DNA Identification Act was amended to permit a Senate committee to conduct this review as well, if designated or established to do so. Section 13 of the Act was amended in accordance with undertakings given to the Standing Senate Committee on Legal and Constitutional Affairs by the Solicitor General of Canada during the course of the committee‘s hearings on Bill C-3. The committee reported Bill C-3 to the Senate without amendment,10 despite some concerns raised by members in relation to the bill, on the strength of a letter from the Solicitor General to the then chair of this committee, in which the Solicitor General undertook to:

create a DNA Data Bank Advisory Committee, membership of which was to include a representative from the Office of the Privacy Commissioner;

pre-publish the regulations to accompany the DNA Identification Act, and make them available to the Senate for comment and evaluation;

have the RCMP Commissioner include, as part of his annual report to the Minister, a report on the operation of the National DNA Data Bank;

clarify in the regulations that what is meant by a ―DNA profile‖ is not a ―profile for medical reasons‖; and

amend the DNA Identification Act to give a committee of the Senate the same authority to conduct the parliamentary review mandated by section 13 of the Act as a House of Commons or a joint committee.11

Given that the DNA Identification Act came into force in its entirety by 30 June 2000, a committee of the Senate, House of Commons or both Houses of Parliament should have initiated a comprehensive review of the provisions and operation of this statute prior to 30 June 2005. Unfortunately, no review was commenced by any parliamentary committee prior to that date. However, in February of 2009, the Senate issued an Order of Reference to this committee, authorizing it to conduct such a review; and in the same month, the House of Commons Standing

9 An Act to amend the National Defence Act, the DNA Identification Act and the Criminal Code (S.C. 2000, c. 10). 10 Senate, Standing Committee on Legal and Constitutional Affairs, Sixteenth Report, 1st Session, 36th Parliament, 8 December 1998, available on-line at: http://www.parl.gc.ca/36/1/parlbus/commbus/senate/com-e/lega-e/rep- e/rep16dec98-e.htm. 6

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Committee on Public Safety and National Security began its own statutory review of the Act. Both committees were required to report the results of their reviews to their respective Houses of Parliament by 30 June 2009. The House of Commons committee held three meetings on this study between 24 February and 28 April 200912 and reported the results of its review to the House of Commons in June 2009.13 Key recommendations made by the House of Commons committee in its report included:

that the Government of Canada amend the DNA Identification Act and related laws to allow for the automatic taking of a DNA sample from everyone convicted of a designated offence immediately upon conviction;

that the Government of Canada and the provincial governments of Ontario and Quebec immediately allocate additional funding to the RCMP, Ontario and Quebec forensic labs;

that the Government of Canada maintain the National DNA Data Bank and all associated facilities as a public service and authorize the use of private facilities solely in exceptional overflow circumstances;

that the Government of Canada amend the Criminal Code to allow a suspect of a designated offence to voluntarily provide a DNA sample for an exoneration test; and

that the federal, provincial and territorial ministers of Justice and Public Safety determine the best way of proceeding to create a Missing Persons Index and a Victims Index at the National DNA Data Bank.14 The Government of Canada responded to the House of Commons committee‘s report on 19 October 2009 by stating that the recommendations contained in it were ―acceptable in principle to the Government‖ and that it would ―consult with the provinces, law enforcement

11 Ibid. 12 During the course of its statutory review of the DNA Identification Act, the House of Commons Standing Committee on Public Safety and National Security heard from representatives of the RCMP, the National DNA Data Bank Advisory Committee, the Department of Justice, the Canadian Association of Chiefs of Police, the Criminal Lawyers‘ Association, the Office of the Privacy Commissioner of Canada, the Laboratoire de sciences judiciaries et de medicine légale and the Centre of Forensic Sciences. Transcripts of the testimony provided by these witnesses are available on the committee‘s website at: http://www2.parl.gc.ca/CommitteeBusiness/CommitteeMeetings.aspx?Language=E&Mode=1&Parl=40&Ses=2&C mte=SECU&Stac=2605846. 13 House of Commons, Standing Committee on Public Safety and National Security, Statutory Review of the DNA Identification Act, 2nd Session, 40th Parliament, 18 June 2009, available on-line at: http://www2.parl.gc.ca/content/hoc/Committee/402/SECU/Reports/RP3994957/securp02/securp02-e.pdf. 14 Ibid. Please note that the recommendations referenced above have been paraphrased. A full list of the recommendations made by the House of Commons Standing Committee on Public Safety and National Security can be found at pp. 13 – 14 of that committee‘s report. 7

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and other stakeholders on a priority basis with a view to developing a consensus on how best to proceed.‖15

While this committee had held several meetings with respect to its own statutory review of the DNA Identification Act prior to the original reporting deadline of 30 June 2009, members were of the view that additional hearings would be required in order to obtain an accurate picture of all of the issues involved. In light of the rapid scientific advances in DNA analysis and the significant changes that had been made to the Criminal Code framework for DNA collection it would probably be necessary to recommend significant legislative and policy changes in relation to the DNA Identification Act and the Criminal Code. Accordingly, during the 2nd Session of the 40th Parliament, the committee sought and received two extensions of the original reporting deadline from the Senate.16 Unfortunately, the statutory review of the Act was pre-empted by the study of government bills, and the committee was unable to complete its study before the 2nd Session of the 40th Parliament concluded. The committee did not want to leave this important study incomplete, however, and following the commencement of the 3rd Session of the 40th Parliament, we sought and received a new Order of Reference from the Senate to continue it. The committee‘s current Order of Reference requires us to table our final report in relation to our statutory review in the Senate no later than 28 October 2010.17 This report sets out the results of our review of the provisions and operation of the Act, as well as our recommendations.

15 Government Response to the 2nd Report of the House of Commons Standing Committee on Public Safety and National Security, Statutory Review of the DNA Identification Act, 2nd Session, 40th Parliament, 19 October 2009, available on-line at: http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=4144321&Language=E&Mode=1&Parl=40&Se s=2. 16 See Senate, Debates, 2nd Session, 40th Parliament, 18 June 2009, p. 1263, available on-line at: http://www.parl.gc.ca/40/2/parlbus/chambus/senate/deb-e/pdf/048db_2009-06-18-E.pdf and Senate, Debates, 2nd Session, 40th Parliament, 9 December 2009, pp. 1947 and 1948, available on-line at: http://www.parl.gc.ca/40/2/parlbus/chambus/senate/deb-e/pdf/079db_2009-12-09-E.pdf. 17 See Senate, Debates, 3rd Session, 40th Parliament, 16 March 2010, pp. 100 – 101, available on-line at: http://www.parl.gc.ca/40/3/parlbus/chambus/senate/deb-e/pdf/006db_2010-03-16-E.pdf. 8

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OUR STUDY AND ITS CONTEXT

It would be impossible to fully understand the findings or recommendations contained in this report without knowledge of how the framework governing the use of DNA technology by Canada‘s criminal justice system has evolved over time. Accordingly, this section of our report provides a brief description of the process currently used to create DNA profiles. It also provides an outline of how DNA samples obtained from individuals during the course of a criminal investigation were used as evidentiary tools prior to the enactment of the DNA Identification Act. This section also describes the legislative scheme introduced by that Act, which, among other things, created the National DNA Data Bank (―the Data Bank‖), and the major amendments which have since been made to the DNA Identification Act, the Criminal Code, and the National Defence Act18 in relation to DNA collection and analysis. Finally, this section provides an overview of the new methods or types of DNA forensic analysis that are beginning to be used both in Canada and in other jurisdictions.

When DNA identification technology started to become available in the 1980s, law enforcement officials, Crown prosecutors and other participants in the Canadian justice system were quick to recognize its potential as a forensic identification tool. It is hard to overstate the value of this technology as a mechanism to differentiate or distinguish one individual from another. No other forensic identification technique (fingerprints, tool marks, tire tracks, ballistics, and so forth) is as effective in either eliminating suspects or providing persuasive evidence of guilt. As was eloquently stated by the United States‘ National Academy of Sciences in its February 2009 report, Strengthening Forensic Science in the United States: A Path Forward:

DNA typing is now universally recognized as the standard against which many other forensic individualization techniques are judged. DNA enjoys this preeminent position because of its reliability and the fact that, absent fraud or an error in labeling or handling, the probabilities of a false positive are quantifiable and often miniscule.19

The reason that DNA is such an effective identification tool is because although almost all of the genetic information in the human genome is the same from one person to the next,

18R.S.C. 1985, c. N-5. 19 National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward, National Acadamies Press, Washington, D.C., 2009, p. 130. 9

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enough of the DNA found in each of us is different to distinguish one individual from another. In fact, it is believed that no two people have the same DNA, except for identical twins.

A. Current Process Used to Create DNA Profiles

The taking of DNA for the purpose of forensic analysis is accomplished by first taking samples of bodily substances from individuals. This may be done by:

plucking individual hairs from the person in question, including the root sheath;

taking buccal swabs by swabbing the lips, tongue and inside cheeks of the person to collect epithelial cells; or

obtaining blood from the person by pricking his or her skin with a sterile lancet.20

Once the sample has been taken, it is then sequenced in a forensic laboratory by a qualified technician. The technician does not sequence the individual‘s entire genome (the complete hereditary information found on all 23 pairs of chromosomes) but instead sequences only small, select regions on the person‘s chromosomes that are known to exhibit high levels of variation among individuals. The sequences in question are known as short tandem repeats (STRs).21 The advantage of using STR sequences in forensic analysis of DNA is that there are many possible variations of these segments in the human population, these variations can be identified by using techniques that determine the length of the segment in question, and a small amount of DNA may be enough to conduct an analysis.22

A DNA profile is created by digitally summarizing the information contained in STR markers taken from 13 different loci (the specific location of a gene or DNA sequence on a chromosome), as well as a DNA marker that differentiates between the X and Y chromosomes. By using 13 STR numbers plus an identifier for sex to create the DNA profile, the possibility of

20 See section 487.06(1) of the Criminal Code. 21 STRs have tandem repeats of only three to four base-pairs (two nucleotides or molecules, which, when joined together, create structural units of DNA on opposite and complementary DNA strands connected via hydrogen bonds). These STRs may be repeated in the DNA molecule from a few to dozens of times. 22 Because the samples are so short, technicians use another technique, known as polymerase chain reaction (PCR) to increase the size of the sample in order to make it easier to analyse. For more information on STRs and how DNA profiles may be created using PCR/STR technology, see Thomas Curran, Forensic DNA Analysis: Technology and Application, BP-443E, Parliamentary Information and Research Service, Library of Parliament, September 1997, available on-line at: http://www2.parl.gc.ca/content/lop/researchpublications/bp443-e.pdf. 10 526

a random match between the profiles of two individuals is thought to be in the order of one in billions or even trillions.23

B. Bill C-104, An Act to amend the Criminal Code and the Young Offenders Act (forensic DNA analysis)

DNA forensic evidence was used for the first time in a criminal prosecution in Canada in 1988. At that time, Canada had no legislation authorizing the seizure of bodily tissue samples for that purpose, with or without the consent of an accused. As DNA evidence began to be used more widely in Canada‘s courts, accused persons began challenging the admissibility of such evidence at trial, on the grounds that the taking DNA samples violated rights protected under sections 7 and 8 of the Canadian Charter of Rights and Freedoms (―the Charter‖),24 particularly where it could be shown that these samples were taken without the consent of the accused. Courts, in turn, began ruling such evidence inadmissible in the absence of a legislative framework safeguarding the rights of accused persons.25

Responding to such judgments, Parliament enacted Bill C-104, An Act to amend the Criminal Code and the Young Offenders Act (forensic DNA analysis)26 in 1995. This statute amended the Criminal Code to allow courts to authorize the taking of DNA samples from adults and young people suspected of having been parties to ―designated offences.‖ Under the scheme introduced by Bill C-104, provincial court judges were empowered to issue a warrant authorizing a peace officer, or another person acting under the direction of a peace officer, to obtain samples of bodily substances for forensic DNA analysis, if satisfied that there were reasonable grounds to believe that a designated offence, as defined in section 487.04 of the Code, had been committed, and that a bodily substance found at the crime scene, on the victim, or on another person or thing

23 See John Butler, ―Background Information,‖ Short Tandem Repeat DNA Internet DataBase (STRBase), STR Training Materials, National Institutes of Science and Technology (United States), available on-line at: http://www.cstl.nist.gov/strbase/training.htm. 24 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Section 7 of the Charter guarantees the right to life, liberty and security of the person while section 8 of the Charter protects against unreasonable search and seizure. 25 See, for example, R. v. Borden, [1994] 3 S.C.R. 145 and R. v. Stillman, [1997] 1 S.C.R. 607, in which the Supreme Court of Canada ruled DNA evidence inadmissible because bodily substances had been seized by police who had neither the consent of the accused, nor any prior judicial authorization. In particular, in the Stillman decision, the Court concluded that the taking of bodily substances could not be justified as a search incidental to an arrest and violated the accused‘s rights under sections 7 and 8 of the Charter. 26 S.C. 1995, c. 27. A copy of the Royal Assent version of this statute is available on-line at: http://www2.parl.gc.ca/content/hoc/Bills/351/Government/c-104/c-104_4/c-104_4.pdf.

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associated with the commission of the offence, would provide evidence linking the individual from whom the sample was obtained with the offence. Prior to issuing the warrant, the judge also had to be satisfied that the issuance of the warrant was in the best interests of the administration of justice (section 487.05 of the Code).

With respect to what constituted ―designated offences‖ for which DNA collection warrants could be issued, section 487.04 of the Code, as originally enacted, limited these offences to 37 serious personal injury and sexual offences where it was likely that DNA evidence could prove useful.

In an effort to protect the privacy of accused persons, Bill C-104 also amended the Code to provide restrictions on the use of samples collected. For example, the bill contained provisions specifying that the forensic DNA evidence obtained from the analysis of the bodily substances could be used only in connection with the investigation of designated offences. Samples were to be destroyed where it was established that the person from whom the substances were seized was not the perpetrator of the offence. However, a judge could order the retention of the substances and the results of analysis for whatever period he or she considered appropriate if the material might reasonably be required for investigation or prosecution of another designated offence.

C. Bill C-3, An Act respecting DNA identification and to make consequential amendments to the Criminal Code and other Acts

Following the enactment of Bill C-104, the former Solicitor General of Canada, the Honourable Herb Gray, sought public comment on the creation of a National DNA Data Bank designed to facilitate the investigation of crimes without suspects and/or unsolved offences where DNA evidence from the perpetrator was still available.27 Following a consultation period, the DNA Identification Act (Bill C-3) was introduced in Parliament on 25 September 1997.28 As stated in the introduction to this report, Bill C-3 had two separate components: it created the National DNA Data Bank and a legal framework to govern the storage, collection and

27See Establishing a National DNA Data Bank: Consultation Document, available on-line at: http://ww2.ps- sp.gc.ca/Publications/Policing/199601_e.pdf and Summary of Consultations, available on-line at:http://ww2.ps- sp.gc.ca/Publications/Policing/199611_e.pdf. 28 A Royal Assent version of Bill C-3, An Act respecting DNA identification and to make consequential amendments to the Criminal Code and other Acts, supra note 2, is available on-line at: http://www2.parl.gc.ca/content/hoc/Bills/361/Government/C-3/C-3_4/C-3_4.pdf. 12

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destruction of DNA samples and profiles held at the bank (the DNA Identification Act); and it amended the Criminal Code to expand the courts‘ authority to order the collection of biological samples from persons who had been convicted of designated offences. The new legislation was retroactive, applying to offences already committed before it came into force.

D. Legislative Framework Established by the DNA Identification Act

Under the framework created by the DNA Identification Act, the Minister of Public Safety (formerly the Solicitor General) must establish, and the Commissioner of the Royal Canadian Mounted Police (RCMP) must maintain, a National DNA Data Bank (―the Data Bank‖) for criminal identification purposes.29 The Data Bank houses two indexes: a crime scene index (CSI), which contains DNA profiles derived from bodily substances found at the scene where a designated offence30 appears to have been committed, or on or within the body of a victim, other person or thing associated with the commission of the offence;31 and a convicted offenders index (COI), which contains DNA profiles derived from samples taken from individuals convicted of designated offences either with their consent or pursuant to a court order.32 The RCMP Commissioner is responsible for receiving DNA samples and profiles for entry into the Data Bank. Once received, the new profiles that have been generated are compared with those already held in the Data Bank, and any matches are communicated to the appropriate laboratory or law enforcement agency, along with information concerning the crime(s) and/or offender(s) to which the new profile has been linked.33

Matches can be identified in one of two ways. First, new DNA profiles entered in the CSI are compared with profiles from other crime scenes. These matches can identify links between various offences, helping investigators solve crimes. Second, new CSI entries are compared with COI entries to see whether a convicted offender whose profile is already in the index can be associated with this new crime. This is where the other portion of Bill C-3, the part allowing for collection of DNA samples from convicted offenders, comes into play. Without the necessary mechanism to ensure that DNA samples are collected legally from offenders, so that the

29 See section 5(1) of the DNA Identification Act. With respect to the duties of the Commissioner in relation to the Act, section 5(2) specifies that the Commissioner may delegate his or her duties to others. 30 As stated previously, what constitutes a designated offence is defined in section 487.04 of the Criminal Code. See also Appendix 1. 31 See section 5(3) of the DNA Identification Act. 32 See section 5(4) of the DNA Identification Act. 33See section 6(1) of the DNA Identification Act.

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matching between the CSI profiles and COI profiles can occur, the Data Bank would be much less useful in helping to solve crimes.

Match information is available to agencies that have access to the existing criminal records database maintained by the RCMP.34 Data comparisons and information sharing with agencies of foreign governments or international organizations are also permitted under the Act, provided there is an agreement in place between the Canadian government and the foreign government specifying that the information communicated may be used only ―for the purposes of the investigation or prosecution of a criminal offence.‖35 Communication or use of DNA profiles and related information other than in accordance with the provisions of the Act is prohibited.36

Ordinarily, information in the COI is to be kept indefinitely, subject to the Criminal Records Act.37 Access to that information, however, is permanently removed if a convicted offender is ultimately acquitted. Similarly, access to such data is removed one year following an absolute discharge, or three years following a conditional discharge, unless the individual is convicted of another offence in the meantime.38 DNA profiles relating to adult convictions, therefore, would ordinarily remain accessible unless a pardon was obtained. A separate provision was made in Bill C-3 for the removal of DNA information concerning young offenders.39

The Commissioner is obliged to store ―safely and securely‖ those samples of bodily substances received pursuant to the Criminal Code and thought necessary for DNA analysis; any remaining samples have to be destroyed ―without delay.‖40 The Commissioner also has the authority to order additional DNA testing of stored samples where this is justified by ―significant technological advances.‖41 Stored biological samples cannot be used or transmitted except for the purposes of forensic DNA analysis.42 The Commissioner may grant access to bodily substances, in order to preserve them, and destroy samples no longer required for analysis.43 The Commissioner is obliged to destroy bodily substances when the person is acquitted or

34See section 6(2) of the DNA Identification Act. 35See sections 6(3) to 6(5) of the DNA Identification Act. 36See sections 6(6) and 6(7) of the DNA Identification Act. 37See section 9(1) of the DNA Identification Act. 38See section 9(2) of the DNA Identification Act. 39See section 9.1 of the DNA Identification Act. 40See section 10(1) of the DNA Identification Act. 41See section 10(2) of the DNA Identification Act. 42See section 10(5) of the DNA Identification Act. 43See sections 10(4) and (6) of the DNA Identification Act. 14 530

discharged; samples obtained from persons who have been pardoned must be kept separate and apart from other stored bodily substances and may not be subjected to further DNA analysis.44

It is an offence to use biological samples or to communicate DNA analysis results other than in accordance with the requirements of the Act. If these offences are prosecuted by indictment, the maximum penalty is two years‘ imprisonment, while prosecution by summary conviction may result in a maximum fine of $2,000 or imprisonment for up to six months, or both penalties.45

A DNA Data Bank Advisory Committee (―the Advisory Committee‖) was established to advise the Commissioner on matters relating to the establishment and operation of the Data Bank.46 This committee includes a representative of the Privacy Commissioner of Canada as well as up to six representatives of the police, legal, scientific, and academic communities. The RCMP Commissioner, as the official responsible for maintaining the Data Bank, must, through the Minister of Public Safety, submit an annual report to Parliament on the Data Bank‘s operation.47 Finally, the DNA Identification Act also contains the parliamentary review clause which forms the foundation for our committee‘s current study.48

E. Bill C-3’s Amendments to the Criminal Code

In addition to establishing the Data Bank, Bill C-3 also made extensive amendments to the Criminal Code sections dealing with forensic DNA analysis. These amendments were intended to streamline the existing DNA warrant scheme by adding a series of forms to be used to obtain or grant warrants, as well as orders, and to report back to the court on their execution. Bill C-3 also amended section 487.04 of the Code with respect to what constituted a designated offence for which courts could order the collection of DNA samples from individuals. For the first time, offences were divided into two categories: primary designated offences, of which there were 30, and secondary designated offences, of which there were 27.

The distinction between primary and secondary designated offences introduced by Bill C- 3 was not relevant to section 487.05 of the Code, which gives police officers the ability to obtain

44See sections 10(7) and (8) of the DNA Identification Act. 45See section 11 of the DNA Identification Act. 46DNA Data Bank Advisory Committee Regulations, SOR/2000-181. 47 See section 13.1 of the DNA Identification Act. 48 See section 13 of the DNA Identification Act. 15

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warrants from courts to collect DNA from those suspected of having committed designated offences. However, the distinction was relevant to a new section of the Code introduced by Bill C-3, which empowers courts to order the collection of DNA from those convicted of designated offences (section 487.051 of the Code). Collected samples are then turned into DNA profiles at the Data Bank, and uploaded to the COI established under the DNA Identification Act. Offences classified as primary designated offences were predominantly violent and sexual offences, many of which might involve the transmission of bodily substances that could be used to identify the perpetrator through DNA analysis. Those classified as secondary designated offences were less likely to result in the loss or exchange of bodily substances. DNA profiles of these offenders were therefore considered to be less likely to provide useful evidence.

Section 487.051 of the Code also established tests for courts to employ when deciding whether to issue an order for the collection of a DNA sample from those convicted of designated offences. In the case of primary designated offences, courts were generally required to make a collection order upon conviction, unless satisfied by the offender that the impact on his or her privacy and security of the person would be ―grossly disproportionate‖ to the public interest in the protection of society and in the proper administration of justice. By contrast, in the case of secondary designated offences, courts were empowered to make such orders if satisfied that it was in the best interests of the administration of justice to do so, having considered the nature and circumstances of the offence, the criminal record of the offender, and the impact of such an order on his or her privacy and security of the person. The court was also required, in the case of secondary designated offences, to give reasons for the decision to issue an order.

Once a court issues an order for the collection of DNA from a convicted offender, section 487.071(3) requires that the sample, as well as a copy of the order issued by a judge, be sent to the RCMP Commissioner. Under section 5.1(2) of the DNA Identification Act, the Commissioner is responsible for ensuring that a DNA profile is created from the sample, and added to the COI, unless, of course, the offender‘s profile is already in the COI.49 By contrast, with respect to the CSI, there is no obligation for law enforcement officials to send DNA profiles generated from samples taken from crime scenes, or the samples themselves, to the Data Bank. It is up to the relevant provincial authorities as to whether they choose to provide such samples and profiles to the Data Bank and have the DNA profiles in question added to the CSI.

49 See section 487.071(2) of the Criminal Code. 16

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In amending the Criminal Code to permit courts to order the collection of DNA samples from convicted offenders, Bill C-3 also made the application of these provisions retroactive. Under new section 487.052, courts could order the taking of samples for the purpose of creating DNA profiles from persons who had been convicted of designated offences before the coming into force of the DNA Identification Act (30 June 2000).50 The prosecutor had to apply for such an order, and the court had to base its decision on the same criteria as those used for secondary designated offence convictions. Bill C-3 also added section 487.055 to the Code, as a related provision to section 487.052. Section 487.055 allowed courts to order the taking of bodily samples for DNA analysis from certain specified offenders convicted prior to the coming into force of Bill C-3. By means of an ex parte (without notice) application, such an order could be made with respect to anyone who had been declared a dangerous offender, had been convicted of murder, had been convicted of a listed sexual offence and who was serving a sentence of at least two years, or had been convicted of manslaughter and, on the date of the application, was serving a sentence of imprisonment of at least two years for that offence.51

F. Bill S-10, An Act to amend the National Defence Act, the DNA Identification Act and the Criminal Code, Bill C-13, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, and Bill C-18, An Act to amend certain Acts in relation to DNA identification

Following the coming into force of Bills C-104 and C-3, Parliament enacted three new statutes that significantly expanded the scope of the DNA collection and storage framework found in the Criminal Code and the DNA Identification Act. The first of these was Bill S-10, An Act to amend the National Defence Act, the DNA Identification Act and the Criminal Code.52 Bill S-10 was primarily designed to make the Criminal Code amendments introduced by Bill C-104

50As in the case of a collection order made under section 487.051 of the Code, section 487.054 allowed both the offender and the prosecutor to appeal an order made under section 487.052 of the Code. Section 487.052 was repealed by the coming into force of Bill C-18 on 1 January 2008, but its retroactive effect was maintained through amendments to section 487.051 of the Criminal Code and section 196.14 of the National Defence Act, which now state that orders authorizing the taking of samples can be granted for an offence committed at any time, including before 30 June 2000. The amendments to the Criminal Code introduced by Bill C-18 will be discussed in further detail in a later section of this report. 51The definition of ―sexual offence‖ included sexual assaults and most sexual offences involving children, as well as historical sexual offences (those found in previous versions of the Criminal Code). In deciding whether or not to make a collection order under section 487.055 of the Code, judges apply the same test as the one applicable to collection orders for secondary designated offences outlined in 487.051(3) of the Code. Offenders on conditional release are to be summoned to report for the taking of bodily substances; failure to appear can result in the issue of an arrest warrant for the purposes of enforcing compliance. 52 S.C. 2000, c. 10. Bill S-10 received Royal Assent on 29 June 2000. A Royal Assent version of Bill S-10 is available on-line at: http://www2.parl.gc.ca/content/hoc/Bills/362/Private/S-10/S-10_4/S-10_4.pdf. 17 533

and Bill C-3 apply in equal measure to individuals convicted of designated offences under the Code of Service Discipline53 by military judges at courts martial.

The second and third of these acts were Bill C-13, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act54 and Bill C-18, An Act to amend certain Acts in relation to DNA identification.55 Both bills came into force in full on 1 January 2008. Bills C-13 and C-18 expanded the scope of the retroactive provisions found at section 487.055 of the Criminal Code. They also created a new category of primary designated offences known as mandatory primaries (now found at part (a) of the definition of ―primary designated offence‖ at section 487.04 of the Criminal Code), as well as a new category of so-called ―generic‖ secondary designated offences. With respect to those few offences now in the mandatory primary category, courts no longer had any discretion as to whether to issue an order for DNA collection from those convicted of such offences (see current section 487.051(1) of the Code). With respect to the generic secondary designated offences, rather than being described by reference to the section number for the offence in the Code, as most primary and secondary designated offences still are, these new secondary designated offences are described by the maximum length of sentence one can receive if one is convicted of them. Through the addition of this ―generic‖ secondary designated offence category to section 487.04 of the Code, the number of secondary designated offences was enlarged to include all offences under the Criminal Code and certain provisions of the Controlled Drugs and Substances Act56 that carry a maximum sentence of five or more years‘ imprisonment and are prosecuted by indictment. Finally, Bills C-13 and C-18 amended sections 487.051 and 487.055 of the Criminal Code so that a court could order a person found not criminally responsible on account of mental disorder

53 The Code of Service Discipline is found in Part III of the National Defence Act. Among other things, this Code sets out who is subject to the military justice system as well as the service offences for which persons subject to the military justice system can be charged. 54S.C. 2005, c. 25. For a fuller discussion of Bill C-13, see Robin MacKay, Bill C-13: An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, LS-490E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 9 November 2004, http://www2.parl.gc.ca/Content/LOP/LegislativeSummaries/38/1/c13-e.pdf. A Royal Assent version of Bill C-13 is also available on-line at: http://www2.parl.gc.ca/content/hoc/Bills/381/Government/C-13/C-13_4/C-13_4.PDF. 55S.C. 2007, c. 22. For a fuller discussion of Bill C-18, see Robin MacKay, Bill C-18: An Act to amend certain Acts in relation to DNA identification, LS-545E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 11 January 2007, http://www2.parl.gc.ca/Content/LOP/LegislativeSummaries/39/1/c18-e.pdf. A Royal Assent version of Bill C-18 is also available on-line at: http://www2.parl.gc.ca/content/hoc/Bills/391/Government/C-18/C- 18_4/C-18_4.PDF. 56S.C. 1996, c. 19. 18

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for having committed a designated offence to provide a DNA sample. The National Defence Act was also amended to make the above changes to the Criminal Code apply to offences committed under the Code of Service Discipline in equal measure.

G. Additions to the List of Designated Offences Since Bills C-13 and C-18 Were Enacted and the Emergence of New DNA Forensic Identification Technologies

Other statutes enacted since Bills C-13 and C-18 came into force have continued to add offences to the lists of primary and secondary designated offences found at section 487.04 of the Code. For example, Bill C-2, the Tackling Violent Crime Act,57 which came into force in its entirety on 2 July 2008, added one new offence58 to the list of primary designated offences for which courts are required to make a DNA collection order upon conviction (section 487.04(a)). Similarly, Bill C-14, An Act to amend the Criminal Code (organized crime and protection of justice system participants),59 which came into force on 2 October 2009, added three new offences60 to the same section of the definition of primary designated offences found at section 487.04. Furthermore, Bill S-2, An Act to amend the Criminal Code and other Acts,61 which introduces amendments to Canada‘s sex offender registration system62 will, if enacted in its current form, add several additional offences to the definitions of both primary and secondary designated offences found in section 487.04 of the Code. It will also move some offences now found in the secondary designated offence category to the primary category.

As the above overview demonstrates, the legislative framework for DNA collection from those suspected of having committed and those convicted of designated offences has evolved considerably, both in detail and in breadth, since the first relevant legislation respecting DNA

57S.C. 2008, c. 6. A Royal Assent version of this statue is available on-line at: http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Parl=39&Ses=2&Mode=1&Pub=Bill&D oc=C-2_4. 58 The new offence added to the definition of primary designated offence found at section 487.04(a) of the Code by Bill C-2 was section 244 of the Code (discharging firearm with intent). 59 S.C. 2009, c. 22. A Royal Assent version of this statute is available on-line at: http://www2.parl.gc.ca/content/hoc/Bills/402/Government/C-14/C-14_4/C-14_4.PDF. 60 The new offences added to the definition of primary designated offence found at section 487.04(a) of the Code by Bill C-14 were section 244.2 of the Code (discharging firearm— recklessness), section 270.01 of the Code (assaulting peace officer with weapon or causing bodily harm) and section 270.02 of the Code (aggravated assault of peace officer). 61 Bill S-2 was given third reading in the Senate on 11 May 2010, and first reading in the House of Commons on 26 May 2010. A copy of Bill S-2 is available on-line at: http://www2.parl.gc.ca/content/hoc/Bills/403/Government/S- 2/S-2_1/S-2_1.PDF. 19

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collection for criminal law purposes was enacted. Furthermore, based on an examination of the legislation enacted since Bills C-13 and C-18 came into force, as well as an examination of at least one bill still before Parliament (Bill S-2) as of 18 June, 2010, it would appear that this growth could continue over time.

The number of offences classified as designated offences has grown exponentially since the original legislative framework was put into place. Currently, a court may issue a warrant authorizing DNA collection from you if you are suspected of having committed any one of more than 265 designated offences63 now listed at section 487.04 of the Criminal Code. In addition, a court must order DNA to be collected from you if you have been convicted of one of the 19 primary designated offences for which issuance of a collection order by a court upon conviction is mandatory. A court may also order collection of a DNA sample upon conviction if you are convicted of any one of the remaining 246 offences.

The fact that the system of DNA collection for criminal justice purposes has expanded so greatly since 1995 raises the question of whether the resources of the criminal justice system have been strained by the enlargement of this regime. It is vital to answer this question, given that pressures to both expand the framework for DNA collection and add to the number and types of DNA profiles stored at the Data Bank will probably increase in the future. This is particularly likely, given how useful DNA collection and analysis, as forensic tools, have been to law enforcement and the court system, and given that other jurisdictions collect DNA from a wider array of individuals for criminal justice purposes than Canada does. For example, some jurisdictions, such as the United Kingdom (U.K.), 64 as well as some U.S. states,65 have criminal

62 See Senate, Debates, 3rd Session, 40th Parliament, 29 March 2010 at p. 198, available on-line at: http://www.parl.gc.ca/40/3/parlbus/chambus/senate/deb-e/pdf/012db_2010-03-29-E.pdf. 63 This number was obtained from page 6 of the National DNA Data Bank, 2008 – 2009 Annual Report, available on-line at: http://www.nddb-bndg.org/train/docs/Annual_2008-2009_e.pdf. This report also indicates that most of these new offences have been added since 2008; prior to 2008, there were only 59 designated offences: 38 primary designated offences and 21 secondary designated offences. 64 For a brief summary of how the United Kingdom‘s system of DNA collection for criminal law purposes has evolved over time, please see GeneWatch (U.K.)‘s website at: http://www.genewatch.org/sub-537968. It should be noted, however, that the U.K. government is considering some changes to its blanket policy of indefinitely retaining the fingerprints, DNA samples and DNA profiles of all individuals arrested in England and Wales in the wake of the 4 December 2008 decision of the European Court of Human Rights in S.and Marper v. The United Kingdom, [2008] ECHR 1581, where the Court found that the U.K. government policy in this regard violated Article 8 of the European Convention of Human Rights, which protects the right to privacy. Between May and August 2009, the Home Office held consultations on a proposed new system for retention of fingerprints, DNA samples and DNA profiles, and in November 2009, the former Secretary of State for the Home Department, Alan Johnson, published the U.K. government‘s proposals for a new retention policy regarding these items. Information regarding the consultations and the U.K. government‘s proposals is available at: http://www.statewatch.org/news/2009/may/uk- 20

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legislation in place that allows collection of DNA samples from individuals upon arrest, while many other U.S. states automatically collect DNA from individuals convicted of any felony (an offence where the punishment is more than one year in jail).66

In addition, techniques for DNA forensic analysis have advanced greatly since the DNA Identification Act was enacted in 2000. These advances will also likely create pressure to expand the scope of both the DNA collection system, as well as the amount of genetic information stored at the Data Bank. To illustrate this point, it may be helpful to recall that in 1995, Canadian forensic labs were using a type of DNA analysis called restriction fragment length polymorphism (RFLP) analysis, which used much longer segments of DNA for analysis than the current PCR/STR technology uses. The old RFLP technology needed much more non-degraded DNA available from a sample to ensure a scientifically viable result.67 In addition, at that time fewer than 13 loci on the chromosomes were used to create a DNA profile,68 which meant that the results were less precise than they are now, and that there was a greater chance of a false positive match between the profiles of two different people, particularly if they were related in some way.69 By 1998, when the DNA Identification Act received Royal Assent, PCR/STR technology was just starting to be used by Canadian forensic labs.70 Now it is the Canadian forensic laboratory standard. Furthermore, newer types of analysis are proving their value in other forensic contexts and in other jurisdictions. Some of these include:

the use of 16, rather than 13, loci to create a more accurate DNA profile that would discriminate even more accurately between individuals than the current 13 loci profile;

ho-dna-consult.pdf, http://www.parliament.uk/deposits/depositedpapers/2009/DEP2009-2788.pdf, and http://webarchive.nationalarchives.gov.uk/20091016095602/http://nds.coi.gov.uk/content/detail.aspx?NewsAreaId= 2&ReleaseID=408478&SubjectId=2. 65 As of As of August 2008, 13 states allowed for the collection of DNA samples from arrestees, including Alaska, Arizona, California, Kansas, Louisiana, Maryland, Minnesota, New Mexico, North Dakota, South Dakota, Tennessee, Texas, and Virginia. See U.S. Department of Justice, Office of the Inspector General, Audit Division, Audit of the Convicted Offender DNA Backlog Reduction Program, March 2009 at p. vii, available on-line at: http://www.justice.gov/oig/reports/OJP/a0923/final.pdf. 66 Ibid. at p. 28. 67 Thomas Curran, Forensic DNA Analysis: Technology and Application, supra note 22 at p. 15. 68 Ibid. at p. 20. 69 It is important to note that while the Data Bank uses 13 loci to create a profile, in operational casework, labs will still use 9 loci. See testimony of Dr. Ron Fourney, Director, National Services and Research, RCMP, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 4, 2nd Session, 40th Parliament, 25 and 26 March 2009, p. 21. 70 Thomas Curran, Forensic DNA Analysis: Technology and Application, supra note 22 at p. 12. 21

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the use of miniSTRs and single nucleotide polymorphisms (SNPs) for forensic DNA analysis. These techniques allow smaller and smaller portions of DNA to be analysed, and thus are very useful in identifying individuals when only extremely small samples of DNA are available, as in the case of bombings, fires or natural disasters;

the use of Y-STRs, in which analysis is only conducted on the DNA on the Y chromosome. As the DNA found on that chromosome doesn‘t change or mutate much, it is very similar between men who are closely related, as the Y chromosome is passed down by inheritance paternally. Y-STR analysis can therefore be very useful in identifying missing persons, if the missing person is male and one is able to obtain DNA from a male relative;

the use of mitochondrial DNA for analysis. Mitochondrial DNA is found outside of the nuclei of cells and is passed down by inheritance maternally. It is identical between mother and child or between siblings who have the same mother. Because there are many sets of mitochondrial DNA in each cell (as opposed to only one nucleus in each cell), mitochondrial DNA analysis is very useful for identifying old or degraded human remains. It can also be used to identify persons when only a human hair shaft, without a root sheath, is available for analysis, since mitochondrial DNA exists in the hair shaft, while nuclear DNA does not;

the use of familial or kinship searching, whereby DNA samples obtained at crime scenes are matched against the DNA of convicted offenders stored in a forensic DNA data bank, and the results of a partial match (where some but not all of the data obtained from the 13 loci are the same) are conveyed to law enforcement officials.71 The partial match indicates that the person who left DNA at the crime scene is a close relative of an offender whose DNA profile is in the data bank, and thus gives police another investigative tool to identify persons of interest or suspects who may have left DNA at a crime scene.72

While some of these techniques may already be used in Canada by forensic labs in the absence of other evidence to assist police officers in their investigations,73 or even as evidence at

71 Some U.S. states, such as Colorado and California, allow their state DNA data bases to convey the results of partial matches to law enforcement officials, while others, such as Maryland, prohibit such activities. The U.K.‘s national data bank conveys the results of partial matches to law enforcement officials in the case of a limited number of serious crimes. 72 For additional information on these four new techniques, please see Amelia Bellamy-Royds and Sonya Norris New Frontiers in Forensic DNA Analysis: International Practices and Implications for Canada, PRB 08-29E, Parliamentary Information and Research Service, Library of Parliament, 3 March 2009, available on-line at: http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0829-e.pdf. Also see the testimony of Dr. Ron Fourney, supra note 69. 73 National DNA Data Bank Advisory Committee, Annual Report, 2008 – 2009, May 2009, at pp. 16 - 19. This report is available on-line at: http://www.rcmp-grc.gc.ca/dnaac-adncc/annurp/annurp-0809-eng.pdf. 22

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a criminal trial,74 none of these techniques is currently used in Canada to create DNA profiles for the purpose of adding them to the Data Bank. In addition, the DNA Identification Act prohibits communication of partial match results to law enforcement officials. Section 6 of the DNA Identification Act specifies that the Data Bank can only communicate a profile and related information if the profile in the Data Bank exactly matches the profile of the sample sent in by police, or if the person‘s DNA profile cannot be excluded as a possible match because there is a technical limit on the completeness of the profile sent in by law enforcement officials.75 However, the National DNA Databank Advisory Committee has indicated in its most recent annual report that it would be helpful if the Data Bank could avail itself of some of the new analytical techniques, as long as appropriate safeguards are put into place.76

74 See, for example, R .v. Woodcock, [2006] O.J. No. 5185 (Ont. S.C.J.), in which the Ontario Superior Court of Justice held that mitochondrial DNA evidence was admissible at trial, but did not conclusively prove that the accused person was the donor of the sample found at the crime scene. 75 See sections 6(1)(c) and 6(1)(d) of the DNA Identification Act. 76 National DNA Data Bank Advisory Committee, Annual Report, 2008 – 2009, supra note 73 at pp. 16 – 19. 23

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THE SCOPE OF OUR STUDY

The fact that Parliament has continued to add new varieties and types of offences to the list of designated offences found at section 487.04 of the Code, coupled with the fact that more DNA profiles are being uploaded to the Data Bank each year,77 would appear to indicate that law enforcement officials and other participants in the criminal justice system find DNA forensic evidence, as well as the Data Bank, to be both reliable and useful. However, the exponential growth of the number of designated offences has almost certainly meant more work for, as well as increased strain on the resources of:

courts, which must decide whether to issue collection orders;

police and Crown prosecutors, who must apply for such orders;

forensic labs, which analyse the DNA samples collected for the CSI index; and

the Data Bank, which creates the DNA profiles that are added to the COI index.

