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Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology

Issue 27 - Evidence - April 24 Sitting

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OTTAWA, Thursday, April 24, 1997

The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-66, to amend the Canada Labour Code (Part I) and the Corporations and Labour Unions Returns Act and to make consequential amendments to other Acts, met this day at 10:05 a.m. to give consideration to the bill; and, pursuant to its order of reference to enquire into the state of post-secondary education in Canada, to consider the Interim Report of the Subcommittee on Post-Secondary Education.

Senator Mabel M. DeWare (Chair) in the Chair.

[English]

The Chair: Our first item of business is consideration of the interim report of the Subcommittee on Post-Secondary Education.

Senator Bonnell: Madam Chair, your Subcommittee on Post-Secondary Education which was authorized to examine and report upon the serious state of post-secondary education in Canada has, in obedience to the Order of Reference from the Standing Senate Committee on Social Affairs, Science and Technology on August 6, 1996, proceeded into that inquiry and now presents an interim report, a copy of which should be on everyone's desk.

The full subcommittee met yesterday. We looked at the text and made some minor changes. They are now having the English version corrected and, I hope, the French draft. I do not understand French so I do not know whether it is correct. Some of our French members will know. I believe this report is ready to be adopted, if this committee so wishes.

Senator Lavoie-Roux: Madam Chair, I have a concern -- and this is not for you to worry about but for the Senate -- regarding the quality of the French translation. For people who can read French, I will point out page 2 of the French translation. Sometimes it is good to compare the English version.

In English, it states in paragraph 2:

The impact on the physical infrastructure of the colleges and universities....

In French, it is translated:

L'incidence sur l'infrastructure physique des collèges....

It is not the same thing.

In the next paragraph it mentions student assistance. I do not know if anyone in this room can recognize that kind of animal but I have never heard of such a thing. It states:

...les spécialistes statistiques --

-- au moins que l'on mette "les spécialistes de statistiques."

Then continuing to page 2, the fourth paragraph, it states:

...les représentants d'étudiants et les administrateurs d'aide financière...

In good French, it would be written:

...les représentants d'étudiants et les administrateurs de l'aide financière...

I will try to be calm, Madam Chair, but this comes up so often and not only here. Who is responsible for the quality of the French translation in this chamber?

Senator Bonnell: The Parliament of Canada.

Senator Lavoie-Roux: They are doing a very poor job.

Senator Bonnell: It would be a good idea for you to make a speech concerning that. Perhaps it can be corrected in the future. The English is bad enough but the French is worse.

Senator Lavoie-Roux: We should not accept that.

Senator Bonnell: I know, but if we do not accept that, we do not accept the report.

Senator Lavoie-Roux: This happens in other places, and I understand that. This is an interim report, but when we table an official report of a special study, there should be a French expert in this place. Perhaps I am wrong.

Senator Maheu: No, you are right.

Senator Bonnell: I think you are an expert.

Senator Losier-Cool: It is not your job nor my job.

Senator Cools: No. It is the translator's job. What comes under the translator's name is the translator's responsibility. There is no doubt about that.

Senator Lavoie-Roux: Then am I to sign this, because I do agree with the general content?

[Translation]

Senator Losier-Cool: I agree with you that it is not our job to proofread the text and correct any errors.

Senator Lavoie-Roux: There should be someone here from translation when we are examining the report.

[English]

Senator Cools: Madam Chair, I have a suggestion that speaks to the heart of the matter. On numerous occasions, I have heard Senators Losier-Cool and Lavoie-Roux raise the issue of less than satisfactory translation. As responsible individuals, when we have heard a complaint raised repeatedly, we must see the pattern. Perhaps, Madam Chair, you could take forward on behalf of the committee our concern with the translation of these documents.

The Chair: I am glad to do that.

Senator Lavoie-Roux: In the third paragraph, concerning student assistance, there are about five lines.

[Translation]

The subcommittee should look at a wide array of measures that might be taken to examine students.

[English]

I know they are all French words, but this is not the best way of putting this.

The Chair: On behalf of the Social Affairs committee, I will make a representation, probably to the Internal Economy Committee, telling them that we are not satisfied with the translation that we have been receiving this year and that we expect them to act on it. Would that be satisfactory?

Senator Lavoie-Roux: That is the only thing we can do.

When we did the report on euthanasia, although you may not recall, there was someone there who could respond to our questions about the French translation. I do not know whether he worked for the Translation Bureau. He was very good at his work, and I received many compliments about the French translation of the report on euthanasia. I think he worked for Senator Corbin or was recommended by Senator Corbin.

Senator Maheu: I have a point of order, please. Does this mean that, because of the French translation, which is totally unacceptable, the report cannot be presented today?

Senator Cools: No.

Senator Lavoie-Roux: It is totally unacceptable.

[Translation]

Senator Maheu: That is a double-edged sword.

Senator Lavoie-Roux: Our job is to do a good job, and not leave the work half done.

[English]

Senator Cools: Perhaps when you report, Madam Chair, you could include a line in the report to bring Senator Lavoie-Roux's concerns forward.