These pressures, coupled with the fact that many individuals who appeared as witnesses before our committee indicated that they would like to see the legislative framework for DNA collection expanded in order to make more effective use of some of the emerging new technologies available for forensic DNA analysis, have influenced our committee‘s approach to this statutory review. In our opinion, it is necessary for this review to be comprehensive, encompassing more than a mere review of the provisions and operation of one statute. An examination of the workings of the DNA Identification Act must necessarily refer to the entire criminal justice and DNA collection framework. To do otherwise would be to take an inappropriately narrow approach, preventing our committee from understanding the full extent to which DNA collection evidence is relied upon in the criminal justice system, as well as the cumulative impact the legislative framework in question has had on both the system and on those from whom DNA evidence is collected. Accordingly, for the purposes of this review, we have examined the framework for the collection of DNA evidence from suspects and those convicted of designated offences in its entirety. We have also attempted, in analysing the legislative

77 To illustrate, in 2007, the Data Bank added 17,194 profiles to the COI. See National DNA Data Bank 2007 - 2008 Annual Report at p. 10. This report is available on-line at: http://www.nddb-bndg.org/train/docs/Annual_2007- 2008_e.pdf. In 2009, following the enactment of Bills C-13 and C-18, the Data Bank received 34,000 samples for the COI. See National DNA Data Bank 2008 – 2009 Annual Report, supra note 63 at p. 5. 24

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framework, to adopt the approach advocated by the Supreme Court of Canada in R. v. Rodgers.78 In that case, Justice Charron, writing for the majority, stated:

There is no question that DNA evidence has revolutionized the way many crimes are investigated and prosecuted. The use of this new technology has not only led to the successful identification and prosecution of many dangerous criminals, it has served to exonerate many persons who were wrongfully suspected or convicted. The importance of this forensic development to the administration of justice can hardly be overstated. At the same time, the profound implications of government seizure and use of DNA samples on the privacy and security of the person cannot be ignored. A proper balance between these competing interests must be achieved.79

78 2006 SCC 16. 79 Ibid. at para. 4. 25

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WITNESSES WE HEARD FROM

In the course of our study, the committee met with representatives from the National DNA Data Bank, National DNA Data Bank Advisory Committee, RCMP, Department of Justice Canada, Office of the Auditor General of Canada, Office of the Privacy Commissioner of Canada, Public Safety Canada, Office of the Federal Ombudsman for Victims of Crime, Victims of Violence (Canadian Centre for Missing Children), Canadian Resource Centre for Victims of Crime, Canadian Association of Elizabeth Fry Societies, John Howard Society of Canada, Canadian College of Medical Geneticists, Ontario‘s Missing Adults, RCMP Forensic Science and Identification Services, Centre of Forensic Sciences of the Government of Ontario, Laboratoire de sciences judiciaires et de médecine légale, Maxxam Analytics International Corporation, Warnex PRO-DNA Services Inc and Criminal Lawyers‘ Association. We also received written briefs from the Wyndham Forensic Group Inc. and Dominique Robert and Martin Dufresne, Professors of Criminology at the University of Ottawa.

GENERAL OBSERVATIONS

DNA forensic analysis and the ability to match DNA profiles between crime scenes or between convicted offenders and crime scenes, are invaluable tools in the investigation and prosecution of criminal offences, the protection of society and the exoneration of the innocent. Everything contained in this report, in relation to both the witness concerns described herein, as well as the committee‘s findings in relation to the framework for DNA collection and analysis, should be viewed in the light of the committee‘s understanding and appreciation of this salient fact. At this time, the committee also wishes to express its appreciation for all those who play a role in ensuring Canada‘s system of DNA collection and analysis functions efficiently and effectively, despite the fact those who work in this system are often required to perform their jobs under challenging conditions or circumstances.

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WITNESS CONCERNS IN RELATION TO THE CRIMINAL CODE

None of the witnesses who appeared before our committee during this study indicated that section 487.05 of the Code, requiring law enforcement officials to apply for a warrant from a judge before collecting DNA from an individual suspected of having been a party to a designated offence, was problematic in terms of its application. However, several witnesses, including representatives from the RCMP, the Department of Justice and the National DNA Data Bank Advisory Committee (―the Advisory Committee‖) informed us that the system established under section 487.051 of the Criminal Code, requiring issuance of a court order before a DNA sample can be collected from a person convicted of a designated offence, was administratively cumbersome and could be improved. As was stated by Richard A. Bergman, Chairperson of the Advisory Committee, when he appeared before us on 2 April 2009:

[O]ur post-conviction system in Canada is complex and ... provide[s] a considerable challenge to the judiciary and prosecutors at the time of conviction, as well as to police during the subsequent process to obtain a biological sample from a convicted offender.80

Witnesses identified the following problems with respect to the current legislative framework for obtaining DNA samples from those convicted of designated offences:

judges sometimes refuse to issue collection orders for primary designated offences, even in cases where it is mandatory for them to make such an order (section 487.051(1));81

in the case of ―generic‖ secondary designated offences identified by the length of sentence one could receive for having committed such an offence (see parts (a) and (b) of the definition of ―secondary designated offence‖ found at section 487.04 of the Code), collection orders may only be made when the Crown proceeds by indictment. Sometimes, these orders are erroneously requested by Crown counsel and made by judges in circumstances where the Crown elects to proceed summarily;82

80 Testimony of Richard A. Bergman, Chairperson, National DNA Data Bank Advisory Committee, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 5, 2nd Session, 40th Parliament,1 and 2 April 2009, p. 9. 81 Testimony of David Bird, Counsel, Legal Services – RCMP, Department of Justice, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 4, 2nd Session, 40th Parliament, 25 and 26 March 2009, p. 68. 82 Testimony of Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 4, 2nd Session, 40th Parliament, 25 and 26 March 2009, p. 69. 27

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section 487.057 of the Code requires law enforcement officials to report back to the court when an order has been executed. When representatives from the Department of Justice appeared before the committee, they indicated that this ―report back‖ provision did not appear to have much of a purpose;83

post-conviction DNA collection orders84 only authorize taking from the offender the number of samples reasonably required for forensic analysis, rather than the number of samples necessary to obtain a suitable sample. Accordingly, if there is something wrong with the samples initially taken, the Crown is required to apply for and obtain another order before additional samples may be collected;85

DNA orders cannot always be executed on the spot, in the courthouse at the time of conviction, and as a result are often issued after the fact, at the sentencing hearing, or even later.86 In circumstances where police resources are lacking in a community, a judge will issue an order to report to the police station by a certain date to provide a sample. Delayed taking of a sample may prevent the police from locating the offender in order to have the order carried out, or the offender may be transferred out of the jurisdiction and the police may fail to ensure that the order is passed on to the other jurisdiction for execution;87

if errors are made in completing the court forms at the time that the judge made the order, the Data Bank must return the defective order, and the police must ask prosecutors to obtain a new corrected order, or the Data Bank must obtain a legal interpretation as to whether the offence in question is, in fact, a designated offence, and therefore whether the sample may be entered into the COI; 88 and

there is duplicative effort on the part of judges, as judges are required to consider whether to issue a DNA order in every case, even if someone has already been previously convicted of a designated offence and his or her DNA is already in the Data Bank.89

83 Ibid. at pp. 66 – 67. 84 The text of these orders is found on forms 5.03 to 5.061, Part XXVIII of the Criminal Code. 85 Testimony of Corporal Jennifer Derksen, Policy Analyst, Operational Policy and Compliance, Community, Contract and Aboriginal Policing Services, RCMP, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 4, 2nd Session, 40th Parliament, 25 and 26 March 2009, p 63. 86 See sections 487.053(1) and (2) of the Criminal Code. 87 Testimony of David Bird, Counsel, Legal Services – RCMP, Department of Justice, supra note 81 at p. 59 and Letter from Greg Yost, Counsel, Criminal Law Policy Division, Department of Justice to Jessica Richardson, former Clerk of the Standing Senate Committee on Legal and Constitutional Affairs, 8 June 2009, p. 1. 88 See sections 5.1 and 5.2 of the DNA Identification Act, section 2.2 of the DNA Identification Regulations, SOR/2000- 300, section 487.091(1) of the Criminal Code, and letter from Greg Yost, ibid. 89 See sections 487.051 and 487.071 of the Criminal Code and the testimony of Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice, supra note 82 at p. 86. 28

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Witnesses also provided a wide variety of suggestions as to how the Criminal Code could be amended to make the post-conviction DNA collection system simpler and less cumbersome to administer. For example:

representatives from the RCMP and victims groups proposed amending the Code to allow the taking of DNA samples from everyone who is in lawful custody and charged with an indictable offence, as is done with respect to fingerprints under the Identification of Criminals Act;90

members of the National DNA Data Bank Advisory Committee recommended amending the Code to allow the taking of samples from adult offenders who, upon arrest, are charged with one or more primary designated offences as defined in section 487.04, 91 or alternatively, amending the Code to allow the taking of DNA samples from anyone convicted of a designated offence as defined in section 487.04, without the need to apply for and obtain a court order; 92

Department of Justice representatives proposed simplifying the categorization of primary and secondary designated offences, so that instead of listing offences primarily by name and section number under the definitions of primary secondary designated offences found at section 487.04 of the Code, they are defined generically, by length of sentence93 (i.e. define primary designated offence under the Code as any offence carrying a maximum sentence of 10 or more years, and secondary designated offence as any indictable offence or offence where the Crown can elect to proceed by indictment), or some other similar scheme;94

the Privacy Commissioner of Canada suggested going no further than amending the Code to allow the automatic taking of DNA samples from anyone convicted of one of the 19 primary designated offences as defined in part (a) of the definition of that term (in other words, merely removing the need for a court order, the issuance of which is already mandatory, in the case of these 19 offences);95

90 R.S.C. 1985, c. I-1. See testimony of Corporal Jennifer Derksen, Policy Analyst, Operational Policy and Compliance, Community, Contract and Aboriginal Policing Services, supra note 85 at p. 63 and the testimony of Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 7, 2nd Session, 40th Parliament, 6 and 7 May 2009, p. 66. 91 Testimony of Richard A. Bergman, Chairperson, National DNA Data Bank Advisory Committee, supra note 80 at pp. 9 -10. 92 Testimony of the Honourable Peter Cory, Member, National DNA Data Bank Advisory Committee, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 5, 2nd Session, 40th Parliament,1 and 2 April 2009, p. 13. 93 This is already done in the case of some secondary designated offences, in accordance with parts (a) and (b) of the definition of ―secondary designated offence‖ found at section 487.04 of the Criminal Code. 94 Testimony of Greg Yost, Counsel, Criminal Law Policy Division, Department of Justice, supra note 82 at p. 91. 95 In a letter dated 16 June 2009 from Jennifer Stoddart, Privacy Commissioner of Canada to the Honourable Joan Fraser, Chair, and the Honourable Pierre Claude Nolin, former Deputy Chair, Standing Senate Committee on Legal and Constitutional Affairs, the Privacy Commissioner stated, ―[W]e would be concerned about further elimination of discretion that would result from the mandatory provision of samples,‖ as it would ―prevent a judge from 29

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Department of Justice representatives further recommended ensuring that the DNA sample is, in fact, taken at the time of conviction, rather than at some future date, regardless of whether the sample is taken pursuant to a court order or automatically on conviction without need for a court order;96 and

Department of Justice representatives also proposed amending the Code to provide that, in the event that DNA was not collected from an offender prior to the expiry of the time limit for collection added by a judge to the order, a DNA sample may be taken from him or her at the correctional facility at which he or she has been incarcerated, at any time prior to the expiry of his or her sentence, without the need for the police to obtain a new collection order.97

It should be noted, however, that not all witnesses who appeared before our committee believed that the current post-conviction collection provisions contained in the Code were problematic. Several witnesses, such as representatives from the Criminal Lawyers‘ Association, the Canadian Association of Elizabeth Fry Societies, the John Howard Society of Canada, and the Office of the Privacy Commissioner of Canada instead viewed the amendments introduced by Bills C-13 and C-18, as troubling, because they made the issuance of DNA collection orders upon conviction mandatory in certain circumstances. In the opinion of these witnesses, it would be more appropriate not only to restrict the number of offences for which DNA is collected, but also to preserve the rights of courts to decide whether a DNA collection order should be issued once someone has been convicted of any designated offence.98 Representatives from the Office of the Privacy Commissioner effectively summarized the key concerns expressed by this group of witnesses, stating:

We have clearly moved a long way from the original rationale of only taking samples related to violent and sexual offences that are likely to leave bodily substances to what is becoming a national registry of an increasingly large number of convicted offenders. … [W]e would have concerns about further expansion of the list of designated offences. We

determining on a case-by-case basis, whether the privacy invasion is proportional to the benefit being derived from adding an individual‘s name to the NDDB [the National DNA Data Bank]‖ (p. 8). 96 Testimony of Greg Yost, Counsel, Criminal Law Policy Division, Department of Justice, supra note 82 at p. 58. 97 Testimony of David Bird, Counsel, Legal Services – RCMP, Department of Justice, supra note 81 at p. 79. 98 Testimony of Vincenzo Rondinelli, Lawyer, Criminal Lawyers‘ Association, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 3, 3rd Session, 40th Parliament, 31 March 2010, p 12; Testimony of Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 7, 2nd Session, 40th Parliament, 6 and 7 May 2009, p. 8: Testimony of Craig Jones, Executive Director, John Howard Society of Canada, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 7, 2nd Session, 40th Parliament, 6 and 7 May 2009, p. 12. 30

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believe that the forced taking of DNA is inherently intrusive and becomes unjustified in the case of less serious offences.99

99Letter from Jennifer Stoddart, Privacy Commissioner of Canada to the Honourable Joan Fraser, Chair, and the Honourable Pierre Claude Nolin, former Deputy Chair, Standing Senate Committee on Legal and Constitutional Affairs, supra note 95 at p. 8. 31

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THE COMMITTEE’S FINDINGS WITH RESPECT TO SPECIFIC CRIMINAL CODE CONCERNS

After having reviewed all of the above testimony, our committee formed the opinion that in order to address some of the administrative problems created by the current system of court- ordered DNA collection from those convicted of designated offences, changes to the system are necessary. However, for the reasons provided below, we are of the view that allowing automatic DNA collection from those who are in lawful custody and charged with an indictable offence, as is done with fingerprints under the Identification of Criminals Act, would not be a fitting solution to these administrative problems.

A. Problems Associated with Amending the Criminal Code to Collect DNA from those Arrested and Charged with Indictable Offences

When representatives from the Privacy Commissioner‘s office appeared before the committee, they stated that ―inclusion in a DNA databank entails in principle a deep intrusion of an individual‘s privacy,‖ because of the ―breadth and sensitivity of information a DNA sample contains. It constitutes a veritable life code, capable of revealing almost all facets of a person‘s mental and physical characteristics.‖100 We agree with this perspective. We also note that the Office of the Privacy Commissioner‘s position in this regard appears to be supported by the reasoning of the majority of the Supreme Court of Canada in R. v. Rodgers.101 In Rodgers, the majority of the Court held that collecting DNA from individuals who are in prison for designated offences, pursuant to an ex parte order issued by a court under section 487.055(1) of the Criminal Code, did not violate the offender‘s section 7 and section 8 Charter rights102 and was roughly equivalent to fingerprinting in those particular circumstances.103 However, the Court came to this conclusion for three reasons: because the collection scheme for convicted offenders established by the Criminal Code and DNA Identification Act strictly restricted the manner in which DNA information collected from the offender could be used; because the scheme prohibited the collection and storage of DNA in the Data Bank from mere suspects; and because

100 Testimony of Chantal Bernier, Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 6, 2nd Session, 40th Parliament, 22 and 29 April 2009, p. 10. 101 R. v. Rodgers, supra note 78. 102 As stated previously in this report, section 7 of the Charter guarantees the right to life, liberty and security of the person, while section 8 protects against unreasonable search and seizure. 103 R. v. Rodgers, supra note 78 at para. 39. 32 548

an offender, upon having been found guilty of omitted a designated offence, has a much diminished expectation of privacy in terms of the seizure of his or her genetic information.104

Arguably, some of the factors that the Supreme Court of Canada relied upon in upholding the constitutional validity of the impugned provisions in Rodgers would not be present if Parliament were to amend the Criminal Code and DNA Identification Act to allow for the automatic sampling of DNA from individuals at the time they were placed into lawful custody and charged. If such a legislative change were to be introduced, it seems possible that a court would conclude that sampling upon arrest and charge violated sections 7 and 8 of the Charter, as well as the presumption of innocence guaranteed by section 11(d) of the Charter, particularly if the DNA profile was not destroyed as promptly as possible if the charges were dropped, stayed or reduced, or if the accused person were acquitted. Our view on this matter is further supported by the European Court of Human Rights‘ 2008 decision in S. and Marper v, The United Kingdom,105 in which that Court found that the U.K. government‘s blanket policy of indefinitely retaining the fingerprints, DNA samples and DNA profiles of all individuals arrested in England and Wales, regardless of whether they are subsequently convicted, violated Article 8 of the European Convention of Human Rights, which protects the right to privacy.

In addition, other witnesses who appeared before us pointed out that although the taking of DNA samples from individuals in lawful custody who are charged with indictable offences would solve some administrative and resourcing problems, it would create others. For example, if the taking of samples from individuals in these circumstances, without the need for a court order, were to be permitted, significant new resources would have to be allocated to the Data Bank to both store the samples and profiles collected and to destroy those samples and remove the profiles if a charge did not result in an accused person being convicted of a designated offence.106 Finally, when representatives from the Office of the Privacy Commissioner of Canada appeared before us, they suggested that allowing samples to be taken upon arrest and charge might have a disproportionate impact on those who are overrepresented in the justice system (i.e. aboriginal offenders and other minority groups),107 because their profiles would end up in the Data Bank with greater frequency than other individuals. For the above reasons, we believe that

104 Ibid. at paras. 5, 36 and 40. 105 S. and Marper v.The United Kingdom, supra note 64. 106 Testimony of Richard A. Bergman, Chairperson, National DNA Databank Advisory Committee, supra note 80 at p. 9. 107 Testimony of Carman Baggaley, Strategic Policy Advisor, Office of the Privacy Commissioner of Canada, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 6, 2nd Session, 40th Parliament 22 and 29 April 2009, p. 12. 33

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the automatic taking of samples from individuals in lawful custody that are charged with indictable offences would be an inappropriate legislative amendment at this time.

B. Amending the Criminal Code to Allow the Automatic Taking of DNA Samples from Adults Convicted of Designated Offences: The Committee’s Preferred Option

It is important to note that the committee deals with the collection of DNA from adults convicted of designated offences separately from the collection of DNA from young offenders in this report. In our view, the collection of DNA from young offenders convicted of designated offences raises different concerns from those raised by the collection of DNA from adult offenders, and therefore warrants a different approach. We have come to this conclusion because both case law and the Youth Criminal Justice Act (YCJA)108 emphasize the need for enhanced procedural protections for young persons who come into contact with the criminal justice system. The approach that the committee endorses with respect to DNA collection from young offenders will be described in detail in a later section of this report. This section deals with the collection of DNA from adults who have been convicted of designated offences.

Although the committee does not support amending the Criminal Code to allow the collection of DNA from those arrested and charged with indictable offences, we are, however, of the view that the reasoning of the Supreme Court of Canada in R. v. Rodgers would likely support allowing the automatic taking of DNA samples from adults convicted of any designated offence without the need for a court order, given the diminished expectation of privacy these offenders have, and given the strict controls contained in the DNA Identification Act on how the DNA collected from offenders may be used. This was also the view of retired Supreme Court of Canada Justice Peter Cory when he appeared before the committee to testify in his capacity as a member of the National DNA Data Bank Advisory Committee. Justice Cory expressed doubts about whether DNA sampling upon arrest and charge should be allowed, but with respect to sampling upon conviction, he stated:

I think the act should be amended in this regard. This [the taking of DNA samples upon conviction of a designated offence] should be an administrative item. There is less expectation of privacy after a conviction. Administratively, DNA should be taken as soon as a conviction is registered. It does not matter whether it is taken by police or by that magical officer, the sheriff of the particular judicial district. Whenever the case is on the list that can, in turn, lead to an order for DNA, that particular DNA should be taken. We are wonderfully

108 S.C. 2002, c. 1. 34

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protected because we say ‗‗not until you have been proven guilty beyond a reasonable doubt.‘‘ At that moment, your expectations [of privacy] are gone and a DNA sample taken should be taken.109

While allowing such sampling would almost certainly create some additional costs, both for police and the Data Bank, in terms of time spent taking samples as well as in processing those samples and turning them into profiles,110 these changes would likely result in reduced costs and effort in other parts of the criminal justice system. For example, law enforcement officials, prosecutors and courts would no longer have to spend time and energy correcting defective orders or trying to locate offenders who leave the jurisdiction before a sample is taken. In addition, judges would not have to spend valuable and expensive court time issuing these orders. We also note that when the House of Commons Standing Committee on Public Safety and National Security made a similar recommendation in its June 2009 report following its own statutory review of the DNA Identification Act, the government accepted that recommendation in principle in its October 2009 response to that committee‘s report. Our committee therefore recommends that the Criminal Code be amended to allow the immediate and automatic taking of a DNA sample from any adult who has been convicted of a designated offence as defined in section 487.04 of the Code.

RECOMMENDATION 1

That the Criminal Code be amended to allow for the immediate and automatic collection of a DNA sample from any adult who has been convicted in Canada of a designated offence as defined in section 487.04 of the Criminal Code.

We are also in substantial agreement with two other related recommendations contained in the House of Commons report: (1) that the Criminal Code be amended to allow DNA samples to be collected from offenders against whom collection orders were not made at the time of conviction, but who are still serving sentences for designated offences at the time that the Criminal Code amendment, allowing for immediate and automatic collection of DNA samples from persons convicted of designated offences, comes into force; and (2), that the Criminal Code be amended to allow DNA to be collected from Canadian citizens or residents who are convicted

109Testimony of the Honourable Peter Cory, Member, National DNA Data Bank Advisory Committee, supra note 92 at p. 13. 110 A representative from the Department of Justice advised us that ―[m]aking DNA sampling automatic on conviction of all primary and secondary designated offences could result in 100,000 new profiles annually‖ to the Data Bank,‖ as opposed to the approximately 34,000 profiles the Data Bank had received in 2008/2009. See the testimony of Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice, supra note 82 at p. 58 and the National DNA Data Bank, 2008-2009 Annual Report, supra note 63 at p. 7. 35 551

outside of Canada of offences that, if committed in Canada, would constitute designated offences. With respect to the latter recommendation, we have broadened the application of the House of Commons committee‘s recommendation, so that a DNA sample could not only be taken from Canadian citizens convicted abroad of offences equivalent to designated offences in Canada, but also from adults who are not Canadian citizens but who ordinarily reside in Canada. The committee believes that collection of DNA from adult offenders who are Canadian citizens or residents, and who have been convicted abroad of offences equivalent to designated offences in Canada, should occur at the time that these offenders enter or re-enter Canada. This is the approach taken in Bill S-2, An Act to amend the Criminal Code and other Acts,111 with respect to the timing of the requirement for sex offenders convicted abroad to register as such on the National Sex Offender Registry, and we are of the view that a similar approach, in terms of the timing of DNA collection, should occur here. Like the House of Commons committee,112 we see no reason why adults who are still serving sentences for designated offences in Canada at the time that automatic collection becomes a reality, or Canadians or those who ordinarily reside in Canada who commit designated offences abroad, should be treated differently from offenders who are convicted of designated offences in Canada after the Criminal Code amendment outlined in Recommendation 1 comes into force.

RECOMMENDATION 2

That the Criminal Code be amended to allow for collection of a DNA sample from an adult convicted of a designated offence in Canada who has not previously been the subject of a post- conviction collection order, but who is still serving a sentence for a designated offence at the time that the Criminal Code amendment outlined in Recommendation 1 comes into force.

RECOMMENDATION 3

That the Criminal Code be amended to allow for the collection of a DNA sample from an adult who is a Canadian citizen, or who ordinarily resides in Canada, if he or she is convicted outside of Canada of an offence that, if committed in Canada, would constitute a designated offence, provided that the conviction occurs at any time after the Criminal Code amendment outlined in Recommendation 1 comes into force.

111 Bill S-2, supra note 61. 112See House of Commons, Standing Committee on Public Safety and National Security, Statutory Review of the DNA Identification Act, 2nd Session, 40th Parliament, 18 June 2009, supra note 13 at p. 9. 36 552

C. Exercising Caution in Expanding the List of Designated Offences

The committee was intrigued by the Department of Justice‘s suggestion that it might be appropriate to amend the Criminal Code to classify primary and secondary designated offences differently. As stated in an earlier section of this report, Department of Justice officials had advocated potentially amending section 487.04 of the Code so as to describe primary and secondary designated offences not by name and section number, which is how most of the offences set out in section 487.04 are currently described, but by the maximum length of sentence one could receive for the offence in question, or by the nature of the offence itself ((i.e.) indictable as opposed to a summary conviction offence). The committee agrees that the Department of Justice proposal would indeed simplify the current system of classification, and for that reason, we find this proposal attractive. However, we also recognize a difficulty in taking this approach: in doing so, it then becomes extremely challenging to quantify the exact number of primary and secondary offences in existence. This has already created difficulties with respect to the generic categories of secondary designated offences found in parts (a) and (b) of that definition. The Code now classifies, as secondary designated offences, all Criminal Code or certain Controlled Drugs and Substances Act offences prosecuted by indictment for which a maximum term of imprisonment of five years or more may be imposed. As a result, it is becoming increasingly difficult to obtain an accurate picture of exactly how many designated offences there are, and therefore how much more work Parliament is imposing on the police, the Data Bank and the forensic labs in relation to DNA collection and the processing of DNA samples and profiles. If all designated offences listed at section 487.04 of the Code were described by maximum length of sentence, or by the nature of the offence (summary vs. indictable), this would only add to the current challenges in quantifying the increased workload these organizations are experiencing as a result of legislative changes made by Parliament.

This committee also wishes to highlight that, in deciding to recommend the collection of DNA from all offenders convicted of those offences currently classified as designated offences, we are mindful of the concerns expressed by the Office of the Privacy Commissioner of Canada, the Criminal Lawyers‘ Association, the John Howard Society of Canada and the Canadian Association of Elizabeth Fry Societies regarding the significant number of designated offences that have been added to the list of offences found at section 487.04 of the Code since the original DNA collection scheme was introduced. As stated previously in this report, while the legislative

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regime in 1995 classified only 37 very serious violent or sexual offences as designated offences, more than 265 offences are now classified in this manner. Some of these, like assault (section 266 of the Code), uttering threats (section 264.1) and intimidation (section 423), can apply to behaviour that is very serious in nature, but also to behaviour that is relatively minor.

Accordingly, while it may well be necessary, in the future, to add offences to the list found in section 487.04, or to change the classification system in accordance with the Department of Justice‘s proposals, the committee urges the government to exercise caution in adding to the list, doing so only if such additions are demonstrably necessary. To do otherwise might distort the legislative framework and run the risk of violating the Charter.113 It would also almost certainly strain the resources of police agencies, the Data Bank, and the forensic labs that process the DNA samples taken at crime scenes. Adding to the list of designated offences also increases the number of offences for which the police can obtain DNA warrants, as well as the number and types of crime scenes from which DNA can be collected for the purpose of uploading DNA profiles to the CSI. As will be discussed more thoroughly in a later section of this report, the RCMP Central Forensic Laboratory, as well as the Ontario and Quebec government forensic laboratories, have advised us that with the resources currently available to them, they have not been able to keep up with the additional workload that Bills C-13 and C-18 have imposed upon them. In addition, as representatives from the Criminal Lawyers‘ Association told the committee, there comes a point at which, if the number of designated offences grows too large, the police will have insufficient resources to follow up on all of the hits achieved by matching information found in the Data Bank to a sample from a local crime scene. It is for these reasons that the committee believes that the government should exercise caution and prudence when considering adding new offences to the list of designated offences. We also believe that if the government does add significant numbers of new offences to the list, it should ensure that the police, forensic labs and the Data Bank are adequately funded to deal with the increased workload that will inevitably occur.

113 In the past, courts have, for the most part upheld the constitutional validity of the DNA collection regime established by the Criminal Code and the DNA Identification Act. However, in many of the decisions, they have done so because DNA collection was permitted for only the most serious offences contained in the Criminal Code. See for example, R. v. Briggs (2001), 157 C.C.C. (3d) 38 (Ont. C.A.), and R. v. Rodgers, supra note 78. If more designated offences are added to the list, and many of them are less serious than the ones currently listed, it seems possible that a court might come to a different conclusion in the future, particularly if the Act is amended to make DNA collection post-conviction automatic, rather allowing for the taking of DNA pursuant to a court order. 38

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D. A Separate System for Collecting DNA from Young Offenders Convicted of Designated Offences

As indicated previously, the committee is recommending the taking of DNA automatically, without need for a court order, only from adults. After reviewing both the case law available as of 24 May 2010, and the testimony received from various witnesses, we have come to the conclusion that a separate system, which, in certain circumstances, maintains a considerable degree of judicial discretion over whether to collect DNA from young offenders convicted of designated offences, should be maintained.

Currently, section 487.051(1) of the Code makes it mandatory for courts to issue DNA collection orders for young offenders and adults alike if they have been convicted of one of the 19 primary designated offences found in part (a) of the definition of that term. For the remaining primary designated offences described in section 487.04,114 issuance of a collection order is presumptive (section 487.051(2)): a DNA collection order will be issued against an offender who has committed one of the remaining primary designated offences unless he or she is able to establish to the satisfaction of the court that the impact of the order on his or her privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice. The onus is on the young offender and his or her counsel, rather than on the court or the prosecutor to demonstrate this. Certain witnesses who appeared before our committee, most notably representatives from the National DNA Data Bank Advisory Committee, suggested that neither mandatory nor presumptive tests should be used in the case of young offenders. In their view, the Criminal Code should be amended so that the courts employ the test outlined in section 487.051(3) for secondary designated offences when deciding whether to issue a DNA collection order against a young offender convicted of any designated offence. Section 487.051(3) first requires the prosecutor to apply for a DNA collection order, and then requires a court, when deciding whether it is in the best interests of the administration of justice to make the order, to consider the person‘s criminal record, whether he or she had been previously found not criminally responsible by reason of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission, and the impact that such an order would have on the person‘s privacy and security of the person. Section 487.051(3) does not, however, expressly require the court to consider the public interest in the protection of society when making a collection order for a secondary designated offence.

114 See Appendix 1. 39

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As stated by Richard A. Bergman, Chairperson of the Advisory Committee:

We [members of the Advisory Committee] continue to hold the view that young offenders, due to their impressionable age, should be subject to a DNA order with discretion only after conviction.115

Later in his testimony he clarified his position further, stating:

[F]or young offenders, I continue to believe that because of the tender age, that discretion should cover all categories - compulsories, primaries and secondaries. I believe the law should state that.116

The Honourable Peter Cory, member of the Advisory Committee, took this notion a bit further, suggesting that some of the criteria found in the preamble and principles of the Youth Criminal Justice Act (YCJA) should be incorporated into the test used by courts when deciding whether to issue a DNA collection order against a young offender convicted of a designated offence.117

In at least two recent instances, courts have also determined that a different test should be used when collecting DNA samples from youths than when collecting samples from adults convicted of designated offences. In R. v. M.G.118 for example, a Nova Scotia Provincial Court judge refrained from issuing a DNA collection order against a young offender convicted of assault with a weapon (a primary designated offence for which the issuance of a DNA collection order is now mandatory, but which, at the time of the accused‘s conviction, was a presumptive primary designated offence). The judge incorporated the principles found in section 3 of the YCJA into the test for whether or not to issue the order, relying on the 2005 Supreme Court of Canada decision in R. v. R.C.119 as authority for the principle that she must do so. In R. v. R.C., the Supreme Court of Canada held that while no specific provision of the YJCA modified section 487.051 of the Code, Parliament clearly intended that YJCA principles would be respected whenever young persons are brought into contact with the criminal justice system. The Supreme Court of Canada further stated that in creating a separate criminal justice system for young persons, Parliament has recognized their heightened vulnerability and has sought to extend enhanced procedural protections to them, and to interfere with their personal freedom as

115 Testimony of Richard A. Bergman, Chairperson, National DNA Data Bank Advisory Committee, supra note 80 at p. 9. 116 Ibid. at p. 28. 117 The Honourable Peter Cory, member of the National DNA Data Bank Advisory Committee, supra note 92 at p. 28. 118 2008 NSPC 54. 119 2005 SCC 61. 40

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little as possible.120 Accordingly, the Nova Scotia judge in the R. v. M.G. case concluded that when employing the presumptive test for a DNA collection order against a young offender, a judge must incorporate both the principles outlined in section 3 of the YCJA, as well as the principles outlined in the test for issuing a secondary designated offence collection order under section 487.051(3) of the Code.121 She did so, and after considering these principles and weighing all the relevant factors, concluded that the DNA collection order should not be issued in this case.122

More interestingly, in R. v. C.S.,123 a case that was decided after Bills C-13 and C-18 came into force, and therefore following the introduction of the new category of mandatory primary designated offences into the Code, a judge from the Ontario Court of Justice held that both the mandatory test for issuing a collection order found at section 487.051(1) of the Code and the presumptive test outlined at section 487.051(2) violated the section 7 and 8 Charter rights of the four young people whose cases were at issue before her. With respect to section 487.051(1) of the Code, the judge found that since the legislative scheme made an order mandatory upon a finding of guilt, there was no room left for the balancing of interests required by the YCJA. Accordingly, she concluded that the mandatory collection requirements, as applied to young people, were unfair and unreasonable, violating their rights to protection against unreasonable search and seizure guaranteed by section 8 of the Charter.124 With respect to section 487.051(2), the judge found that the reverse onus nature of this provision requires young people to demonstrate an impact on their privacy that is higher than what is required by the YCJA. Accordingly, she found that the presumptive collection test also violated the rights of young people under section 8 of the Charter.125 She further concluded that the legislative scheme established by sections 487.051(1) and (2) violated the psychological security of young offenders through labelling and stigmatization, thereby violating their rights to life, liberty and security of the person under section 7 of the Charter.126 Finally, the judge held that neither section 487.051(1) nor section 487.051(2), as applied to young offenders, could be saved by section 1 of the Charter127 because neither provision minimally impaired the Charter rights of young offenders.128 The Court accordingly read sections 487.051(1) and (2) down,129 and

120 Ibid. at paras. 36, 39, 41 and 51. 121 R v. M.G,, supra note 114 at paras. 4 to 6. 122 Ibid. at para. 23. 123 2009 ONCJ 114. 124 Ibid. at para. 35. 125 Ibid. at para. 39. 126 Ibid. at paras. 57 to 59. 127 Section 1 of the Charter protects the rights guarantees by the Charter subject to ―such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.‖ 128 R. v. C.S., supra note 123 at paras. 70 to 74. 41 557

instead of applying the test for primary designated tests as required by the Code, the judge applied the test for secondary designated offences along with the principles outlined in section 3 of the YCJA to decide whether DNA collection orders should be issued for the four young offenders in question. It is important to note that the Ontario youth court judge‘s decision in R. v. C.S. is currently being appealed to the Ontario Court of Appeal.

It is interesting to note, however, that not all courts have come to the conclusion that the mandatory collection of DNA from young offenders, at least as it pertains to the 19 primary designated offences for which issuance of collections orders is also mandatory, is problematic. For example, in R. v. C.J.T.,130 the Saskatchewan Court of Appeal overturned a Saskatchewan youth court judge‘s decision to decline to make a DNA collection order against a young offender convicted of robbery. Robbery is one of the 19 primary designated offences for which a DNA collection order is mandatory. The youth court judge had relied on the Supreme Court of Canada‘s decision in R. v. R.C. as authority for the principle that he retained discretion over the decision as to whether or not to make the collection order. The Saskatchewan Court of Appeal stated that when R. v. R. C. was decided, judges did indeed have discretion as to whether or not to issue collection orders against young and adult offenders alike, for all designated offences, although the test was different depending on the nature of the offences. However, the Court of Appeal concluded that with the coming into force of Bills C-13 and C-18, Parliament had deliberately chosen to remove that discretion in the case of the 19 primary designated offences listed at part (a) of the definition of ―primary designated offence‖ found at section 487.04 of the Code. Accordingly, the Court of Appeal found that the youth court judge had incorrectly applied the law in this particular case, and issued a DNA collection order against the young offender in question. No Charter arguments were made before the Court.

Given the case law cited above, as well as the suggestions for change made by the Advisory Committee, our committee is of the view that it would be inappropriate to amend the Criminal Code to allow the automatic taking of DNA samples from young people convicted of any designated offence. To do so would fail to take into account the principles outlined in section 3 of the YCJA, in particular the principle found at section 3(1)(b)(iii) of that Act, which states:

129 Section 52(1) of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, allows courts to find that a law is of no force and effect to the extent that it is inconsistent with Canada‘s Constitution. As the Charter is part of Canada‘s constitution, this gives the courts the power to strike down laws, or modify them in such a way as to make them consistent with the Charter. One common method used by courts when they find that a legislative provision is inconsistent with the Constitution is to ―read down‖ legislation, or interpret a statute that is inconsistent with the provisions of the Constitution in a manner that is consistent with constitutional provisions. 42

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3. (1)(b) the criminal justice system for young persons must be separate from that of adults and emphasize the following:

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected.

However, the committee is of the view that DNA collection from young offenders should be done automatically, without need for a court order, for the 19 primary offences currently listed in part (a) of the definition of ―primary designated offence‖ found at section 487.04 of the Code. Making the collection of DNA from young offenders convicted of these specified designated offences automatic is, in our view, consistent with the reasoning of the Saskatchewan Court of Appeal in R. v. C.J.T. It also recognizes that these 19 offences are among the most serious of those contained in the Code.

For the remaining primary designated offences and all secondary designated offences listed in section 487.04, we believe that courts should retain discretion as to whether to issue DNA collection orders against young offenders convicted of these offences. Having said this, the committee believes that neither the test outlined in section 487.051(2) nor the test found at 487.051(3) of the Code is appropriate. The test outlined at section 487.051(2) requires the young offender to establish, to the court‘s satisfaction, that the impact of the collection order on his or her privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders. In other words, section 487.051(2) puts the onus on the young offender to establish these facts, rather than merely requiring the court to weigh these two interests, and decide which outweighs the other in each particular case. The test outlined at section 487.051(3) of the Code, while satisfactory in many respects, and while not imposing an onus on the young offender to demonstrate that a collection order is not warranted, does not specifically require the court to consider the public interest in the protection of society when deciding whether or not to recommend a collection order against a young offender. The committee therefore recommends that collection of DNA from young offenders convicted of designated offences listed in parts (a.1) to (d) of the definition of ―primary designated offence‖ and all offences described as ―secondary designated offences‖ at section 487.04 of the Code proceed only pursuant to a court order issued by a judge, and that the test employed by judges in deciding whether to issue such an order against a young offender be the one currently found in section 487.051(2) of the Criminal Code. However, we are of the

130 2009 SKCA 129. 43

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view that the young offender should not be required to demonstrate that the impact of the collection order on his or her privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice. Instead the court should merely weigh these two interests and determine the outcome.

RECOMMENDATION 4

That the Criminal Code be amended to allow for the immediate and automatic collection of a DNA sample from any young offender convicted in Canada of a designated offence as defined in part (a) of the definition of “primary designated offence” found at section 487.04 of the Criminal Code.

RECOMMENDATION 5

In the case of young offenders convicted of primary and secondary designated offences for which a DNA collection order upon conviction is not mandatory, that the Criminal Code be amended to require courts, before issuing a DNA collection order against a young offender convicted of such offences, to determine whether the impact of the collection order on the young offender’s privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice.

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WITNESS CONCERNS AND COMMITTEE FINDINGS IN RELATION TO THE DNA IDENTIFICATION ACT

This section of the report outlines witness concerns in relation to the DNA Identification Act, as well as our specific findings and recommendations in relation to this subject.

A. Retention and Destruction of Young Offenders’ DNA Samples and Profiles at the National DNA Data Bank

In certain recent cases involving DNA collection from young offenders, courts have expressed serious concerns about the fact that they had evidence before them to indicate that neither the DNA samples nor the DNA profiles of young offenders convicted of designated offences were being destroyed or archived by the Data Bank as required. The committee decided, as a result, to inquire further into this matter during its statutory review.

Sections 9, 9.1, 10 and 10.1 of the DNA Identification Act deal with the retention and destruction of both DNA samples and profiles housed at the Data Bank. With respect to DNA profiles, section 9 of the DNA Identification Act provides that as a general rule, an adult‘s DNA profile housed in the COI shall be kept indefinitely (section 9(1)), unless and until every order or authorization for the collection of DNA from the offender in question has been set aside (section 9(2)(a)), or until the offender has been finally acquitted (section 9(2)(b)). In either of these two cases, the DNA profile shall be removed from the COI without delay. An adult offender‘s DNA profile shall also be removed from the COI one year after the day on which he or she receives an absolute discharge, or three years after the day on which he or she receives a conditional discharge, for a designated offence, as long as no new collection order or authorization has been issued against him or her in the intervening period (section 9(2)(c)).

In the case of the DNA profiles of young offenders, the retention rules are different, and also considerably more complex. One must read the records retention provisions found in Part 6 of the YJCA, in conjunction with section 9.1 of the DNA Identification Act, to determine the length of time that a young offender‘s profile may be retained in the COI. Section 9.1 of the DNA Identification Act specifies that if a young person has been convicted of a ―presumptive offence‖ as defined in the YJCA,131 or has been convicted of a second offence contained in the schedule to

131 Such offences include murder, manslaughter, aggravated sexual assault and certain serious violent offences committed by young people over 14 years of age. See section 2(1) of the YCJA. 45 561

the YJCA (a schedule offence) following a conviction for a first designated offence within the period of time his or her profile is required to be retained at the Data Bank,132 then the profile retention rules applicable to adults will apply to him or her (section 9.1(2) of the DNA Identification Act). For all other young offenders who have DNA profiles in the COI, section 9.1(1) of the DNA Identification Act, when read in conjunction with sections 119 and 120 of the YCJA, specifies that their profiles must be retained for three years or five years before being destroyed, or indefinitely, depending upon the nature of the offence for which they were convicted. In addition, young offenders subject to an initial three-year or five-year retention period, who are convicted of another offence as a young offender during the retention period will have their profile retained by the Data Bank for an additional three or five years, depending on whether the second conviction was for a summary conviction or an indictable offence .

With respect to the retention and destruction of the bodily samples from which DNA profiles are made, section 10 of the DNA Identification Act empowers the RCMP Commissioner to decide which bodily samples should be retained and which should be destroyed (section 10(1)). This provision presumably exists to ensure that some samples remain at the Data Bank for re-analysis in case new DNA technology is developed (section 10(2)). Section 10(5) further specifies that all bodily samples stored at the Data Bank can be used only for forensic DNA analysis.

Having said this, in some cases, DNA samples must be destroyed. With respect to adults convicted of designated offences, the conditions governing when all their DNA samples stored at the Data Bank will be destroyed are the same as outlined for DNA profiles in section 9 of the Act (see section 10(7)). However, in the case of bodily samples collected from adults who have received a pardon, section 10(8) of the DNA Identification Act indicates that the bodily samples of adults shall not be destroyed, but rather kept separate and apart from other samples.

As in the case of the retention rules regarding DNA profiles described above, the sample retention rules applicable to adults apply to young offenders convicted of presumptive offences under the YCJA. Adult rules also apply to young offenders, who, within the records retention period for their first offence as a youth, are convicted as an adult of a second schedule offence, as defined in the YCJA (section 10.1(2) of the DNA Identification Act). However, for the remaining young offenders, section 10.1 and Part 6 of the YCJA provide that their DNA samples may be

132 See section 120(6) of the YJCA. 46

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kept for three years, five years or indefinitely, depending upon the nature of the offences for which they received their convictions. A young offender subject to a three- or five-year retention period, who is convicted of a second offence during that period while still a young person, will have his or her bodily samples retained for an additional three or five years, depending on whether the second conviction was for a summary conviction or an indictable offence.

While the above rules are certainly complex, and therefore likely challenging to administer, we are of the view that the Data Bank should nevertheless be required to comply with its own enabling statute. Accordingly, during our study, we asked representatives from the Department of Justice and the Data Bank to provide the committee with any available statistics regarding the retention of DNA samples and profiles of young offenders, and an explanation of why so many samples were being retained. We wished to learn whether the concerns expressed by judges in certain cases were valid, and whether there were problems with respect to recordkeeping at the Data Bank that needed to be addressed. On 18 June 2009, we received a letter from the then Minister of Public Safety, the Honourable Peter Van Loan, summarizing the results of an internal review the Data Bank conducted of all DNA samples and profiles it had received from convicted young offenders between 1 June 2000 and 6 April 2009. Of the 21,743 samples and profiles received by the Data Bank during that period, we were advised that:

20,865 were linked to criminal records that had not yet reached the end of their retention periods (10,403 being still within their original 3 or 5 year retention period, 2,619 having been archived for an additional five years because they were taken in relation to a schedule offence, 7,569 having been converted to an adult file because the individual committed an offence as an adult within the retention period, and 256 having been retained in accordance with other provisions of the YCJA); and

878 records had reached the end of their retention periods, with the samples and profiles either having already been removed or destroyed, or in the process of being removed or destroyed, by 6 April 2009.133

It would appear, based on the above information, that the Data Bank is retaining and destroying the samples of young offenders convicted of designated offences in accordance with the requirements outlined in sections 9, 9.1, 10 and 10.1 of the DNA Identification Act. The committee was gratified to learn that this is the case, particularly given the emphasis that section 3(1)(b)(iii) of the YCJA places on the need to provide enhanced procedural protections for the

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privacy rights of young persons. If the courts that had expressed concerns about retention of DNA samples and profiles at the Data Bank had had this information, it might well have influenced their decisions. For this reason, the committee recommends that the Data Bank publish, in its annual reports, statistics on the number of DNA samples and profiles of adult and young offenders contained in the Data Bank, as well as the reasons for why they are being retained, as was done for us in the letter we received from the former Public Safety Minister. This should help to avoid any future confusion, by the courts or by Parliament, regarding how the Data Bank is implementing its records retention and destruction policies.

RECOMMENDATION 6

That the National DNA Data Bank publish statistics in its annual reports on the number of DNA samples and profiles, for both adult and young offenders, stored at the National DNA Data Bank, along with reasons for their retention.

B. Collection of Accurate Statistics on How the National DNA Data Bank Assists the Criminal Justice System

Another issue that was raised by witnesses was that it can be difficult to determine, based on the statistics provided by National DNA Data Bank in its annual reports, the degree of assistance that Data Bank hits actually provide to police and to the criminal justice system generally in either providing persuasive evidence of guilt or in exonerating the innocent. Anecdotal information provided by numerous witnesses suggests that the Data Bank is tremendously useful both to law enforcement officials in their investigations and to the criminal justice system as a whole. However, as highlighted by Professors Dominique Robert and Martin Dufresne of the University of Ottawa in their 5 May 2010 submission to the committee:

The only official data available (in the [National DNA Data Bank‘s] annual reports) are the number of criminal cases in which the data bank was used (―cases assisted‖, ―matches‖). Saying that the [Data Bank] was used to help resolve a matter (arrest or acquittal) provides no insight as to the nature of that ―help.‖ Was the data bank all the investigators had to go on? Did it simply help strengthen partial evidence which had already been gathered by the police? Or was it used to confirm what was already overwhelming evidence? Having no way to qualify or measure

133 Letter from the Honourable Peter Van Loan, former Minister of Public Safety, to The Honourable Joan Fraser, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, 18 June 2009. 48

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that contribution makes it hard to determine the value of the NDDB, particularly in terms of financial and social costs.134

Representatives from the Criminal Lawyers‘ Association made a similar point when they testified before the committee, stating:

In looking at the metrics available to us for our data bank, how can we measure the success? The metric that seems to be bandied around is the number of investigations that are aided or assisted by hits at the National DNA Data Bank. The website, as of March 12, 2010, indicates that 989 murder investigations were assisted by the hits. The data bank has a total of 14,435 profiles broken down into different offences. At the end of the day, what does that statement mean? Did the investigations end up in convictions or guilty pleas? What does ―assisted‖' mean? This issue is not unique to our country. The U.S. is having that same issue in terms of how they measure assistance with hits.135

While the committee has no reason to doubt the anecdotal evidence it heard regarding the utility of the Data Bank during the course of its study, and believes the Data Bank to be an invaluable tool that assists law enforcement officers in their investigations, we are of the view that better data on how exactly the Data Bank assists law enforcement officials would help to demonstrate the value of the Data Bank in a more concrete and measurable fashion. Such data would also likely assist the Data Bank in any future efforts to expand and to garner additional financial resources as necessary. The committee therefore believes that the Data Bank should work cooperatively with law enforcement organizations to collect statistics describing the specific nature of the assistance that the Data Bank provides, through matches to the convicted offenders index (COI), in police investigations, as well as whether or not this data has played a role in exoneration. We are also of the view that the Data Bank should publish statistics relating to these matters in its annual reports to Parliament.

134 Letter from Dominique Robert and Martin Dufresne, Professors, Department of Criminology, University of Ottawa to the Standing Senate Committee on Legal and Constitutional Affairs, 5 May 2010, p. 1. See also, National DNA Data Bank 2008-2009 Annual Report, supra note 63 at pp. 8 – 9 and 22. 135 Testimony of Vincenzo Rondinelli, Lawyer, Criminal Lawyers‘ Association, supra note 98 at p. 10. 49

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RECOMMENDATION 7

That the National DNA Data Bank work cooperatively with law enforcement organizations to collect statistics describing the specific nature of the assistance it provides in police investigations through matches to the convicted offenders index (COI), and that the National DNA Data Bank publish these data, including data on exoneration, in its annual reports to Parliament.

C. Ensuring that Access to an Offender’s Information in the Convicted Offenders Index is Immediately Removed and the Bodily Samples Used to Create DNA Profiles Are Immediately Destroyed Upon Final Determination of an Offender’s Successful Appeal

If the Criminal Code is indeed amended to remove the need for prior judicial authorization before DNA can be collected from adults convicted of all designated offences, or from young persons convicted of the 19 primary designated offences for which a DNA collection order is now mandatory, the committee believes that it would also be advisable to take steps to ensure that access to offenders‘ information in the COI is immediately removed, and that the bodily samples of offenders used to create DNA profiles are immediately destroyed, upon final determination of offenders‘ successful appeals.

Currently, sections 487.056(1) and sections 487.056(4) of the Criminal Code allow a DNA sample to be taken from an individual convicted of a designated offence even though there may be an appeal pending. Sections 9(2)(b) and 10(7)(b) of the DNA Identification Act mandate the removal of an offender‘s information from the COI, and the destruction of all DNA samples taken from the offender ―without delay after the person is finally acquitted of every designated offence in connection with which an order was made or an authorization was granted,‖ which one could interpret to mean upon final determination of a successful appeal, as long as the offender has no other convictions for designated offences remaining on his or her criminal record. However, sections 9(2)(a) and 10(7)(a) of the DNA Identification Act appear to potentially conflict with the former provisions somewhat, as they mandate the removal of the offender‘s information from the COI, and the destruction of all DNA samples taken from him or her, only when the court order authorizing the DNA collection has been finally set aside. Section 9(2)(a) of the Act, specifically, has resulted in situations where, although DNA should not have been taken from an offender in the first place, it has subsequently been used as foundation for a

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search warrant to obtain new DNA samples from the person in question pursuant to a new offence with which he or she had been charged.136 In order to ensure that final determination of a successful appeal will result in the immediate destruction of samples taken from an offender and housed at the Data Bank, as well as immediate removal an offender‘s information from the COI, as long as he or she has no other convictions for designated offences on his or her criminal record, the committee believes that the DNA Identification Act should be amended to clarify this.

RECOMMENDATION 8

That the DNA Identification Act be amended to clarify that, in circumstances where there has been a final determination of an accused offender’s successful appeal of his or her conviction for a designated offence, no other further opportunities of appeal are available to the Crown or to the accused, and the accused offender has no other convictions for designated offences on his or her criminal record, the accused offender’s information should be immediately removed from the convicted offenders index (COI) after the expiry of all appeal periods, and the DNA samples taken from the offender and stored at the National DNA Data Bank should be immediately destroyed.

D. National DNA Data Bank Advisory Committee to Examine Whether the Framework for DNA Collection and Analysis Requires Adjustment in Light of Conflicting Information Regarding the Ability of “Junk” DNA to Reveal Information Regarding the Medical Conditions or Physical Characteristics of Individuals

Another issue of concern to the committee is whether the information contained in the DNA profiles stored at the Data Bank is truly ―non-coding‖ or ―junk‖ DNA, meaning that the 13 loci used to create a profile cannot be used to predict medical, physical or mental characteristics of the individuals from whom the DNA samples were taken. When Dr. Ron Fourney, Director of

136 Such was the case in R. v. Newell, 2009 NLCA 18, which dealt with a case where an individual, who was convicted of robbery at trial, had a DNA collection order made against him and then had his robbery conviction overturned at appeal. However, following his successful appeal and prior to his DNA profile being removed from the COI at the Data Bank, the police, knowing that an appeal was pending, used the fact that he had his profile on file at the Data Bank as grounds to obtain a warrant under section 487.05 of the Code, to investigate him for other robbery offences. The Court of Appeal held that the new warrant, issued, in part, on the basis that the individual in question had his profile in the Data Bank, was valid and did not violate section 8 of the Charter because section 9(2)(a) of the DNA Identification Act allowed the offender‘s DNA profile to be retained until the order authorizing DNA collection had been finally set aside, which it had not been at the time the new warrants for DNA collection were issued. The Newfoundland Court of Appeal therefore found that Mr. Newell had no reasonable expectation of privacy on the date that the DNA warrants were issued. 51

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National Services and Research of the RCMP, the scientist in charge of the Data Bank, appeared before the committee in March 2009, he stated:

[I]t is important to realize that the pieces of DNA that we are looking at do not code for anything that we know of. We cannot tell you if you will have hair loss; if you are prone to diabetes; if you will be tall, short or have blue eyes, with the markers that we currently use today. All we know is that they are variable from person to person and, because of the fact that they are variable, it means that they are freely evolving, and the chances are that they will never code for anything. They are spacer pieces of DNA within our genome or blueprint.137

Other scientists who appeared before the committee, however, had a different view. For example, when he testified before us in May 2009, Dr. Martin Somerville, President of the Canadian College of Medical Geneticists, stated:

The information that is obtained from the analysis of the 13 DNA markers used for identification purposes can have direct medical relevance. There are numerous claims that these regions are anonymous and, other than gender, do not provide specific medical or physical information about the donor, but the use of these markers can, in fact, detect the presence of changes in the copy number of very large segments of DNA. In other words, it is not designed to do this, but it can do it by circumstance. It is not a very sensitive way of getting medical information, but it can. The list of conditions that this type of profiling can detect includes, but is not limited to, any difference in the number of sex chromosomes as well as Down syndrome or what is commonly known as trisomy 21. DNA profiling will very effectively detect that.

No DNA information is truly anonymous, since any portion of the DNA has potential to reveal personal details about an individual. It is only since the completion of the human genome project in 2003 that the complexity and relevance of what was previously labelled as junk DNA has been realized. In essence, that term has fallen out of favour.138

The committee recognizes that sections 4(b) and 10(5) of the DNA Identification Act prohibit the transmission and use of the DNA samples stored at the Data Bank for any purpose except forensic DNA analysis. The committee also recognizes that section 6(1) of the Act severely restricts the type of information that can be communicated to law enforcement agencies

137 Testimony of Dr. Ron Fourney, Director, National Services and Research, RCMP, supra note 69 at p. 25. 52

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about a match. Nevertheless, given that there are conflicting expert opinions regarding whether personal characteristics or medical information can be derived from analysis of the 13 loci currently used to create profiles, and given that the Data Bank may well begin using more than 13 loci to create profiles (i.e. profiles created using 16 loci),139 the committee believes it would be advisable for the Advisory Committee to conduct a public consultation on the issue of whether or not the loci used by the Data Bank to create a DNA profile can or should be used to reveal personal characteristics or medical information about individuals, in order to assist police in identifying offenders. Once this consultation has been completed, the Advisory Committee should publish the results of this consultation, as well as a recommendation as to whether, in its view, the framework for DNA collection and analysis provided by the DNA Identification Act needs to be adjusted in order to preserve an appropriate balance between the objectives of protecting society and the administration of justice and protecting the privacy of individuals, as outlined in section 4 of the Act.

RECOMMENDATION 9

That the National DNA Data Bank Advisory Committee conduct a public consultation on the issue of whether or not the loci used by the National DNA Data Bank to create a DNA profile can or should be used to reveal personal characteristics or medical information about individuals, in order to assist police in identifying offenders.

RECOMMENDATION 10

That the National DNA Data Bank Advisory Committee publish the results of its public consultation, along with a recommendation as to whether or not, in its view, the framework for DNA collection and analysis provided by the DNA Identification Act should, as a consequence, be adjusted, in order to preserve an appropriate balance between the objectives of protecting society and the administration of justice and protecting the privacy of individuals, as outlined in section 4 of the Act.

138 Testimony of Dr. Martin Somerville, Canadian College of Medical Geneticists, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 7, 2nd Session, 40th Parliament, 6 and 7 May 2009, p. 24. 139 In its most recent annual report, the National DNA Data Bank Advisory Committee suggested that the use of 16 loci was being considered by the Data Bank. See National DNA Data Bank Advisory Committee, Annual Report, 2008 – 2009, supra note 73 at p. 16.

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E. Use of the National DNA Data Bank for Exoneration Purposes

The reason that DNA is such a useful forensic tool is that it is more effective than other types of forensic technology in differentiating between individuals. It therefore provides extremely valuable evidence in terms of associating someone with a particular crime or demonstrating, in a highly particularized and individualized fashion, their non-involvement. In judgment after judgment, courts have referred to DNA as a vital technology, capable of both implicating the wrongdoer and exonerating the innocent. While much of the focus in the preceding sections of this report has been how on this technology can be employed legally, expeditiously and safely to assist in holding individuals accountable for the crimes they commit, some attention must also be devoted to the second objective: eliminating people as suspects or exonerating the innocent.

For example, it is important to remember the cases of Guy Paul Morin and David Milgaard, two individuals who, in highly publicized criminal trials, were wrongly convicted of murder. Without DNA testing, these individuals might still be in prison for crimes they did not commit. This committee accordingly concurs with the decision of the House of Commons Standing Committee on Public Safety and National Security to recommend, in its June 2009 report, that section 3 of the DNA Identification Act be amended to firmly establish that one of the purposes for which the Data Bank was created was and is to help exonerate the innocent. Individuals are already able to, and often do, voluntarily provide DNA samples to the police for the purposes of potential exoneration. However, the committee believes that the DNA Identification Act should also be amended to provide individuals who are suspected by law enforcement officials of having committed a designated offence with some ability to access the information contained in the Data Bank for exoneration purposes, following the decision to charge them and before trial. In particular, the committee believes that accused persons and their counsel should be able to obtain relevant information regarding analyses performed by the Data Bank on DNA samples obtained from them, in connection with the designated offences with which the accused persons have been charged.

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RECOMMENDATION 11

That section 3 of the DNA Identification Act be amended to state that the purpose of this Act is to establish a national DNA data bank to assist law enforcement agencies in identifying persons alleged to have committed designated offences, including those committed before the coming into force of this Act, as well as to assist in the exoneration of the innocent.

RECOMMENDATION 12

That the DNA Identification Act be amended to allow accused persons and their counsel to request and receive, from the National DNA Data Bank for criminal defence purposes, relevant information regarding analyses performed on DNA samples obtained from the accused person in connection with the designated offences with which they have been charged.

In addition, our committee believes that convicted offenders and their counsel should be allowed similar access to relevant information about the samples and profiles stored at the Data Bank for exoneration purposes, at least in cases where there has been a significant change or advance in DNA technology since the time the offender was convicted. As stated previously in this report, although section 10(1) of the DNA Identification Act requires the RCMP Commissioner to destroy the bodily sample used to create the profile at the Data Bank, it allows the RCMP Commissioner to retain other portions of bodily samples taken from the individual if the Commissioner considers retention to be appropriate. Presumably, the Act empowers the Commissioner to retain some portions of samples in case DNA analysis technology advances, allowing scientists to glean better, different or more precise information from a sample.

Section 10(2) of the Act states:

10. (2) Forensic DNA analysis of stored bodily substances may be performed if the Commissioner is of the opinion that the analysis is justified because significant technological advances have been made since the time when a DNA profile of the person who provided the bodily substances, or from whom they were taken, was last derived.

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If the Commissioner is empowered to authorize the lab to perform a new analysis of a DNA sample for the purpose of obtaining more or better information from it for law enforcement purposes, a person convicted of a designated offence should be provided with relevant information obtained from these analyses for exoneration purposes. Accordingly, we recommend that the DNA Identification Act be amended to state that when the Commissioner is of the opinion that a new forensic analysis of bodily substances stored at the Data Bank should be performed in accordance with section 10(2) of the Act, and the bodily substance in question was taken from an individual whose DNA profile is contained in the COI, that the Commissioner be required to provide the convicted offender with the results of this new analysis, so that he or she has the opportunity to use this information for exoneration purposes.

RECOMMENDATION 13

That the DNA Identification Act be amended to require the Commissioner of the Royal Canadian Mounted Police to provide offenders whose profiles are stored in the convicted offenders index (COI) with relevant information and the results of analyses that are performed on their bodily samples in accordance with section 10(2) of the Act.

F. International Exchange of Information Contained in the National DNA Data Bank

Sections 6(2) to 6(7) of the DNA Identification Act govern how and in what circumstances DNA profiles contained in the Data Bank may be shared with foreign states, institutions of those states, international organizations established by the governments of states, and institutions of these international organizations, as well as how and in what circumstances one of these foreign entities may submit a DNA profile contained in their DNA data banks with DNA profiles stored at the National DNA Data Bank for comparison purposes.

Before information-sharing of either of these types can occur, section 6(5) of the Act specifies that the foreign or international organization in question must have entered into an information-sharing agreement or arrangement with Canada, in accordance with section 8(2)(f) of the Privacy Act.140 Section 8(2)(f) of the Privacy Act specifies that the Government of Canada can only share the personal information of individuals in its possession with a foreign state, international organization, or institution of either of these two entities, if there is an agreement in

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place between Canada and the foreign entity in question specifying that any personal information the Canadian government shares with that entity will only be used by the foreign entity for the purposes of ―administering or enforcing any law or carrying out a lawful investigation.‖ Section 6(5) of the DNA Identification Act also specifies that information and profiles stored at the Data Bank may only be communicated to foreign states, international organizations and their institutions if ―communication is necessary for the purpose of the investigation or prosecution of a criminal offence.‖

In terms of what information may be communicated once these criteria have been met, foreign entities that provide DNA profiles to the Data Bank can have these profiles matched to profiles contained in both the CSI and the COI (section 6(3) of the DNA Identification Act). By contrast, when the Data Bank provides a DNA profile to a specified foreign entity, it can share only a profile stored in the CSI, and can do so only if a Canadian law enforcement agency, in the course of an investigation, expressly asks them to share the profile (section 6(4) of the DNA Identification Act). Having said this, however, section 6(2) of the DNA Identification Act specifies that ―[i]nformation as to whether a person‘s DNA profile is contained in the convicted offenders index may be communicated to an authorized user of the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police.‖ Accordingly, a foreign or international entity who is authorized to use the RCMP‘s automated criminal conviction records retrieval system, also known as the Canada Police Information Centre (CPIC) system, could also potentially obtain notification that a person‘s profile is in the COI.

With respect to what information can be communicated for comparison purposes, section 6(3) specifies that the Data Bank can communicate only the fact that a requested profile is not in the Data Bank or that there has been a match. If there has been a match, the Data Bank can then provide the profile in question and the name of the person attached to the profile to the foreign entity. The match must be exact before information can be shared (all 13 loci on the 2 DNA profiles being compared must match each other). Sections 6(6) and 6(7) of the DNA Identification Act prohibit the use of the profiles contained in the Data Bank and the communication of information regarding the profiles, except in accordance with the Act.

140 R.S.C. 1985, c. P-21. 57

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A review of the above provisions demonstrates that the DNA Identification Act imposes fairly strict limits or controls on information sharing between the Data Bank and foreign entities. The question that remains, however, is whether these limits and controls go far enough. In observations in its report to the Senate on Bill C-18,141 this committee expressed concerns about one of the information-sharing provisions described above, stating:

We have reservations about the sharing of information found in the National DNA Data Bank with foreign jurisdictions. Our concern is that these jurisdictions may ask for information from the Data Bank in their efforts to resolve offences which are not offences under Canadian law. For example, non-violent political dissent may be considered a criminal act in certain jurisdictions and we do not wish to see the Data Bank facilitating the prosecution of these offences. Therefore, we recommend that one of the criteria for the sharing of information with foreign jurisdictions be that the offence alleged to have been committed in the foreign jurisdiction be considered an indictable offence under Canadian law and that appropriate legislation or regulations be prepared.142

In other words, it was this committee‘s view that information sharing should be restricted to situations in which foreign entities are investigating offences in their jurisdictions that would be equivalent to indictable offences under Canadian law. We are largely still of this view today, although our view on this subject has been altered somewhat in light of the terms contained in several of the Mutual Legal Assistance Treaties (MLATs) Canada has signed with other countries, and in light of the provisions contained in the Mutual Legal Assistance in Criminal Matters Act.143

Because the suppression, investigation and prosecution of crime, particularly in an increasingly globalized world, often requires cooperation with foreign law enforcement authorities, Canada enacted the Mutual Legal Assistance in Criminal Matters Act in 1988. This Act gives Canadian courts the power to issue orders, including search warrants and evidence- gathering orders, to obtain evidence in Canada on behalf of a foreign state or entity for use in a criminal investigation or prosecution conducted by the state or entity in question. However, the legislation only implements requests made pursuant to a treaty or administrative arrangement

141 Senate, Standing Committee on Legal and Constitutional Affairs, 14th Report, 1st Session, 39th Parliament, 14 June 2007, available on-line at: http://www.parl.gc.ca/39/1/parlbus/commbus/senate/com-e/lega-e/rep-e/rep14jun07- e.htm. The Standing Senate Committee on Legal and Constitutional Affairs reported Bill C-18 back to the Senate without amendment, but with observations. 142 Ibid. 58

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under the Act. Accordingly, when looking at Canada‘s obligations in terms of disclosure and provision of information to a foreign state or entity, one must look at the MLAT Canada has signed with that entity to determine when and in what circumstances, Canada is obligated or permitted to provide assistance.

Currently, Canada has signed MLATs in criminal matters with 39 countries or international organizations.144 Under the terms of these treaties, parties may request assistance from each other in:

examining objects and sites;

exchanging information and objects;

locating or identifying persons;

serving documents;

taking evidence from persons;

providing documents and records;

transferring persons in custody; and

executing search and seizure requests.

In terms of providing documents and records, ―records‖ is defined in the Mutual Legal Assistance in Criminal Matters Act as meaning ―any material on which data are recorded or marked and which is capable of being read or understood by a person or a computer system or other device.‖ This definition is broad enough to include a DNA profile created by the Data Bank. In terms of in what circumstances legal assistance may be provided to a foreign state or entity, this varies from MLAT to MLAT. For example, in the case of the MLAT in criminal matters between Canada and the United States, Articles I and II of the treaty, when read in conjunction, specify that Canada may only provide legal assistance to U.S. authorities relating to the investigation, prosecution and suppression of offences for which a term of imprisonment of more than one year under U.S. law may be imposed, or in relation to an offence described in the

143 S.C. 1988, c. 17. 144 See the Canada Treaty Information website at: http://www.treaty-accord.gc.ca/search-recherche.asp?type=&page=TLA. 59

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Annex to the treaty.145 This includes the provision of records, such as DNA profiles. By contrast, under the MLAT in criminal matters between Canada and the Netherlands, Canada may provide legal assistance to authorities in the Netherlands for the prosecution any offence created by the legislature of the Netherlands, the Netherlands Antilles or Aruba.146

With respect to countries with whom Canada has not concluded an MLAT in criminal matters, section 6(1) of the Mutual Legal Assistance in Criminal Matters Act specifies that the Minister of Foreign Affairs may, with the agreement of the Minister of Justice, enter into an arrangement to provide legal assistance (including the provision of records) to the state or entity in question, but only with respect to an investigation relating to an ―act that, if committed in Canada, would be an indictable offence.‖

It would appear, therefore, that when Canada has entered into an MLAT in criminal matters with a foreign state or entity, the circumstances in which Canada will provide legal assistance, including records, to that entity to assist in a police investigation or criminal prosecution, are determined by the specific terms of the treaty. In cases where there is no treaty, the Minister of Foreign Affairs, in agreement with the Minister of Justice, retains the discretion to provide legal assistance, including records, to the foreign state or entity, but only in relation to an act that, if it had been committed in Canada, would constitute an indictable offence. Having said this, if a foreign state or entity is an authorized user of CPIC, that foreign state or entity can obtain confirmation that an offender‘s profile is contained in the COI. In the interest of maintaining consistency with the terms of the MLATs in criminal matters that Canada has signed with foreign states or entities, the provisions contained in the Mutual Legal Assistance in Criminal Matters Act, as well with section 6(2) of the Act, which allows authorized users of CPIC to obtain confirmation that an offender‘s profile is in the COI, the committee is of the view that the DNA Identification Act should be amended to specify that information stored at the Data Bank can only be shared with foreign states and entities in accordance with the terms of any Mutual Legal Assistance Treaty in criminal matters signed between Canada and the foreign state or entity, and/or in accordance with section 6(2) of the DNA Identification Act, presuming that it applies. In the event that there is no Mutual Legal Assistance Treaty in criminal matters between Canada and the state or entity in question, the Act should be amended to specify that information

145 See the definition of ―offence‖ found at Article I, and Article II of the MLAT between Canada and the United States. This treaty is available on-line at: http://www.treaty-accord.gc.ca/text-texte.asp?id=101638. 146 See the definition of ―offence‖ found at Article 1, and Article 2 of the MLAT between Canada and the Netherlands. This treaty is available on-line at: http://www.treaty-accord.gc.ca/text-texte.asp?id=101636. 60

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stored at the Data Bank can only be shared with a foreign state or entity for the purpose of investigating an offence alleged to have been committed in a foreign jurisdiction, which, if it had been committed in Canada, would constitute an indictable offence under Canadian law, and/or in accordance with section 6(2) of the DNA Identification Act, presuming that it applies.

RECOMMENDATION 14

That the DNA Identification Act be amended to specify that information stored at the National DNA Data Bank can only be shared with governments of foreign states, institutions of these governments, international organizations established by the governments of states, or institutions of these international organizations in accordance with the Mutual Legal Assistance Treaty (MLAT) in criminal matters signed between Canada and the foreign state or international organization in question, and/or in accordance with section 6(2) of the DNA Identification Act, presuming that it applies.

RECOMMENDATION 15

That the DNA Identification Act be amended to specify that, in the event that there is no Mutual Legal Assistance Treaty (MLAT) in criminal matters in force between Canada and a government of a foreign state, institution of that government, international organization established by the government of states, or institution of that international organization, information can only be provided to the foreign state or international organization in question for the purpose of investigating an offence alleged to have been committed in a foreign jurisdiction, which, if it had been committed in Canada, would constitute an indictable offence under Canadian law, and/or in accordance with section 6(2) of the DNA Identification Act, presuming that it applies.

G. Kinship Analysis/Familial Searching

One of the most controversial subjects on which our committee heard evidence during the course of our study was on the subject of whether the DNA Identification Act should be amended to facilitate kinship analysis or familial searching.

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As explained in an earlier section of this report, kinship analysis or familial searching begins as an ordinary Data Bank search. Law enforcement authorities provide DNA samples obtained from crime scenes to the Data Bank and the samples are turned into profiles, which are in turn, compared to the other profiles contained in the CSI, as well as to the profiles in the COI. However, currently, section 6 of the DNA Identification Act specifies that the Data Bank can only communicate a profile and related information if the profile in the Data Bank exactly matches the profile of the sample sent in by police, or if the person‘s DNA profile cannot be excluded as a possible match because there is a technical limit on the completeness of the profile sent in by law enforcement officials. Sections 6(7) and 11 of the DNA Identification Act make it an offence to communicate any information stored at the Data Bank except in accordance with section 6 of the Act. As a result, the Data Bank cannot inform law enforcement officials that there has been a close or partial match. The Act would need to be amended for such communication to occur.

If the Act allowed for this type of communication, the Data Bank could advise law enforcement officials that while the profile they submitted for comparison did not exactly match a profile contained in the CSI or COI, it closely matched another profile stored in one of these indices. The police would then know that they were likely looking for a close relative of the individual whose profile was already on file at the Data Bank. Through this type of searching, police agencies might be able to narrow down their list of suspects for a particular offence, thus enabling the police to solve crimes more quickly and in a more targeted fashion. It is for these reasons that representatives from the RCMP, when they appeared before us, spoke in favour of allowing the Data Bank to communicate close match results to police agencies.147 It should be noted, as well, that kinship analysis and familial searching are already being done at the regional level by forensic labs, since these labs are not subject to the DNA Identification Act.148 Furthermore, the U.K.149 and many U.S. states allow close match results to be communicated, at least for certain serious offences. However, it should also be noted that some U.S. states, such as Maryland, expressly prohibit familial searching of their state DNA data banks, while others have

147 Testimony of Corporal Jennifer Derksen, Policy Analyst, Operational Policy and Compliance, Community, Contract and Aboriginal Policing Services, RCMP, supra note 85 at p. 63. 148 National DNA Data Bank Advisory Committee, Annual Report, 2008 – 2009, supra note 73 at p. 17. 149 Testimony of Richard A. Bergman, Chairperson, National DNA Data Bank Advisory Committee, supra note 80 at p. 10. Mr. Bergman advised that kinship analysis has been used successfully in approximately 16 percent of 160 high profile cases in England. 62

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legislation and policy that is silent on this subject.150 In addition, it is important to note that kinship analysis or familial searching is not currently used as a crime solving tool by the Federal Bureau of Investigation‘s forensic laboratory.151

While RCMP representatives spoke in favour of amending the DNA Identification Act to allow for kinship analysis or familial searching at the Data Bank, the majority of witnesses who appeared before our committee expressed serious concerns about the potential negative consequences to the justice system that could arise from this type of searching. These witnesses expressed doubt that the benefits of such searching would outweigh the potential problems created. Some of the reasons witnesses gave for opposing kinship analysis or familial searching were practical in nature (Department of Justice officials, for example, indicated that ―kinship analysis, while undoubtedly a hot topic, is unlikely to result in many matches because it can be highly demanding of police resources‖).152 However, most witnesses expressed concerns about how such searches could infringe upon the privacy of innocent citizens or affect the presumption of innocence. Some of the concerns identified by various witnesses were:

Kinship analysis or familial searching would turn persons whose profiles are in the COI into unwitting genetic informants against their relatives. The person in the COI may have been guilty of a crime, but given that the match in question is only a close match, may not be guilty of the crime the police is currently investigating. It would also associate the genetic profiles of innocent citizens (i.e., other relatives of the person whose profile is in the COI) with crime scene profiles, thereby turning them into suspects in the eyes of the police;153

Kinship analysis or familial searching could lead to genetic surveillance of certain groups of people who are overrepresented in the justice system, such as Aboriginal persons or other racial or ethnic minority groups. Members of groups that are overrepresented in the justice system could be asked to give samples more often for comparison, because the police think there might be greater likelihood of finding a match;154 and

Kinship analysis or familial searching risks revealing other personal information about individuals that is not related to a crime, but may have a significant impact

150 Natalie Ram, ―State Policies for DNA Crime Databases Vary Widely‖ Science Progress, Centre for American Progress, 2 November 2009, available on-line at: http://www.scienceprogress.org/2009/11/map-state-dna-policies/. 151 National DNA Data Bank Advisory Committee, Annual Report, 2008 – 2009,, supra note 73 at p. 17. 152 Testimony of Greg Yost, Counsel, Criminal Law Policy Division, Department of Justice, supra note 82 at p. 58. 153 Testimony of Carman Baggaley, Strategic Policy Advisor, Office of the Privacy Commissioner of Canada, supra note 107 at pp. 12 and 17. 154 Testimony of the Honourable Peter Cory, Member, National DNA Data Bank Advisory Committee, supra note 92 at pp. 17 – 18. 63

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upon them, such as the fact that the person you always thought of as your parent is not in fact your parent, or the fact that your long-lost brother has a criminal conviction, and that his information is in the COI.155

These concerns led representatives from the Advisory Committee to suggest that that if Parliament wanted to consider recommending kinship analysis or familial searching, such searching should perhaps be permitted only when a crime has been committed that constitutes one of the 19 primary designated offences for which issuance of a DNA order upon conviction is currently mandatory. They also suggested additional restrictions, such as requiring provincial Attorneys General to approve a request to search the Data Bank for a close match or, alternatively, for a judge to issue a warrant before the Data Bank can be searched for a close match. In either case, they also proposed amending the relevant legislation to specify that a close match search should be allowed, and close match results communicated by the Data Bank, only in cases where the authorizing authority is satisfied that no other evidentiary or investigative leads are available.156 However, the Privacy Commissioner‘s Office suggested that even that restricted type of use might be problematic, remarking that if kinship analysis or familial searching is allowed for these 19 offences, it might one day open the floodgates to kinship analysis and familial searching for all designated offences, thereby following the pattern in the growth of the number of designated offences generally.157

After considering the evidence and the concerns raised by witnesses, the committee believes that before kinship analysis or familial searching be permitted, the Department of Justice further study the matter to determine how to appropriately craft a provision that would balance the need to protect society, the need to protect privacy rights, and the need to preserve the presumption of innocence. We are certainly of the view that such searching should not be allowed unless a series of restrictions on the ability to conduct such a search are put into place. We invite the Department of Justice to further analyze the impact that allowing kinship analysis or familial searching might have on the protection of society, the administration of justice, the privacy of individuals and the presumption of innocence.

155 Testimony of Dr. Martin Somerville, President, Canadian Council of Medical Geneticists, supra note 138 at p. 26 and testimony of Carman Baggaley, Strategic Policy Advisor, Office of the Privacy Commissioner of Canada, supra note 107 at p. 19. 156 Testimony of Richard A. Bergman, National DNA Data Bank Advisory Committee, supra note 80 at p. 11, and National DNA Data Bank Advisory Committee, Annual Report, 2008 – 2009, supra note 73 at p. 19. 157 Testimony of Carman Baggaley, Strategic Policy Advisor, Office of the Privacy Commissioner of Canada, supra note 107 at p. 16 and letter from Jennifer Stoddart, Privacy Commissioner of Canada, 16 June 2009, supra note 95 at p. 5. 64

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RECOMMENDATIONS REGARDING RESOURCING FOR THE NATIONAL DNA DATA BANK AND THE RCMP, ONTARIO AND QUEBEC FORENSIC LABS

A. Increased Financial Resources for the National DNA Data Bank

The committee recognizes that, if all of our recommendations for changes to the Criminal Code and DNA Identification Act are adopted by the government, some cost savings to the criminal justice system will result. It is evident, for example, that if the Code is amended to provide that DNA samples may be collected automatically from all adults and from some young offenders convicted of designated offences without need for a court order, this will save time and money in our court system, since Crown prosecutors will no longer need to apply for orders in the case of secondary designated offences, and separate hearings will not have to be held so that judges may issue post-conviction collection orders in these circumstances. It also seems likely that police agencies will experience some savings, since they will no longer have to spend time and money locating offenders who leave the jurisdiction before a DNA sample can be taken, or arrange to have new samples taken due to minor defects in court orders, although police agencies might also face some cost increases, as a result of having to collect more DNA samples from offenders than ever before.

However, the recommendations, if adopted, will almost certainly impose new costs on the Data Bank. When Department of Justice representatives appeared before us, they advised us that the automatic collection from those convicted of primary and secondary designated offences upon conviction ―could result in 100,000 new profiles annually [being added to the COI].‖ 158 Given that the Data Bank received approximately 34,000 samples for the purposes of adding profiles to the COI in 2008 – 2009,159 if this predicted increase to 100,000 samples a year occurred, the Data Bank would definitely require additional resources. This was confirmed by Dr. Ron Fourney, Director of National Services and Research, RCMP, when he appeared before our committee on 17 March 2010. He stated:

Once we go past 60,000 samples the sheer number of samples, processing, and logistics of the operation have to change. Even the space allocation of your equipment must change. More important, we want to maintain the same high level of standard. I wish to draw to senators' attention that we do not have any waiting for samples to be processed in

158 Testimony of Greg Yost, Counsel, Criminal Law Policy Division, Department of Justice, supra note 82 at p. 58. 159 National DNA Data Bank, 2008-2009 Annual Report, supra note 63 at p.7. 65

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the Convicted Offender Index. It is routinely processed within the five- day turnaround. We have been able to manage that by holding on. With the change in legislation, we went from 18,000 samples about a year ago to 34,000 samples today. That is a big change to accommodate without changing staff or equipment.

Beyond 60,000 samples, we have to start looking at new types of equipment and, potentially, adding a few more staff. With automation and a more robotic way of loading equipment, I hope to offset the labour needs to reduce the cost somewhat. We are currently in consultation with colleagues at the Department of Justice Canada with the understanding that if things change, we will have to predict the cost. We are working on that as we speak.160

Accordingly, our committee believes that, if the Code is amended to allow for the automatic taking of DNA samples from all adult offenders following conviction for designated offences as well as for the automatic taking of DNA samples from young offenders in some cases, additional financial resources should be made available to the Data Bank to ensure that it can accommodate the increased workload that will inevitably result.

RECOMMENDATION 16

If the Criminal Code is amended to allow for the immediate and automatic collection of a DNA sample from any adult who has been convicted of a designated offence, as well as for the immediate and automatic collection of a DNA sample from young offenders convicted of certain designated offences, the Government of Canada should ensure that sufficient financial resources are made available to the National DNA Data Bank to enable it to process the increased number of samples sent to it so that profiles can be included in the convicted offenders index.

B. Additional Resources for the RCMP, Ontario and Quebec Forensic Labs

The Data Bank is not the only participant in the DNA forensic identification system that is likely to need additional financial resources in the near future. The RCMP, Ontario, and Quebec forensic labs, all of whom process DNA samples and create DNA profiles that are uploaded to the CSI, may also require additional funding. Unlike the Data Bank, this need for additional

160 Dr. Ron Fourney, Director, National Services and Research, RCMP, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, 3rd Session, 40th Parliament, Issue No. 1, 10, 17 and 18 March 2010, pp. 59 – 60. 66 582

funding does not result from any of the recommendations we are making in this report, but because these labs, particularly those of Ontario and Quebec, have advised us that they are having great difficulty keeping up with the additional demand for analysis of crime scene samples created by the coming into force of Bills C-13 and 18 in 2008.