The Chair: We should be aware that there have been some cutbacks. The translation problems are due in part to the fact that we do not have enough people available at this time of year. We should, however, ensure that this is corrected. We will make the recommendation.

Senator Lavoie-Roux: When you make the remark when presenting the report -- and it can be presented because I have no objection to the content -- perhaps you can indicate that it is in both official languages but that there is something lacking, not mistakes, in the translation which has been brought to our attention.In other words, it is not quite satisfactory but, in the final report, this will be corrected.

The Chair: The corrections will be made in our final report.

Senator Lavoie-Roux: Yes. I do not want to sign it, but if we apply this type of restriction, then it is okay.

Senator Phillips: When I was on the Internal Economy Committee, the quality of the translation was a regular complaint. We have been complaining about that for 15 years. Surely we can make progress.

Turning again to the English section of the report, I would congratulate all those who took part in the hearings. I will thank the staff who helped prepare the report. It is extremely well written and, in thanking the members of the committee, I should like to pay tribute to my colleague from P.E.I. Senator Bonnell for fostering the idea.

I move that we adopt the report.

The Chair: All those in favour of adopting the report?

Hon. Senators: Agreed.

The Chair: Carried. The report will be presented to the Senate this afternoon.

Senator Maheu: Will we be pointing out that the French translators will be advised that, from now on, they should learn something about the subject before they attempt the translation? We should go further than saying that we are not happy with the French translation.

The Chair: We will take that under advisement.

Senator Lavoie-Roux: It is really due to the fact that they do not translate well and do not know how to translate well.

Senator Losier-Cool: They do word-by-word translation from English to French and sometimes that is bad.

Senator Cools: Also, we do not want to sound as though we are chiding our staff in any way because, for the most part, they work very hard and serve us well.

Senator Lavoie-Roux: They do work hard.

Senator Cools: What is lacking is that some senators must review it. Senator Le Moyne used to do a lot of that sort of thing. Basically, the French-speaking senators must keep an eye on the translation.

The Chair: Honourable senators, on Bill C-66, you have before you the third report of the Subcommittee on Agenda and Procedure of the Social Affairs Committee. This report recommends that the committee hear Mr. Mark Audcent, the Senate Law Clerk and Parliamentary Counsel, on questions regarding the consultation of parliamentary officers, the Department of Justice and the drafting of a bill, and, in view of the fact that the committee passed all clauses of Bill C-66 unamended, that the committee reconsider its decision on Tuesday, April 22, 1997, not to report the bill to the Senate. Is there any discussion?

Senator Cools: I propose that we ignore this report for the time being. I know the committee is quite capable of proceeding as it wishes today.

I raised this concern before. The steering committee has brought forth, not so much recommendations for action but rather formed resolutions. That practice should be discouraged, because it leaves the impression that the steering committee is imposing its will on the committee.

Senator Phillips: In that regard, we went through this --

Senator Cogger: What is the order of speaking here, please?

The Chair: Order. I have Senator Cogger and then Senator Phillips.

Senator Cogger: Madam Chair, regarding the invitation to Mr. Audcent, I see that he is here. I do not have a difficulty with that. That emanated from a suggestion, not a formal resolution, on the part of our colleague Senator Phillips a couple of days ago.

However, I have a problem with subparagraph (b) which states:

...in view of the fact that the Committee passed all clauses of Bill C-66 unamended, that the Committee now reconsider...

I have a problem with the phrase "in view of the fact that..." because it ignores the fact that several people wished to abstain at the time. It was only a matter of letting certain matters go, not of debating amendments and going through the formal process.

The gist of my argument goes to the heart of this resolution where it says, "that the Committee now reconsider." Let me explain.

Let us look at the decision we made Tuesday last. As I recall, Senator Bosa put forward the motion that we report the bill to the Senate without amendment. Fine. That is on the table. The vote on that motion resulted in a tie, with the result that the motion was defeated.

It is incorrect to say that we voted not to report to the Senate. We defeated a motion to report. There is a big difference, Senator Maheu. Wait one minute.

Senator Maheu: I am not disagreeing.

Senator Cogger: To rule the other way would be incorrect and illegal. Let me explain. Let us look at rule 98 of the Rules of the Senate.

The committee to which a bill has been referred shall report the bill to the Senate.

Therefore, it would be illegal for us to say that we shall not report.

Senator Maheu: That is right.

Senator Cogger: Indeed, that is not what we said.

Senator Maheu: That is right.

Senator Cogger: Senator Bosa moved that we "shall report the bill to the Senate" and we said no. In order to be consistent with our rules, we should have moved that we shall not report the bill "at this time." However, that is what we said in essence. That begs the question, if we do not report "at this time" -- because it would be illegal to decide otherwise -- then what next?

The logical order of things, upon the tie which defeated the motion by Senator Bosa, would have been to have a discussion to decide where the committee should go from there.

Senator Maheu: When do we report?

Senator Cogger: Please let me finish, Senator Maheu. Where do we go from here or what is the next step? We did not get to that stage because, for various reasons, we went on to other things.