While the Data Bank is responsible for processing the DNA samples collected for addition to the convicted offenders index, it is the RCMP forensic laboratories in Halifax, Ottawa, Regina, Edmonton and Vancouver, and two provincial laboratories, the Ontario Centre for Forensic Sciences, and the Laboratoire de sciences judiciaires et de médecine légale in Quebec, that are responsible for analysing the biological samples the police collect at crime scenes, and then uploading DNA samples profiles to the crime scene index. The provinces and territories using the RCMP labs are therefore required to contribute to the costs of the biology casework analyses that occur at these labs. The amount of their contribution is determined by means of Biology Casework Analysis Agreements (BCAAs) signed between the provinces and territories which use the RCMP labs and the federal government. The federal government also negotiates BCAAs with Ontario and Quebec; however, in the case of these two provinces, funding flows the other way, from the federal government to Quebec and Ontario, since the provincial governments of these provinces pay the costs of operating their respective forensic labs, and the federal government wants to ensure that all provinces are equipped to provide samples and profiles to populate the CSI. If the CSI is under-populated, matches between the CSI and COI will be much less frequent and the Data Bank may start to lose its effectiveness as a crime- solving tool.161

We were already aware, prior to the commencement of our hearings, that both the Auditor General of Canada and the Auditor General of Ontario had conducted audits in 2007 of the RCMP forensic labs and Ontario forensic labs, respectively, and noted similar problems with respect to processing at these labs. The problems identified had little to do with the quality of the work being done, although some quality control issues were noted.162 Instead, they had to do

161 National DNA Data Bank Advisory Committee, Annual Report, 2008 – 2009, supra note 73 at pp. 13 – 14. 162 For example, when Sheila Fraser, the Auditor General of Canada, appeared before this committee in April 2009, she indicated that when the RCMP Forensic Labs adopted its new automated process in 2005, whereby robots are used at certain states of the process to speed up analysis results, the RCMP Labs noticed discrepancies with respect to the results achieved through the use of automated and manual processes, a quality control issue that was not addressed for quite some time. She also suggested that the new automated process should not have been subject only to internal review by the RCMP Forensic Labs staff before implementation, but also to external independent validation and review, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 6, 2nd Session, 40th Parliament, 22 and 29 April 2009, p. 30. 67

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with the fact that samples were not being processed in a timely manner.163 Accordingly, we were eager to see whether the RCMP and Ontario labs had addressed the timeliness issues identified in the federal and provincial Auditor General reports, and whether the Quebec lab was experiencing similar problems.

What we discovered was not reassuring. While all three laboratories had taken steps to address some of the timeliness issues to the best of their ability, the huge number of new designated offences added in 2008 to the list found at section 487.04 of the Code had added significantly to the workloads of all three labs. Nor was there an expectation that this demand would slacken off in any way in the near future. As was stated in a November 2009 report prepared by General Consulting Services (GCS), Public Works and Government Services Canada for Public Safety Canada to assess the working capacities of these labs:164

[I]n discussions with police forces and the laboratories, there is a consensus that demand for case processing will continue to increase for the foreseeable future, regardless of the observed downwards trend in crime. This can be attributed to an increase in DNA collection at crime scenes (referred to as DNA yield) due to its usefulness and the response by police to the changes in legislation (related to Bill C-13/18) which make it possible to upload DNA profiles to the CSI of [the Data Bank].165

The RCMP forensic labs seemed best positioned to manage the increased demand for services occasioned by the coming into force of Bills C-13 and C-18. They were using three strategies to increase efficiency and reduce demand: (1) a new streamlined procedure for forensic analysis, whereby police officers in the field are put immediately in touch with someone at the lab at the initial stages of investigation, so that they can negotiate diary dates and receive preliminary analysis results as soon as possible (this program is in the pilot state, and is designed

163 See Office of the Auditor General of Canada, Report of the Auditor General of Canada, ―Chapter 7‖, May 2007, available at: http://www.oag-bvg.gc.ca/internet/docs/20070507ce.pdf . See also, testimony of Sheila Fraser, Auditor General of Canada, ibid. at p. 29, where she states that ―FLS [RCMP Forensic Laboratory Services] management did not respect targets for completing and communicating analysis results. And, in some cases, staff changed the due date on service requests, making it appear as if the FLS was meeting targets when, in fact, they had simply been altered.‖ See also, Office of the Auditor General of Ontario, Report of the Auditor General of Ontario, “Chapter 3.02‖, December 2007, available at: http://www.auditor.on.ca/en/reports_en/en07/302en07.pdf. At p. 60, the report states: ―The [Ontario] Centre‘s 90-day target for completing 80% of its cases was set without the benefit of input from clients on their requirements and was much longer than targets set by forensic science laboratories in other jurisdictions, which generally set targets of 30 days or less.‖ 164 Government Consulting Services, Public Works and Government Services Canada, DNA Forensic Laboratory Service Cost and Capacity Review, 30 November 2009. 68

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to be rolled out nation-wide by 2011);166 (2) increased automation of laboratory processes, (this automation has, in turn, increased the lab‘s productive capacity);167 and (3) strict limits placed on provinces and territories through the BCAAs, restricting the number of secondary designated offence samples the provinces and territories who use RCMP lab services can submit to the labs for analysis each year.168 However, it is important to note that if the RCMP is finding it necessary to set limits in its BCAAs on the numbers of DNA samples collected at crime scenes its labs will process each year, law enforcement officials and courts may not have forensic DNA evidence available to them as fully as they should. Accordingly, there may be a need to provide future funding to the RCMP labs to enable them to process more secondary designated offence crime scene samples.169

We were also advised by representatives from the Laboratoire de sciences judiciaires et de médecine légale in Quebec that its BCAA with the federal government was about to lapse due to ongoing disputes over the federal decision to freeze funding provided to the Quebec lab at 2006 levels. In the past, BCAAs between Canada and Quebec were negotiated for three years at a time, which enabled the Quebec lab to make some longer term plans regarding improvements to equipment and the hiring of new staff. However, we have been informed that without multi-year agreements in place, the Quebec lab can no longer make long term plans, and the processing backlog occasioned by the coming into force of Bills C-13 and C-18 has only made things worse in terms of this lab‘s ability to respond to the demands placed upon it.170 Secondly, we were advised by both the Quebec and Ontario labs that they are unable to keep up with the increased workload imposed by Bills C-13 and C-18, and that they are effectively doing triage on the DNA samples they get. Samples that are collected in relation to the most serious offences, or offences

165 Ibid. at p. 11. 166 Testimony of Peter Henschel, Assistant Commissioner, Director General, Forensic Science and Identification Services, RCMP, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 1, 3rd Session, 40th Parliament, 10, 17 and 18 March 2010, pp. 28 and 29. 167 Government Consulting Services, Public Works and Government Services Canada, DNA Forensic Laboratory Service Cost and Capacity Review, supra note 164 at p. 14. 168 Ibid. at pp. 11 – 12. 169 It is also possible the RCMP forensic labs may not need any additional funding to meet the requirements imposed on them by Bills C-13 and C-18. This was the conclusion that GCS reached in its capacity review of the three forensic labs. See Government Consulting Services, Public Works and Government Services Canada, DNA Forensic Laboratory Service Cost and Capacity Review, supra note 164 at p. 29. The GCS report indicated that the RCMP was not achieving the throughput it was capable of, and was processing cases less efficiently than either the Quebec or Ontario labs at the time the review was conducted. Accordingly, GCS suggested that perhaps more effective procedures, and not additional funds, would be required at the RCMP labs. See ibid. at pp. iv, 11 and 29. 170 Testimony of Bob Dufour, Director General, Laboratoire de sciences judiciaries et de médecine légale, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 1, 3rd Session, 40th Parliament, 10, 17 and 18 March 2010, pp. 61 – 67. 69

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which represent the most danger to public safety, are processed first, in accordance with service standards, but the rest of the samples, such as those collected from break-and-enters or drug offences, must wait.171 All samples are processed eventually, but perhaps not in a timely enough fashion to prevent a court from ordering a stay of proceedings in a criminal trial on the basis of section 11(b) of the Charter, which gives accused persons the right to trial in a reasonable time. Bills C-13 and C-18 have also increased the workload of scientists who work at all three forensic labs another way. Given that there are now more designated offences and therefore more crime scenes from which DNA may be collected, there is also more DNA evidence being used at trial. This means that forensic scientists employed in our federal and provincial government labs must spend more time testifying as expert witnesses in court, which reduces the amount of time they can spend in the lab processing samples.172

It is also important to note that GCS, in its November 2009 report, indicated quite strongly that the Ontario and Quebec labs would require additional funding to assist them in handling the increased demands placed on them by Bills C-13 and C-18. In the case of the Quebec lab, GCS indicated that it would likely need almost $13 million over the next three years to keep up with demand. This would allow the lab to hire new staff, pay its operating and management costs and purchase new equipment.173 With respect to the Ontario lab, GCS estimated that it would require almost $11 million over the next three years, dedicated to the same three items, in order to keep up with demand.174

Our committee recognizes that in the 2010 Budget,175 the Government of Canada allocated ―$14 million over two years to increase the ability to process DNA samples so that the results could be added to the National DNA Data Bank.‖176 If the monies outlined in the budget are allocated to the Quebec and Ontario forensic labs, they will go some ways towards allowing both of these labs to keep up with the increased demands placed on them. However, as indicated

171 Testimony of Anthony Tessarolo, Director, Ontario Centre of Forensic Sciences and Frédérick Laberge, Administrator, Laboratoire de sciences judiciaries et de médecine légale, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 1, 3rd Session, 40th Parliament, 10, 17 and 18 March 2010, pp. 79 – 81. 172 Ibid. 173 Government Consulting Services, Public Works and Government Services Canada, DNA Forensic Laboratory Service Cost and Capacity Review, supra note 164 at p. 28. 174 Ibid. at p. 29. 175 Budget 2010, Leading the Way on Jobs and Growth, tabled in the House of Commons by the Honourable Jim Flaherty, Minister of Finance, 4 March 2010, available on-line at: http://www.budget.gc.ca/2010/pdf/budget- planbudgetaire-eng.pdf. 176 Ibid. at p. 126. 70

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in the GCS report, additional funding may also be required for these labs, and it is possible that the RCMP labs may also need additional funding in the future, given the cap that the RCMP has placed in BCAAs signed with the provinces and territories on the number of samples for secondary designated offences it will process in a year. Accordingly, our committee believes that the Governments of Canada, Ontario and Quebec should ensure that adequate and sustained funding is provided to the Quebec, Ontario and RCMP forensic labs to ensure that they are equipped to handle the increased demand for analysis placed on them by Bills C-13 and C-18. We also recommend that the Government of Canada consider negotiating BCAAs with the Ontario and Quebec labs for longer periods of time (i.e. the three year periods such agreements had initially been put in place for). Longer agreements should enable the Quebec and Ontario labs to engage in better long term planning when hiring new staff and purchasing new equipment, which, in turn, would likely increase the productivity and efficiency of both of these labs.

RECOMMENDATION 17

That the Governments of Canada, Quebec and Ontario should ensure that adequate and sustained funding be made available to the Quebec, Ontario and RCMP forensic labs to enable them to process the increased numbers of DNA samples sent to them as a result of the coming into force of Bill C-13, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, S.C. 2005, c. 25 and Bill C-18, An Act to amend certain Acts in relation to DNA identification, S.C. 2007, c. 22.

RECOMMENDATION 18

That the Government of Canada consider negotiating multi-year Biology Casework Analysis Agreements (BCAAs) with Ontario and Quebec, in order to better enable their provincial forensic laboratories to engage in multi-year planning to meet their workload needs in relation to forensic DNA analysis pursuant to the Criminal Code and the DNA Identification Act.

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C. Exploring the Possibility of Contracting Out DNA Forensic Analysis to Private Labs or Entering into Public Private Partnerships with Such Labs

In addition to ensuring that the RCMP, Ontario and Quebec forensic labs are provided with adequate and sustained funding and longer BCAAs to assist them in responding to increased demands for their services, the Government of Canada might wish to consider other solutions regarding workload and capacity at the forensic laboratories. One such solution might be to contract with private forensic laboratories to perform some of the DNA analysis and casework, entering into public/private partnerships with private laboratories for these purposes. However, as pointed out by representatives from the Quebec provincial forensic lab, entering into public/private partnerships with private forensic laboratories and allowing these labs to upload DNA samples and profiles to the CSI raises certain quality control issues. For example, questions arise as to how to ensure that these facilities are subject to an independent audit mechanism, equivalent to that provided by the federal and provincial Auditors General in relation to the government-operated laboratories, as well as in relation to chain of evidence and accreditation issues. These questions would need to be addressed before evidence processed by private labs would be accepted by the courts, police agencies and the Data Bank.177 We are confident, however, that mechanisms could be put into place to manage such challenges.

We were advised by representatives from the Ontario provincial forensic lab that the Government of Ontario had undertaken three separate studies which addressed, in whole or in part, whether forensic services in Ontario should be privatized and in what circumstances, all of which concluded that they should not.178 We believe, however, that the time may be ripe for a re- examination of this idea. It must be remembered that all three of the studies referenced by the Ontario forensic lab were done in the 1990s, when use of DNA technology in Canada was in its infancy, and when courts were still becoming accustomed to receiving DNA evidence. It is very possible that by now, in 2010, the situation has changed.

177 Testimony of Bob Dufour, Director General, Laboratoire de sciences judiciaries et de médecine légale, supra note 170 at p. 91. 178 Letter from Anthony Tessarolo, Director, Ontario Centre of Forensic Sciences, to Shaila Anwar, Clerk, Standing Senate Committee on Legal and Constitutional Affairs, 18 March 2010. The two studies referenced in the letter were S Ashman and J. Campbell, ―Organization of Ontario Government Laboratories‖, Management Board Secretariat, February 1990, David Balsillie, ―Report of the 1993 Review of the Organization of Ontario Government Laboratories,‖ Management Board Secretariat, March 1993, and Mr. Justice Archie Campbell, ―Report of the Bernardo Investigation Review,‖ June 1996, p. 73. 72

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Indeed, a small degree of DNA forensic analysis in Canada is already being performed by one private laboratory, Maxxam Analytics, which has an agreement with the RCMP labs to handle overflow of their forensic analysis workload in peak times, or when there is rush processing to be done. Under the terms of the agreement, Maxxam Analytics is empowered to upload the DNA samples they analyze for police services, and the profiles created from those samples, directly to the CSI at the Data Bank.179 We were advised by representatives from Maxxam Analytics, that, in the agreement, the RCMP included many terms and conditions designed to ensure that the forensic analysis conducted by Maxxam Analytics conforms to the RCMP‘s standards, and will be acceptable to courts, police agencies and to the Data Bank. These terms and conditions include:

requiring Maxxam Analytics to obtain lab accreditation equivalent to that maintained by the RCMP, Quebec and Ontario labs;

providing that all samples processed by Maxxam Analytics under the terms of the its agreement with the RCMP actually belong to the RCMP, so that if Maxxam Analytics goes out of business or is sold, no samples will be lost;

using encryption technology to transmit the results of the analyses to the RCMP, so that only certain authorized people can view the results of these analyses;

having all staff sign confidentiality agreements to ensure that information obtained from the analyses remain private;

obliging all staff who work in the lab, including the cleaning staff, to maintain up- to-date enhanced reliability security clearances; and

having the RCMP audit Maxxam Analytics‘ work on a yearly basis to ensure that the terms of the agreement, and quality control standards, are being complied with.180

In Budget 2010, the Government of Canada announced that it is already considering the possibility of some sort of privatization in the area of DNA forensic services.

179 Testimony of Wayne Murray, Director, Forensic and DNA Services, Maxxam Analytics, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 2, 3rd Session, 40th Parliament 24 and 25 March 2010, p. 6 180 Ibid. at pp .6, 9 – 15 and 29. See also, Wyndham Forensic Group, Submission to the Standing Senate Committee on Legal and Constitutional Affairs Re the Provisions and Operation of the DNA Identification Act, 8 April 2010, 73

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The Government of Canada stated:

In order to improve the effective processing of forensic materials and help law enforcement more efficiently tackle crime, the Government will explore options for different delivery models, including potential privatization of the RCMP Forensic Laboratory Services. A new approach should improve the timeliness of processing samples, ensure sound financial administration and increase research and development in forensic science.181

However, representatives from Maxxam Analytics indicated, when they appeared before the committee, that although they were ―fan[s] of complementarity and public-private-sector partnerships,‖ they were of the view that ―private enterprise could contribute to the solution‖ of the backlog, rather than functioning ―solely as the solution.‖182 In other words, Maxxam Analytics was not seeking wholesale privatization of forensic laboratory services. After hearing from Maxxam Analytics and other private labs, the committee recommends that Government of Canada seriously explore the possibility of entering into public/private partnerships with qualified and reliable private forensic labs, which would allow these labs to conduct DNA forensic analysis for police agencies and upload DNA samples and profiles to the CSI at the Data Bank. However, we emphasize that appropriate terms, conditions and safeguards should be put into place with respect to such partnerships.

RECOMMENDATION 19

That the Government of Canada explore the possibility of entering into public/private partnerships with qualified and reliable private forensic labs, which would allow such labs to conduct DNA forensic analysis for police agencies and upload DNA samples and profiles to the crime scene index (CSI) at the National DNA Data Bank. However, appropriate terms and conditions, such as independent auditing mechanisms, recognized accreditation, confidentiality agreements, encryption technologies, arrangements ensuring government ownership of the DNA samples, and security clearances for employees should be components of such partnerships.

which contains many of the same suggestions regarding how potential problems associated public/private partnerships in this arena could be overcome. 181 Budget 2010, supra note 175 at p. 126. 182 Testimony of Wayne Murray, Director, Forensic and DNA Services, Maxxam Analytics, supra note 179 at p. 23. 74

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CREATION OF MISSING PERSONS, UNIDENTIFIED HUMAN REMAINS AND VICTIMS INDICES AT THE NATIONAL DNA DATA BANK

Another important issue raised by witnesses who appeared before us is that Canada currently has no missing persons index (MPI) at the Data Bank to assist law enforcement officials in identifying missing persons. There is also no index containing DNA collected from unknown deceased persons (some of whom cannot be identified because only part of a body may be located). Furthermore, there is also no way for victims to volunteer to keep their DNA profile on file at the Data Bank once they have been excluded as a suspect in relation to a designated offence, to assist the police in investigating linkages between unsolved crimes. This is because, in respect of the DNA of missing persons, unidentified dead persons or unidentified human remains, there is often no crime scene to collect DNA from. Section 5(3) of the DNA Identification Act specifies that there must be a link between a designated offence and a DNA sample before that sample can be turned into a profile and uploaded to the CSI. Furthermore, in the case of a victim‘s DNA, even if there is a link between the sample and a designated offence, section 8.1 of the DNA Identification Act specifies that DNA profiles must be removed from the CSI once it has been determined that the DNA sample used to create the profile came from a victim or an eliminated suspect. Accordingly, the DNA of missing people, unidentified human remains and victims cannot be kept in the CSI.

Almost all of the witnesses who appeared before us, but particularly the former Federal Ombudsman for Victims of Crime and representatives from the Canadian Resource Centre for Victims of Crime, Victims of Violence (Canadian Centre for Missing Children), and Ontario‘s Missing Adults, spoke in favour of creating a missing persons index, an unidentified human remains index, a broader victims index, or some combination of all three indices and housing those indices at the Data Bank. It was acknowledged that such informal indices are maintained at the government forensic labs that process DNA samples, which often store samples and subject them to appropriate DNA analysis, including mitochondrial and Y-STR analysis,183 when asked to do so, in the hopes that missing people or unidentified dead people will finally have their

183 See the testimony of Amarjit Chahal, Senior Director and Technical Leader, Warnex PRO-DNA Services Inc, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 2, 3rd Session, 40th Parliament 24 and 25 March 2010, pp. 8 – 9. Mr. Chahal‘s firm specializes in mitochondrial DNA analysis, and he indicated in his testimony that this technology has developed to the stage where it could be used in contributing to a national missing persons index. It would be particularly useful for creating DNA profiles for unidentified and degraded human remains, given that there are more copies of this type of DNA in human bodies than there are copies of nuclear DNA, and therefore, more chance that useable mitochondrial DNA would be found in such remains, despite their age and/or stage of decomposition. 75

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identities confirmed, bringing closure to their families. However, all witnesses acknowledged how much more effective these indices would be if they were maintained by the Data Bank and if searches could be conducted on a national level.184

Witnesses recognized that some progress had been made towards the development of such indices at the Data Bank. A summary of information as to what has occurred to date in terms of negotiations between the federal, provincial and territorial governments to create, at minimum, an MPI, was provided in the National DNA Data Bank Advisory Committee‘s 2008 – 2009 Annual Report. The Advisory Committee stated:

The Advisory Committee continues to follow the progress of discussions between Public Safety Canada and the Federal, Provincial, Territorial (FPT) Working Group in relation to the establishment of a National Missing Persons Index (MPI) in Canada. This group was created in 2003. In 2005, public consultations took place and three sub-groups were created to study definitions of missing persons, costing issues and a funding formula. In 2006, the Federal Government indicated that it did not support a model whereby the federal government would pay for all MPI related costs. In 2007, representatives from a number of Federal and Provincial agencies met in Ottawa and participated in a process mapping exercise which produced possible model options. There has been very little further progress on the further development of an MPI reported to the Advisory Committee since that time. It is the Committee's understanding that both limited regional forensic laboratory capacity and funding issues are major challenges to the achievement of an agreement among the various jurisdictions involved. It is expected that FPT discussions on this issue will resume after the Parliamentary Committee reports (Senate and House of Commons committees) from the statutory review of the DNA Identification Act are published...185

This perceived lack of progress has caused those who advocate for victims, and particularly for the missing, much frustration. However, we were able to learn, during the course of our hearings, that more progress has been made toward the development of this index than it

184 Testimony of Steve Sullivan, former Federal Ombudsman for Victims of Crime, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 7, 2nd Session, 40th Parliament, 6 and 7 May 2009, p. 40; testimony of Heidi Illingworth, Executive Director, Canadian Resource Centre for Victims of Crime, supra note 90 at p. 56; testimony of Sharon Rosenfeldt, President, Victims of Violence (Canadian Centre for Missing Children), Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 7, 2nd Session, 40th Parliament, 6 and 7 May 2009, pp. 58 – 59; and testimony of Lusia Dion, Founder and Director, Ontario‘s Missing Adults, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 7, 2nd Session, 40th Parliament, 6 and 7 May 2009, p. 53. 185 National DNA Data Bank Advisory Committee, Annual Report, 2008 – 2009, supra note 73 at p. 13. 76

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might, at first, appear, and that the slow progress on this issue is a result of the many challenging jurisdictional, Charter, privacy, logistical and financial issues that must be addressed before such indices could be added to the Data Bank.

With respect to financial issues, we were advised by officials from Public Safety Canada that the federal/provincial and territorial working group had created a costing and implementation plan for a MPI, although not for the other two indices. Costs would differ, depending upon whether a person was classified as missing after 30, 60 or 90 days, with the costs declining the longer it takes for a person to be considered missing. The committee was told that the initial start-up cost for a MPI would be $10 million, with an ongoing cost of $3.5 million a year to maintain the index if a person was considered missing after 30 days, $2.65 million a year if a person was considered missing after 60 days, and $2 million a year if a person was considered missing after 90 days.186

With respect to the numerous other challenges that will need to be worked out before an MPI, unidentified human remains index, or a victims index could be established, such concerns include:

the fact that with respect to an unidentified human remains index or victims index, human remains and crime scene DNA are under the jurisdiction of the provincial coroners. Accordingly, the Office of the Federal Ombudsman for Victims of Crime had suggested that it may be necessary to let each province determine its level of involvement with such indices, if they were to be established;

whether consent would have to be obtained (and from whom) in the case of a dead victim, before the profile could be uploaded to the victims index;

whether a profile uploaded to the MPI, unidentified human remains index or victims index should be compared only against the crime scene index (CSI) or also against the convicted offenders index (COI). Lusia Dion, from Ontario‘s Missing Adults, for example, suggested that there should be a firewall between the MPI, in particular, and the COI, while other witnesses suggested that comparisons to the CSI might be even more problematic than comparisons to the COI, because it might lead to implicating the victim in an unsolved crime, rather than merely revealing that a missing person is in jail;

186 Testimony of Barry MacKillop, Director General, Law Enforcement and Border Services Directorate, Public Safety Canada, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 2, 3rd Session, 40th Parliament, p. 41. 77

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how and in what circumstances mitochondrial DNA analysis should be used in relation to these new indices and the already existing indices, given that such DNA is the same between mothers, siblings and their children. This might make mitochondrial DNA useful for the purpose of an MPI or an unidentified human remains index, but difficult to justify using in relation to the CSI or COI;

how particularized the consent for use of DNA should be (i.e. should people be able to specify that you can use one purpose but not another) and what mechanisms should be provided to allow consent to be withdrawn if people have a change of heart;.

missing persons who are adults and missing persons who are children presumably raise different issues – some adults may, for example, want to go missing; and

cost and resource implications for RCMP, Ontario and Quebec forensic labs and the Data Bank if these indices are created.187 While acknowledging the breadth and complexity of the issues that remain to be addressed, our committee believes that such challenges and difficulties can be surmounted, if the will to negotiate and to work towards creative solutions is also present. We are supportive, in principle, of the creation of all three indices at the Data Bank. Having said this, we are of the view that the federal, provincial and territorial governments should first focus their attentions on the creation of an MPI and an unidentified human remains index, given that these indices would be much less expensive to create, and contain many fewer profiles than a victims index, which would presumably contain DNA profiles derived from DNA samples collected from all victims whose DNA was collected from a crime scene, as long as the victims in question consented to keep their DNA profile stored in the Data Bank.

In addition, in order to assure the public, particularly the relatives of the unidentified and the missing, that progress is being made towards the creation of such indices, the committee recommends that the Data Bank include, in its annual reports to Parliament, updates on the progress it has made towards the development of an MPI and an unidentified human remains index at the Data Bank, until such time as both indices are created and established.

187 Testimony of Richard A Bergman, Chairperson, National DNA Databank Advisory Committee, supra note 80, letter from Jennifer Stoddart, Privacy Commissioner of Canada, supra note 95 at pp. 2 -5 and 7 -8; testimony of Lusia Dion, Ontario Missing Adults, supra note 184 at p. 65; testimony of Steve Sullivan, former Federal Ombudsman for Victims of Crime, supra note 184 at p. 46; and testimony of Greg Yost, Counsel, Criminal Law Policy Division, Department of Justice, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 2, 3rd Session, 40th Parliament, 24 and 25 March 2010, p. 39. 78

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Once these two indices have been established at the Data Bank, the committee believes that the Government of Canada, in conjunction with the provincial and territorial governments, should then consider the feasibility of creating a victims index at the Data Bank, taking into account the costs and challenges that the creation of this particular index might entail, as well as the benefits such an index might provide.

RECOMMENDATION 20

That the Government of Canada reopen discussions, on an urgent basis, with the provinces and territories to further the goal of establishing a missing persons index and an unidentified human remains index at the National DNA Data Bank.

RECOMMENDATION 21

That until such time as a missing persons index and an unidentified human remains index are established at the National DNA Data Bank, the National DNA Data Bank publish, in its annual reports to Parliament, updates regarding what progress has been made, each year, towards the establishment of these indices at the National DNA Data Bank.

RECOMMENDATION 22

That, immediately following the establishment of a missing persons index and an unidentified human remains index at the National DNA Data Bank, the Government of Canada consider the feasibility of a victims index and undertake discussions with the provinces and territories to explore the possibility of establishing such an index at the National DNA Data Bank.

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APPENDIX 1 – Designated Offences in the Criminal Code

Original List of designated offences found at List of designated offences found at Section 487.04 of section 487.04 of the Criminal Code, as introduced the Criminal Code as of 19 May 2010 by Bill 104, An act to amend the Criminal Code and the Young Offenders Act (Forensic DNA Analysis), S.C. 1995, C. 27

―designated offence'' means ―primary designated offence‖ means

(a) an offence under any of the following (a) an offence under any of the following provisions of this Act, namely provisions, namely,

(i) section 75 (piratical acts), (i) subsection 212(2.1) (aggravated offence (ii) section 76 (hijacking), in relation to living on the avails of (iii) section 77 (endangering safety of prostitution of a person under the age of aircraft or airport), eighteen years), (iv) section 78.1 (seizing control of ship or (ii) section 235 (murder), fixed platform), (iii) section 236 (manslaughter), (v) paragraph 81(2)(a) (using explosives), (iv) section 239 (attempt to commit (vi) section 151 (sexual interference), murder), (vii) section 152 (invitation to sexual (v) section 244 (discharging firearm with touching), intent), (viii) section 153 (sexual exploitation), (vi) section 244.1 (causing bodily harm (ix) section 155 (incest), with intent – air gun or pistol), (x) subsection 212(4) (offence in relation to (vi.1) section 244.2 (discharging firearm – juvenile prostitution), recklessness), (xi) section 220 (causing death by criminal (vii) paragraph 245(a) (administering negligence), noxious thing with intent to endanger life (xii) section 221 (causing bodily harm by or cause bodily harm), criminal negligence), (viii) section 246 (overcoming resistance to (xiii) section 231 (murder), commission of offence), (xiv) section 236 (manslaughter), (ix) section 267 (assault with a weapon or (xv) section 244 (causing bodily harm with causing bodily harm), intent), (x) section 268 (aggravated assault), (xvi) section 252 (failure to stop at scene of (xi) section 269 (unlawfully causing bodily accident), harm), (xvii) section 266 (assault), (xi.1) section 270.01 (assaulting peace (xviii) section 267 (assault with a weapon officer with weapon or causing bodily or causing bodily harm), harm), (xix) section 268 (aggravated assault), (xi.2) section 270.02 (aggravated assault of (xx) section 269 (unlawfully causing bodily peace officer), harm), (xii) section 272 (sexual assault with a (xxi) section 269.1 (torture), weapon, threats to a third party or causing (xxii) paragraph 270(1)(a) (assaulting a bodily harm), peace officer), (xiii) section 273 (aggravated sexual (xxiii) section 271 (sexual assault), assault), 81 597

(xxiv) section 272 (sexual assault with a (xiv) section 279 (kidnapping), weapon, threats to a third party or causing (xv) section 344 (robbery), and bodily harm), (xvi) section 346 (extortion), (xxv) section 273 (aggravated sexual assault), (xxvi) section 279 (kidnapping), (xxvii) section 279.1 (hostage taking), (xxviii) section 344 (robbery), (xxix) subsection 348(1) (breaking and entering with intent, committing offence or breaking out), (xxx) subsection 430(2) (mischief that causes actual danger to life), (xxxi) section 433 (arson - disregard for human life), and (xxxii) section 434.1 (arson - own property),

(a.1) an offence under any of the following provisions, namely,

(i) section 75 (piratical acts), (i.01) section 76 (hijacking), (i.02) section 77 (endangering safety of aircraft or airport), (i.03) section 78.1 (seizing control of ship or fixed platform), (i.04) subsection 81(1) (using explosives), (i.05) section 83.18 (participation in activity of terrorist group), (i.06) section 83.19 (facilitating terrorist activity), (i.07) section 83.2 (commission of offence for terrorist group), (i.08) section 83.21 (instructing to carry out activity for terrorist group), (i.09) section 83.22 (instructing to carry out terrorist activity), (i.1) section 83.23 (harbouring or concealing), (i.11) section 151 (sexual interference), (ii) section 152 (invitation to sexual touching), (iii) section 153 (sexual exploitation), (iii.1) section 153.1 (sexual exploitation of person with disability), (iv) section 155 (incest), (iv.1) subsection 163.1(2) (making child pornography), (iv.2) subsection 163.1(3) (distribution, etc., of child pornography),

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(iv.3) subsection 163.1(4) (possession of child pornography), (iv.4) subsection 163.1(4.1) (accessing child pornography), (iv.5) section 172.1 (luring a child), (v) subsection 212(1) (procuring), (v.1) subsection 212(2) (procuring), (v.2) subsection 212(4) (offence – prostitution of person under eighteen), (vi) section 233 (infanticide), (vii) section 271 (sexual assault), (vii.1) section 279.01 (trafficking in persons), (viii) section 279.1 (hostage taking), (ix) paragraph 348(1)(d) (breaking and entering a dwelling-house), (x) section 423.1 (intimidation of a justice system participant or journalist), (xi) section 431 (attack on premises, residence or transport of internationally protected person), (xii) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel), (xiii) subsection 431.2(2) (explosive or other lethal device), (xiv) section 467.11 (participation in activities of criminal organization), (xv) section 467.12 (commission of offence for criminal organization), and (xvi) section 467.13 (instructing commission of offence for criminal organization), (xvi.1) to (xx) [Repealed, 2005, c. 25, s. 1] (b) an offence under any of the following (b) an offence under any of the following provisions of the Criminal Code, as they read provisions of the Criminal Code, chapter C-34 from time to time before July 1, 1990, of the Revised Statutes of Canada, 1970, as namely, they read from time to time before January 4, 1983, namely, (i) section 433 (arson), and (ii) section 434 (setting fire to other (i) section 144 (rape), substance), (ii) section 146 (sexual intercourse with female under fourteen and between fourteen and sixteen), (iii) section 148 (sexual intercourse with feeble-minded, etc.), (iv) section 149 (indecent assault on female), (v) section 156 (indecent assault on male), and (vi) section 157 (acts of gross indecency), 83

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(c) an offence under the following provision of (c) an offence under paragraph 153(1)(a) (sexual the Criminal Code, chapter C-34 of the intercourse with step-daughter, etc.) of the Revised Statutes of Canada, 1970, as it read Criminal Code, chapter C-34 of the Revised from time to time before January 1, 1988, Statutes of Canada, 1970, as it read from time namely, paragraph 153(1)(a) (sexual to time before January 1, 1988, intercourse with stepdaughter, etc.),

(c.1) an offence under any of the following provisions of the Security of Information Act, namely, (i) section 6 (approaching, entering, etc., a prohibited place), (ii) subsection 20(1) (threats or violence), and (iii) subsection 21(1) (harbouring or concealing), and

(d) an offence under any of the following (d) an attempt to commit or, other than for the provisions of the Criminal Code, chapter C- purposes of subsection 487.05(1), a 34 of the Revised Statutes of Canada, 1970, conspiracy to commit an offence referred to in as they read from time to time before January any of paragraphs (a) to (c); 4, 1983, namely, (i) section 144 (rape), (ii) section 146 (sexual intercourse with female under fourteen and between fourteen and sixteen), and (iii) section 148 (sexual intercourse with feeble-minded, etc.), and

(e) an attempt to commit an offence referred to in any of paragraphs (a) to (d);

―secondary designated offence‖ means an offence, other than a primary designated offence, that is

(a) an offence under this Act that may be prosecuted by indictment – or, for section 487.051 to apply, is prosecuted by indictment – for which the maximum punishment is imprisonment for five years or more,

(b) an offence under any of the following provisions of the Controlled Drugs and

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Substances Act that may be prosecuted by indictment – or, for section 487.051 to apply, is prosecuted by indictment – for which the maximum punishment is imprisonment for five years or more: (i) section 5 (trafficking in substance and possession for purpose of trafficking), (ii) section 6 (importing and exporting), and (iii) section 7 (production of substance),

(c) an offence under any of the following provisions of this Act: (i) section 145 (escape and being at large without excuse), (i.1) section 146 (permitting or assisting escape), (i.2) section 147 (rescue or permitting escape), (i.3) section 148 (assisting prisoner of war to escape), (i.4) subsection 160(3) (bestiality in presence of or by child), (ii) section 170 (parent or guardian procuring sexual activity), (iii) section 173 (indecent acts), (iv) section 252 (failure to stop at scene of accident), (v) section 264 (criminal harassment), (vi) section 264.1 (uttering threats), (vii) section 266 (assault), (viii) section 270 (assaulting a peace officer), (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling- house), (x) section 349 (being unlawfully in dwelling-house), and (xi) section 423 (intimidation),

(d) an offence under any of the following provisions of the Criminal Code, as they read from time to time before July 1, 1990: (i) section 433 (arson), and (ii) section 434 (setting fire to other substance), and

(e) an attempt to commit or, other than for the purposes of subsection 487.05(1), a conspiracy to commit (i) an offence referred to in paragraph (a)

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or (b) – which, for section 487.051 to apply, is prosecuted by indictment, or (ii) an offence referred to in paragraph (c) or (d).

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APPENDIX 2 – RECOMMENDATIONS

RECOMMENDATION 1: That the Criminal Code be amended to allow for p.35 the immediate and automatic collection of a DNA sample from any adult who has been convicted in Canada of a designated offence as defined in section 487.04 of the Criminal Code.

RECOMMENDATION 2: That the Criminal Code be amended to allow for p.36 collection of a DNA sample from an adult convicted of a designated offence in Canada who has not previously been the subject of a post- conviction collection order, but who is still serving a sentence for a designated offence at the time that the Criminal Code amendment outlined in Recommendation 1 comes into force.

RECOMMENDATION 3: That the Criminal Code be amended to allow for p.36 the collection of a DNA sample from an adult who is a Canadian citizen, or who ordinarily resides in Canada, if he or she is convicted outside of Canada of an offence that, if committed in Canada, would constitute a designated offence, provided that the conviction occurs at any time after the Criminal Code amendment outlined in Recommendation 1 comes into force.

RECOMMENDATION 4: That the Criminal Code be amended to allow for p.44 the immediate and automatic collection of a DNA sample from any young offender convicted in Canada of a designated offence as defined in part (a) of the definition of ―primary designated offence‖ found at section 487.04 of the Criminal Code.

RECOMMENDATION 5: In the case of young offenders convicted of p.44 primary and secondary designated offences for which a DNA collection order upon conviction is not mandatory, that the Criminal Code be amended to require courts, before issuing a DNA collection order against a young offender convicted of such offences, to determine whether the impact of the collection order on the young offender‘s privacy and security of the person would be grossly disproportionate to the public 87 603

interest in the protection of society and the proper administration of justice.

RECOMMENDATION 6: That the National DNA Data Bank publish p.48 statistics in its annual reports on the number of DNA samples and profiles, for both adult and young offenders, stored at the National DNA Data Bank, along with reasons for their retention.

RECOMMENDATION 7: That the National DNA Data Bank work p.50 cooperatively with law enforcement organizations to collect statistics describing the specific nature of the assistance it provides in police investigations through matches to the convicted offenders index (COI), and that the National DNA Data Bank publish these data, including data on exoneration, in its annual reports to Parliament.

RECOMMENDATION 8: That the DNA Identification Act be amended to p.51 clarify that, in circumstances where there has been a final determination of an accused offender‘s successful appeal of his or her conviction for a designated offence, no other further opportunities of appeal are available to the Crown or to the accused offender, and the accused offender has no other convictions for designated offences on his or her criminal record, the offender‘s information should be immediately removed from the convicted offenders index (COI) after the expiry of all appeal periods, and the DNA samples taken from the offender and stored at the National DNA Data Bank should be immediately destroyed.

RECOMMENDATION 9 That the National DNA Data Bank Advisory p.53 Committee conduct a public consultation on the issue of whether or not the loci used by the National DNA Data Bank to create a DNA profile can or should be used to reveal personal characteristics or medical information about individuals, in order to assist police in identifying offenders. RECOMMENDATION 10 That the National DNA Data Bank Advisory p.53 Committee publish the results of its public consultation, along with a recommendation as to

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whether or not, in its view, the framework for DNA collection and analysis provided by the DNA Identification Act should, as a consequence, be adjusted, in order to preserve an appropriate balance between the objectives of protecting society and the administration of justice and protecting the privacy of individuals, as outlined in section 4 of the Act.

RECOMMENDATION 11 That section 3 of the DNA Identification Act be p.55 amended to state that the purpose of this Act is to establish a national DNA data bank to assist law enforcement agencies in identifying persons alleged to have committed designated offences, including those committed before the coming into force of this Act, as well as to assist in the exoneration of the innocent.

RECOMMENDATION 12 That the DNA Identification Act be amended to p.55 allow accused persons and their counsel to request and receive, from the National DNA Data Bank for criminal defence purposes, relevant information regarding analyses performed on DNA samples obtained from the accused person in connection with the designated offences with which they have been charged.

RECOMMENDATION 13 That the DNA Identification Act be amended to p.56 require the Commissioner of the Royal Canadian Mounted Police to provide offenders whose profiles are stored in the convicted offenders index (COI) with relevant information and the results of analyses that are performed on their bodily samples in accordance with section 10(2) of the Act.

RECOMMENDATION 14 That the DNA Identification Act be amended to p.61 specify that information stored at the National DNA Data Bank can only be shared with governments of foreign states, institutions of these governments, international organizations established by the governments of states, or institutions of these international organizations

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in accordance with the Mutual Legal Assistance Treaty (MLAT) in criminal matters signed between Canada and the foreign state or international organization in question, and/or in accordance with section 6(2) of the DNA Identification Act, presuming that it applies.