I suggest that it would be improper now to report that we reconsidered the decision. I know of no procedural rule, be it in a deliberating assembly or any sort of committee, which allows a decision-making body to reconsider a decision taken earlier so that, perhaps, the question can be put again and a different decision taken. That cannot be done in the absence of new elements, new witnesses, new information, new answers sought by the committee or some such thing.

This is not a game. We cannot vote on Tuesday and say "no," and then reconvene, although nothing has happened, to take the same decision again. What would be the impression? The only thing that could have intervened is undue pressure on members, some arm-twisting or such?

Senator Cools: Oh, no. Never.

Senator Cogger: That is not the case. We do not want that. Our decision at that time was that we would not report.

Now is the time to decide our next step. I have some views on what our next step should be. Presumably other members have their views. We could exchange views. Perhaps the minister would like to sit with us and discuss possible amendments that would meet the wishes of some of the members of the committee. I do not know that.

I submit, Madam Chair, that it would be improper for you to put to us the question raised under the second paragraph of this report.

Senator Phillips: I wish to emphasize the point made by Senator Cogger. It is improper for us to consider this matter at this time. There should be at least some intervening business. We have not had that. Then we get this report from the steering committee. As I recall our last meeting, several senators, including Senator Bonnell, were most indignant that the subcommittee was telling the committee what to do all the time. I agree with that.

The committee has not been consulted in the preparation of this report. We have been given the report with a "take it or leave it" attitude again. We are in a bind as far as the rules are concerned. I do not think we should be taking directions from the subcommittee. We should be deciding what procedures can take place in the meantime.

Senator Bosa: Madam Chair, we have had the benefit of the expert advice at the Table. They told us that this was the proper way to reintroduce the motion which was heard at the last meeting. There is a distinct precedent for what we are doing today. It relates to Bill C-41, when this committee, inadvertently, eliminated clause 1 of that bill. The steering committee had agreed, on the advice of the people at the Table, that the proper way to reintroduce the bill was to follow the route which we took at that time, which is exactly the same as what we are doing today.

It is not a question of not abiding by the rules. There are precedents for this procedure. Consequently, I think we should proceed with the motion at hand.

Senator Cools: There is no motion.

Senator Phillips: Senator Bosa, you said you received advice from the Table.

Senator Bosa: Yes.

Senator Lavoie-Roux: What Table?

Senator Bosa: The Table Officers in the Senate.

Senator Phillips: From Mr. Greene?

The Chair: We received advice from the Table Officers from the Committee Directorate.

Senator Phillips: I see. So we received advice from the committee, but we did not receive advice from the Table. There is a huge difference.

The Chair: The Table Officers sit at the table as well as directing the committees.

Senator Cools: My understanding is that there is no motion before us. Senator Bosa keeps referring to a motion. There is no motion before us. The steering committee has brought forward a report which contains certain recommendations and certain motions. As I said before, I find that undesirable and inappropriate.

It is a very well established principle that committees obey the Senate and that steering committees and subcommittees obey the full committee. We have here a very thinly veiled instruction from the steering committee, which is trying to impose its will. There are times when that is quite acceptable perhaps, and there are times when it may even be desirable. However, in this particular instance, the Senate committee spoke very clearly.

I submit that on this matter this committee needs no guidance from its steering committee, that, in fact, it has asked for no guidance from the steering committee. This is a most interesting phenomenon. It is not something in which I have too much interest because the intention of the steering committee is quite clear. It wants an outcome different from that which has already resulted, which is quite extraordinary.

I propose that we thank the steering committee for their time and consideration in presenting their report and move on to set the business of the day.

Senator Perrault: I have some concerns about this bill.

Senator Cools: So do we all, but we are not on the bill now.

Senator Perrault: I know that we are not on the bill but I am talking about the procedure and whether the bill should be adopted.

Senator Cools: We will get to that as soon as we deal with the steering committee's report.

Senator Perrault: I think we should consider what recommendation we will make to the Senate. I have received at least 12 representations on this bill and its alleged deficiencies since this committee last met. We think we should hold more hearings in order to ensure that the bill is as good as it can be.

It is unusual for me to speak in this fashion, as you know. I am very concerned. I have received representations from the Saskatchewan Mining Association, the Council of Forest Industries from British Columbia, Dow Canada and the Western Canadian Shippers' Coalition, and I am not prepared to dismiss representations of that nature. It is better to hold more hearings. If we have to continue next week, I think we should.

Senator Lavoie-Roux: I agree with you.

Senator Bonnell: What would happen if we voted against this report of the steering committee?

Senator Cools: Nothing.

Senator Bonnell: Would we simply continue with our consideration of the bill? Rule 98 says that we shall report.

Senator Perrault: Yes, at some point.

Senator Bonnell: Whether we report today, next week or next year is another thing. However, if we reject this report of the steering committee, how do we proceed from there?

All the groups from which Senator Perrault said he received letters appeared before us and told us their concerns. He is only receiving the letters now because he was previously engaged in other matters.

Senator Perrault: That is not a fair comment. I will provide you with a set of the letters and then you can reconsider your remarks.

Senator Cogger: I still think we must dispose of the matter of the steering committee report.