RECOMMENDATION 15 That the DNA Identification Act be amended to p.61 specify that, in the event that there is no Mutual Legal Assistance Treaty (MLAT) in criminal matters in force between Canada and a government of a foreign state, institution of that government, international organization established by the government of states, or institution of that international organization, information can only be provided to the foreign state or international organization in question for the purpose of investigating an offence alleged to have been committed in a foreign jurisdiction, which, if it had been committed in Canada, would constitute an indictable offence under Canadian law, and/or in accordance with section 6(2) of the DNA Identification Act, presuming that it applies.

RECOMMENDATION 16 If the Criminal Code is amended to allow for p.66 the immediate and automatic collection of a DNA sample from any adult who has been convicted of a designated offence, as well as for the immediate and automatic collection of a DNA sample from young offenders convicted of certain designated offences, the Government of Canada should ensure that sufficient financial resources are made available to the National DNA Data Bank to enable it to process the increased number of samples sent to it so that profiles can be included in the convicted offenders index.

RECOMMENDATION 17 That the Governments of Canada, Quebec and p.71 Ontario should ensure that adequate and sustained funding be made available to the

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Quebec, Ontario and RCMP forensic labs to enable them to process the increased numbers of DNA samples sent to them as a result of the coming into force of Bill C-13, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, S.C. 2005, c. 25 and Bill C-18, An Act to amend certain Acts in relation to DNA identification, S.C. 2007, c. 22.

RECOMMENDATION 18 That the Government of Canada consider p.71 negotiating multi-year Biology Casework Analysis Agreements (BCAAs) with Ontario and Quebec, in order to better enable their provincial forensic laboratories to engage in multi-year planning to meet their workload needs in relation to forensic DNA analysis pursuant to the Criminal Code and the DNA Identification Act.

RECOMMENDATION 19 That the Government of Canada explore the p.74 possibility of entering into public/private partnerships with qualified and reliable private forensic labs, which would allow such labs to conduct DNA forensic analysis for police agencies and upload DNA samples and profiles to the crime scene index (CSI) at the National DNA Data Bank. However, appropriate terms and conditions, such as independent auditing mechanisms, recognized accreditation, confidentiality agreements, encryption technologies, arrangements ensuring government ownership of the DNA samples, and security clearances for employees, would have to be components of such partnerships.

RECOMMENDATION 20 That the Government of Canada reopen p.79 discussions, on an urgent basis, with the provinces and territories to further the goal of establishing a missing persons index and an unidentified human remains index at the National DNA Data Bank.

RECOMMENDATION 21 That until such time as a missing persons index p.79 and an unidentified human remains index are established at the National DNA Data Bank, the

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National DNA Data Bank publish, in its annual reports to Parliament, updates regarding what progress has been made, each year, towards the establishment of these indices at the National DNA Data Bank.

RECOMMENDATION 22 That, immediately following the establishment of p.79 a missing persons index and an unidentified human remains index at the National DNA Data Bank, the Government of Canada consider the feasibility of a victims index and undertake discussions with the provinces and territories to explore the possibility of establishing such an index at the National DNA Data Bank.

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APPENDIX 3 - WITNESS LIST

ORGANIZATION NAME, TITLE DATE OF COMMITTEE APPEARANCE ISSUE NO.

40th Parliament 2nd Session

Royal Canadian Fourney, Ronald M 2009-03-25, 26 4 Mounted Police

Department of Justice Yost, Greg 2009-03-26 4 Canada

Royal Canadian Derksen, Jennifer 2009-03-26 4 Mounted Police

Department of Justice Bird, David 2009-03-26 4 Canada

National DNA Data Cory, Peter 2009-04-02 Bank Advisory 5 Committee

National DNA Data Bergman, Richard A 2009-04-02 Bank Advisory 5 Committee

Office of the Auditor McRoberts, Hugh 2009-04-22 6 General of Canada

Office of the Auditor Fraser, Sheila 2009-04-22 6 General of Canada

Office of the Auditor Stock, Gordon 2009-04-22 6 General of Canada

Office of the Privacy Bernier, Chantal 2009-04-22 Commissioner of 6 Canada

Office of the Privacy Baggaley, Carman 2009-04-22 Commissioner of Canada 6

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ORGANIZATION NAME, TITLE DATE OF COMMITTEE APPEARANCE ISSUE NO.

Canadian College of Somerville, Martin 2009-05-06 7 Medical Geneticists

Canadian Association Pate, Kim 2009-05-06 of Elizabeth Fry 7 Societies

The John Howard Jones, Craig 2009-05-06 7 Society of Canada

Canadian Resource Illingworth, Heidi 2009-05-07 Centre for Victims of 7 Crime

Office of the Federal Taché, Joanne 2009-05-07 Ombudsman for 7 Victims of Crime

Office of the Federal Sullivan, Steve 2009-05-07 Ombudsman for 7 Victims of Crime

Ontario's Missing Dion, Lusia 2009-05-07 7 Adults

Victims of Violence Rosenfeldt, Sharon 2009-05-07 (Canadian Centre for 7 Missing Children)

40th Parliament 3rd Session

Royal Canadian Fourney, Ronald M 2010-03-17 1 Mounted Police

Royal Canadian Henschel, Peter 2010-03-17 Mounted Police 1

Laboratoire de Laberge, Frédérick 2010-03-18 sciences judiciaires et 1 de médecine légale

Laboratoire de Dufour, Bob 2010-03-18 1

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ORGANIZATION NAME, TITLE DATE OF COMMITTEE APPEARANCE ISSUE NO. sciences judiciaires et de médecine légale

Ministry of Newman, Jonathan 2010-03-18 Community Safety 1 and Correctional Services

Ministry of Tessarolo, Anthony 2010-03-18 Community Safety 1 and Correctional Services

Warnex Pro-DNA Chahal, Amarjit 2010-03-24 2 Services Inc

Maxxam Analytics Westecott, Martin 2010-03-24 2

Maxxam Analytics Murray, Wayne 2010-03-24 2

Public Safety Canada MacKillop, Barry 2010-03-25 2

Department of Justice Yost, Greg 2010-03-25 2 Canada

Criminal Lawyers' Rondinelli, Vincenzo 2010-03-31 3 Association

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Royal Assent: 10 December 1998 Statutes of Canada 1998, c.37

N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print.

TABLE OF CONTENTS

BACKGROUND

DESCRIPTION AND ANALYSIS

A. The New Act 1. Definitions, Purpose and Principles 2. The Proposed National DNA Data Bank 3. Access to Data 4. Time Limits 5. Storage of Bodily Substances 6. Offences

B. Criminal Code Amendments 1. Collecting Biological Samples following Conviction 2. Previously Convicted Offenders 3. Collection of Samples and Reporting

COMMENTARY

BILL C-3: THE DNA IDENTIFICATION ACT

BACKGROUND

Introduced by the Solicitor General and given first reading on 25 September 1997, Bill C-3 would provide a legal framework to regulate the storage and, in some cases, the collection of DNA data and the biological samples from which they have been derived. In addition to 613 creating an entirely new Act that provides for the structure and administration of a national DNA data bank, Bill C-3 would amend the Criminal Code to expand the courts’ authority to order the collection of biological samples for testing. The resulting database would be maintained by the Royal Canadian Mounted Police and used to assist Canadian law enforcement agencies in the investigation of serious crimes. At first reading, Bill C-3 was substantively almost identical to the former Bill C-94, which died on the Order Paper when Parliament was dissolved in April 1997.(1) The proposed legislation would authorize the collection and storage, for DNA analysis, of biological samples from anyone convicted of a "designated" offence. Biological samples for testing and storage could also be obtained from a limited group of previously convicted offenders.

Deoxyribonucleic Acid (DNA) is found within the chromosomes of living organisms. Except for identical twins, it is believed that no two people have the same DNA. Based on that premise, DNA from bodily substances found at a crime scene may be compared with DNA obtained from a suspect, in order to determine whether both samples came from the same person. In this way, DNA analysis can be an invaluable tool for either eliminating a suspect or providing persuasive evidence of guilt. The value of DNA evidence in overturning wrongful convictions has also been demonstrated recently in Canada in at least two highly publicized cases.

Before 1995 amendments to the Criminal Code set out the criteria and procedure for collecting the necessary material for DNA analysis, Canada had no legislation authorizing the seizure of bodily tissue samples for that purpose, with or without the consent of an accused. Notwithstanding that legislative void, DNA evidence has been used in criminal prosecutions in Canada since 1988. Developing case law had threatened the admissibility of such evidence at trial, however, especially in those cases where biological samples had been obtained without the consent of the accused.(2)

After Bill C-104(3) provided legislative authority to collect bodily substances for DNA analysis, the Solicitor General sought public comment on the creation of a national DNA data bank that would facilitate the investigation of crimes without suspects and/or unsolved offences where DNA evidence from the perpetrator was still available. Through a consultation document entitled Establishing a DNA Data Bank, interested parties were asked to comment on a number of issues, including the question of who should be subject to the collection of biological samples for testing and when that testing should be carried out. As might be expected, law enforcement agencies and privacy advocates disagreed on the answers to some of those questions. Additional controversy was generated over whether the legislation should allow for the storage of biological samples or simply for the storage of the data obtained from them. In February 1997, the Solicitor General published a Summary of Consultations, which reviewed the opinions of respondents to the consultation document.

DESCRIPTION AND ANALYSIS

A. The New Act

1. Definitions, Purpose and Principles

Clause 2 would incorporate, by reference, the definitions of "primary" and "secondary" designated offences described at section 487.04 of the Criminal Code. Clause 3 makes clear 614 that the new legislation would apply to offences already committed before the Act came into force. Clause 4 acknowledges the societal benefits of "early detection, arrest and conviction of offenders," as well as the importance of safeguards in protecting the privacy of individuals whose DNA profiles and bodily substances would be held in the bank.

2. The Proposed National DNA Data Bank

Clause 5(1) would authorize, and oblige the Solicitor General to set up a national DNA data bank, consisting of two indices or data bases. According to clause 5(3), the "crime scene index" would contain DNA profiles from bodily substances found at the scene of a "designated offence," or on or within the body of a victim or any other person or thing associated with the commission of a designated offence. The "convicted offenders index" would contain DNA profiles taken from offenders either on their consent or following an order by the courts.

3. Access to Data

Under clause 6(1), the Commissioner of the R.C.M.P. would be responsible for receiving DNA profiles for entry into the data bank. Once received, the new profiles would be compared with those already held in the data bank and any matches could then be communicated to the appropriate lab or law enforcement agency, along with information concerning the crime(s) and/or offender(s) to which the new profile had been linked. Under clause 6(2), that information would be available to agencies that at present have access to the existing criminal records data base maintained by the R.C.M.P. Clause 6(3), (4) and (5) would also allow data comparisons and information-sharing with foreign law enforcement agencies, provided there was an agreement that the information could be used only "for the purposes of the investigation or prosecution of a criminal offence."

Clause 6(6) and (7) would prohibit the communication or use of DNA profiles "other than for the purposes of the administration" of the Act. Clause 7, however, would allow the Commissioner to grant additional access, for operation and maintenance purposes and in order to train lab personnel, while clause 8 would prohibit the communication or use of the information for any purpose other than that authorized under the Act.

4. Time Limits

Clause 9 would ordinarily require information in the convicted offenders index to be kept indefinitely, subject to the Criminal Records Act.(4) Access to that information would, however, be "permanently removed" if a convicted offender was ultimately acquitted. Similar accommodation would be made for persons discharged under the Criminal Code; access to such data would have to be removed one year following an absolute discharge, or three years following a conditional discharge, unless the individual were convicted of another offence in the meantime. Thus, DNA profiles relating to adult convictions would ordinarily remain accessible unless a pardon was obtained.

Access to DNA information concerning individuals proceeded against under the Young Offenders Act would be permanently removed ten years after all dispositions (sentences) had been completed, for many serious crimes, including most sexual offences, assaults, robbery etc. Access to DNA data concerning those convicted of most other designated offences under that Act would have to be removed five years after all sentences had been served. Access to data 615 concerning summary convictions under the Young Offenders Act would be removed three years after all dispositions had been completed.

As a result of the exceptions in clause 9(2)(d), DNA data relating to Young Offenders Act convictions for murder, attempted murder, manslaughter or aggravated sexual assault would ordinarily remain available. This is consistent with section 45.02(2) of the Young Offenders Act, which allows fingerprints and other records respecting those offences to be kept indefinitely in a special records repository established by the R.C.M.P. for that purpose.

5. Storage of Bodily Substances

Clause 10(1) to (6) would require the Commissioner to store, "safely and securely," those samples of bodily substances received pursuant to the Criminal Code and thought necessary for DNA analysis; any remaining samples would have to be destroyed "without delay." The Commissioner would also have the authority to order additional DNA testing of stored samples where this was justified by "significant technological advances." Under clause 10(3) and (5), any resulting DNA profiles would have to be provided to the Commissioner for entry into the convicted offenders index, while stored biological samples could not be used or transmitted except for the purposes of forensic DNA analysis. Under clause 10(4) and (6), the Commissioner could grant access to bodily substances, in order to preserve them, and destroy stored samples no longer required for analysis.

According to clause 10(7), the Commissioner would be obliged to destroy stored bodily substances in the same circumstances as those whereby access to related DNA profile would be removed under clause 9. This requirement for destruction of samples is a new provision, not contained in the former Bill C-94. In addition, clause 10(8) makes clear that samples obtained from persons who had been pardoned would have to be kept "separate and apart from other stored bodily substances" and not subjected to additional DNA analysis.

6. Offences

Clause 11 sets out the proposed penalties for the use of biological samples or the communication of DNA analysis results, other than in accordance with requirements of the Act. When prosecuted by indictment, the maximum available penalty for contravening any of those prohibitions would be two years’ imprisonment. On summary conviction, the maximum would be a fine of up to $2,000 or imprisonment for up to six months, or both.

Clause 12 would give the Governor in Council authority to make regulations under the Act, while clause 13 would require a review of the provisions and operation of the new legislative scheme within five years after Bill C-3 came into force. In order to ensure the confidentiality of DNA profiles and related information contained in the data bank, clause 14 would amend Schedule II of the Access to Information Act to mandate the refusal of requests for disclosure of any such records.

B. Criminal Code Amendments

The second part of the Act includes a series of amendments that would streamline the existing DNA warrant scheme. For example, clause16 would amend existing section 487.05 of the Criminal Code to make clear that a warrant for taking biological substances from a suspect 616

would allow "any number of samples" to be taken by means of more than one investigative procedure. In addition, clause 23 would create a new section 487.091 to allow a provincial court judge to authorize the taking of "any number of additional samples" for DNA analysis if a profile could not be obtained from samples taken under an earlier authorization or order. Clause 24 would also add to the Criminal Code a series of forms to be used to obtain or grant warrants or orders and to report back to the court or justice on their execution.

Additional Criminal Code amendments would broaden the scope of the courts’ powers by allowing DNA testing of certain offenders, post-conviction. Thus, involuntary DNA testing would no longer be limited to those circumstances where a warrant was sought and issued for the purposes of linking a suspect to a particular offence.

1. Collecting Biological Samples following Conviction

Section 487.05 of the Criminal Code now allows a court to authorize the taking of bodily substances from suspects for DNA analysis, for the purpose of investigating any "designated" offence listed in section 487.04. Clause 15(1) would amend the definition of "designated offence" by creating two lists or categories distinguishing between "primary" designated offences and "secondary" designated offences, in order to provide different consequences following conviction. The list of primary designated offences under clause 15(2) would include predominately violent and sexual offences, many of which might involve the loss or exchange of bodily substances that could be used to identify the perpetrator through DNA analysis. Although some of those classified as secondary designated offences could have equally serious consequences, many are less likely to result in the loss or exchange of bodily substances. In those cases, it may be argued that DNA profiles of offenders are unlikely to provide useful evidence. In response to recommendations from various sources, the Standing Committee on Justice and Human Rights approved the addition of infanticide to the list of "primary" designated offences. A number of sexual offences relating to children, as well as dangerous operation of a motor vehicle and impaired driving where these cause bodily harm or death were also added to the list of "secondary" designated offences.

Clause 17 would add section 487.051 to the Criminal Code to allow the courts to order samples to be taken for DNA analysis from specific offenders following conviction. Where an offender had been convicted of a primary designated offence, the court would be obliged to make such an order, unless satisfied by the offender that the impact on his or her privacy and security of the person would be "grossly disproportionate" to the public interest to be achieved. In the case of a secondary designated offence, the court could make such an order if satisfied "that it is in the best interests of the administration of justice to do so." In making that determination, the court would have to consider the nature and circumstances of the offence, as well as the record of the offender and the impact of such an order on his or her privacy and security of the person. The court would also be obliged to give reasons for its decision. Proposed section 487.054 would give both the offender and the prosecutor the right to appeal from the court’s decision.

Proposed section 487.052 makes clear that the courts could order DNA "fingerprinting" of persons found guilty of a designated offence committed before the coming into force of Bill C- 3. An application would have to be made by the prosecutor and the court would make its determination based on the same criteria as would be considered for those convicted of a secondary designated offence. Once again, proposed section 487.054 would give both parties the right to appeal the decision to the Court of Appeal. 617

Proposed section 487.053 would disallow court-ordered sampling for DNA analysis upon conviction where the prosecutor advised that a DNA profile was "not required" for the purposes of the DNA Identification Act. Similarly, an order could not be made if the convicted offender consented to the entry into the convicted offenders index of a DNA profile obtained from bodily substances previously provided voluntarily or taken in execution of a warrant.

2. Previously Convicted Offenders

Proposed section 487.055 would allow a court order for the taking of bodily samples for DNA analysis from certain offenders convicted prior to the coming into force of Bill C-3. On ex parte application, such an order could be made with respect to anyone who had been declared a dangerous offender, or anyone convicted of more than one of a number of listed sexual offences who was serving a sentence of at least two years. The definition of "sexual offence" would include sexual assaults as well as most sexual offences involving children. As a result of amendments approved by the Standing Committee, offenders who had been convicted of more than one murder, committed at different times, could also be ordered to submit to DNA analysis. Offenders on conditional release would be summonsed to report for the taking of bodily substances; failure to appear could result in the issue of an arrest warrant for the purposes of enforcing compliance.

3. Collection of Samples and Reporting

Proposed section 487.056 stipulates that conviction appeals would not delay the execution of court orders for the taking of bodily substances. Likewise, bodily substances would have to be taken from previously convicted offenders, "as soon as is feasible" after an authorization was granted. Samples for DNA analysis would have to be taken by a peace officer, or someone acting under the direction of a peace officer, with the necessary training and experience. Proposed section 487.057 would oblige the peace officer to file a written report with the authorizing court, as soon as feasible after the samples had been taken. The report would have to include a statement of the time and date that the authorization had been carried out, as well as a description of the bodily samples taken. Proposed section 487.058 would protect peace officers and those acting under their direction from any criminal or civil liability in the execution of such a warrant, order or authorization, so long as they acted "with reasonable care and skill."

Clauses 18 and 19 would clarify some of the Criminal Code provisions implemented in Bill C- 104, and make consequential amendments referring to the additional circumstance in which the courts would be able to authorize the taking of biological samples, after the coming into force of Bill C-3. As a result of amendments approved by the Standing Committee, the police would also have to inquire after and take into account the preference of anyone subject to such an order, with respect to the type of bodily substance to be sampled. Clause 20 would enact section 487.071, requiring offender DNA analysis results to be sent to the Commissioner of the R.C.M.P. for entry into the convicted offenders index. Leftover samples of bodily substances would also have to be sent to the Commissioner, to be dealt with as required under the DNA Identification Act.

Clause 21 would expand section 487.08 of the Criminal Code to limit the use of bodily substances and the DNA analysis derived from them. Both could be used in the course of an investigation into any designated offence where a warrant had been issued or a bodily substance found and/or they could be transmitted to the Commissioner of the R.C.M.P. Persons 618 using the bodily substances or analysis results for any unauthorized purpose would be liable for up to two years’ imprisonment, if prosecuted by indictment, or up to six months’ imprisonment and a $2000 fine for a summary conviction.

Clause 22 would amend section 487.09 to allow access to forensic DNA analysis results that were "in electronic form" to be "permanently removed" if they established no connection with the crime, the person was finally acquitted, or a year had expired following discharge, stay, dismissal or withdrawal of charges. The existing version of this section requires records to be "destroyed forthwith," should any of the foregoing conditions be met.

COMMENTARY

As previously mentioned, the proposed DNA Identification Act has been the subject of some controversy. For example, privacy advocates had argued for the retention of DNA data only, because of concerns that stored biological samples would be more susceptible to improper use. However, the government appears to have accepted the argument that biological samples must be stored, since rapidly developing technologies could require future re-testing to ensure the availability of compatible data. Perhaps the most vehement criticism of the proposed legislation has come from law enforcement groups who believe that samples for DNA testing should be taken at the time of charge, much as fingerprints and photographs are taken now. Otherwise police fear that persons responsible for serious unsolved crimes would simply fail to appear on new charges if they knew that conviction could lead to DNA screening which could implicate them in an additional offence.

(1) In addition to adding provision for the destruction of biological samples in specific circumstances, Bill C-3 would also provide the necessary forms for use by law enforcement agencies and the courts.

(2) See, for example R. v. Borden (1994), 3 S.C.R. 145 and R. v. Stillman (1997), 1 S.C.R. 607, both cases where the Supreme Court of Canada ruled DNA evidence inadmissible because bodily substances had been seized by police who had neither the consent of the accused, nor any prior judicial authorization.

(3) An Act to amend the Criminal Code and the Young Offenders Act (forensic DNA analysis), S.C. 1995, C. 27,

(4) Section 6 of the Criminal Records Act allows records in respect of which a pardon has been granted to be kept separate and apart from other criminal records and not disclosed without the prior approval of the Solicitor General. For greater certainty, clause 25 of Bill C-3 makes clear that forensic DNA analysis results contained in the convicted offenders index would be considered "a judicial record of conviction" for the purpose of the Criminal Records Act.

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The Privacy Commissioner of Canada 112 Kent Street Ottawa, Ontario K1A 1H3

(613) 995-2410, 1-800-267-0441 Fax (613) 947-6850 TDD (613) 992-9190

This publication is available on audio cassette, computer diskette and on the Office's Internet home page at http://www.privcom.gc.ca 621

Privacy Commissaire Commissioner à la protection de of Canada la vie privée du Canada

July 1999

The Honourable Gildas L. Molgat The Speaker The Senate Ottawa

Dear Mr. Molgat:

I have the honour to submit to Parliament my annual report which covers the period from April 1, 1998 to March 31, 1999.

Yours sincerely,

Bruce Phillips Privacy Commissioner 622 623

Privacy Commissaire Commissioner à la protection de of Canada la vie privée du Canada

July 1999

The Honourable Gilbert Parent The Speaker The House of Commons Ottawa

Dear Mr. Parent:

I have the honour to submit to Parliament my annual report which covers the period from April 1, 1998 to March 31, 1999.

Yours sincerely,

Bruce Phillips Privacy Commissioner 624 625

Our thanks to Chris Slane, a professional cartoonist and son of New Zealand Privacy Commissioner Bruce Slane, for permission to reproduce the cartoons from his latest collection Let me through, I have a morbid curiosity. 626

Did You Know…?

Not worried about your privacy? Perhaps you should think again. Here are just a few of the stories we heard in the past year.  A.C. Neilson, the market rating company, has patented a facial recognition system which secretly identifies shoppers to track their buying habits.  Two Ontario grocery stores asked welfare recipients to thumbprint their cheques before cashing them. Ontario welfare cards contain digitized thumbprints. Both stores stopped after a shopper complained to the Ontario Privacy Commissioner.  Police caught a Toronto-area group secretly videotaping debit card users entering their PINs, tapping stores' phone lines to steal the data, then using it to empty customers' accounts.  What you eat, wear, watch, ride in and play with is increasingly tracked by companies to uncover patterns of consumer behavior—for example, marketers discovered that men who go out to buy diapers in the evening are more likely to pick up beer on the way home.  Some Web sites track "click stream" data—what pages you view and what information you download, and some leave "cookies"—data that helps the site identify you next time you visit.  Employers now can check out job applicants' Web surfing to examine their hobbies, interests and attitudes. According to a Calgary security- management corporation doing background checks, "a (Web) search can tell a lot about a person, good and bad."  The Québec government is considering creating a central computer database on every Québecer, including names, photographs, and basic identifying information.  Nissan Web site visitors who wanted information its new Xterra sport utility vehicle got a whole lot more—the e-mail addresses of 24,000 other potential buyers.  Several chain stores admit giving law enforcement agencies the shopping habits of their loyal customer card holders. 627

 Urine samples cannot tell whether someone is "high" on drugs, only whether he or she has used the drug in the past 30 days.  Your employer can read your e-mail, access your computer files, track your Internet traffic and listen to your voice mail.  If you're one of 7.2 million Air Miles Cardholders, every time you swipe that card you're sharing your buying decisions with 134 corporate sponsors. The company sorts and packages the data on behalf of its corporate sponsors and "anything Blockbuster Video knows about an individual's viewing preferences, the local liquor outlet can know too— and vice versa".  Some of that personal information—Air Miles card number, name, home phone numbers, e-mail addresses, business name and phone number— on hundreds of Air Miles cardholders was put on the Web for several months and possibly for as long as a year.  The Michigan Commission on Genetic Privacy is reportedly proposing that the state permanently store blood samples of newborns it obtained to detect rare congenital diseases because the samples are a valuable resource for law enforcement authorities and scientific research.  Removing names from personal information and combining it with other peoples' data does not necessarily protect it. "Reverse engineering" allows researchers to identify individuals in aggregate statistical information by combining it with public information. For example, if you know five per cent of people in a block of 20 people are over 65 and earn more than $100,000, you can find 67-year old Jane Doe in public records and infer her income.  Several British companies are consulting scientists on implanting microchips in employees to monitor their whereabouts and timekeeping. One scientist has developed and had a chip implanted to demonstrate how well it works.  Internet service provider America Online receives a steady stream of court orders for information about subscribers, during divorce and child custody cases. 628 629

Table of contents

The Age of Surrender?...... 1 A Long Journey ...... 7 Bill C-54–Some Observations...... 10 The Health Infoway: Path to Health Surveillance ? ...... 13 Saskatchewan's Health Information Law ...... 17 Getting Serious about SIN...... 19 Auditor General confirms SINs’ shaky foundations...... 19 Beyond the Numbers : the larger question...... 24 Committing a Social Science...... 26 That 1911 Census…...... 26 And Now for the "Survey of Financial Security"...... 27 On the Hill ...... 31 Amending the Proceeds of Crime (Money Laundering) Act...... 31 Building an Organ Donor Registry ...... 34 Convenience has its cost—pre-clearing U.S. Customs ...... 36 Senate Committee calls for drug testing transportation workers...... 38 Reviewing the Corrections and Conditional Release Act (CCRA)...... 40 The DNA Identification Act...... 42 Issues Management and Assessment Branch ...... 45 The St. Lawrence Seaway transfer—getting it right...... 46 Complaint prompts video surveillance policy ...... 47 CPIC Renewal ...... 49 On the Stump...... 49 Investigations and Inquiries Branch ...... 52 Cases ...... 52 Inquiries...... 70 Update: Privacy Protection in Canada...... 79 —and Elsewhere ...... 81 European Directive in Effect...... 81 In the Courts...... 84 Robert Lavigne v. The Office of the Commissioner of Official Languages (OCOL)...... 84 Privacy Commissioner of Canada and the Attorney General of Canada .. 84 Corporate Management ...... 86 Resource Information ...... 86 Organization Chart ...... 88 A guide to the new private sector data protection bill...... 89 630 631

The Age of Surrender?

We begin with neither bang nor whimper, but with some questions:

Is privacy worth saving?

Is the beginning of a new millennium to signal the ending of the right to a private life?

Is the age now upon us to be the Age of Surrender?

These questions are neither merely rhetorical nor theoretical. They are being asked in more and more places. As we went to press, we noted a spate of mainstream publications taking up this issue. Their despairing conclusions could be summed up this way: Technology has won. Human rights have lost. Privacy is Dead. Get used to it.

The most trenchant summary of this viewpoint appeared May 1 in the highly-respected periodical The Economist. Observing that society has already reached a state of pervasive surveillance (a point made here many times), The Economist continues:

"To try to restore the privacy that was universal in the 1970s is to chase a chimera. Computer technology is developing so rapidly that it is hard to predict how it will be applied. But some trends are unmistakable. The volume of data recorded about people will continue to expand dramatically. Disputes about privacy will become more bitter. Attempts to restrain the surveillance society through new laws will intensify…".

"Yet here is a bold prediction: all these efforts to hold back the rising tide of electronic intrusion into privacy will fail… people will have to start assuming that they simply have no privacy. This will constitute one of the greatest social changes of modern times."

The editors conclude that, offered the choice, some might choose to reject even the huge benefits an information economy (supposedly) offers—"safer streets, cheaper communications, more entertainment, better government services…". But they will not be offered the choice and the cumulative effect of surrendering each bit of personal information will spell the end of privacy. 632

Almost simultaneously, Reg Whitaker, a York University political scientist, published his book, The End of Privacy: How Total Surveillance is Becoming a Reality. Whitaker recalls Jeremy Bentham's 18th Century panopticon (described in our 1996-7 annual report). This was a prison built with a central tower from which guards could observe the inmates around the perimeter, but the inmates could not see into the tower. The tower might be unoccupied but its visibility tricked prisoners into thinking guards were watching all the time, hence it assured "the automatic functioning of power".

Whitaker argues that new technology offers the potential for real as opposed to fake omniscience, replacing the one central panopticon—and its all- powerful inspector—with a decentralized panopticon with many inspectors. Each time we conduct a transaction that is recorded—and what transactions are not?—our data flashes across the network. "That momentary transparency aggregated with all the moments at which you are recorded …yield a unified pattern" Whitaker observes.

The new panopticon's strength is that we participate voluntarily, seeing only the obvious advantages—convenience, speed and personal safety—not the less tangible and more complex disadvantages. The most chilling of these is that we will conform because we assume that we are all being watched at all times. Put more starkly: freedom is diminished and, in some cases, disappears.

Welcome to the debate These arguments may not be new, but their increasing frequency clearly signals a growing awareness that our heedless use of surveillance technology is having a profound impact on our society. To both The Economist and Dr. Whitaker I say I do not contest the possibility of your predicted outcome, but I do reject its inevitability. We still have a great deal of our privacy left to lose, considerable privacy to regain, and consequently much to protect. I heartily welcome you to the debate; it's about time this issue was taken seriously.

Defenders of a private life are often accused of interfering with an "open" society, as if freedom of information and a free press obliges everyone to live in metaphorical glass houses. Certainly government must be open and accountable to its citizens, allowing us to draw conclusions about the quality of government policy and administration. And the media has the right and responsibility to report on matters of public interest, guided (one fervently hopes) by a concern for accuracy and fairness. But there is no obligation in a 2 633

free society for individuals' lives to become an open book for government, the media, or their neighbours. Some evidently choose to bare more than many of us care to know—witness some prime time TV. But what we share about our lives, and with whom, are choices only the individual can make. Respect for one another's boundaries is the hallmark of free societies.

The argument that only the guilty have "something to hide" builds on the flawed notion that privacy is about keeping unpalatable secrets. Yet scratch even the most ardent advocate of unfettered technology and you will find a topic that triggers some reserve: personal finances, sexual preferences, medical conditions—we all have "something to hide" and a right to hide it. Truly these matters are no-one else's (or very few people's) business. Those who have had the misfortune to live in states that treat the individual's information as their own understand how this builds social control and weakens the individual.

Human values must drive the bus Accusations that privacy advocates are all Luddites, or technophobes trying to forestall new technologies, assume we reject the new tools. It also 3 634

assumes that information technology must intrude. Both assumptions are wrong. Privacy advocates use and enjoy the technologies. We understand their appeal; they can be liberating and powerful. But that does not blind us to the flaws. Human values, not technology, must drive the bus. We can build privacy and data security into information technologies if we are determined to do so. The public sector appears ready; its chief informatics officers recently endorsed as a fundamental principle "that privacy is not an obstacle, but rather a significant element of any IM/IT project". Encouraging words indeed.

I believe that in the long run the doomsters will be proved wrong. The situation may get a good deal worse before it gets better—is bound to get worse if the current level of public apathy and ignorance persists. The pace and extent of the changes and society's attitude towards them is astonishing. In less than the term of a privacy commissioner, we have gone from media dismissal of some of our warnings as overheated and hyperbole to its supine conclusion that it's too late to fight.

The real problem is not the technology, or even some of its seductive promises of convenience, security and efficiency. It is our failure to comprehend the heavy costs that come with the benefits of technology's unchecked insinuation into every facet of modern life.

Trading our souls for loyalty points It is hard for us, beset by the manifold problems of daily living, to be aware of the deeper, underlying currents of societal change. The immediate practical value of a price discount from a shopper's loyalty card is far easier to grasp than the long-term implications of the incremental collection of personal information. But each apparently trivial disclosure accumulates until our life history and pattern of living become available for use and misuse by the corporation and the state. We will have sold our souls for a few loyalty points.

Thus the real threat to privacy has never been the prospect of some cataclysmic event which would send us to the barricades. No, the threat is the gradual withering of our individual control of personal information and our passive or unknowing acceptance of the longer-term consequences. It is the death of freedom by inches, which history shows is most often the way that freedom dies.

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The death-of-privacy arguments posited by The Economist (and, sadly, too often and too eagerly endorsed by legions of bureaucrats in government and business) boil down to this: we will eagerly exchange our freedom for the beguiling prospect of more security, efficiency and convenience. No longer is Big Brother watching you. As Dr. Whitaker put it "Big Brother is watching out for you". Technology in the hands of the state and the corporation becomes our master—and we its servant. We are effectively building ourselves an electronic Gulag.

Perhaps not enough people yet realize that privacy and freedom are inextricably linked; one cannot exist without the other. Those who doubt the proposition are invited to consider this: if you would measure the degree of freedom extant in a society, look first to the degree of privacy enjoyed by its inhabitants. The relationship is striking. Therein lies the explanation for the acute sensitivity of some European states such as Germany which, mindful of its own history, now is in the forefront of data protection.

But this failure to understand the link is pervasive and leads to many dubious notions taking root. Thus, a prominent columnist recently argued that a compulsory national identity card is the only answer to preventing fraud in immigration, welfare and health benefits.

Papering over the cracks Disregarding the oft-experienced phenomenon that crooks will always find a way to beat the system, the proposal hits rock bottom in the evaluation of basic rights. Better that all should be regimented that the few miscreants might be caught. Or to put it more accurately, better that all should be put under surveillance than that bureaucrats and politicians be compelled to produce better and more enforceable administrative programs that do not require such draconian measures.

We cannot have fallen so far in our disregard for the preservation of core values integral to a civilized society: respect for the rights of others. But one would be naï ve not to concede the existence of the threat.

The challenge, as always, is to awaken society to the problem, and there is ample evidence of encouraging signs. Several countries, Canada included, are taking steps already to strengthen the individual's right of choice and control of personal information. The European Community has already acted, many former Eastern European countries are doing the same. New Zealand, Hong Kong and Thailand have passed privacy protection statutes. Australia is 5 636

poised to follow. None can doubt that these movements reflect a growing public constituency determined not to let technology ride roughshod over basic rights.

Is privacy dead? Assuredly it is struggling, but struggle is the eternal and unchanging fate of all freedoms. Freedoms, once lost, can only be regained at the cost of great effort and pain. None can say with certainty that freedom will not be lost here. But if freedom survives at all, so too will privacy, because by definition freedom cannot exist without the right to a life free of surveillance and regimentation.

This struggle is far from finished. To paraphrase the American naval hero John Paul Jones, we have just begun to fight.

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A Long Journey

Canada is arming itself with a new weapon for the fight. Our response to this electronic communications juggernaut is part principled and part pragmatic—principled in our determination to see vital human rights respected, and pragmatic in a desire to see the nation at the forefront of electronic commerce.

As Parliament rose for the summer recess, left on the table was Bill C-54— the Personal Information Protection and Electronic Documents Act. The bill is intended to extend the reach of federal privacy law into the commercial sector. (For a capsule guide to the bill, see page 89.)

Presuming it becomes law, the bill will take the most important step in defence of individual privacy since passage of the Privacy Act bound the federal government in 1982.

If it does not, Canadians can be forgiven for regarding business' handling of their personal information with a jaundiced eye—and electronic commerce with downright suspicion. Without the legal right to control how business collects and uses our personal information, our privacy on-line will be whatever the owners of the systems are prepared to concede—and if protecting it gets in the way of business, that could be precious little.

Rightfully, the bill has attracted a good deal of attention, and the Commons committee hearings stretched over several months. Representations fell into two main categories: business, which felt it was too rigorous—and consumer and civil rights groups who argued it was too gentle. Perhaps a good balance has been struck.

Although far from perfect (and what piece of legislation ever is?), in its essentials this bill is a long leap forward. When fully implemented, it would require business to respect a code of fair information practice requiring individual consent for the collection, use and disclosure of personal information. Equally important, it provides a mechanism for independent oversight—mandating the Privacy Commissioner of Canada to investigate complaints, issue reports and conduct audits. As a last resort, it provides recourse to the Federal court and empowers the court to award damages when it feels a penalty is justified.

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The bill represents considerable ingenuity, and not a little courage. Most commercial activity in Canada falls under the jurisdiction of the provinces (the exceptions being banking, telecommunications and interprovincial transport). However, the federal government has the constitutional power to regulate interprovincial and international commerce. Thus the bill takes effect in two stages. The first stage brings federally-regulated business under the privacy umbrella, one year after its passage. Then, after three years, the federal law will apply to commercial activity inside provinces that fail to adopt comparable privacy laws of their own.

While undeniably sensitive, the government has acted to ensure that all Canadians, wherever they live, can look forward to a common standard of legal privacy rights.

A level playing field Not incidentally, business wherever it is conducted, can breathe easier knowing that at the heart of the bill is the Canadian Standards Association's Model Privacy Code which the private sector helped create and over which it can claim some ownership. As someone put it recently, the Code has some "moral force" in the business community. The bill should help establish a level playing field, outlawing rogue information practices which could tarnish the rest of the private sector.

Equally gratifying is the government's decision to retain the ombuds role for complaint investigation. Some witnesses argued that a quasi-judicial, order- making commissioner would be more effective. Believing in the maximum of negotiation and education, and a minimum of heavy-fisted enforcement, we disagree. Our 15-year experience has proved the effectiveness of this model, 15 years in which the emphasis has been not only on resolving complaints but identifying and correcting the underlying problem.

If all else fails, the court is there. But of the 20,000 complaints we have handled since 1983, fewer than a dozen have prompted our seeking recourse to the courts. The office is less a police department than a problem solver. Our approach has always been non-confrontational and non-adversarial— one that will be even more necessary in the private sector. Business is a world of infinite complexity; crashing through its doors in a fashion either arbitrary or impatient would doom the cause of enhancing privacy observance from the start.

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The bill's objective is not to impede business but to strengthen it, and to buttress the public's trust in electronic commerce. It is to help create a state of mind in which business routinely considers client, customer and employee privacy rights in developing products and administrative practice. Plainly, this is going to take time and patience. But there is no doubt that the end result will be extremely positive. Business depends—far more than government bureaucracies—on satisfied clients and customers. Its reputation is any company's most important asset, and no one will want to risk being singled out for wilful flouting of individual rights.

Fighting ignorance One vital element of the bill is that it provides the office the tools to fight the single greatest privacy problem in Canada—ignorance. The office will be given a formal mandate to undertake public education. Business will need and is already welcoming our assistance. Consumers will want to know their rights and their responsibilities. The more people know, the less they fear and the more informed choices and decisions they can make. But no bricks without straw, as the saying goes. Vital as public education is, it demands resources, and this for an office that has struggled mightily with historic underfunding (and no funds at all for research and education). While the Treasury Board began addressing the problem in the past year, extending the office's mandate to the private sector will require substantially more straw.

Bill C-54 is no magic bullet. Many privacy problems remain. The appetite for surveillance continues to grow. All governments harbour many who argue that greater efficiency demands an unfettered flow of information from department to department, government to government, and business to government—and vice versa. Administrative efficiency sweeps aside all other considerations—including our right of informed consent to the collection and use of our personal information.

Perhaps The Economist is right; the laws now being considered or already enacted will not be enough to stem the tide of surveillance. Should experience prove that to be so, more will have to be done. If needed, more will be done. But we must begin by doing something and doing it quickly. If we fiddle in the face of lobbying and jurisdictional disputes, Canadians' privacy and the business opportunities on-line will burn.

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Bill C-54–Some Observations

A number of criticisms have been levelled at the bill, some of them specific and technical in nature. Copies of our detailed commentary are available from the office and on our Web site. Among the criticisms are two that beg discussion here; the exemption for information gathered for "journalistic, artistic or literary" purposes, and for law enforcement.

The journalism exemption This one strikes a personal chord; readers are cautioned that these observations are coloured by more than three decades in journalism—the occupation many profess to despise but which almost all concede is indispensable to a free society. Consider Thomas Jefferson's famous remark that, forced to choose between a country with a government and no free press, and one with a free press but no government, he would unhesitatingly choose the latter. But no freedom is absolute, even in journalism.

Several questions were raised about the exemption during the bill's passage through Parliament; clearly some MPs believe that contemporary journalism is reaching unacceptable levels of privacy intrusiveness. The Commons committee questioned my support for this exemption, and I have often been challenged on privacy and the media.

Let's acknowledge a basic truth. The media are not in the business of protecting privacy. They are in the business of gathering and distributing news. However, they do have a responsibility to avoid needless harm by publishing or broadcasting material that serves no real interest beyond the prurient.