Senator Bosa seems to be the proponent of this.

Senator Bosa: No.

The Chair: It was the three of us.

Senator Cogger: Both Senator Bosa and Senator Losier-Cool are members of the steering committee.

Senator Bosa: As well as the Chair.

Senator Cogger: Therefore, any of the three of you may answer my question.

What makes you believe that anyone would change his or her vote? You suggest that we reconsider, as if to say that because you do not like the vote of two days ago you want to have another go at it. Has anyone found new evidence? If so, let them share it. In the absence of same, unless we are totally illogical and inconsistent, we are bound to come to the same result.

Would any member of the steering committee care to respond to that? If not, I have a further point.

Some people may argue that, under our rules, by proceeding with this suggestion we would be rescinding an earlier decision which, under the rules, would require a two-thirds vote.

The Chair: Senator Cogger, the two-thirds vote only applies to the Senate. We as a committee are autonomous and can do as we like.

Senator Phillips: I thought the Rules of the Senate applied to committees.

Senator Cogger: There are some who argue that.

The Chair: I agree that some will argue that.

Senator Cogger: These matters are important. Senator Perrault appears to share some of the concerns of members on this side.

I do not think we can proceed with this report from the steering committee. I ask you for a ruling on the matter. If you feel that you need to consult with Officers of the Senate, please do so, and we will abide by the resulting decision. However, I suggest that for now it would be improper to vote on this report.

Senator Losier-Cool: In response to Senator Cogger, the bill has been adopted clause by clause. What do we do with it?

Senator Cogger: I do not think it was adopted.

[Translation]

Senator Losier-Cool: The report was adopted after the clause-by-clause study. Everyone had the opportunity of putting amendments forward. What are we going to do with this bill?

[English]

Do you seriously believe that this necessarily entails the other decision?

[Translation]

Senator Losier-Cool: You had that chance.

Senator Cogger: If there were 100 clauses, then there were 101 chances. One per clause and then 101, and when they came to 101, they said no. Don't tell me that you have adopted the first 100 clauses and that we now have to adopt clause 101.

Senator Losier-Cool: The problem is that my interpretation of what went on at the meeting is not the same as yours.

Senator Cogger: It was passed by the majority. Clause-by-clause. When the time came to take the package and send it to the Senate, the decision was negative. Don't try and tell me that the decisions that were made beforehand necessarily implied that their final decision would be positive.

Senator Losier-Cool: What do we do now?

[English]

Senator Cools: I have a point of order. Neither the substance of the bill nor whether we should report the bill nor when we should report the bill are before us. All that is before us is the narrow issue of what we think of the steering committee's report. That is all that is before us, not the bill itself and not whether we should report it.

Senator Maheu: That is not a point of order. What is the point of order?

Senator Cools: What is a point of order? Perhaps we should call the Table Officers to tell the honourable senator what a point of order is.

Senator Maheu: No, what is your point of order?

Senator Cools: I was reminding the Chair, to use parliamentary language, that the question before us is the narrow point of the steering committee's report, not the wider issues as to whether or when or how we report the bill, just the steering committee report. That is the question that is before us.

Senator Forest: Senator Cogger has mentioned inconsistency. I am a rookie and perhaps I do not understand everything, but we did go through the bill clause-by-clause. Some opposed some of the amendments, but the majority voted it. At the end, as I recall, there was a motion, "Do you approve the report without amendment?" That was passed.

To me, the inconsistency is that the Rules of the Senate say that, having completed a clause-by clause study, you report, and yet on the next vote we decided not to report. I find that inconsistent.

[Translation]

Senator Lavoie-Roux: Some people are trying to say that we are being inconsistent and so on. I would like to try and explain what happened. I abstained on all of the clauses because I thought I didn't have all of the required information. Some issues have not yet been dealt with, and given the context in which the bill was being submitted to us, the speed with which it had to be examined, we obviously have not been able to hear from all of those who should have been heard. This bill absolutely had to be passed.

[English]

Senator Perrault, many of the people to whom you referred should have been heard, but we only heard from the ones concerning petroleum.

Senator Perrault: I have some concern.

Senator Lavoie-Roux: Since then, we heard many other representations from other groups which were enumerated a few minutes ago. There is no inconsistency in voting against adopting this report, because I do not think we have done sufficient study and heard all the people who wished to be heard. As a matter of fact, I abstained on every single article. I was consistent when I said at the end that I cannot let this go through.

I apologize, because I do not want to insult in any way the steering committee, but it is hard for me to understand. We said "no", yet here is a new resolution which says that today we should say "yes". We slept differently last night, and this morning we should say "yes." If there is an inconsistency, that is where it lies.

The Chair: Everyone has spoken to this matter. You must realize that this bill is of importance to the government, so the majority on the steering committee would naturally suggest that this bill must come before this committee again.

Whether the bill should stand was voted upon the other day. We now have before us report to deal with, and someone must make a motion that we proceed. Now that you have all spoken, someone must decide whether or not we adopt this report.

Senator Cools: I move that no motion be put regarding this report, that we thank the committee very much, and that we then let the committee decide its business on how to proceed.