Journalists bear a weighty responsibility. Nothing is so precious to anyone as a good reputation. Reckless damage for no other real purpose than to titillate or entertain readers can have lifelong consequences. Even handsome financial compensation by the courts cannot retrieve a person's good name (and few have the resources to even contemplate court action).

The mainstream media in Canada generally do a pretty good job (although some in public life may disagree). Certainly there have been some notable and deplorable exceptions but there has yet to be the Canadian equivalent of the kind of media frenzy such as the ruthless harassment of the Royal family. Of course, public figures must expect a diminished level of privacy, and many welcome it since public attention is essential to their careers. 10 641

But subjecting journalists to a law that requires consent for the collection of personal information would cripple their ability to perform their job which, however occasionally unpopular, is so indispensable to a free society that it is recognized in our Charter of Rights and Freedoms.

Law enforcement exclusions Another exemption is worthy of comment. The law enforcement lobby in Ottawa has managed once again to persuade the government to give it unnecessarily broad exclusions from privacy law. Note that "law enforcement" includes not just police forces but those who administer such laws as the Income Tax Act or the Employment Insurance Act. The exemptions cast a cloak over all such investigations, meaning businesses may not tell someone that they have responded to police or bureaucrats' demands for personal information, unless the agency agrees. This is a sensible requirement so long as disclosure would have the effect of impeding or injuring an investigation. But once the investigation is finished there is seldom good reason for not telling the individual what has been done with the information, particularly in the case of administrative investigations.

However, Bill C-54 gives law enforcement agencies absolute discretion. They need not demonstrate an injury to their investigation in order to deny the individual access to the information. And, unlike the federal Privacy Act, there is no requirement to keep a record for the Privacy Commissioner. This obligation has proven to have salutary effects on federal agencies; it provides an audit trail for investigations.

On the other hand, businesses are not required to give up information merely on the say-so of a police officer. They are perfectly entitled in the absence of a warrant to decline to give information. And since warrants are not required for many administrative requests (although the form of request is usually prescribed), there is all the more reason to make the process accountable.

The most that can be said about unfettered police discretion to deny access to investigative files is that it is also to be found in the existing Privacy Act. We have objected to this discretionary power, and will continue doing so with greater vigour than ever. This issue sits high on the list of amendments needed to bring the existing Privacy Act up to date.

The need to amend the Privacy Act takes on a fresh urgency with the impending passage of C-54; the two acts contain some important differences that need to be reconciled. For example, the existing Privacy Act permits

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recourse to the Federal Court only in cases of denial of access to records. Not included are complaints about collection, use or disclosure of personal information—the heart of any privacy code. Bill C-54, on the other hand, allows an appeal to the court for all such complaints. If this discrepancy stands, Parliament will have acquiesced in a lower standard of privacy protection for the federal government than for the rest of the country. That is hardly defensible.

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The Health Infoway: Path to Health Surveillance ?

There is some progress on the health privacy front this year. Proposals to build a national health data network, first aired in the government's 1997 budget, offered exciting prospects for improving Canadians' health and the health care system. They also posed substantial privacy risks to patient data without stringent safeguards. As our 1996-97 annual report observed, "The prospect of greatly expanded collection and sharing of personal medical information sets privacy alarm bells ringing".

We have followed developments closely, meeting Health Canada officials, briefing members of the Advisory Council on Health Infostructure to keep privacy on the agenda, and providing them comments on the interim and final reports.

The Final Report—Canada Health Infoway: Paths to Better Health In February, the Council issued its final report which seemed to acknowledge the critical importance of privacy, citing privacy protection as one of the four strategic goals to be met when building the network. It also recognized the important distinction between protecting patient privacy—which may mean not collecting some information—and ensuring that patient data is secure. The Council also supported specific health privacy legislation and identified the essential components of any such legislation. As well, the Council supported harmonizing privacy protection across all jurisdictions and specifically cautioned against sinking to the lowest common denominator.

All well and good. But some other important messages seem to have been lost. The first is the report's apparent failure to acknowledge the patient's right to choose not to participate in any health information network. Nor does it speak about limiting surveillance of individual patients who do participate.

The report's recognition that groups of people can be stigmatized by having health information used against them was another important milestone. Unfortunately the recognition was limited to Aboriginal and immigrant communities. Any group of individuals can be perceived as having particular attributes that are then ascribed—rightly or wrongly—to any member of the group. The conclusion can be simplistic and dangerous. The concept of

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"group" privacy deserves broader interpretation in the health care context and more attention overall.

The report also gives short shrift to another of the Office's recommendations—that research and ethics review boards include privacy or patients' rights advocates. Without someone to speak for individual rights, the mantra of "public interest" or perhaps "greater efficiency" will inevitably win the day. Allowing health bureaucrats and researchers to represent the patients' interests risks putting Colonel Sanders in charge of the chicken coop.

Fuelling our concern is the tone of the companion Health Information Roadmap, produced by Health Canada, Statistics Canada and the Canadian Institute for Health Information. If this document is intended as the blueprint for implementing the report, some important pages are missing.

The Health Information Roadmap The roadmap describes the steps needed to build a comprehensive health information system and infrastructure to deliver health care to individuals. While it acknowledges that "individuals have important rights over when and how their personal information is used", its answer to protecting those rights is patient access to privacy policies, and stripping names from the medical information. The first risks being mere window dressing; the second attempts to provide confidentiality, not privacy.

It's clear that patient privacy is at stake. Even the most sanguine would draw a breath at proposals in the roadmap to "follow the movements of individuals within the formal health care system over extended periods of time". Among its proposals is the need for more "person-oriented information"—as well as expanding the range of data collected. Among those "expanded data sets" are those on health status and the "non-medical determinants of health". The surveillance aspect of health information is most apparent in the proposal for a National Health Surveillance Network.

The National Health Surveillance Network Certainly there is a need to monitor selected situations and individuals to protect the public against such immediate hazards as infectious diseases or dangerous pesticides. However, the network's function now seems to be evolving into promotion of health and well-being. Advocates of population surveillance seem to be applying the substantial arguments for protecting against public health risks, to promoting health—a different kettle of very different fish. 14 645

The longitudinal tracking proposed in a Health Canada discussion paper—to whit, "of the entire array of socially determined roles, personality traits, attitudes, behaviors, values, relative power and influence that characterize the lives of men and women in Canadian society"—is breathtaking, intrusive and offends the bedrock value of privacy in a democratic society. Any health network must allow patients to opt out of such social surveillance without penalizing their health care. Once again, advocates seem to have confused good security with protecting privacy. Informed consent is too fundamental a privacy principle to be pushed aside.

The major weakness in the report, the discussion papers and the roadmap is the lack of detail on how the information will flow. There are no diagrams to explain how and where health information would be linked, the extent of individual detail, or who would have access. Without such detail, health providers, bureaucrats, patients and privacy advocates are unable to determine where the risks are and how to eliminate them.

In fact, the dearth of detail is itself a cause of argument among the players. For example, the Council has repeatedly protested that there is no plan for a single integrated patient case file. Yet the Health Information Roadmap talks about "an integrated health system where patients can move seamlessly between hospitals, long term care, home care, and other settings depending on their needs", and "an integrated patient record (at the regional or local level)". The roadmap goes on to speak of collecting "more detailed data on

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specific groups or individuals" and "working with all provinces to enable a potential pooling (their emphasis) of information held in their person-based record systems".

One would be hard pressed not to conclude that the Health Infoway proposes a massive integration of personally-identified patient profiles, nationally accessible to a broad range of care givers, researchers and bureaucrats. It is small comfort that health network advocates say they are not creating "centralized databases" of patient information, but "distributed networks". This is a distinction without a difference. Whether the data is gathered in one central repository or accessible on-line through the network, it will be widely accessible. Its protection will hinge on the number and rigor of the controls on access. Protecting patient "privacy" by replacing patients' names with identifying numbers is a simplistic solution to a complex problem. It is a simple matter to re-identify the individuals and so unlock a comprehensive and intensely detailed profile. And who else will line up to argue that they need access—law enforcement officials? Social welfare agencies? Employment and pension bureaucrats? Pharmaceutical companies?

While we can accept that the work is in its early stages, and that the infrastructures vary from one province to another, it seems inconceivable that the various projects could have progressed to this stage without some attempt to chart the information exchanges. The denials are contributing to a growing aura of suspicion around the project. It's time the officials laid out the specifics and allowed the source of all this valuable data—the individual patients—to participate in the policy debate.

Legislators looking for guidance on health information privacy law need not re-invent the wheel; the Canadian Medical Association's Health Information Privacy Code is a comprehensive benchmark for achieving a high national level of protection for patient information. The code could be the basis for drafting legislation. Given the grumblings that the code sets the bar too high, perhaps some

Health Infoway funds should be used to study the impact of its implementation. The patients at the heart of this system deserve no less.

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Saskatchewan's Health Information Law

Saskatchewan's new Health Information Protection Act, which received royal assent in early May, makes the province's health information practices more transparent and gives patients some control over their personal health information. As one local journalist put it, "there's something fundamentally comforting that Canada's birthplace of socialized medicine is now also the first province to enact an individual's right to withhold comprehensive personal health records from government bureaucrats, even if the right must be exercised in a pro-active way".

Some of the principles in the preamble were drawn from (among other sources) the Canadian Medical Association's Health Information Privacy Code. Patients can choose not to have personal information they confided to their physicians stored on the Saskatchewan Health Information Network or any prescribed network. As well, the patient may require a "trustee" (i.e.: any person of body that has control of health information) to restrict other trustees' access to all or part of the information on the network. And section 9 requires trustees to promote patients’ knowledge and awareness of their rights under the act.

The offences for violating the act send the right message. For example, anyone convicted of "unlawfully obtaining" personal health information can be fined up to $50,000, and $500,000 if the crime is committed by a corporation.

But there are some causes for concern. For example, the definition of trustee is very broad; almost anyone could qualify. No distinction is drawn among doctors, government institutions or companies providing health services through an agreement with another trustee. In addition, the act doesn't apply to statistical or so-called "de-identified" personal health information. De-identifying information (by substituting a code, for example) is a far cry from making it anonymous—by definition, de-identified information can be "re-identified" as long as the system can link the information to a patient.

There is also a lengthy list of secondary purposes for which patients, personal health information can be disclosed without their consent. These include if

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there is a danger to the safety of anyone, not just the patient, or to "monitor" or "reveal" fraud, or for oversight committees to monitor service quality. Significantly, the government has given itself considerable flexibility through broad regulation-making powers throughout the act.

So while we are cautiously optimistic about the protection the legislation affords patients, several questions remain. For example, what criteria will be used to determine who can be a trustee? And will the research ethics committee include privacy or patient rights advocates ?

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Getting Serious about SIN

Auditor General confirms SINs’ shaky foundations

Readers of earlier reports will know that uses and abuses of the now infamous Social Insurance Number (SIN) elicit more than the Office's passing interest—and sometimes predictable yawns from others. The sides of the debate are drawn between those who see expanded SIN use as the slippery slope towards integrated databases and a national ID card—and those who dismiss the fears as an irrational response to a national file number.

SINs' greatest threat has always been its potential to become a national identifier and thus a powerful key to personal information in increasingly interlinked information systems. This is a serious threat from a number which is treated so cavalierly by government, business and individuals alike.

The most recent, and arguably most forceful, recognition of the SIN problem comes from perhaps a surprising quarter—the Auditor General. For the Privacy Commissioner to say SINs are a problem is hardly news. But when the Auditor General, with his harder-edge mandate (and the resources to probe extensively), concludes that the management of the number courts risks of fraud and privacy intrusions, alarm bells rang.

Admittedly, not all the A.G.'s recommended solutions sit well with a privacy commissioner—government economy and efficiency are the A.G.'s focus, after all. But we are grateful that the number and its supporting system are finally getting the rigorous attention they deserve.

The Auditor General's probe assessed "the management and control of SIN to determine if it is efficient and effective and has an appropriate base in legislation".

He concluded that SINs has become "a de facto national identifier for income-related transactions, contrary to the government's intent". Despite government moves to limit its own uses of SIN following Parliament's three- year review of the Privacy Act, the 1992 amendments to the Income Tax Act swung the door open wide. Amendments required SIN on social assistance and workers' compensation payments.

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"This virtually guaranteed the dominance of the SIN as the common program identifier for provincial and municipal social programs", concluded the Auditor General. When coupled with federal social programs, the A.G. calculated the total government social program expenditure at almost $100 billion a year. When "almost any transaction related to an income support payment or loan, revenue collection, and an individual's personal finances has a SIN attached to it", there is huge incentive for data linkage. Even when the estimated rate of fraud ranges between one and four per cent, the possible payback may be just too tempting to policy makers—sufficient to sweep aside the ethical niceties and remove the legal barriers.

The A.G. also found about 3.8 million more SIN holders in the Social Insurance Register than there are Canadian residents age 20 or older. This calls into question the accuracy of the supporting database. It also opens the doors to that growing threat in an information society—identity theft. And the new Canada Education Savings Grant is expected to add an estimated one million children to the ranks of SIN holders—even though there are no tax consequences for children until they actually begin drawing from education savings plans.

Improve the Register Three of the Auditor General's recommendations demand a privacy commissioner's response. First is the need to improve the integrity of the register. The A.G. suggested tightening up the proof-of- identity requirements for all new SIN applicants, demanding—for example— that an eligible guarantor sign the application, rather like a passport. He also proposed a cross check with provincial vital statistics branches to verify birth certificates for new applicants, as well as cull the names and numbers of those who have died. Unreported deaths are thought to be the major cause of the millions of excess numbers.

Obviously the register needs a housecleaning. How to go about it? Once the almost definitive proof of identity, sadly birth certificates are now apparently inadequate. Since they are sometimes forged, the information now seems to demand confirmation from the issuing jurisdiction. All well and good if it is simply to confirm the bare facts. Not so good when the vital statistics registry itself may contain gratuitous detail such as those reportedly found recently in the Alberta registry. The details, included information about the mother's lifestyle (tobacco, drug and alcohol consumption).

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These details might satisfy bureaucratic curiosity but they do nothing to improve the SIN registry's accuracy. The example highlights the critical importance of restricting any such federal government access to the bare details needed to validate the identity of applicants and to remove the deceased.

Another major contributor to the excess of SINs over people is the 900 series—those "temporary" SINs beginning with "9" issued to non-permanent residents (such as refugee claimants, seasonal workers and foreign students). By 1998, 680,000 of these were active—66 per cent of them more than five years old. Many SIN holders may simply not have notified the registry that they have left the country; others may be in the country illegally. The A.G.'s suggestion to issue 900 series SINs with an expiry date seems both fair and logical in the light of their temporary status.

More problematic is the proposal that the registry have access to the client files of Citizenship and Immigration to confirm the person's status, and to Revenue Canada to verify that a number is active. We can accept the need for Citizenship and Immigration to alert the registry to any change in a client's status—becoming a landed immigrant, being deported—but not the registry routinely trawling through immigration files.

Nor can we accept the registry gaining access to the files of any government agency using SIN to determine whether particular numbers are active. The danger posed by such broad access is that the register will gradually amass details on the holders' transactions. That data would transform the register from its primary function into a data matching clearing house.

A more accurate register and tighter proof of identity would go a long way towards correcting inaccuracies and preventing fraud and abuse.

Imbedding identity verification features in the card The A.G. also argues that the card itself needs more information to confirm that the person producing it is its legitimate holder. Among the options offered are photographs, digital signatures and biometric identifiers such as retinal scans or hand geometry.

This is the dangerous point at which the SIN mutates from client file number to a bone fide identity card—a step any privacy commissioner must resist.

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Identity cards, even those designed for specific purposes, tend to develop noxious secondary characteristics. Even when the card is not necessarily required to receive a service, producing one quickly becomes part of the service routine—and then becomes mandatory. Not having one, or simply not carrying it, becomes sufficient grounds for suspicion and probable denial of service.

The card, perceived as accurate and secure, gradually assumes an importance of its own. Other government organizations in search of reliable identification climb aboard. Gradually and inevitably it becomes a government identity card. With that kind of cachet, the private sector soon joins the chorus demanding the card. And what we have created, in effect, is an internal passport. Without one, you are nobody.

A further consequence is that with such a reliable identification, the use of SIN will likely grow. Expanded use increases the danger that government and business can access your information wherever it is held, without your knowledge or consent. More users and increased access lead inevitably to bringing more information together with the attendant risk of profiling. And with detailed profiles comes the spectre of organizations predicting, manipulating and coercing individual behaviour.

All these risks are compounded by the vacuum in law which imposes few limits on who may ask for and use your SIN.

While it is difficult to argue against a more accurate and secure card, perhaps a more immediate and practical question is how useful it would be in the millions of transactions that Canadians routinely conduct at a distance; filing an income tax return or applying for Canada Pension Plan, for example. Arguably these transactions form the vast majority of our contacts with government. The weakness of the SIN is also its power; it can be used (and misused) by mail, over the telephone and perhaps one day—on line. Imbedding security features on the card itself will be little help.

We support the A.G.'s call for tightening the original identification process for issuing SINs, and asking for additional identification when processing in- person transactions. As the A.G. put it, "let him who is with SIN show another piece of identification". A more rigorous screening of new applicants could increase trust in the numbers. But what about the 33 million already in circulation?

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Policy and legal reform Canadians are poorly armed in the face of growing pressures to allow greater sharing of personal data. Using SINs to collect personal information from all authorized users could lead to detailed and invisible profiles of individuals. All the current abuses of SIN would be exacerbated. Detecting and preventing misappropriation of public funds is a worthy cause but not one that justifies putting citizens in electronic straitjackets. There has to be a better way.

Government could begin by following the advice it has been given consistently for more than 15 years—set out in law who may ask for the number and how they may use it, then forbid other uses. And provide for sanctions against those who breach the law. Government cannot contemplate expanding or formalizing the number's use without putting it in a legal framework.

Nor should SINs be used to expand information sharing until government spells out in law specific rules on data matching. The Privacy Act is silent on the practice and the Treasury Board policy on data matching seems more

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honoured in the breach than the observance. The Auditor General stresses the need to clarify the rules and the roles of the parties in asserting control and accepting responsibility. Having repeatedly urged the same, the Privacy Commissioner can only applaud.

However, one reservation seems overwhelming—the Auditor General's report underscores how compromised the SIN has become. Is this the foundation on which we should build any new system?

: the larger question

Last fall, following release of the Auditor General's report, two Parliamentary committees examined the SIN—the Standing Committee on Human Resources Development and the Status of Persons with Disabilities, and the Standing Committee on Public Accounts. Neither committee sought to duplicate the Auditor General's work. Both concluded that improving SIN's current administration was only part of the issue—the larger question was what government sees as the future of the SIN. "Resolution of the SIN mandate is essentially a political issue", concluded the Public Accounts Committee "that will require a decision from the Parliament of Canada".

In its report Beyond the Numbers, the Human Resources Committee supported several of the Auditor General's recommendations to improve current administration. However, despite extensive hearings, the committee concluded that it had not had enough time to study the crux of the matter— "the overarching policy issues of privacy protection and data matching— central to the future of SIN in Canada".

But another committee, the former Standing Committee on Human Rights, had examined those issues in its comprehensive report Privacy: Where Do We Draw the Line? The 1997 dissolution of Parliament eliminated the government's need to respond. Rather than lose the critical work, the Human Resources Committee adopted the privacy report in its entirety and has asked the government to respond formally to its recommendations.

Among the Human Resources Committee's own recommendations were several aimed at the broader context. The committee urged government to draft a bill setting out the legal uses of the SIN and providing penalties for misuse. This recommendation echoes those of Canada's first three Privacy Commissioners—and Parliament's own three-year review of the Privacy Act. After almost 20 years, it's not a moment too soon. 24 655

The committee set three immediate deadlines. It asked HRDC to report by September 30 on progress implementing the 1998-99 workplan to improve its SIN administration, which this office will review. Also by September 30, HRDC will table with the Privacy Commissioner its evaluation of a pilot project to update SIN data from New Brunswick vital statistics records. It will also consult other provincial and territorial governments about similar transfers (which the committee recommended that appropriate privacy commissioners review). The Commissioner in turn will review the New Brunswick project report and the department's recommendations, and table his comments with the committee within 30 days.

By December 31, the committee also asked the department to report on options and associated costs for "improving or replacing" the SIN with an entirely new card system. This is the crux of the matter. As the committee put it, "too many decisions about the current use of the Social Insurance Number were made by default". To contribute to a spirited and informed debate, the Privacy Commissioner anticipates tabling a position paper on identification card systems with the committee.

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Committing a Social Science

That 1911 Census…

News that the 1911 census returns would not be made public travelled like wildfire through the historical and genealogical research communities. One of the parties blamed was the Privacy Commissioner and the letters and e-mail descended.

It is true that the Privacy Commissioner has serious reservations about Statistics Canada promising absolute confidentiality for census information, then releasing the results through the National Archives. Following his investigation into complaints about the 1992 census, the Commissioner suggested destroying the personally-identified returns to deal with growing public concern over the increasingly intrusive questions—particularly those posed on the long form. While Statistics Canada has no need for the personal returns—the information has all been verified and entered into electronic data systems (without names)—the National Archives balked at destruction of the returns.

But the Commissioner's reservation is not the immediate reason Statistics Canada is refusing access to the 1911 census. In fact, the Privacy Act Regulations allow the National Archives to release census and survey results 92 years later for "research and statistical purposes". The barrier to access is the Census and Statistics Act of 1906 and several subsequent laws, all of which prohibit Statistics Canada from disclosing personal census information to anyone—including the National Archives.

The motivation for such stringent protection is clear: the law requires us to answer census questions. As society becomes more complex, the questions become more detailed, more sensitive and arguably well beyond those of a head count. Among the questions on the last census were those about personal wealth and income, religion, fertility, and physical and mental disabilities. The test version of the 2001 census includes a question on same- sex partners. And before each census, governments, academics and special interest groups line up to seek ever more information.

 with apologies to W.H. Auden 26 657

There is no arguing that census data is a huge and valuable resource for modern government and business. But when citizens are forced to disclose personal data under compulsion of law, government bears a heavy responsibility to protect the information. Failure to accept that responsibility courts the risk that individuals will refuse to answer, and damn the consequences, or that they will fabricate responses and corrupt the data. Successive governments have acknowledged that the trade of information for confidentiality is a fair one and have accepted their responsibility. The result is closing the census to public access.

The step is certainly not without precedent. Australia, a country with similar history and an equally healthy appetite for genealogical research, destroys its personal census returns to protect privacy—and the census bureau itself from pressures for unrelated uses.

Unfortunately, the sustained lobbying appears to be having some effect. The Industry Minister has asked Statistics Canada to develop options for amending the legislation to allow access to census records. According to StatsCan, there are two possibilities. The first is amending the Statistics Act to allow access to the 2001 and all subsequent censuses. The second is amending the act retroactively to override the confidentiality provisions under which all censuses beginning in 1911 were gathered.

Neither option is attractive. The first risks compromising the census process if substantial numbers of Canadians object. The second would break the legal promise Parliament made to Canadians in 1911—and every census year following. It would demonstrate to Canadians the fragility of government promises in the face of an organized lobby. That would be as undesirable as the intrusion into private lives. The Privacy Commissioner cannot support either.

And Now for the "Survey of Financial Security"

If an indication were needed of Canadians' growing frustration with—and resistance to—government probing, Statistics Canada's "Survey of Financial Security" was a graphic illustration.

Once again, the survey prompted controversy including a public statement from one provincial privacy commissioner who observed that he would not participate if approached. Many of the issues in this survey are similar to those the office has dealt with when investigating similar surveys such as the 27 658

Family Expenditure Survey (see 1997-98 annual report)—the "intrusiveness" of the questions, the security of the collection process and any possible disclosures of the information. The subject matter—finances—is always a sensitive one, and the depth of the questioning is more than some can tolerate. The 68-page survey is a comprehensive look at a household's finances, conducted through personal interviews in about 21,000 households. Its stated intent is to determine how well Canadians are coping financially.

To answer the broad question, the survey collects information about each individual household member with personal identifiers attached. The survey questions range from family composition—education, employment status and experience and physical and mental disabilities—to fine details about expenses, savings, assets, retirement benefit plans and how they manage personal finances. Among the questions to hit nerves were those asking whether the respondent had terminated a relationship with someone formerly in the household (within the past 1 ½ years) and why, whether each is a union member, and the registration numbers of their pension plans. The

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survey also sought permission to examine the individuals' income tax and Canada (Québec) Pension Plan files.

However, two concerns were new; a statement in the interviewer's package that federal and provincial privacy commissioners had been "consulted" about the survey, and the low profile given to the voluntary status of the survey. The consultation with this office amounted to a telephoned alert of Statistics Canada's intention to conduct a survey, followed by a meeting to "review" the material about two weeks before researchers went into the field. The meeting was essentially a formality—all the material was printed and ready for distribution.

Privacy staff emphasized the need for the process and the options to be made clear to respondents. These included explaining to them that the survey was voluntary, that they could complete the questionnaire themselves (rather than in the presence of the researcher), and that individuals could have their own survey form if they wished (individual forms can be important in households of unrelated individuals). Staff also questioned keeping personally-identified survey responses, reiterating the office's position that destroying any personal links is a fair trade for collecting the very sensitive data it was seeking.

Statistics Canada staff insisted that its researchers had been specifically instructed to tell respondents that the survey was voluntary, and to respect a decision not to participate. They agreed to consider the other representations. Following the meeting, staff reviewed all the written material and found that the introductory letter to respondents said nothing about participation being voluntary. Also the accompanying brochure was somewhat opaque on the point. The briefing material for interviewers was far clearer and privacy staff suggested incorporating the language into the respondents' brochure. It was far too late in the process. Nevertheless, StatsCan agreed to change the letter to make the voluntary nature of the survey clear. It was the most we could hope for at the end of the process.

Shortly after interviewers went into the field, it appeared that even this change had not been made. Called for an explanation, StatsCan advised that regional directors have discretion to determine the wording of the letter to respondents in their region. At least two decided that making it clear that the survey was voluntary would reduce participation. They eliminated the statement.

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Canadians must know why their personal information is being collected, how it will be used and disclosed—and their legal obligation to provide it. These are the core principles of the Privacy Act. These are not discretionary rights which government staff can set aside on a whim when they prove inconvenient to their administration.

The Commissioner is investigating complaints about the survey.

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On the Hill

Proposed new laws or government programs often look both desirable and simple on their face. Who could possibly object to a national organ donor registry, or improving pre-clearance procedures at airports, or better detection of money laundering? The intent is usually laudable. It's only when the details start to emerge that so do the complications. Several cases in point arose last year.

Amending the

In May 1998, the Solicitor General issued a consultation paper on amending the act to improve police ability to investigate money laundering. The proposals included obliging financial institutions to report suspicious transactions, proposed new enforcement measures and offences, and establishing a new federal agency to receive and manage the information.

Any law requiring financial institutions to report selected customer transactions to a government agency is a de facto intrusion into individuals' privacy. Detecting financial crime without abandoning individual rights is the challenge. The Office expressed its reservations with the proposals in a letter to the Solicitor General. Those reservations concern compliance with the Charter and the Privacy Act, defining a "suspicious transaction", the danger that reporting may violate professional privilege—and foster a climate of citizens informing on one another, and the structure and mandate of the new federal authority.

The department issued its Summary of Consultations on February 1, 1999, and Bill C-81 was introduced on May 31. Shortly before Parliament rose for its summer recess, it passed the amendments, some of which dealt with some of the Office's concerns. In the interests of alerting public, policy-makers and legislators alike, we repeat our reservations here, accompanied by the measures in the law.

Compliance with the Charter Our reservations: Requiring organizations that provide financial services (such as banks, investment brokers and life insurance companies) to gather confidential client information for law enforcement agencies, without a warrant, could offend Charter protections against "unreasonable search or seizure". 31 662

The new law: The Solicitor General's department was also concerned about the Charter implications. Its response was to require law enforcement agencies to obtain a judicial warrant before seeking additional (our emphasis) information from the new federal authority. While this introduces some independent oversight into the process, it does not deal with the Charter implications of the initial collection of the information by either the financial institution or the federal authority.

Compliance with the Our reservations: The Privacy Act requires institutions to tell individuals why they are collecting personal information and how it will be used. Notification is waived only when informing the person would compromise the accuracy of the information or prejudice its subsequent use. The proposed regulations do not address the individual's right to be told. Prohibiting financial institutions from telling their clients that they must report particular transactions may help identify relatively unsophisticated criminals; it is unlikely to fool sophisticated money launderers. Arguably a general practice of public notification is a useful public education tool.

The new law: The new law specifically binds the federal authority to the Privacy Act. However, it is unclear how that will meet the government's obligations to notify individuals at the outset about the collection and possible uses of their financial information. The problem remains that the data will be collected on the federal authority's behalf by private sector organizations not subject to the Privacy Act. Under this scheme, clients could only determine that their financial institution has disclosed their information by seeking access from the federal authority.

Defining a "suspicious transaction" Our reservations: It was unclear whether the $10,000 threshold suggested in the paper, or any one—or combination—of indicators deemed "suspicious", would be sufficient to trigger the financial institutions' obligation to report. The danger was that financial institutions, in an effort to avoid exercising discretion (and possibly incurring liability), would resort to the monetary threshold alone. This risked forcing disclosures of substantial numbers of innocent transactions. We suggested that any legislation should require a combination of some other evidence with the monetary limit before triggering a report. Whatever the indicators, they should be evident on the face of the transaction and the immediate material circumstances. They should not require financial institutions to probe 32 663

substantially into the financial affairs of a client or any associated third party before deciding that the transaction is "suspicious".

The new law: The amendments make it clear that the financial threshold alone should not be the determining factor. Financial institutions must gather additional details (to be specified in regulations) before deciding that a transaction is sufficiently suspicious to warrant reporting. While a substantial step forward, the Commissioner would prefer to see a public debate on the matter rather than the invisible process of regulation-drafting.

Professional confidentiality Our reservations: Application of the reporting requirements to "persons engaged in a business, profession or activity in the course of which cash is received for payment or transferred to a third party (e.g., lawyers and accountants)" could have violated the common law principle of solicitor/client privilege.

The new law: The law exempts lawyers from the reporting if doing so would breach solicitor/client privilege.

The federal authority Our reservations: The authority will be responsible for analysing information it receives from institutions and individuals required to report under the act. It will also gather information from public sources, foreign law enforcement agencies, informers and the Canadian Police Information Centre. Note that all this information will be gathered without a warrant. However the authority's precise status is not clear. Although apparently neither law enforcement agency nor investigative body, it seems to fulfil both functions to some degree. Its status is vitally important because that will affect the application of the Privacy Act to the personal information it collects and holds. Will individuals have rights to have access to and correct information or will it all be denied because it was obtained during a lawful investigation? Will the authority's collection, use and disclosure of personal data be subject to legal limitations? Will individuals be told? Will there be independent oversight of the authority's operations? The discussion paper is silent.

The new law: Amendments have not clarified the authority's status. Is it an investigative body or law enforcement agency? The answer is critical because of its impact on the authority's ability under the Privacy Act to gather 33 664

information without individuals' knowledge and consent, and routinely block their access to it.

Our reservations: Once the authority has gathered and analysed substantial information—and concluded a transaction is "suspicious"—it would alert law enforcement officials. Since the federal authority collected the original information without a warrant, the authority's notification should be as limited as possible. Any further information should only be disclosed in response to a warrant.

The new law: The law limits the information the authority may disclose initially to law enforcement agencies. The details include the client's name, financial institution, the amount of the transaction and its form—(i.e.: cash, bonds, shares etc.). Any further disclosures require a warrant which would specify what additional information the authority must disclose.

Our reservations: Nevertheless, the risk remains that simply by identifying a transaction as "suspicious", the authority has supplied law enforcement agencies with sufficient grounds for a search warrant. This could lead to routine search warrants in response to the authority's notices.

The new law: It remains unclear whether the authority's notice will itself constitute "reasonable grounds" for the issuance of a warrant or whether the court would require additional information to satisfy the "reasonable grounds" test.

Building an Organ Donor Registry

Another example of trying to do the right thing but needing to dig a little deeper is proposals for a new organ donor registry. The House of Commons Standing Committee on Health studied ways of improving Canada's low rate of organ donation. Among the early suggestions was a possible national donor registry. The Committee sought the Commissioner's advice on the privacy issues it should consider before recommending setting up such a registry.

The value of a donor registry is readily apparent but collecting potentially sensitive information and storing it centrally demands a sound justification. With no resources to conduct an in-depth examination, the Commissioner

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could only offer some preliminary observations. He suggested the Committee consider several questions.

Is there a sound justification for collecting the information and storing it centrally? The Office is often confronted with assertions that the collection, use or disclosure of certain personal information about Canadians will advance some public interest, facilitate government operations or help law enforcement. We have become increasingly reluctant to accept these assertions at face value, particularly given the lack of sound evidence behind many of the proposals, and the inherent privacy intrusions the collection entails.

What information would the proposed database contain? Would the information simply indicate a person's willingness to become a donor, plus contact details—address and telephone number—or would it include all relevant medical information such as blood type and genetic makeup? If any personal medical information were to be included in the database, what security safeguards would protect the information from unintended access and disclosure?

Would the information be used for any purpose other than matching organs and tissue? One recurring problem with databases in Canada is that, established for one purpose, their use gradually expands beyond those intended at the time of the original collection. As a general rule, any unrelated secondary uses of personal information should be prohibited unless the individuals provide their express, informed consent. A database intended to facilitate organ donations should not be used to further some other government program, such as law enforcement.

To whom would information in the database be disclosed? If the database is intended to facilitate organ donations, the information it contains should not be disclosed for any other purposes unless the individual expressly consents. There are too many instances of information being collected and used in the public interest, then disclosed for much less acceptable purposes.

Is it appropriate to create the registry by obtaining consent on federal income tax returns? Government used this method to gather addresses for the permanent voters' list. While that was justified on grounds that an up-to-date accurate list is vital to a well functioning, healthy democracy, an organ registry might not pass a test of similar general public necessity. How many more worthy 35 666

causes could make the same claim, and what would that do to the income tax return?

The Commissioner offered to discuss his reservations with the Committee. However, the Committee's report (issued in April 1999) took a cautious approach, concluding that a national registry of intended donors would not be the most efficient use of resources. The Committee recommended establishing national lists of those awaiting "solid organs" (such as heart etc…), actual donors, and potential donors in hospital. It also suggested a national database to track the results of organ donations using the Canadian Organ Replacement Register. All of these suggested lists are more focussed on both the individuals and the medical procedures at stake and are far preferable to a comprehensive national database.

The Committee's findings and recommendations served as effective reminders to consider signing that organ donor card.

Convenience has its cost—pre-clearing U.S. Customs

Efforts to speed air travel between Canada and the United States (and enhance Canada's appeal as the gateway for international travel to North America) prompted the government to introduce legislation authorising American officials at major Canadian airports to clear travellers for entry into the U.S..

Pre-clearance would allow Canadian travellers to clear formalities at the beginning of the trip, then fly to any U.S. destination, rather than being restricted to those with customs and immigration services. International travellers could cut flight times by routing their flights through Canada, without having to obtain Canadian visas or pass through Canadian Customs en route to the U.S.. This enhances the international appeal of using a Canadian carrier.

Bill S22, the Preclearance Act, is intended to formalize a Canada/U.S. agreement allowing U.S. customs and immigration officers to clear incoming Canadian visitors or in-transit international travellers at Canadian airports. The government will not enact the bill until the 1974 agreement has been amended to guarantee reciprocity. The advantages of the procedures are undeniable but there are some wrinkles.

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The bill would allow U.S. officials to screen travellers for customs, immigration, public health and food regulations. It would expand their current powers from simply refusing entry, to searching (a "pat down"), seizing goods and imposing fines. U.S. Customs officers could not arrest anyone, only hand over suspicious individuals to Canadian authorities. Although the powers are not new (customs officials have been clearing travellers under the 1974 agreement), this is the first time they have been written into legislation. Effectively, the bill allows officials of a foreign power the right to gather information on Canadian soil. It has prompted substantial concern about the extra-territorial application of U.S. law, and the protection offered by Canadian law on Canadian soil.

One of the laws in question is the federal Privacy Act. All border-crossing procedures gather personal information. Entering another country is a privilege; complying with the country's entry requirements is a given. But the information is usually gathered in the host country and governed by that country's laws. Since the bill moves some of the data collection into Canada, will Canadian privacy rules apply?

The Department of Foreign Affairs assures us that "all use of personal information will be consistent with Canadian privacy law and policy". The bill includes specific references to the Charter and the Canadian Human Rights Act. And it is clear that once someone is detained and handed over to Canadian officials, Canadian privacy law applies. But the statement begs several questions: Will individuals have a right of access to, and correction of, information collected by U.S. officials? Could they challenge its collection, use and disclosures? And if so, with whom—who could passengers ask to review U.S. officials' handling of personal data collected on Canadian soil to administer a U.S. law?

For passengers in transit through Canada, U.S. officials would also collect "behavioural" information or profiles. This data could include the city where the trip started and any other cities visited, gaps in the trip, when the ticket was purchased, how paid for and by whom, the name of the travel agent, seating and dietary preferences, and any phone numbers given. The international airline would transmit the data to U.S. authorities in Canada to run against profiles of suspicious travellers. Those matching the profiles may be targeted for secondary examination and may be denied entry. U.S. law provides no review of this decision.

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Canadian customs officials are not authorised to use profiling to make administrative decisions about travellers. By allowing the practice on Canadian soil, this agreement would seem to lay the groundwork for Canada Customs using the technique—one the Privacy Commissioner finds unsettling and that Canadians have so far resisted. Is this Parliament's intent? All told, it is difficult to accept government's claim that the bill is "consistent with Canadian privacy law and practice". It is ironic that the bill recognizes the paramountcy of the Canadian Human Rights Act, which first established Canadians' privacy rights, but not that of the expanded Privacy Act.

Senate Committee calls for drug testing transportation workers

In June 1998, the Senate struck a special committee "to examine and report upon the state of transportation safety and security in Canada". In its January 1999 interim report, the Special Senate Committee on Transportation Safety and Security called on the government to permit mandatory, random drug and alcohol testing in the Canadian transportation industry similar to that required under United States legislation.

No one could oppose measures to enhance transportation safety in Canada. The Senate Committee made several sound recommendations to this end. However, we are troubled by the Committee's ready acceptance that drug testing is necessary and that it will enhance transportation safety.

The office has examined drug testing on several occasions. Each time, the question returns: does broad and random testing do the job? The drug test itself is intrusive, it cannot reveal impairment, and the information generated by testing is both sensitive and subject to misuse. Given its intrusiveness, drug testing should be required by the state only where there is compelling evidence of its need.

There is precious little evidence that many of the forms of drug testing so eagerly embraced by governments and the private sector, and so keenly marketed by the drug testing industry, enhance workplace safety. In the majority of cases, the only appreciable impact of drug testing is a serious diminution of the fundamental human right of privacy. Too often, drug testing does little more than strip people of their dignity—and their constitutional rights—on the basis of flimsy assertions that drug testing "works".

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In a detailed study Drug Testing and Privacy, 1990, the Commissioner made several specific recommendations about broad testing programs. Among them was the recommendation that "random mandatory testing of members of a group on the basis of the behaviour patterns of the group as a whole may be justifiable only if the following conditions are met:  There are reasonable grounds to believe that there is a significant prevalence of drug use or impairment within the group;  The drug use or impairment poses a substantial threat to the safety of the public or other members of the group;  The behaviour of individuals in the group cannot otherwise be adequately supervised;  There are reasonable grounds to believe that drug testing can significantly reduce the risk to safety, and  No practical, less intrusive alternative such as regular medicals, education, counselling or some combination of these, would significantly reduce the risk to safety.

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Nothing in the intervening years has altered our view that such sweeping testing is unwarranted. The Commissioner has asked for an opportunity to appear before the Committee to discuss his concerns.

Reviewing the Corrections and Conditional Release Act (CCRA)

The CCRA is currently undergoing a five-year review by the Standing Committee on Justice and Human Rights. Early in 1998 the Solicitor General sought public input in its consultation paper Towards a Just, Peaceful and Safe Society. Since inmates retain many of their rights, any discussions about amending the CCRA should be done with the Privacy Act in mind. This is not a matter of either/or—not only can the Privacy Act and the CCRA coexist, they can complement each other.

The Privacy Commissioner’s comments focussed on four issues:

The relationship between the CCRA and the Although the CCRA provides inmates many of the same information rights as the Privacy Act, it does not provide independent review of complaints. Thus an inmate who has received personal information under the CCRA may then attempt to make a complaint to the Privacy Commissioner about inaccurate information. Correctional Services Canada and the National Parole Board have argued that inmates only have rights to correct information obtained under the Privacy Act. This forces them to make a formal privacy request for information already in their possession. This is bureaucratic at best. Parliament should amend the CCRA to indicate that any information provided under that act is deemed also to have been provided under the Privacy Act.

Urinalysis provisions: The submission reiterated the comments set out in our 1992 paper. Drug testing is highly intrusive and although inmates have a reduced expectation of privacy, they should not be deprived of a fundamental human right to any greater degree than is necessary. Drug testing should not be used unless it can be demonstrated that it reduces both the use of drugs in institutions and the incidence of violence.

The Solicitor General argued in 1992 that drug testing would do both yet the latest consultation paper provides no such evidence. In fact, there is some evidence that inmates may be switching to harder drugs that are more difficult to detect by drug testing. Thus there has been a significant 40 671

expansion of drug testing in institutions without any evidence that it is achieving the promised results. We understand that CSC intends to study the matter; we await the results with interest. It is vital that drug testing not lead to a change in drug use that fosters the spread of HIV, hepatitis and other blood-borne infections.

Offender information: The consultation paper observes that there have been some problems with sharing inmate information between CSC and NPB. We are comforted that the Privacy Act has not been fingered as the culprit. Both the Privacy Act and the CCRA contain sufficient provisions to allow CSC and the parole board to share the information needed to fulfil their responsibilities.

One caution concerned the concept of integrated justice. Any additional sharing of personal information within the justice community must abide by the relevant privacy legislation and we urged that federal, provincial and territorial privacy commissioners be consulted at the earliest possible point.

National Parole Board Registry: An apparent clash between public accountability and individual privacy can often be resolved by sensible compromise. A case in point could be (but is not yet) the National Parole Board's Decision Registry.

Several complaints from parole applicants cited the extensive details the Board revealed in its "decision sheets" which any interested party could examine in the NPB Decision Registry. The complaint investigations revealed, in some instances, considerable psychological and counselling detail and, in one case, financial information. The Commissioner considered some of the disclosures excessive and the complaints well-founded. He wrote to the Board.

Since then the Board has held training sessions with Board Members (who write the decisions) and its staff on the relationship between its own enabling statute (which requires public disclosure), and the Privacy Act which gives parole applicants access to their own information but protects it from third parties.

The result has been generally shorter decisions and a greater focus on only the details that are relevant to the parole decision.

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We have no difficulty accepting the Board's need to account publicly for its decisions to put offenders back on the streets before their sentences are completed. And we acknowledge the improvements that are evident from the ongoing training. However, the problem remains that the Board is trying to kill two incompatible birds with one stone—explain the Board's decision to the applicant and be accountable to the public.

The decision "sheets" are more than a single page summary of the decision and the factors that influenced the Board's decision. They are the Board's written decision from the hearing and the record that the applicant receives. The information could include psychological or counselling details, or information about family members and other third parties—all of which the applicant should see.

In fact, the Decision Registry is "virtual" only. There is no data bank containing the Board decisions. When a member of the public asks to see the decision "sheet", the Board decision is pulled from the applicant's file. Thus the sheet attempts to serve two purposes; providing the applicant the maximum information possible about the Board's decision while not going overboard in disclosing details to the public. The conflict of interests is too great to be reconciled in the bosom of one document.

The Commissioner recommended the Board create an actual and discrete public registry containing summary information about the applicants, the decisions and a synopsis of the reasons that led to the decisions. This would meet the Board's obligation of public accountability. Then Board members could provide parole applicants with a detailed document explaining their decisions without risking excessive public disclosure.

The Board rejected the recommendation, one of several made in the Office's submission to the Solicitor General on the review of the Corrections and Conditional Releases Act. The legislation is currently before a Parliamentary committee.

The

The Senate passed the DNA Identification Act without amendment, but not without reservation, in December 1998. The act requires the Solicitor General to establish a national data bank of DNA profiles taken from crime scenes for use in criminal justice investigations. More important in the context of privacy, it will also contain both actual DNA samples and DNA 42 673

profiles of those convicted of "designated offences"—generally, crimes involving violence. The RCMP Commissioner will maintain the data bank.

The act is the second phase of legislation dealing with the use of DNA in criminal investigations. The first phase, allowing the forced taking of DNA samples from suspects under a warrant, was enacted in 1995.

The Commissioner put several concerns before both the House of Commons and Senate Standing committees reviewing the bill—with mixed results.

Parliament rejected our recommendation that the legislation not allow keeping the actual DNA samples taken from convicted offenders, rather than simply the analysis, or profile, of the DNA sample. The danger of storing the physical samples is the temptation it offers future governments to authorize further testing for completely unrelated purposes.

To deal with its reservations, the Senate Legal and Constitutional Affairs Committee obtained several undertakings from the Solicitor General. Among them were  Creation of an advisory committee, including a representative of the Office of the Privacy Commissioner, to oversee implementation of the act, and administration of the DNA databank. The committee urged the Solicitor General to include the appointment of the advisory committee in the regulations.  Publication of the regulations before they take effect, allowing the Senate time for evaluation and comment.  Agreement to clarify in regulations what is meant by a "DNA profile". The regulations will specify that a DNA profile is "not a profile for medical reasons". This will restrict police use of profiles to identifying individuals for law enforcement purposes, and not for predicting medical, physical or mental characteristics. This clarification helps address the Senate Committee's (and our) concern about the dangers of storing the samples.  Consideration of a provision for Parliamentary review every five years given the highly sensitive nature of the information and the rapidity of technological change.

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As we go to press, we understand that the Solicitor General is developing a mandate for the advisory committee. We will seek to ensure that the committee is indeed independent, and will participate in its work as fully as our resources allow.

A close watch on the DNA provisions in our criminal law is absolutely essential. There is already considerable pressure in other jurisdictions to increase substantially the number of individuals whose DNA would be captured for criminal investigation purposes. Canadians will almost certainly face such pressures in the near future. Unless they resist, they may find, as is now being seriously considered in Britain, that all citizens, innocent or guilty, may be required to surrender their DNA for the alleged advancement of crime control—and the certain surrender of privacy.

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Issues Management and Assessment Branch

The Issues Management and Assessment Branch monitors government programs and legislation, researches emerging issues, and provides the Commissioner policy advice and communications support.

A handful of portfolio leaders provide the Office a contact point with federal agencies to resolve issues before they lead to complaints. This pro-active approach has been the focus in the past year, replacing formal audits and follow-ups.

The branch also depends on a few policy analysts and researchers to keep the Office current on any other developments that concern privacy. This includes examining new legislation and government programs, and researching developments in Canada and abroad to help develop positions on specific issues, and to provide background for the Commissioner's public appearances.

Branch staff also help handle some of the more complex questions that fall outside the mandate of the Commissioner, providing inquiries officers with input on selected subjects. They act as contact point for international data protection commissioners on privacy protection in Canada and support the Investigations Branch, providing information and obtaining expert advice as needed.

Much of the research and expertise that helps the Commissioner prepare for his public communications has always originated in the branch. This year the branch assumed responsibility for both communications and Parliamentary liaison. This change has allowed the Commissioner's public communications efforts to become more focused and responsive to emerging privacy issues. In particular, this change has helped to support the Commissioner in the Office's heightened profile as a result of Bill C-54. Any of the branch's resources not consumed by the above have been devoted to monitoring the progress of this bill.

In addition to following the Health Infoway, new legislation and SIN issues discussed above, the Branch monitored the progress of several other issues including privatization of government agencies, a video surveillance policy, and preparations to renew the Canadian Police Information Centre.

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The St. Lawrence Seaway transfer—getting it right

The recent spate of government privatization seems to have abated. Once a source of considerable concern—clients and employees were effectively losing their privacy rights—privatization has moved down the list of privacy threats.

Two factors have reduced the threats. The first should be the passage of private sector law for the federally-regulated private sector. Virtually all of the agencies that have been commercialized are in sectors under federal regulation and so should be covered by Bill C54, the Personal Information Protection and Electronic Documents Act.

The second factor is a growing understanding and acknowledgement by privatized organizations of the need for (and the benefits of) a major housecleaning of personal files. Purging the files of unneeded information, and obtaining employees' consent for transferring the remainder, can pay dividends. Employees are full participants in the process and the organization can often shed tons of paper.

One of the last agencies to be privatized was the St. Lawrence Seaway Authority. Perhaps understandably, the authority's personal records transfer was smooth and rigorous. Several months before the November 1, 1998 transfer date, the authority committed itself to continue respecting the principles and guidelines of the Privacy Act. Although most employee information is kept by the authority's human resources services, senior management instructed supervisors to review their working files for employees' personal records. They set out the broad categories of records, appropriate retention periods and what should be destroyed or sent to human resources.

Management then wrote to all employees being transferred, explaining what information would be required to continue pay and benefits, and to honour collective agreements and employment claims. The letter then listed what other personal information the authority held and sought the employees' consent for the transfer. Employees could consent to transfer all, some, or none of the information with no adverse impact on their employment at the new agency. Supervisors were then told what was not to be transferred and required to sign a written confirmation that the records had been destroyed.

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The whole process was relatively painless and demonstrated yet again that good privacy practices are good information management practices. What new organization would not want to get that right—from the beginning?

Complaint prompts video surveillance policy

Last year we reported an employee's complaint that Immigration and Refugee Board had planted a camera in the ceiling above her desk because they suspected her of leaking information from board hearings. The Commissioner concluded that IRB's evidence was so scant that it should have conducted a thorough preliminary investigation before resorting to such intrusive surveillance. Disturbed by management's quick recourse to a concealed video camera, the Commissioner wrote urging the Treasury Board to draft a government-wide policy on covert employee surveillance.

In April 1999, Treasury Board issued a Security Policy Implementation Notice to all departments in an effort to guide security staff on using cameras during investigations. Citing both individuals' Charter rights to a reasonable expectation of privacy, and their specific rights under the Privacy Act, the notice sets out all the requirements based on those set out in the Commissioner's 1997-98 annual report.

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The notice requires that any policy on covert video surveillance "take into account the following:  reasonable grounds to suspect serious misconduct, which may include criminal misconduct, must exist before covert video surveillance is considered an investigative option;  any decision to conduct covert video surveillance necessarily raises substantially more privacy concerns than overt video surveillance and should only be considered when all other reasonable measures, including non-investigative measures such as counselling, workplace notices, education programs and overt surveillance, have proven ineffective or are likely to prove ineffective;  do not use where individuals have a reasonable expectation of privacy (for example, a private office, change rooms or a single office in an open office environment). If the alleged conduct under investigation is believed to be criminal, police should be asked to investigate. This will ensure a court review since police must first obtain a warrant to conduct covert video surveillance where there is a reasonable expectation of privacy;  where individuals do not have a reasonable expectation of privacy (e.g. public access and reception areas), authority to order covert video surveillance should rest only with a senior level official with the advice of the departmental security officer and departmental legal; in ordinary circumstances, the deputy head should be informed in advance of any covert video surveillance being conducted;  to the extent possible, covert video surveillance should not intrude on the privacy of persons other than the individual under investigation;  the surveillance should not continue longer than is reasonably necessary to conduct the investigation;  access to the videotape and any information generated by the videotape should be strictly limited to those with a need to know and should not be used, for example, as a vehicle for monitoring employee performance generally. The videotape and all information gathered in the course of the investigation are subject to the Privacy Act, Access to Information Act, and the National Archives of Canada Act;

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 the individual placed under covert video surveillance should be notified afterwards about the surveillance, including where and when it occurred, and the justification for the surveillance, unless there are compelling reasons not to do so."

CPIC Renewal

In April 1999 the Solicitor General announced funding to modernize and renew the Canadian Police Information Center (CPIC), the computerized information system for Canadian law enforcement. CPIC is a cooperative, managed by the Royal Canadian Mounted Police and shared by municipal and provincial police forces. Other agencies such as Canada Customs and Correctional Services Canada have restricted access.

CPIC managers have always recognized that this system maintains and provides access to a large volume of personal information and have a rigorous privacy code in place. Since the redesign will also have to address the privacy issues, project managers seconded an experienced staff member from the Privacy Commissioner's Office for the duration of the project.

On the Stump

In addition to the Commissioner's appearance before Parliamentary committees on impending legislation (reported earlier), he and staff spoke to more than a dozen audiences ranging from Dalhousie University law students to a group of unemployed persons in l'Estrie, Québec. Copies of speech texts are available from the Office or on the Web site.

Senate Committee of the Whole Certainly the most notable invitation of this or any year was a call for the Privacy Commissioner to appear before the Senate Committee of the Whole. The opportunity was somewhat akin to briefing one's board of directors. The Privacy Commissioner is among a tiny band of Officers of Parliament—those appointed by and responsible to Parliament to defend fairness, decency and honesty in public administration.

While once commonplace, the practice of calling witnesses before Committees of the Whole "appears to have gone out of fashion", the Commissioner observed. Acknowledging that efficiency may be the reason, "…one baneful result in my view has been a reduced public visibility of the legislative process, and of the workings of government." 49 680

The Commissioner gave a brief privacy State of the Nation then dealt with Senators' questions and comments on everything from his defence of keeping census returns private, to the proposals for U.S. Customs preclearance at Canadian airports.

New Thai Constitution Enactment of Thailand's new Constitution gave the Office an unparalleled opportunity to share what it has learned—and is still learning—with a country just introducing information law. The Thai Constitution contains several mechanisms designed to increase government transparency and accountability, including a human rights commission, ombudsmen and administrative courts. One of the most critical is the (then) Office of Information to administer the Official Information Act.

Under the Canadian International Development Agency's Governance Program, a senior Office manager was invited to Thailand to describe the Canadian experience with information law. The manager first spoke to the Prime Minister's nationally televised conference on the new law in May 1998, then participated in several meetings of officials tasked with setting up the new information office. Following the visit, the office was renamed the Office of Information Access and Privacy Protection and privacy was given a prominent place in the decisions of the information commissioners.

The Thai office's director and two other senior officials then visited Canada for a first-hand look at administration of the Privacy Act and the Access to Information Act. The Office's manager returned to Thailand several months later to address the first anniversary conference on some of the lessons Canada has learned—and some it has not. He gave a lecture to a local university and met staff of the Information Office and government departments, focussing on the practical demands of implementing the law— identifying information holdings, preparing administrative handbooks and designing training courses.

The experience reinforced for Office staff how critical information rights are for a democracy, and how often Canadians take them for granted—or dismiss them outright.

Crossing Boundaries: Privacy, Policy and Information Technology Early in 1999, the Privacy Commissioner and staff participated in a series of roundtables sponsored by the Institute of Public Administration of Canada (IPAC). The four roundtables brought together Members of Parliament, senior public servants, journalists and academics to discuss the tension 50 681

between a "public service which favours better and more information in the service of better government" and citizens' concerns that this could "lead to a more intrusive or authoritarian state". The debate is a classic one and, as IPAC observed, "dialogue would help".

The first roundtable set the context, the second examined privacy and the changing role of government, the third looked at integrating data across jurisdictions, and the fourth at sharing between government and the private sector.

There are many to speak for "efficient" government; so many, in fact, that one wonders how government became so inefficient. The roundtables took as given that "integrating information systems and data bases allows government to function more efficiently and effectively"—an assumption that itself may be flawed. More information does not mean more knowledge. Far fewer echo what the U.S. Supreme Court observed was the role of the American Bill of Rights. The court described that role as to "protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones".

In his presentation to the second roundtable, The Commissioner underlined the role efficiency should play in government—and of the role of law in protecting the individual against its too enthusiastic pursuit.

IPAC expects to issue a comprehensive report of the proceedings later this year.

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Investigations and Inquiries Branch

Incoming complaints jumped past the 3000 mark for the first time in the office's history—new complaints reached 3105 for the 1998-99 fiscal year. Two factors contribute to the heavy intake, one of these is complaints about government matching of returning travellers' customs declarations with employment insurance claims (see page 84).

A second factor was more than 225 complaints of delays by Correctional Services Canada staff at the Cowansville (Québec) Institution. Employees filed more than 900 requests to see their personal records during a contract dispute. To help reduce the paper burden, CSC made appointments with employees to examine their files rather than receive copies. The Privacy Act permits examining originals and, in the circumstances, is reasonable in the face of employees using the act as a tool during labour disputes.

Two other departments that have struggled to meet the time limits, now appear to be making significant progress. National Defence and Revenue Canada reorganized their ATIP sections into work teams early in the fiscal year and the efforts are paying dividends. By the end of the reporting year, the pace of their time limits complaints had fallen off remarkably. Other departments take note.

Cases

The following selected cases illustrate the types of complaints the Privacy Commissioner receives.

Divorce registry procedures streamlined A Manitoba lawyer's complaint about the Department of Justice's sharing his name and address with Human Resources Development Canada (HRDC) led to changing the way divorcing parties are advised about splitting Canada Pension Plan (CPP) credits.

The lawyer complained that Justice had improperly disclosed his name and address to HRDC's Income Security Programs Branch. (He also complained that HRDC had improperly collected the information from Justice.) The disclosure stemmed from a routine monthly transfer of computer tapes from Justice's Central Registry of Divorce Proceedings to HRDC. The tapes contained the names and addresses of those filing for divorce (or their 52 683

lawyers') provided by provincial courts for the Divorce Registry. Justice maintains the registry to detect duplicate divorce applications.

The privacy investigation revealed that in January 1993 Justice amended its Registration of Divorce Proceedings Form to collect the mailing address of divorce applicants or their legal representatives. Justice did not need the addresses for the register; it collected them solely to help HRDC send information packages to applicants about splitting CPP credits. (Couples divorcing after 1987 are legally required to divide equally any CPP credits accumulated by both parties during the marriage.)

The court registrar completes the forms and, when the application is filed, sends Part 1 to Justice to issue a clearance certificate. Once the court has disposed of the case, the registrar completes Part 2 and sends it the registry (non-personal information is also sent to Statistics Canada). The court keeps Part 3.

The registry is considered public. When only the lawyers' names appeared (to protect those leaving abusive relationships, for example), the procedure led to lawyers becoming mail drops for multiple copies of information packages for their clients which essentially duplicated information the lawyers may have already provided. As the complainant put it, "I may have the responsibility to my clients to advise them about their rights to apply to divide CPP credits, but how I choose to honour my professional responsibilities is not the affair of Health & Welfare Canada"(the department formerly responsible for CPP).

The arrangements failed several privacy tests. It was evident that Justice was not collecting the information for its own legally mandated program but rather was acting as an agent for a third party, HRDC, which is legally responsible for administering the CPP. Nor was Justice collecting the information directly from the individuals concerned but from the provincial courts. Direct collection generally ensures greater accuracy, and gives individuals the opportunity to give (or refuse) consent. Finally, Justice was disclosing to HRDC—and HRDC was collecting—unnecessary information about the divorcing parties' legal representatives.

The procedure also did not necessarily protect against abusive spouses. During the investigation, a woman filed for divorce and asked the court not to inform her husband until after she had left the country. The court agreed but the information was sent routinely to Justice, transferred to HRDC and 53 684

the husband received the information kit before his wife could leave. Apparently she was not harmed but the incident encouraged the departments to first delay the disclosures by two months or more, then find a new procedure.

The complaints also raised the question of why a personal communication was needed at all; generic information on splitting credits should be sufficient and much more cost effective; HRDC was mailing about 100,000 kits annually at a cost of approximately $500,000.

Both departments acknowledged the privacy problems and undertook to fix them. However, given the importance of ensuring that divorcing parties understood their rights and responsibilities for splitting pension credits, they intended continuing the procedure until they found an acceptable solution. The Privacy Commissioner considered the complaints well-founded but held the files open while monitoring the departments' pursuit of a solution.

In January 1999 Justice instructed the courts to stop collecting the addresses of the divorcing parties on the Registration of Divorce forms, effective February 1. Once the stock of old forms is exhausted, the replacement will not ask for addresses. Although the database will continue to include the address field (which would be costly to remove at this point), there will be no information to enter. The field will be removed during a proposed future redesign of the system.

HRDC took our point that information on pension splitting need not be personally addressed. It has now produced a fact sheet, explaining CPP credit splitting rights, which it provides Justice for distribution to provincial courts. The court simply adds the fact sheet to the envelope containing the divorce judgement. An added benefit: HRDC anticipates substantial cost savings from the new scheme.

Volunteered DNA samples and analysis destroyed A complaint that appeared routine on its surface touched an issue which the Office has pursued since 1996; destruction of DNA samples volunteered during police investigations. Although the complaint itself was not well- founded, it contributed to the Commissioner's efforts to have the RCMP establish a national policy to destroy volunteered DNA samples (and any analysis), once the volunteer is eliminated as a suspect.

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The Commissioner has consistently urged police to destroy volunteered DNA samples. In fact, he is not at all comfortable with asking people to "prove their innocence", a procedure which stands our legal process on its head. Nevertheless, those who do volunteer to help police investigations deserve stringent protection.

The case stemmed from an RCMP investigation of several sexual assaults in Vermilion, Alberta, in 1996. As part of its investigation, the local RCMP detachment asked approximately 400 males in the community to volunteer samples for DNA analysis to match against evidence from the crime scenes. There was considerable community pressure on men to comply.

The complainant, a Vermilion resident who had first refused, then reluctantly provided a blood sample, subsequently sought access to information about the DNA sample in RCMP files. He also wanted to know whether the information was in any other DNA databanks under provincial or federal control.

The RCMP refused access because it gathered the information while acting as a municipal police force in Vermilion. The Privacy Act prevents the force from disclosing any information it gathers while "performing policing services for a province or municipality" if the province or municipality asks for confidentiality (subsection 22(2)). Four provinces, British Columbia, Saskatchewan, Manitoba and Nova Scotia, have waived confidentiality in these cases, allowing individuals to seek access under federal law.

This puts complainants in a Catch 22 situation—although Alberta has a broadly similar privacy law covering provincial operations, the province argues that its law does not cover the RCMP even when providing provincial or municipal policing services. Effectively the personal records are out of the reach of any interested applicants unless provincial authorities give the RCMP permission.

When the man's request arrived at RCMP's Ottawa headquarters, privacy unit staff asked the Vermilion detachment for the information. The detachment advised that the sample had been destroyed. Rather than simply telling the applicant so, the RCMP then refused him access to the information citing the policing exemption. The man then complained to the Privacy Commissioner. However, the issues in this case reached beyond denial of access—to the RCMP's right to keep the information at all.

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The Commissioner's investigator spoke to the police officer who had no objection to the man knowing that his sample had been destroyed and that he was not a suspect. This should have resolved the complaint—the man could get the information he wanted, the Commissioner would know that the information had been destroyed, and the RCMP would maintain the legal exemption. However, the RCMP advised that it would continue invoking the exemption. Office management then intervened with the RCMP, which agreed to have its investigating officer tell the man what had happened to the sample.

But, more important, was the police officer's confirmation that while the sample had been destroyed, the autoradiograms (the visual representation of the sample) computer printouts, work notes and lab reports would remain on file until a suspect was tried and convicted. The RCMP Commissioner wrote to confirm that the material is not put in any electronic database; however, it does become part of the overall investigative case file which is used "as required for disclosure, court and appeals".

It appeared that a volunteer had fewer rights that someone whose sample had been obtained by warrant (and therefore with some grounds for suspicion). It is RCMP policy to destroy a DNA sample obtained under warrant—and the analysis of the sample—once the person is eliminated as a suspect.

Neither the complainant nor the Commissioner was happy.

The Commissioner wrote again to the RCMP Commissioner, reiterating his position on volunteered samples and seeking a consistent national policy on their destruction. The complaint was held open. Several meetings, telephone calls and e-mails later, and following on-again-off-again notices of destruction, the RCMP confirmed that all the man's information had been purged. But it would still not tell the applicant so.

Frustrated, Office management asked the Alberta Department of Justice to waive its confidentiality agreement with the RCMP in this case, allowing the police to confirm for the complainant that all the information had been destroyed. Alberta agreed.

Finally, in August 1997, the RCMP amended its operational policy to require that "voluntary samples of bodily substances and the resulting DNA

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information will be destroyed if the innocence of the contributor is established".

Although the Commissioner considered the complaint not well-founded (because legally the RCMP is prohibited from disclosing provincial and municipal policing information), its impact was substantial. Both the RCMP and any future volunteers can take some comfort from the resolution—a reassurance that DNA samples and analysis which establish their innocence will not find their way into police files.

The cases remain unsolved.

Employment insurance investigators examine old passports—and a good deal more An added wrinkle to the continuing saga of the Customs-EI datamatch (see page 84) was a complaint by a Québec man that an employment insurance (EI) investigator had obtained his expired passport from Foreign Affairs to track his trips out of the country.

This was just the tip of the iceberg. When the EI investigator was notified of a February 1995 "hit", she asked for a credit report from Equifax from which she determined the man had credit cards from three banks. She faxed requests for information to the banks and received detailed listings of credit card purchases for the period. The reports identified payments to travel agencies and purchases made outside of Canada.

Following another hit on a December 94-January 95 trip, she asked two travel agencies for information about any trips they had arranged for the complainant. She also faxed Foreign Affairs, asking for his expired passport. The Passport Office sent the passport, asking the EI investigator to return it to the complainant, once she was finished with it.

The immediate question was why Foreign Affairs had an expired passport; normally they are voided and returned to the traveller. According to the Passport Security Section, the department keeps passports when they are seized abroad, when they are issued but not picked up, when they are used to illegally assist aliens abroad, and when a new passport is issued before the old one expires. (Apparently some countries require travellers to hold a passport three to six months before they enter.) How long Foreign Affairs holds a passport would depend on which of the circumstances apply.

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There was nothing unusual in the complainant's computer file to explain why it was kept. The file indicated that a new passport had been issued and the old one cancelled.

Foreign Affairs staff could not explain why it instructed HRDC to return the passport to the man once the EI investigation was finished. It was evident that Foreign Affairs staff had not followed its policy of channelling all such investigative requests though its Access and Privacy (ATIP) unit. ATIP staff used the incident to remind passport staff to follow the procedure. A more important question was whether it was wrong to disclose the passport to HRDC. The Commissioner concluded that Foreign Affairs was faced with a request citing broad investigative powers in another act of Parliament. They could not be faulted for giving up the document.

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Whether HRDC should have matched its EI database with returning travellers' Customs declarations—the process that led to it gathering all the information—is the issue now before the Federal Court.

Lost birth certificate just tip of iceberg A Montreal lawyer complained to the Commissioner that the Immigration Refugee Board (IRB) had not only denied his client access to her personal information but also not returned her original birth certificate. The investigation revealed several problems, not just with the original request, but with IRB's handling of its records.

The lawyer asked for any correspondence and notes from the refugee claim officer concerning authentication of his client's birth certificate. The woman had applied for refugee status and IRB began an informal hearing (an accelerated process). When IRB decided to have her birth certificate authenticated by Citizenship and Immigration Canada (CIC), it advised her that this would mean reverting to the regular hearing process.

After several months passed, the lawyer asked what was happening. The officer confirmed that he had sent the birth certificate to be authenticated. The lawyer then submitted the formal privacy request. IRB provided the 26- page refugee claimant file but found nothing in the officer's files. The file did not refer to the original birth certificate. The lawyer found it hard to believe that there were no relevant records and lodged the complaint.

The investigator had many discussions with both staff of IRB and CIC, all of whom maintained that verification was still underway. IRB insisted the birth certificate had not been returned. Shortly afterwards, during the hearing, the birth certificate was returned—it had been found in one of IRB's files. Frankly suspicious, the investigator asked for access to all the original files to track the path of the found birth certificate. IRB produced two files, a master file for the presiding member of the hearing, and a duplicate set. The files contained no notes, no administrative information or tracking activities. However, they did contain a memo from CIC declaring the birth certificate fraudulent—the memo was almost a year old. There was no authentication report and no indication of where the original had gone.

Other problems surfaced during the investigator's review. Apparently the case had been transferred to another claim officer more than a year before but no one told the investigator. Prior to the transfer, the claim officer had 59 690

purged the file of notes and comments that could prejudice the refugee's claim when transferred to another officer. This made it impossible for the investigator to confirm whether relevant information had been in the file that might have been germane to the original request.

The original officer denied knowing that the birth certificate had been found and returned to the owner, nor could he explain how it could have happened. Some of the problems seem to have stemmed from his having set up his own informal process of having CIC authenticate documents. Since he had no tracking system in place, he had accumulated several original IDs which he could not match to their rightful owners because he could not read the language.

The Commissioner agreed that the complaint that access was improperly denied was well-founded. He was particularly concerned about IRB's practice of routinely destroying staff's handwritten notes and observations. Whether an organization should retain notes can be determined by their intent. If notes are used to make an administrative decision—in this case, to determine whether a refugee claim should be accepted—they should be retained. Not to do so removes critical information from the reach of the individual and violates their privacy rights.

The Office is continuing to follow the matter with IRB to ensure it takes corrective action.

National Defence casts solicitor/client cloak over entire Board of Inquiry One of this year's cases illustrated the problem the Office encounters when organizations cast legitimate exemptions far too broadly. A case in point was National Defence's use of the solicitor/client exemption (section 27) to refuse a Force’s member access to the entire proceedings of a Board of Inquiry into the complaints.

The member had a lengthy dispute with National Defence (DND) over its handling of allegations of medical neglect and harassment. The complainant made repeated access requests for medical information and had been given volumes of material including, at one point, an opportunity to review the entire file. But as the dispute escalated, the member filed a redress of grievance which included a substantial monetary claim against National Defence.

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Given the size of the claim, the department treated the grievance as a claim against the Crown. It established a Board of Inquiry to gather evidence, a process that ran parallel to the grievance procedure. The member was called to appear, then sought access to the Board file (about 2300 pages). DND denied all the records because, it argued, the Board's entire proceedings— except the findings and recommendations—were protected by solicitor/client privilege.

The Commissioner could not accept this broad an application of the exemption. The proceedings were a fact-finding exercise, not unlike an administrative investigation. Disclosing the information would not reveal any of the Crown's strategy or analysis or privileged information between the department and its solicitors. It seemed inherently contradictory for the complainant to be called to testify before proceedings over which the "other side" then cast a blanket of solicitor/client privilege. And if the complainant decided to pursue civil action, much of the material would have to be disclosed.

Lengthy negotiations ensued. The Office asked National Defence to use its discretion to disclose all the factual records and withhold only those consisting of legal advice. DND argued that there was a legal precedent that waiving solicitor/client privilege over one document meant effectively waiving privilege over everything. Seemingly at an impasse, the Commissioner wrote to the Deputy Minister.

DND rejected the Office's contention that the process was an administrative hearing to ensure a harassment-free workplace and a safe and healthy work environment. The member had been relieved of military duties for some years and was being released for medical reasons. Rather than seeking to improve the working environment, DND argued, what the member wanted was substantial compensation for the alleged mistreatment. The Board was constituted to gather "evidence that will be useful in instructing the Crown solicitors and counsel" about the validity of the member’s claim. "The information was necessary to provide a legal opinion as to the Crown liability and ...form an integral part of the litigation brief", the DM wrote.

Nevertheless, DND agreed to provide copies of the member’s own testimony and all those dealing with harassment, as well the medical file and other material already received. DND agreed to waive solicitor/client privilege over the vast majority of the Board's proceedings to settle the case.

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How did they get my name? Rule out Canada Post That perennial question we demand of our mailboxes got no satisfactory answer in one case despite the willing cooperation of everyone from Canada Post, the Canadian Direct Marketing Association (CDMA), list brokers and a direct marketer.

An Alberta university student who had seen the Privacy Commissioner on CBC's Coast to Coast, wrote about some curious mail his grandmother received from California. In Edmonton attending law school, the student had addressed some of his mail to his grandmother in Calgary using a Ukrainian term of endearment. The address included neither her given nor family name. About two years later, his grandmother began receiving quantities of unsolicited mail from California addressed to her correct given name but substituting the term of endearment for her family name—the equivalent of "Mary Grandma"!

Since only he and close family members used the term, and his grandmother certainly never referred to herself formally that way, the student concluded that only Canada Post could have been the source. The investigator went on the trail of the mail.

Canada Post denied scanning names and addresses on mail. First it does not have the equipment to record the information of everyone receiving mail. And, second, the information gathered would have no value for either the post office or direct marketers—the individuals would be such a large and undifferentiated group that they could not be effectively targeted for sales and services.

In the meantime, the grandmother received another solicitation with the odd name, this time from Rehandart Canada Ltd., which represents those who paint with their mouth and feet. The investigator asked CDMA whether they had any suggestions. CDMA was intrigued by the coupling of the given name and the endearment and offered to follow up with the U.S. Direct Marketing Association. The investigator wrote to Rehandart, which although not a CDMA member, was happy to identify the list broker from which it bought the addresses. The broker identified the list manager who, in turn, identified the source from which the information was drawn—a mail order company selling pantyhose and lingerie.

The list manager offered to remove the name and to determine when the purchase was made and the name entered on the list. He confirmed an order 62 693

was made in the incorrect name for a free pair of panty hose, followed by an unpaid order for several pairs. The woman confirmed placing a single order under her correct name (the cheque had cleared) but she returned the solicitation for the larger order under the incorrect name. The company's database included her correct date of birth, telephone number and size, but not the correct name.

Rehandart's list broker found the woman's proper name in the "Lifestyle Selector" list, which is assembled from warranty cards. The trail finally ran dry in the United States where the "Cash Disbursement Centre" (a lottery company) in Laguna Hills, California, did not respond to two CDMA requests for its list source.

It was clear that the information had not come from Canada Post—there was no evidence that it had, and list brokers, managers and the CDMA were unanimous that it did not sell such lists. The Commissioner appreciated the private sector's substantial efforts to help.

Where do they get our names? From us—virtually every subscription, catalogue purchase and warranty registration we complete gets captured in a list somewhere. If you do not want to be on direct marketing lists, say so clearly when you make the purchase. Most reputable companies will respect your request. If you want to get off current lists of CDMA members, write to:

Do not mail-do not call CDMA 1 Concorde Gate, Suite 607 Don Mills ON M3C 3N6

Harassment investigation notes missing in action Sometimes the personal animosities that prompt harassment charges spill over into a department's handling of the access requests that inevitably follow.

In one such case an employee filed several complaints that Environment Canada denied her access to records about her performance and qualifications. She had also asked for any documents about the department's handling of a harassment complaint she had filed, as well as those concerning the decision to declare her position "affected" (ie: surplus). The harassment charges stemmed from management's response to her allegations of 63 694

irregularities in job classifications, charges the department refused to mediate with the Public Service Commission.

One complaint cited missing witness statements and interview notes gathered by an independent contractor hired to investigate her harassment charges. Also missing were documents from the files of one of two managers she had named in her access request.

The privacy investigator confirmed that most of the hand-written witness statements appeared to be missing from the department's files where they should have been deposited. The contractor insisted that he had given them all to the department, and a witness confirmed having seen them. But only the unsigned typewritten statements could be found. The complainant wanted to see the signed originals rather than the subsequent typed versions.

The investigator also noted that pages appeared to be missing from the information the woman had been given, but with no accompanying explanation. Apparently the contractor had received the incomplete information from one of the managers. The investigator's request for the missing records met a frosty reception from the manager. During a verbal

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tussle, he claimed that the information and the accompanying file (which he showed to the investigator but did not allow him to examine) were his personal notes. He threatened to destroy them if the woman sought access. Since he was just a few months away from retirement, he argued he had nothing to lose and there would be no proof that he had done so.

The investigator cautioned him that "personal" or not, the information was a departmental record and covered by the Privacy Act. This is often a revelation to government employees. But information public servants gather during their employment for a work-related purpose, is a government—not a personal record. The investigator advised the man to seek legal advice before taking the risky and illegal step of destroying the documents. Although a more senior manager confirmed the investigator's assertion, and staff undertook to get the information, the advice seemed to fall on deaf ears. The investigator was later told that the manager had "lost his file".

This response landed the matter on the assistant deputy minister's (ADM) desk. The manager's office and computer were searched, as was the entire floor in case boxes of his records had been misplaced during a recent move. Although some original records and hand-written notes were found, the investigator could not confirm that it was all the material in the manager's file. The ADM then met the manager to underline his legal obligation to produce the records.

Finally, the man swore an affidavit stating what documents were in his possession at the time of his meeting with the investigator, and that he had not destroyed any documents about the whole affair. Unfortunately this was too little too late; the department should have reviewed the material and disclosed much of it long before in response to the woman's original request.

The investigator then pursued the trail of the signed hand-written witness statements. The contractor insisted he had given them all to the department. When several interviews with staff led nowhere, Office management sought a meeting with the deputy minister. This prompted another search which produced the 20 hand-written statements, as well as the notes the contractor took during his interview with the complainant. The department processed the material and sent it to the complainant almost four years after her first request.

The department was clearly wrong when it maintained it had given the woman all the records to which she was entitled; it had not approached an 65 696

obvious source whom the woman named in her request. And the contractor had twice told the investigator he had no further information. Where the records lurked while the investigation was going on has never been established. Given the flawed response to her request, the need for the Office's repeated intervention, and the length of time it took to spring the records, the complainant can be forgiven for her dissatisfaction with the process. Also understandable is her continuing suspicion that other pertinent information exists.

Not surprisingly, the complaint was well-founded.

First spell it out—then get consent

Two complaints illustrate the importance of departments getting a person's clear consent before collecting personal information from or disclosing it to other organizations. Since the consequences for individuals can often be serious, they should be willing participants.

EI disclosure could threaten investigation and future employment A truck driver registered for employment insurance(EI) with Human Resources Development Canada (HRDC). He noted on the application form that he had quit because the company demanded he work more than the maximum hours allowed by provincial law. He had also filed a detailed complaint with the provincial Ministry of Transport, which agreed to treat his complaint as confidential. MOT advised that they would audit the company.

An employment insurance officer telephoned the applicant to ask for proof of his allegations, along with all correspondence between him and the Ministry of Transport. Then she told him that she would be contacting his former employer.

He explained to the officer at length the problems with contacting his former employer—disclosure could impede the Ministry of Transport audit and risk his being blackballed in the trucking industry. He refused to provide any more information before consulting both his lawyer and his Member of Parliament. She advised that without the information she would disqualify his claim.

Three days later, the EI officer (who has a 14-day deadline to process insurance applications) contacted his former employer. The department 66 697

initially denied him employment benefits for quitting "without just cause". The man appealed and a board of referees overturned the decision.

The Employment Insurance Act authorizes HRDC to collect information to establish that applicants are entitled to benefits. In the interest of procedural fairness, it must also give both employees and employers an opportunity to give their account of the facts. At the application stage, employers are asked for their version of events and asked to agree with or refute the employees' statements. If decisions are appealed, all interested parties receive all the documentation the board will consider.

Although the truck driver did not tell the EI officer in so many words to stop processing his application, the Privacy Commissioner considered that he had explained forcefully enough to the insurance officer that this was a special situation. She should have suspended the process until she spoke with the Ministry of Transport about its audit, and had clear direction from the driver that he was ready to proceed with his claim—and suffer the possible consequences.

The Commissioner concluded that the complaint was well-founded because the department had failed to adapt its search for facts to the circumstances of the case (as its own policy requires), and disclosed information to his former employer without his consent. The Commissioner was also interested in preventing similar occurrences. The investigator is pursuing changes to HRDC procedures, which would allow EI claimants to withdraw or suspend their applications, and to the EI application form itself to make it clear that by signing, claimants are authorizing contact with the former employer.

HRDC undertook in the short term to issue a bulletin advising staff to ensure clients are aware that former employers are contacted. HRDC is also considering revising its EI brochure and application form to make this clear. As we go to press, neither bulletin nor revisions have appeared.

IRB needs clear consent for criminal checks on refugees A refugee applicant found herself in somewhat similar circumstances after Citizenship and Immigration Canada referred her claim to the Immigration Refugee Board. She completed the required paper work and, after an initial delay, hired a lawyer. A refugee claim officer reviewed her application and recommended a full risk assessment to the presiding board member. Assessments are done to determine what, if any, danger exists for the applicant if returned to the country of origin. The board member rejected 67 698

the recommendation because the woman was applying from the United States. It would be unusual for IRB to conduct risk assessments from friendly nations; a criminal records check was considered sufficient.

IRB advised the woman's lawyer that it would conduct the check and asked whether there were any objections. Unfortunately the lawyer withdrew from the case a week after receiving the notice and did not object. Hearing nothing, IRB asked the RCMP to do the records check. The woman did not find out until she retrieved the files from the lawyer two months later. She was very upset and complained that by asking the RCMP to conduct the check, IRB had alerted the U.S. Federal Bureau of Investigations (FBI) to her whereabouts, thus compromising her safety.

The investigator found that the RCMP had responded to the IRB request by checking its own records, not the FBI database. The information appeared in the RCMP database because CIC had asked for a similar check before transferring her case to IRB. At that point, the RCMP had asked for FBI help. The Commissioner concluded that IRB had the right to ask for information from the RCMP and was not the source of the disclosure. The complaint was not well-founded.

However, the decision to proceed with the check without clear authorization from the woman was troubling. Interpreting silence to mean consent to collect more information could be very dangerous for some refugee applicants. The IRB needs to change its procedures to obtain applicants' active consent, and to allow them the option of withdrawing their application before IRB seeks more information. The Office will pursue the matter with IRB.

Disclosing third party's job performance out of line An employee quit her job at one of Correctional Services Canada's training centres, citing the intolerable working situation. She applied for employment insurance and named another employee who she said would substantiate her description of the working atmosphere.

CSC appealed the decision to grant her employment insurance. In an effort to discredit the other employee before the Board of Referees, CSC gave Human Resources Development Canada several documents criticising his absences and work performance, as well as the decision not to renew his contract.

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In fact, the man was never called as a witness so his credibility was not relevant. If CSC had needed to challenge his impartiality, it could simply have told the Board that it had not renewed the man's contract. Releasing the details prompting that decision was excessive. In the final analysis, disclosing the man's information may have harmed CSC's case, serving to confirm the tone of the work environment. The Board maintained the decision to grant the woman employment insurance.

The Commissioner considered CSC's disclosure a serious breach of the law. He acknowledged that since the documents had been disclosed, the damage could not be undone. However, CSC apologised to the man and arranged to have HRDC remove and destroy all the documents in its EI appeal files.