The Chair: All those in favour?

Senator Bosa: You do not want us to adopt this recommendation by the steering committee.

Senator Cools: Senator Bosa, with all due respect, the senators on this committee are capable, responsible, and mature. They are quite capable of making many decisions without your superintendence.

Senator Bosa: I asked you for an explanation; I did not say they were incapable of making a decision on their own.

Senator Cools: It is my suggestion to you that senators on this committee are quite prepared to proceed with discussion on Bill C-66.

Senator Bosa: Discussing the bill in what respect? Clause-by-clause?

Senator Cools: Once we get to discussing the bill and what should be done with the bill, perhaps it will then unfold.

Senator Bosa: Do you mean you want to open up discussion on the bill?

The Chair: Senator Cools, could you clarify your remarks?

Senator Cools: All that is before us, honourable senators, is a report.

The Chair: Did you not make a motion?

Senator Cools: I did. I said that our motion should be that we thank the steering committee for their work in this report, that we do not adopt their report and that the committee now decide how it will proceed with the business of dealing with the bill.

The Chair: I will now put the motion.

Senator Cools: Just reject the steering committee report.

Senator Cogger: That may be where we have a problem. I put it to you that it is improper to put the motion.

The Chair: Senator Cools moved that we thank the steering committee and that we should not adopt their report. She made a motion that we not adopt the committee's report. Are you ready for the question?

Senator Phillips: Madam Chair, could you tell us who is eligible to vote for this?

The Chair: Yes. Senator Bonnell, Senator Bosa, Senator Cogger.

Senator Bosa: We support the motion.

Senator Cogger: The question has been asked as to who is allowed to vote?

The Chair: The question was asked because of the extra people in the room. Senator Cools, Senate DeWare, Senator Forest, Senator Lavoie-Roux, Senator Losier-Cool, Senator Maheu, Senator Rossiter, and Senator Anderson has replaced Senator Perrault.

Senator Phillips: Senator Perrault has been replaced?

The Chair: By Senator Anderson. Therefore, I will put the question.

Will all those in favour of Senator Cools' motion not to accept the report please raise your hands.

Some Hon. Senators: Agreed.

Senator Cools: My motion is not to accept their report.

Senator Bosa: We will deal with the motion.

Senator Cogger: So we do not accept the report?

The Chair: All those in favour of accepting the report?

Senator Bosa: All those in favour of accepting the report? How can you do that, Madam Chair? Senator Cools moved not to accept the report.

The Chair: That the committee do not receive the report.

Senator Cools: The motion just carried, so the committee can now move beyond this report to the business that is properly before the committee.

Senator Bosa: If the proper language is to say that the committee not receive this report, then let us change the wording. I am sure Senator Cools would not have any objections.

Senator Cools: Senator Bosa, it has passed now. You must accept will, when will is spoken.

The Chair: Order, please.

Senator Cools: This was an attempt to undo something. You are now trying to undo what just happened. You must accept when a committee speaks.

The Chair: Honourable senators, let us cool down for five minutes and decide where we will go with this matter. We have the bill before us. Do we want to proceed with it? If so, how will we proceed with it?

Senator Cools: Those are the decisions which now have to be made.

The Chair: I want members of the committee to realize that the rules do say that the bill has to be reported at some time.

Senator Cools: Of course.

The Chair: Last week, the motion was that we not proceed. Since then, the time has expired. We are now into another phase. There are, therefore, some decisions to be made this morning.

We will proceed in five minutes.

The committee recessed for five minutes.

Upon resuming.

The Chair: Honourable senators, at this time the Chair must remind you that Bill C-66 is on the agenda this morning. We have finished hearing witnesses and we have done our clause-by-clause study. Rule 98 states, "the bill shall be reported." I ask the committee: How would you like to proceed?

Senator Cogger: I should like to suggest that the committee hear further witnesses. The first one will not come as a surprise. I think he was suggested by my colleague Senator Phillips. We should like to hear from Mr. John Grace, the Information Commissioner, or his representative. His counsel wrote to the committee. Perhaps other members would like to hear his testimony. Perhaps there are other witnesses.

The Chair: Are you making that a motion, Senator Cogger?

Senator Cogger: The motion would be that, yes, we hear further testimony. Of course, there is Mr. Audcent, who is here and available to testify, I assume. If that should be the chosen route, then I assume other senators may want to add to a potential list of witnesses.

Senator Lavoie-Roux: My recommendation is along the same lines as that of my colleague. I think we should also look at all the other groups that have sent us messages in the last few days telling us that they have been left out of this bill. They are not against having a rule for those whose business is wheat, but they think they should also be included.

We have heard only from Dow Chemicals. There are at least four other groups that were left up in the air. We should hear them together because they are all pleading for the same thing.

Senator Cogger: All the non-grain shippers should be heard.

The Chair: We did hear from some of those groups.

Senator Cools: I was waiting to hear what my Liberal colleagues have to say. I have an opinion, but I was waiting to hear what everyone else thought.

Senator Bosa: There were two names mentioned. I believe one of those people is present. Perhaps we could invite him to testify, after which we will take it from there.

Senator Bonnell: Why do we not go with that suggestion?

Senator Bosa: Senator Cogger has suggested that we hear from two witnesses. One is here.

The Chair: We have a motion on the floor.

Senator Maheu: Yes, I know, but the motion was more complete than that, senator. He asked for all of the non-grain shippers.

Senator Cogger: No, it was Senator Lavoie-Roux who said that. I interpreted her remark as meaning non-grain shippers.

Senator Lavoie-Roux: That is right.

Senator Bosa: I would be pleased to hear the witness throw some light on the questions that were put the last time the committee sat.

The Chair: We have a motion on the floor.

Senator Cools: Let us begin the discussion and see what our thoughts are on going ahead. Motions come when you are moving toward conclusion.

Senator Cogger, you have named two people, Mr. Audcent, who is here, and Mr. Grace. You said you were quite prepared to hear Mr. Audcent.

Senator Bosa: Yes.

Senator Cools: Is Mr. Grace close by?

Senator Cogger: In an earlier intervention Senator Perrault pointed out some people whom he would like to hear.

Senator Perrault: Yes, I have a bunch of letters.

Senator Cogger: Why do you not tell us whom you would like to hear, if we were to proceed along those lines?

The Chair: We must have an agreement to proceed with witnesses or we must accept the motion.

Senator Cools: We all wish business to proceed and we want the bill to move ahead.

Senator Cogger, Mr. Audcent is right here. I hear from Senator Bosa a willingness to hear Mr. Audcent. I could be quite eager, actually, to hear from him. Is Mr. Grace close by?

The Chair: No.

Senator Cools: If Mr. Grace is not close by, we could hear from Mr. Audcent. If we could contact Mr. Grace as soon as possible, perhaps Mr. Grace could be on hand to follow Mr. Audcent.

Having said that, I think their testimony will bring enormous insight to us, as well as assist in our resolve.

The Chair: According to the rules, we have to deal with the motion.

Senator Bosa: I think Senator Cools has made a good proposition. She has suggested that we not get involved in motions now, that we have a witness and should hear from him first.

The Chair: Senator Cogger will have to withdraw his motion.

Senator Cogger: Senator Bosa, with all due respect, Mr. Audcent is here. We cannot say, "Mr. Audcent, we will hear from you." Let us determine whom we would like to hear so that our staff can then communicate with those people and check out their availability. I have been throwing around the name of Mr. Grace. I have never met Mr. Grace in my life. I do not know where he is.

Senator Bosa: Senator Cogger, would you like to add to your motion that we meet on Monday, perhaps?

Senator Cogger: Whatever time it takes; I am in no rush.

Senator Bosa: I realize that.

Senator Phillips: Before we proceed with witnesses, I am still concerned with our procedure here. Rule 96(7) states:

Except as provided in these rules, a select committee shall not, without the approval of the Senate, adopt any special procedure or practice that is inconsistent with the practices and usages of the Senate itself.

The Senate can, within five days of a motion, rescind the motion with a two-thirds majority. I feel we are in the process here of rescinding a motion. We are not following the established practices of the Senate.

I should like to hear how we will get the matter before the Senate and rescind that motion of the other day that we not report the bill. That is important, if we are to proceed.

The Chair: Even if we proceed, Senator Phillips, we are not reporting yet. What motion are you talking about; the one not to report the bill?

Senator Phillips: Yes.

The Chair: That motion is not before us to rescind or to reconsider at this point.

Senator Phillips: I am suggesting that we find a method to include that motion along with the other. I thought we were following Senator Cools' suggestion that we discuss various items before making motions. That is what I am attempting to do.

The Chair: That is correct. We did say that we would look at all options today to see how to proceed. One is Senator Cogger's suggestion that we hear witnesses. You have raised the fact that it takes five days to rescind a motion, according to the rules.

Senator Phillips: And a two-thirds vote of the senators present.

Senator Forest: Does that rule apply to committees, too?

The Chair: It has never been used in a committee.

Senator Phillips: Senator Forest, the rules say that the Rules of the Senate apply to committees.

Senator Bosa: We have a motion by Senator Cogger and a suggestion by Senator Cools. Now there is another motion. How many things do you want on the plate? Are we in agreement with the suggestion that Senator Cools made? If we are in agreement with that, then perhaps we do not have to put the motion by Senator Cogger. Perhaps we can proceed in that way.

The Chair: It is up to Senator Cogger. We have a motion on the floor that we hear at least two witnesses. Senator Lavoie-Roux suggested others. We can decide what we will do. Perhaps we could hear one witness now and make arrangements to hear others and then call the committee back to hear them.

Senator Bosa: Senator Cogger?

Senator Cogger: I do not want to be formal about this. Basically, I proposed a course of action, namely, that we hear further witnesses. I can suggest another course of action which might be useful. Why do we not instruct our staff to consult with the minister to see whether he would be prepared to adopt some amendments?

Senator Maheu: There is no time.

Senator Cogger: Why is there no time?

Senator Bosa: You are expanding now, Senator Cogger.