Husband's holiday schedule disclosed to verify wife's claim A Calgary man complained that Canada Post had disclosed his vacation schedule to the Workers Compensation Board (WCB) which was investigating his wife's continuing disability claim.

The wife, also a Canada Post employee, was on extended disability after having been robbed at knifepoint several years before. She had developed several symptoms including acute anxiety, agoraphobia and panic attacks which—despite Canada Post's substantial efforts to modify her job— prevented her returning to work. The woman claimed she could not leave the house except in the company of family or friends.

The extended—and apparently worsening—disability and escalating claim prompted WCB to hire a private investigator to keep the woman under surveillance (including videotaping her activities). As part of its investigation, WCB asked Canada Post to provide the husband's vacation schedule to observe her during family holidays.

Canada Post is obliged to co-operate with provincial WCB investigations and to provide the Board relevant information to administer claims. However, it must also ensure that any information it discloses to WCB—particularly about third parties—is relevant to the request. Although the WCB advised that only it could judge "relevance", Canada Post must also respect the Privacy Act. It collected the information to administer vacation credits and work schedules; disclosing it to WCB to investigate another person's claim was an entirely different purpose which the Commissioner did not agree was "relevant". He concluded the complaint was well-founded.

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Inquiries

Inquiries virtually levelled off to 10,313 this past year. However, some subjects generated increasing interest, among them were the Social Insurance Number, access to the 1911 census, the Firearms Registry and Bill C-54—the private sector data protection bill. The court's decision on Revenue Canada's disclosure of travellers' customs declarations (see page 84), prompted many calls wanting to know the implications for both individual complainants and the future of the match. The government has appealed the decision.

Calls about the Social Insurance Number almost doubled, prompted perhaps by the Auditor General's critical analysis of its administration, and his observations about its privacy implications (see page 19).

Beginning in December 1998, new purchasers of firearms and many current owners began receiving registration forms for the Firearms Registry. Many callers were worried about the extensive detail being sought, how the information was going to be used, and the security of the information in the registry. The Privacy Commissioner had discussed many of the questions with Senate and House of Commons Committees examining the legislation which created the registry. Neither the legislation or the subsequent regulations spell out the details so many of the questions remain unanswered—an unsatisfactory situation for gun owners and Privacy Commissioner alike.

The following table breaks down the inquiries into broad categories.

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Inquiries by Type

Privacy Act, interpretation & process 4399 No jurisdiction, federal 275 No jurisdiction, private sector 503 Redirect to provincial commissioner 885 Redirect to other federal agency 226 Redirect to other 97 Social Insurance Numbers 819 Financial inst., insurance, credit 383 Telecommunications 127 Telemarketing, direct mail 80 Criminal records, pardons, U.S. waivers 142 Medical 79 Adoption, genealogy, missing persons 108 Other 405 Public Affairs (media, publications) 1775 TOTAL 10303 Inquiries 1988-99

12000

10331 10303 9657

10000 9217 9083 8688

8000

6000 5184 4671 4032 4000 3447

2041 2000

71 702

Top Ten Departments by Complaints Received

Grounds Institution TOTAL Access Time Privacy Human Resources Development Canada 1028 50 65 913 Correctional Service Canada 672 178 455 39 Revenue Canada 665 58 127 480 National Defence 180 50 108 22 Immigration and Refugee Board 121 23 74 24 Royal Canadian Mounted Police 103 73 12 18 Citizenship and Immigration Canada 64 26 33 5 Canadian Security Intelligence Service 48 33 12 3 Canada Post Corporation 29 8 6 15 Justice Canada 28 10 7 11 OTHER 167 80 44 43 TOTAL 3105 589 943 1573

Completed Investigations by Grounds and Results

Disposition Well- Well- Not Well- Discon- Resolved Settled Total Grounds founded founded; founded tinued Resolved Access 10 86 303 47 30 218 694 Access 10 84 293 38 29 211 665 Correction/Notation 0 2 10 9 0 5 26 Inappropriate Fees 0 0 0 0 0 1 1 Index 0 0 0 0 0 0 0 Language 0 0 0 0 1 1 2 Privacy 43 6 60 27 13 67 216 Collection 15 0 15 6 4 2060 Retention & Disposal 1 0 5 1 0 6 13 Use & Disclosure 27 6 40 20 9 41 143 Time Limits 908 3 57 18 0 29 1015 Correction/Time 25 0 0 0 0 18 43 Time Limits 873 3 45 17 0 11 949 Extension Notice 10 0 12 1 0 0 23 TOTAL 961 95 420 92 43 314 1925

72 703

Investigations Completed by Grounds

Use and Disclosure 7.4%

Access 34.5%

Collection Time Limits Retention and 3.1% 49.3% Disposal 0.7% Correction/Notation 1.4% Language Correction/Time 0.1% Limits Inappropriate Fees 2.2% Extension Notice 0.1% 1.2%

73 704

Completed Investigations and Grounds 1989-1999

1200

1000

800

600

400

200

0 89-90 90-91 91-92 92-93 93-94 94-95 95-96 96-97 97-98 98-99

Privacy Access Time Limits

74 705

Complaints 1989-1999

3500

3000

2500

2000

1500

1000

500

0 89-90 90-91 91-92 92-93 93-94 94-95 95-96 96-97 97-98 98-99

Received

Completed

Under Investigation

* The chart reflects minor adjustments to 1996-97 to 1997-98 count

75 706

Completed Investigations by Department and Result

Department Total Well- Well- Not well- Discon- Resolved Settled founded founded; founded tinued Resolved Agriculture and Agri-Food Canada 3 1 1 0 0 0 1 Atomic Energy Control Board 1 0 0 0 0 0 1 Bank of Canada 1 0 0 0 0 0 1 Canada Mortgage and Housing Corp. 1 0 0 0 0 0 1 Canada Ports Corporation 1 0 0 0 0 0 1 Canada Post Corporation 35 3 2 13 0 3 14 Canadian Heritage, Department of 2 0 0 0 0 0 2 Canadian Human Rights Commission 3 0 1 1 0 0 1 Canadian Security Intelligence Service 48 8 4 19 0 0 17 Citizenship and Immigration Canada 60 16 10 13 3 4 14 Commissioner of Official Languages 1 1 0 0 0 0 0 Correctional Service Canada 679 424 13 147 35 18 42 Environment Canada 24 10 4 10 0 0 0 Farm Credit Corporation Canada 4 1 1 1 1 0 0 Fisheries and Oceans 5 3 0 0 1 0 1 Foreign Affairs and Int. Trade Canada 11 1 1 5 0 0 4 Freshwater Fish Marketing Corp. 1 0 0 1 0 0 0 Health Canada 10 4 1 3 1 0 1 Human Resources Development 141 45 6 13 12 0 65 Immigration and Refugee Board 123 86 5 9 0 0 23

76 707

Completed Investigations by Department and Result (cont'd)

Well- Well- Not well- Discon- Department Total founded; Resolved Settled founded founded tinued Resolved Indian and Northern Affairs Canada 1 0 0 0 0 0 1 Industry Canada 6 0 1 2 2 1 0 Justice Canada, Department of 45 3 6 20 7 2 7 National Archives of Canada 9 1 0 1 1 0 6 National Defence 246 168 12 28 1 3 34 National Parole Board 19 5 0 6 1 2 5 Natural Resources Canada 6 0 2 2 0 0 2 Office of the Chief Electoral Officer 1 0 0 1 0 0 0 Privy Council Office 9 5 0 3 1 0 0 Public Service Commission of Canada 21 8 2 3 4 1 3 Public Works and Govt. Services 12 6 1 2 0 0 3 RCMP Public Complaints Commission 6 0 0 4 0 1 1 Revenue Canada 241 148 14 46 9 0 24 Royal Canadian Mounted Police 98 5 5 43 10 1 34 Solicitor General Canada 8 0 0 7 0 1 0 Statistics Canada 20 4 1 8 0 6 1 Transport Canada 10 4 2 4 0 0 0 Treasury Board of Canada 2 1 0 1 0 0 0 Veterans Affairs Canada 11 0 0 4 3 0 4

TOTAL 1925 961 95 420 92 43 314

77 708

Origin of Completed Investigations

Newfoundland 12 Prince Edward Island 3 Nova Scotia 77 New Brunswick 23 Québec 631 National Capital Region - Québec 13 National Capital Region - Ontario 180 Ontario 442 Manitoba 54 Saskatchewan 101 Alberta 78 British Columbia 299 Northwest Territories 0 Yukon 0 Outside Canada 12 TOTAL 1925

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Update: Privacy Protection in Canada

British Columbia

This year the B.C. Information and Privacy Commissioner developed a series of practical tools to help organizations assess the effects of proposed new technologies or activities on individuals' privacy, and how to mitigate any adverse effects. The documents—Privacy Impact Assessment, Personal Information Exchange Agreement, and Guidelines for Completing an Information Access Research Agreement between a Public Body and a Researcher are available on the B.C. Commissioner's web site at www.oipcbc.org.

In September 1998 the Commissioner released a report on the collection and disclosure of personal information between health care providers and policing agencies under the BC Freedom of Information and Protection of Privacy Act. Following the government's appointment of the Advisory Council on Health Infostructure, the B.C. Commissioner (and other privacy commissioners) addressed the council on the privacy of health information in electronic environments.

Dr. David Flaherty, British Columbia's first information and privacy commissioner, will finish his six-year non-renewable term on July 31, 1999.

Saskatchewan

The provincial legislature passed the first health information privacy law in Canada, May 9, 1999. The Health Information Protection Act legislates rights of individuals and obligations of the "trustees" in the health system concerning personal health information (see also page 17).

Manitoba

The Manitoba Ombudsman's Office was designated the independent reviewing agency for access and privacy rights under The Personal Health Information Act (PHIA) and The Freedom of Information and Protection of Privacy Act (FIPPA). FIPPA has applied to the City of Winnipeg since September 1998, and is expected to be proclaimed for other local public bodies (educational, health care, and local governments) in 1999. PHIA covers persons who collect or maintain personal health information and are health professionals (either regulated by an act of the legislature such as nurses, doctors, 79 710

therapists, or designated by regulation); health care facilities (such as hospitals, personal care homes, laboratories); public bodies; health care agencies; and community health centres or other community-based health service designated by regulation.

Although complaint investigation remains a major focus of the Ombudsman's new Access and Privacy Division, its role has broadened to include auditing, monitoring, and ensuring general compliance with the acts.

In March 1999 the provincial government announced public consultations on protecting personal information in the private sector and released a discussion paper. Public meetings were scheduled for April and May 1999. The deadline for written submissions is September 30, 1999. The discussion paper notes that federal Bill C-54, the Personal Information Protection and Electronic Documents Act (which will cover the federally regulated private sector) is expected to be passed by Parliament in 1999.

Québec

During the past year, the Commission d'accès à l'information du Québec studied : 1. follow-up by 22 provincial agencies to the Commission's 23 general and 192 specific recommendations made during the previous five years, and 2. security measures taken by provincial agencies to ensure the confidentiality of personal information under their care.

The Commission tabled two reports on the above in the Québec provincial legislature:  Un défi de taille: conjuger la protection des renseignements personnels et les pratiques administratives;  La sécurité des renseignements personnels dans l'État québécois au printemps 1998: une démarche bien amorcée.

The first report concluded that the Commission's recommendations had had very little impact on the workings of the provincial agencies. A follow-up to this report indicated that over half of the recommendations had now resulted in some changes.

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The second report resulted from a self-audit by 89 provincial agencies. The results indicated that more than half the agencies provided no training to their staff on the proper method of protecting personal information. The Commission made a number of recommendations and plans a follow-up in the fall of 1999.

The reports are available on the Commission's Internet site at www.cai.gouv.qc.ca. —and Elsewhere

European Directive in Effect

The European Union data protection directive came into effect in October 1998. The directive obliges member states to ensure that personal information about European citizens is protected when it is exported to, and processed in, countries outside Europe.

Some controversy has arisen over the directive's articles dealing with flow of personal data across international borders. In essence, EU members cannot transfer residents' personal data to a non-member state that does not provide "adequate" protection. Canada is one such country. However, the anticipated passage of Bill C54 should make us one of 40 nations that have adopted or are preparing to adopt laws to protect the privacy and integrity of personal consumer data.

The United States has resisted the tide and developed a set of "Safe Harbor" principles in an attempt to meet the directive's requirements. The principles essentially amount to self-regulation and impose elaborate procedures on consumers wanting to pursue violators. The EU responded last fall to the plan by agreeing not to disrupt data flows to the U.S. while negotiations are under way. As we go to press, the U.S. and EU have failed to reach an accord but negotiations continue.

Study reveals frontline employees uninformed Evidence is mounting about the need for legislation to protect personal information in the private sector, online and off.

A recent study by Ottawa-based Public Interest Advocacy Centre and the Consumer Action Network, based in Montreal, examined the level of 81 712

awareness and knowledge of privacy laws and codes by frontline employees of services Canadians use every day: retail stores, financial institutions, transportation companies, and pharmacies. The conclusions are revealing. The researchers found that, despite companies having been subject to privacy codes and laws (in the province of Québec) for several years, customers get different answers about their rights and the company's responsibility for their personal information, depending on whom they ask—and who was asking. The study compared the responses to those given to "mystery shoppers" with those given interviewers who identified themselves, and explained the purpose of the questions. Employees were far less accurate with the unidentified callers, arguably the average customer. No less disturbing is the considerable disparity in staff awareness among the different sectors. Bank employees fared better overall, a finding the study attributed to banks' "significant and ongoing training".

Copies of the 58-page The Personal Data Protection and Privacy Review are available from the sponsors.

Privacy Web Seals—Less than meets the eye? A recent outbreak of self- regulatory schemes designed to encourage people to participate in electronic commerce is less about protecting privacy than creating a niche in a lucrative market.

For example, the Canadian Institute of Chartered Accountants has developed CAWebTrust that purports to protect people when they provide information online. The Council of Better Business Bureaus has its BBBOnline seal and, as we reported last year, there is the TRUSTe seal. Others will surely follow.

Using a seal of approval on a web site raises several questions; the most obvious being, how does a member of the public determine which seal is the result of a legitimate assessment of a company's information practices, and which is not? What is to prevent a non-compliant company from simply copying the seal's image from another company's web site and posting it on their own site? This would place a huge burden on someone visiting different Web sites to verify that each site's seal is current, that it has not been revoked and, if revoked, that it had been removed.

There are a several reasons not to rush to embrace self-regulation. The number of on-line privacy violations in the past year is evidence enough. For example, the U.S. Federal Trade Commission investigated several complaints that GeoCities, one of the Web's most popular sites, had turned over 82 713

confidential consumer data—including about children—to Web advertisers. The disclosure broke its promise of confidentiality to site visitors and TRUSTe which had granted GeoCities its seal. The FTC reported "this company misled its customers, both children and adults, by not telling the truth about how it was using their personal information".

GeoCities is a member of both TRUSTe and the Online Privacy Alliance, a coalition of business and trade groups that promotes self-regulation as the answer to online privacy concerns. The incident is certainly an embarrassment: as TRUSTe observed "[f]or us, it's our nightmare; this is exactly what we don't want happening". In August, GeoCities agreed to settle FTC charges that it misrepresented the purposes for collecting visitors' personal information. It agreed to post a clear and prominent privacy notice and to seek parents' consent before collecting information from children 12 and under.

Geo Cities is not an isolated example. Consumer fears that they are not well protected on-line are well founded. In the past year, Yahoo Inc., AT&T Corp. and Nissan Motor Co. Ltd. were all reported to be leaving personal data unprotected on their sites, or mistakenly e-mailing personal information to other customers. Microsoft was recently reported to be collecting data on users who had expressly requested anonymity. Even the popular Air Miles Web site left about 50,000 files of Canadian customers unprotected. These examples should serve as a reminder that businesses big and small may not be guarding Canadians' personal data as well as they should.

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In the Courts

Robert Lavigne v. The Office of the Commissioner of Official Languages (OCOL)

The Federal Court has ordered the Office of the Commissioner of Official Languages (OCOL) to release to Mr. Lavigne personal information gathered by its staff during its investigation of his official languages complaint.

Mr. Lavigne had complained to OCOL against Human Resources Development Canada. Once the investigation was closed, he asked to see information about him in witness statements and interview notes in the investigation file. OCOL refused him access, arguing that disclosure would "be injurious to its investigation" (s. 22(1)(b) of the Privacy Act). Mr. Lavigne complained to the Privacy Commissioner who subsequently intervened in the court action to support Mr. Lavigne's request.

In his October 5, 1998 decision, Mr. Justice Dubé concluded that OCOL did not need to rely on assurances of confidentiality to perform its statutory role as an ombudsman. He also concluded that OCOL had not demonstrated that by disclosing his own personal information to Mr. Lavigne, it would injure this or future investigations. The Court also concluded that the s. 22(1)(b) exemption could not be invoked once the investigation was completed.

OCOL has appealed the decision and the Privacy Commissioner will intervene once again. At press time a hearing date has not been set.

Privacy Commissioner of Canada and the Attorney General of Canada

The Federal Court also supported the Privacy Commissioner's position that Revenue Canada could not legally disclose data from Canada Customs Travellers Declaration Card (form E-311) to Human Resources Development Canada to police the employment insurance program.

In her January 29, 1999 decision, Madame Justice Tremblay-Lamer found that Revenue Canada's disclosure of personal information from E-311 forms to the Employment Insurance Commission was not authorised by law. She considered the Revenue Minister's authorisation an invalid exercise of 84 715

discretion as it was not related to the purpose of the Customs Act and failed to consider the program in question. The government has appealed the decision to the Federal Court of Appeal.

In a second action, the Privacy Commissioner supported an individual complainant's case before an Umpire under the Employment Insurance Act. The Commissioner argued that searching every returning traveller on suspicion of defrauding employment insurance violates the protection against "unreasonable search or seizure" as well as the mobility rights of citizens under the Charter of Rights and Freedoms. The case has been heard but the judgment had not been rendered as we went to press.

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Corporate Management

The Privacy and Information Commissioners share premises and corporate services while operating independently under their separate statutory authorities. These shared services—finance, personnel, information technology and general administration—are centralized in Corporate Management Branch to avoid duplication of effort and to save money for both government and the programs. The Branch is a frugal operation with a staff of 14 (who perform many different tasks) and a budget representing 14 per cent of total program expenditures.

Resource Information

Although managers continually innovate to deliver services, the Offices' steadily reducing resources have hampered their ability to provide a quality level of service to the public. Treasury Board Ministers noted the impact of this resource and workload crisis at their April 1998 meeting and agreed to a comprehensive (or "A-base") review of the Offices' resource base during the 1998-99 fiscal year. The Board Secretariat is now assessing the report analysis and recommendations and aims to implement the needed adjustments during 1999-2000. The Commissioners anticipate the review's careful assessment of the Offices' resources, service standards and program delivery will resolve the ongoing financial crisis and upgrade its obsolete information systems.

The Offices' combined budget for the 1998-99 fiscal year was $8,128,000. Actual expenditures for 1998-99 were $8,084,150 of which personnel costs of $6,201,525 and professional and special services expenditures of $1,019,179 accounted for more that 89 per cent of all expenditures. The remaining $863,446 covered all other expenditures including postage, telephone, office equipment and supplies.

Expenditure details are reflected in Figure 1 (resources by organization/activity) and Figure 2, (details by object of expenditure).

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Figure 1 : 1998-99 Resources by Organization/Activity

Human Resources Financial Resources (Full-Time Equivalents) ($000) Privacy 3,624 (44%) Privacy 39 (45%)

Administration 15 (17%) Information Information Administration 2,995 (37%) 33 (38%) 1,509 (19%)

Figure 2 : Details by Object of Expenditure

Information Privacy Corporate Total Salaries 2,204,412 2,238,122 705,991 5,148,525 Employee Benefit Plan Contrib. 421,000 491,500 140,500 1,053,000 Transport & Communication 37,351 73,844 105,408 216,603 Information 19,330 43,567 3,907 66,804 Professional & Special Services 207,104 696,583 115,492 1,019,179 Rentals 4,593 5,415 19,402 29,410 Purchased Repair & Maintenance 738 1,995 27,989 30,722 Utilities, Materials & Supplies 24,521 18,428 39,693 82,642 Machinery & Equipment 27,758 58,847 350,287 436,892 Other Payments 224 106 43 373 Total 2,947,031 3,628,407 1,508,712 8,084,150

* Expenditure Figures do not incorporate final year-end adjustments reflected in the Offices' 1998-99 Public Accounts.

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Organization Chart

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A guide to the new private sector data protection bill

Beginning with his 1992-93 annual report the Privacy Commissioner has repeatedly urged governments to recognize that privacy rights should apply to public and private sector alike. Citing the explosion of computer technology, new advances in biotechnology and the blurring lines between the public sector (which has privacy laws) and the private sector (which does not), he encouraged the federal government to provide leadership.

In 1995 Canada's Information Highway Advisory Council called for flexible national privacy legislation based on the Canadian Standards Association (CSA) Model Code for the Protection of Personal Information. After public consultation, on October 1, 1998 the federal government introduced the Personal Information Protection and Electronic Documents Act (Bill C-54) in Parliament.

Part 1 of this act gives Canadians new legal rights when their personal information is collected, used or disclosed in the course of a commercial activity. The legislation addresses increasing public concerns over personal information practices of the private sector and establishes a new national privacy framework.

Part 1 will also help Canada meet new data protection standards set by the European Union that could otherwise hinder the flow of information to Canada. Quebec is currently the only jurisdiction in North America with a private sector data protection law that meets the EU requirements.

Parts 2 through 5 of the act facilitate the federal government's own use of electronic documents and establish a basis for the legal recognition of electronic documents and signatures. These elements of the act will further stimulate information highway growth and help achieve the government's stated goal of making Canada a world leader in electronic commerce by the year 2000.

When will Part 1 come into effect and to whom will it apply?

Part 1 comes into effect in two stages. Approximately one year after the act is passed, Part 1 will apply to companies subject to federal regulation such as banks, telephone companies, cable companies, broadcasters and 89 720

interprovincial transportation companies, with oversight by the federal Privacy Commissioner. It will also apply to a number of federal Crown corporations not currently subject to the federal Privacy Act.

In this first stage, Part 1 will also apply to some interprovincial and international data transactions, particularly commercial lease, sale or exchange of customer lists or other personal data.

The second stage begins approximately four years after Part 1 is passed. At that time, Part 1 will also cover all organizations regulated by provincial law unless provincial governments adopt similar legislation. In that case, any organization or activity covered by the provincial law will be exempt from the application of the federal law for activities within the province. The federal law will also apply to all interprovincial and international collections, uses and disclosures of personal information.

The federal government has stated that Quebec will be exempt from the federal law because Quebec's 1994 legislation covers the private sector and is substantially similar to Part 1.

The Privacy Commissioner will work closely with provincial governments and other interested parties to encourage the development of harmonized provincial statutes.

Part 1 contains a primacy clause which will mean that it takes precedence over subsequent acts of Parliament unless those acts specifically provide otherwise.

What types of information will be covered? Part 1 applies to all personal information about an identifiable individual regardless of form and collected, used or disclosed for any activity subject to the law, with some exclusions. For example, business related information such as name, title, address and telephone number of employees and information used solely for personal or domestic purposes is not subject to the act. Part 1 also excludes information collected, used or disclosed solely for journalistic, artistic or literary purposes.

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The CSA Code as a basis for personal information protection

Part 1 requires organizations to comply with the CSA Code (the principles of which are contained in Schedule 1 of the act). The code was developed through a collaborative process by business, consumer groups and government and is considered to be fair, balanced, and to reflect the legitimate interests of both business and consumers. Parliament will review the legislation, including Schedule 1, every five years after Part 1 comes into force.

Individual privacy rights and business obligations

The CSA Code establishes a minimum standard of personal information protection, based on universally recognized data protection principles. The following is an overview of individual privacy rights and business obligations under the CSA Code and Division 1 of Part 1 of the act. Anyone seeking more detailed information should consult the act.

Accountability Organizations are responsible for all personal information within their control and must identify individuals to oversee compliance with the act. This includes implementing policies and procedures, and training employees to protect personal information, as well as informing the public.

Organizations remain responsible when personal data is processed by third parties on their behalf and must use contracts or other means to ensure comparable protection.

Identifying Purposes Organizations must document purposes before they can use any personal information, including the use of previously collected information for a new purpose. Ideally, purposes should be specified to individuals at or before the time information is collected, but must always be specified before use. The purposes must reflect what a reasonable person would consider appropriate under the circumstances.

Consent Except for limited and defined circumstances, knowledge and consent are required for the collection, use, or disclosure of all personal information. Consent may be provided after collection, but, except in certain circumstances, must always be obtained before use. Purposes must be clearly stated and organizations must make a reasonable effort to ensure they are understood. The nature and form of consent must match the sensitivity of the data and the circumstances, as well as the individual's reasonable 91 722

expectations. Organizations cannot require consent to the collection, use or disclosure of information beyond that specifically needed for the specified and legitimate purposes.

Individuals can withdraw consent to information use at any time, subject to legal or contractual restrictions and reasonable notice. Organizations must explain any implications of withdrawing consent.

There are some instances where organizations may collect, use or disclose personal information that is subject to Part 1 without knowledge or consent.

Information may be collected without consent if doing so is clearly in the interests of the individual and consent cannot be obtained in a timely way, as well as some defined situations where seeking consent would compromise the availability or accuracy of the information.

Previously collected information can also be used for limited, specific purposes without knowledge and consent. These include investigations into breaches of agreements or violations of laws, life-threatening or similar emergencies, research or study that cannot be accomplished without using the information and where it is impractical to obtain consent, or where the information was collected without consent as described above.

There are similar defined circumstances where information can also be disclosed to third parties without knowledge and consent. These include disclosure to archival institutions and some government institutions. All personal information is subject to disclosure without consent either 100 years after the information was collected or 20 years after the death of the individual who is the subject of the information.

Limiting Collection The amount and type of information collected must be limited to what is necessary for identified purposes. All information must be collected by fair and lawful means.

Limiting Use, Disclosure, and Retention Personal information can only be used or disclosed for purposes for which it was collected, except with the consent of the individual or as required by law. Personal information must be retained only as long as necessary to fulfil the identified or required purposes.

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Organizations should develop guidelines and implement procedures for information retention. Information that is no longer required for identified purposes should be destroyed, erased, or made anonymous. Formal guidelines and procedures are required for such information destruction.

Accuracy Personal information used by organizations must be as complete, up-to-date and accurate as necessary for the required purposes, particularly when used to make a decision affecting an individual. Data provided to third parties should also be as accurate and up-to-date as possible, with limits to accuracy clearly specified and understood.

Personal information must not be routinely updated unless purposes specifically require this.

Safeguards All personal information must be protected against loss or theft, as well as unauthorized access, disclosure, copying, use or modification, with safeguards appropriate to the sensitivity. Organizations must take particular care in disposing of data to prevent unauthorized access, and must make employees aware of the need to maintain the confidentiality of all personal information.

Openness Organizations must provide the public with general information on their data protection policies and practices, including the name and title of the person responsible for compliance with Part 1, a general description of the types of personal data held by the organization and its use, and what data is provided to related organizations such as subsidiaries.

This information must be both easy to obtain and understand. Persons with sensory disabilities can request general information or their personal data in alternate formats if the information exists in this format or the cost of conversion is reasonable and the information is needed to exercise their privacy rights.

Individual Access Individuals have a right to examine their personal information and challenge its accuracy and completeness. Organizations must describe what personal information they possess, providing an account of how it is used, and third parties to which it has been disclosed. When it is not possible to list actual parties, a list must be provided of parties to whom the information may have been disclosed. Organizations must amend wrong or incomplete information, with the amended information transmitted to third parties where appropriate. Any dispute over amending a file must be 93 724

recorded by the company and details of the disputed data provided to third parties where appropriate.

If asked, organizations must also assist individuals to prepare a written access request. Any data provided to allow an organization to account for personal information use can only be used for this purpose.

Organizations must respond to access requests within 30 days unless there are reasonable grounds to extend the time limit. Individuals must be informed of any extensions and their right to complain to the Commissioner. A failure to respond within set time limits is deemed to be a refusal to respond to the request.

Any costs for personal information access must be directly related to copying costs and be reasonable in the circumstances. A charge may only be levied if an individual is informed in advance of the approximate cost and has agreed to proceed with the request.

When an organization refuses an access request, it must explain the reasons in writing and any recourse. All personal information subject to an access request must be retained as long as necessary for individuals to exhaust all available recourse under Part 1.

Part 1 also identifies a number of limited and specific circumstances where access to personal information can be denied to protect information used in investigations or legal processes, as well as to protect third party privacy rights. Organizations must inform the Commissioner concerning some types of information access refusals.

Challenging Compliance

Organizations must respond to all complaints or enquiries about their personal information handling practices and allow individuals to challenge their compliance with the Code. Every complaint must be investigated and appropriate measures taken to correct deficient policies and practices. Individuals must be informed of any further complaint resolution processes, including their right to contact the Privacy Commissioner.

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Filing complaints with the Commissioner

Individuals can file a complaint in writing to the Commissioner when they have failed to achieve a satisfactory response by dealing directly with an organization, or if they believe that a complaint cannot be resolved through such a process. Complaints can be made for any perceived violation of Division 1 of Part 1 of the act, or a requirement or a recommendation of the CSA Code (Schedule 1). There is no time limit for filing complaints, except for complaints about an organization's refusal to grant access to personal information. Access complaints must normally be filed within six months of the refusal. There is no cost for filing complaints.

Complaints investigation

All written complaints will be investigated. In addition, should the Commissioner believe there are reasonable grounds to investigate any other matter relating to personal information protection, he or she can initiate an investigation directly without a complaint. In all cases, the organization will be notified.

The Commissioner has powers to seek and examine any relevant information when conducting an investigation. All information about a complaint investigation is kept confidential by the Commissioner's office. However, the Commissioner may disclose information about an organization's information-handling practices if it is in the public interest to do so.

The Commissioner or a delegate can enter any premises (except a "dwelling place") occupied by an organization, at any reasonable time, examine and obtain copies of any relevant records, and converse in private with any individual on matters relevant to the investigation. There are fines for destroying information that is the subject of a complaint or for obstructing an investigation.

The Commissioner uses dispute resolution mechanisms such as mediation and conciliation in an effort to resolve complaints. These processes generally lead to resolutions much faster, with less expense and with more good will than any other mechanism.

Every investigation must be completed, including a written report, within one year of the complaint being received or the investigation started. This

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report is provided to both parties in the investigation, and includes findings and recommendations, the results of any settlement reached by the parties, and any further recourse available to a complainant. The Commissioner can also request that organizations furnish details, within a specified time, of any actions taken to implement report recommendations or reasons why no such actions are proposed.

No investigation report is required in situations where other processes should be used first, where other laws or regulations would provide a more appropriate solution, where a complaint is frivolous or made in bad faith, or where too much time has elapsed between the complaint and its cause. If no report is prepared, the Commissioner will inform both parties and give the reasons.

Applying for review by the Federal Court

The Commissioner has no power to compel organizations to act on the findings or recommendations contained within a report. Within 45 days of receiving a report, either a complainant or the Commissioner can apply to the Federal Court for a hearing on most matters dealt with in Division 1 of Part 1 of the act, including some requirements (but not recommendations) of the CSA Code.

If a complainant applies to the Court, the Commissioner can also apply to appear instead of the complainant (with the complainant's consent), on behalf of the complainant, or as a party to the hearing.

The Court has the power to order an organization to correct its practices to comply with the provisions of Division 1, including notifying the public of any actions proposed or taken to correct practices. The Court can also award damages to the complainant, including damages for any humiliation suffered. There is no limit on the amount of punitive damages that may be awarded. In hearing cases, the Court must take precautions to prevent the disclosure of any information that organizations are authorized not to disclose under Part 1.

Audits

The Commissioner can also conduct audits of organizational practices where there are reasonable grounds to believe that an organization is either violating an obligation under Division 1 or not following a recommendation of the 96 727

CSA Code. These recommendations represent best practices that, in some instances, may be a minimum standard of personal information protection depending on the sensitivity of the data, expectations of data subjects, or other factors.

In carrying out the audit, the Commissioner may employ the same powers used in investigating a complaint. As with investigations, it is an offence to destroy personal information that is the subject of an audit or in any other way to obstruct the conduct of an audit.

Once the audit is completed, the Commissioner will provide the organization with a report of the findings and any recommendations. The Commissioner can also publicize the results of any audits in an annual report to Parliament. Although the Commissioner cannot compel organizations to act on audit recommendations, failure to do so could result in a further investigation, leading to an application before the Federal Court.

Education and public consultation

To promote greater awareness of privacy issues and to encourage consistent standards of personal information protection, the Commissioner may carry out public information programs, undertake privacy research, and encourage the private sector to develop and implement policies and codes of practice, based on Division 1 and the CSA Code.

The Commissioner also has a broad mandate to consult with provincial privacy commissioners or other parties, and to enter into agreements to coordinate complaints-handling activities, where appropriate. The Commissioner may enter into agreements with provinces to undertake and publish joint research on privacy issues and to develop model contracts for interprovincial or international protection of personal information. Such contracts can play an important role in achieving consistent standards and meeting international privacy protection requirements.

The Commissioner must report annually to Parliament on all activities relating to Part 1, including the status of provincial privacy legislation and other matters concerning interprovincial and international data protection.

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Whistleblower protection

Part 1 protects employers or other individuals from recriminations for acting on reasonable ground and in good faith to uphold provisions of Part 1 or inform the Commissioner of perceived violations. Individuals can request their identity to be kept confidential when contacting the Commissioner. The Commissioner is obligated to maintain this confidentiality in all circumstances.

Employers cannot recriminate in any way against an employee or independent contractor, where they believe an individual, acting on the basis of a reasonable belief, has informed the Commissioner about an actual or potential breach of Part 1, acts directly to prevent a perceived violation, states an intention to do so, or refuses or states an intention to refuse to carry out any duty that would violate the act.

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section 17 of the Class Proceedings Act, 1992, S.O. 1992, c. 6. (the “CPA”). Throughout the course of this proceeding, additional notices under sections 19 or 20 of the CPA may be required.

10. The Plaintiff proposes that the Notice of Certification be distributed in accordance with the following Notice Program:

a. the plaintiff posting the Notice on their website;

b. the plaintiff emailing the Notice to all individuals who have registered with class counsel; and

c. the defendants mailing the Notice to all class members at their last known addresses.

Opting-Out

11. The Representative Plaintiff proposes that the Class Members be given 60 days from the date of the first distribution of the notices to opt-out of this proceeding. Class Members can deliver a written notice of an intention to opt-out to Class Counsel by mail, email or facsimile.

Part 3: Common Issues

12. The Representative Plaintiff proposes common issues as attached to the Notice of Motion

Part 4: Determination of the Common Issues – Pleadings & Discovery

Pleadings

13. As set out below in the “Proposed Timetable” section below, the Representative Plaintiff will ask the Court to fix a date for the delivery of pleadings.

Discovery

14. Class Counsel will work with counsel for the Defendants to develop a reasonable and proportional Discovery Plan for the determination of the Common Issues. If Counsel are unable to agree on a Discovery Plan the Plaintiff will ask that one be imposed by the Class Action Case Management Judge.

15. The determination of the common issues in this action will be dealt with in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and will proceed through the of pleadings, documentary discovery, examinations for discovery, mediation and trial.

Affidavits of Documents

16. If the parties cannot agree between themselves, the Representative Plaintiff will ask the Court to fix a date for the delivery of affidavits of documents and the production of documents. 731

Examinations for Discovery

17. If the parties cannot agree between themselves, the Representative Plaintiff will ask the court to fix dates for the examinations for discovery. The Representative Plaintiff may seek an order from the class action management judge extending the permitted length of examinations under the Rules.

Experts

18. The Representative Plaintiff anticipates calling the following types of experts at the common issues trial where necessary:

a. Expert in the forensic analysis of DNA samples; and

b. Expert in the equipment and procedures used in the analysis of bodily substances at the Centre of Forensic Sciences.

Part 5: Determination of the Common Issues – Trial & Possible Motion for Summary Judgment

19. The Representative Plaintiff will bring a motion for summary judgment on common issues 1, 2 and 3 if successful at certification.

Part 6: Aggregate Assessment of Damages

20. Pursuant to section 24 of the CPA, only the Common Issues Trial Judge may determine whether any aggregate award of damages may be made. It may be possible for the Common Issues Trial Judge to determine the quantum of damages to the Class based on the evidence available from the Defendants in addition to s. 24 deterrence damages under the Charter.

Distribution of Aggregate Damage Award

21. The Representative Plaintiff proposes that any aggregate damages award and award of punitive damages plus prejudgment interest can be placed in a fund for the Class.

22. For a class proceeding of this nature, an administrator should be appointed by the Court to oversee any plan of distribution. The Plaintiff would bring motion for directions to the Court to determine the distribution plan.

Part 7: Determination of Non-Common & Residual Individual Issues

23. Following a determination of the common issues at trial (or summary judgment), it may be necessary to establish procedures to resolve any non-common issues (that is, issues applicable to groups of class members) and residual individual issues, which may include, but are not limited to, the entitlement of an individual Class Member to a damage award and the quantum of that award. 732

24. The Representative Plaintiff proposes that following the determination of the common issues in favour of the Class, any such non-common and residual individual issues be resolved in the most efficient and cost-effective manner available. Non-common issues may be determined on a motion to the Common Issue Judge.

25. In order to resolve residual individual issues, the Representative Plaintiff may request that the Common Issues Judge appoint, as per section 25(1)(b) of the CPA, one or more Referees to conduct a reference under the Rules of Civil Procedure and report back to the Court in order to resolve any individual issues.

26. At such a reference, the Representative Plaintiff proposes to adopt the summary trial provisions as set out in Rule 76 of the Rules of Civil Procedure in order to place any necessary evidence before the Court. Any evidence required by the Referee would be tendered via affidavit from the Class Member. In the interests of efficiency, cross- examination may be limited, as directed by the Common Issues Trial Judge.

27. In any event, the Common Issues Trial Judge will be in the best position to determine the most efficient and cost-effective manner to resolve any residual individual issues. The foregoing proposal is meant only to serve as a guide.

Part 8: Proposed Timetable

28. Following the hearing of the Certification Motion, and in the event this proceeding is certified as a class proceeding, the Representative Plaintiff will ask the Case Management Judge to set the following timetable (with any necessary modifications) for the remaining steps in this action. The “Certification Date” is the date any final appeals are disposed of:

# Step Due Date

1. Publication of Certification Notice Date of the decision to certify (“Notice of Certification”) (“Certification Date”) + 120 Days

2. Delivery of the Statement of Defence Certification Date + 30 days

3. Opt-Out Deadline 60 days from the commencement of the opt-out period

4. Exchange of Affidavits of Documents Certification Date + 9 Months

5. Completion of Examinations for Certification Date + 16 Months Discovery

7. Completion of motions arising from the Certification Date + 21 months discovery process, if any 733

8. Set down for trial of the common Certification Date + 26 Months issues

Part 9: Motions

29. Motions arising from the discovery process may be required. Other procedural motions may arise as the case develops which will alter the above timetable.

Part 10: Settlement & ADR

30. The Representative Plaintiff may serve an offer to settle.

31. If it appears in the interests of the Class, the Representative Plaintiff may conduct settlement negotiations with the Defendant from time to time.

32. If it appears in the interests of the Class, the Representative Plaintiff may participate in mediation, or other alternative dispute resolution procedure, in order to narrow the issues and canvass the possibility of settlement on some or all of the issues in the proceeding. These discussions may precede or follow the Plaintiff’s certification motion.

Part 11: Funding

33. The Representative Plaintiff’s legal fees are to be paid on a contingency basis, as provided for by the CPA.

34. The Representative Plaintiff successfully made an application for funding to the Class Proceedings Fund. 734

GRANGER HER MAJESTY THE QUEEN IN RIGHT Plaintiff -and- OF THE PROVINCE OF ONTARIO Court File No.: CV-18-00598257-00CP Defendant

ONTARIO SUPERIOR COURT OF JUSTICE

Proceeding commenced at TORONTO

Proceeding under the Class Proceedings Act, 1992

AFFIDAVIT OF TANYA ATHERFOLD-DESILVA (Sworn March 18, 2019)

GOLDBLATT PARTNERS LLP 20 Dundas Street West, Suite 1039 Toronto ON M5G 2C2

Jody Brown LS#: 58844D [email protected] Tel: 416-979-4251 / Fax: 416-591-7333

Geetha Philipupillai LS#: 74741S [email protected] Tel: 416-979-4252 /Fax: 416-591-7333

Lawyers for the Plaintiff

GRANGER HER MAJESTY THE QUEEN IN RIGHT Plaintiff - and - OF THE PROVINCE OF ONTARIO Court File No.: CV-18-00598257-CP Defendants

ONTARIO SUPERIOR COURT OF JUSTICE

Proceeding commenced at TORONTO

Proceeding under the Class Proceeding Act, 1992

MOTION RECORD OF THE PLAINTIFF (CERTIFICATION) (Returnable November 27 & 28, 2019)

VOLUME II OF II

GOLDBLATT PARTNERS LLP 20 Dundas Street West, Suite 1039 Toronto ON M5G 2C2

Jody Brown LS#: 58844D [email protected] Tel: 416-979-4251 /Fax: 416-591-7333

Geetha Philipupillai LS#: 74741S [email protected] Tel: 416-979-4252 /Fax: 416-591-7333

Lawyers for the Plaintiff