Senator Cogger: So it is a case in which the minister appears and says, "Here is my bill. Take it or leave it."

Senator Cools: The minister could conceivably come before us, but we must understand that the committee has already voted on the clauses of the bill. If the minister appears, it will not affect the bill, as the committee has already adopted it.

Senator Cogger: The minister appeared and gave us a little lecture on the facts of life. In talking about replacement workers, he said that it is a fact of life that management will want things one way and the unions will want them the other way. I do not need the minister to tell me that. I understand that perfectly well.

What bothers me is that two officers of Parliament, who have a duty to report to Parliament to safeguard the Charter rights of Canadians, one as to access to information and the other as to privacy, have raised serious concerns about this bill. Those officers are unbiased. They are not management oriented or union oriented. The minister said that the Department of Justice told him that the bill was okay, so we should ignore those two officers of Parliament. What kind of legislators would we be if we ignored the officers of Parliament?

Senator Bosa: Madam Chair, we heard from the Privacy Commissioner. The matter has been before the courts and the court has ruled on it. You heard the judgment on the intervention of Mr. Bruce Phillips We received a letter from the Information Commissioner. How much can we expand on this?

There is a motion on the floor. Senator Cools asked that the committee consider her suggestion. The Law Clerk of the Senate is here now. Can we hear from him, or do you want to move your motion?

Senator Cogger: Senator Bosa, with all due respect, I submit that what you just stated is wrong.

Senator Bosa: Where am I wrong?

Senator Cogger: The lawsuit to which you referred has nothing to do with clause 50 of the bill. The concern of Mr. Bruce Phillips, the Privacy Commissioner for Canada, remain intact regardless of the outcome of that lawsuit, and his concern is that it is wrong for an employer to give addresses and personal information on employees to unions. That is the concern the minister says we should forget.

Senator Bosa: There is a difference of opinion.

Senator Cogger: Are you telling me that the minister has the prerogative to adopt bills that are unconstitutional or contrary to the Charter?

Senator Cools: I have suggested an interest in hearing both of the witnesses to whom Senator Cogger has referred. However, Mr. Audcent is here and we could question him. I have also suggested that if Mr. Grace could get here quickly, we could hear from him as well.

The Chair: I am sorry, but unless the motion is withdrawn, I must put Senator Cogger's motion that we hear these witnesses.

Senator Cogger: Senator Lavoie-Roux wants to hear other witnesses. Is there any other person who wants to hear other witnesses? I thought Senator Perrault wanted to hear some more witnesses.

The Chair: Yes, he does.

Senator Cogger: Let us amend my motion to incorporate all the witnesses we want to hear, and then vote.

Senator Cools: I would like to amend Senator Cogger's motion to read that we hear Mr. Audcent now and, if Mr. Grace is available right now, that we hear him now as well.

Senator Cogger: What is wrong with this afternoon? It is only 11:15.

Senator Cools: I have many other pressing matters I want to raise with the committee.

The Chair: Senator Cools has moved that we amend Senator Cogger's motion to read that we hear Mr. Audcent at this time and that we contact Mr. Grace.

Senator Cogger: My motion was that we hear Mr. Grace or one of his staff. The letter he forwarded to us was written by his chief counsel, I believe.

Senator Cools: Let us see whether Mr. Grace could get here in the next few minutes.

The Chair: Is your motion that we hear him when he is available?

Senator Cools: Yes. But I am quite prepared to support hearing Mr. Audcent.

Senator Losier-Cool: I agree.

Senator Lavoie-Roux: Are we to state what people we think should be heard?

The Chair: We have heard from most of those people.

Senator Lavoie-Roux: No. The only group we heard from is Dow Chemical.

The Chair: We heard from Dow Chemical, the Canadian Pulp and Paper Association, the Business Council of British Columbia and the Western Canadian Shippers' Coalition.

Senator Lavoie-Roux: If you have heard them all, I do not know why they sent me a telegram.

The Chair: We have already heard from most of the people from whom you received letters.

Senator Cogger: Is Mr. Grace on that list?

Senator Bosa: Madam Chair, you have an amendment.

The Chair: We have an amendment to Senator Cogger's motion on the floor. The amendment reads that we hear Mr. Audcent now and that we contact Mr. John Grace or someone in his department and hear them as soon as they are available.

Senator Cools: No. My amendment is to see whether they are available right now, to be heard now.

Senator Maheu: Today.

The Chair: Oh, yes.

Senator Cools: If Mr. Grace were standing at the door right now, it would be hard for us to say that we should not hear him right now.

The Chair: Will all those in favour of the amendment signify by saying "yes".

Senator Bonnell: What is the amendment?

The Chair: That the two people be heard now.

Senator Bonnell: No, that is not the amendment.

Senator Maheu: That is not the amendment.

Senator Bonnell: That was the original motion.

The Chair: The amendment to the motion is that Mark Audcent be heard now and that Mr. Grace be contacted right now to be heard.

Senator Cools: To see if he or someone from his office is available now to be heard following Mr. Audcent.

Senator Cogger: And what if they are not? If they say that they will be available at two o'clock this afternoon, what do we do?

Senator Cools: Let us cross that bridge later. I would put the request to Mr. Grace in the following urgent terms: "That the Senate committee requires his attendance now", so that he does not think it is tomorrow.

The Chair: I will put the question on the amendment to Senator Cogger's motion. Will all those in favour signify by saying "yes".

Some Hon. Senators: Agreed.

The Chair: The motion is carried.

Senator Bonnell: Now what about the main motion as amended?

The Chair: Exactly, Senator Bonnell.

Senator Bonnell: You need to put it too, do you not?

The Chair: Exactly. We now have Senator Cogger's motion as amended.

Shall the motion as amended carry?

Senator Bosa: No. He added 15,000 witnesses.

Senator Maheu: He amended his own.

Senator Bosa: The suggestion here was to hear --

The Chair: We did that. We passed the amendment that we hear these two people.

Shall Senator Cogger's motion as amended carry?

Senator Cools: Let us just bring Mr. Audcent to the table.

The Chair: Will those in favour of Senator Cogger's motion, as amended, please indicate.

Senator Maheu: Could you please read Senator Cogger's motion again for the record?

Senator Cogger: Would you like me to speak to the motion?

The Chair: The motion reads that Mr. Audcent be contacted now and asked to appear. Is it agreed?

Hon. Senators: Agreed.

The Chair: The motion as amended is carried. I will ask Mark Audcent to please come forward.

I am sorry that we have kept you waiting for one hour and 20 minutes.

Who would like to ask our witness a question?

Senator Cogger: In all fairness to the witness, we should give him some of the background as to why he is here. I think the main reason the committee wanted to hear from you, Mr. Audcent, is as follows: When the minister appeared before us, it was pointed out to him that both the Privacy Commissioner and the Information Commissioner had expressed serious concerns as to the legality of Bill C-66. I think you are familiar with the areas of concern in the case of Mr. Phillips, the Privacy Commissioner.

In the case of Mr. John Grace, the Information Commissioner, his concerns are with a different clause of the bill. He made his concerns known to the committee by way of a letter addressed to the Clerk and signed by Mr. Daniel Brunet, who is his chief counsel.

We raised those concerns with the minister. We said, "Minister, what do you make of the concerns of those people? Did you consult with those people?" His answer was, "No, I did not consult with them. I consulted with the Department of Justice."

I think I am not being unfair to the minister when I say that he seemed to convey that if his bill got the blessing of Justice, then that was good enough for him and everything was tickety-boo.

Either Senator Phillips or I made the suggestion that the two officers to whom I referred report to Parliament. The Department of Justice reports to Parliament via the Minister of Justice and is part of the political system. They do not have the same interest or function. In other words, it is wrong for a minister, I think, to say, "Justice tells me it is okay to assume that the other two guys are covered." That is the background concerning your appearance here. Would you care to comment on the relative role of the two officers of Parliament versus officers from the Department of Justice?

Mr. Mark Audcent, Law Clerk and Parliamentary Counsel: I read those parts of the proceedings. I thought that the questions that were raised were very interesting and I enjoyed my research in trying to find answers for you. I brought a document to distribute to honourable senators. It is called, "A Guide to the Making of Federal Acts and Regulations". It contains the extracts that are relevant to the questions that you are asking of me today.

Bills are drafted in the federal government by a centralized drafting service called the Legislation Section of the Department of Justice. No department is allowed to draft a bill on its own. They take a policy proposal to cabinet, which is called a "Memorandum to Cabinet." If it is adopted, it then goes off to the Draft Legislation Section of the Department of Justice for drafting on the instructions of the department, based on the Memorandum to Cabinet.

That drafting section has put out this guide. I have attached the page that, you will notice, is over the signature of the minister, Allan Rock, M.P. P.C., November 1995.

Two of the items that I have drawn to your attention have to do with cabinet confidentiality. One is that a Memorandum to Cabinet is a confidence of the Queen's Privy Council. Also, you will be interested to read on the second page that the bill itself is a confidence of the Queen's Privy Council. That is just background.

The part in which you are interested is the extract, "How is legislative policy formulated and approved; and who should be consulted?" In the "Who should be consulted?" section, you will see page 99, at the bottom, there is a section of the Department of Justice called the Information and Privacy Law Section. It states:

The Information and Privacy Law Section must review any legislative proposal to restrict access to Government information under the Access to Information Act or reduce the protection of individual privacy granted by the Privacy Act. These proposals must also be brought to the attention of Treasury Board legal services. It is most important that any such proposal be thoroughly discussed and justified.

There is a provision that goes beyond that which will be of interest to Senator Cogger. Therefore, I will draw his attention to it. It is found at page 99 under, "Other Federal Departments and Agencies." It states:

Legislative policy must be developed in consultation with other federal departments and agencies likely to have an interest in the proposal.

Those are the two elements of your answer in terms of the policy of the Government of Canada on who it would consult. It has a specific unit which is set up to worry about access and privacy in the Department of Justice. It also feels an obligation to consult other federal departments and agencies likely to have an interest in the proposal.

Senator Cogger: Thank you for bringing this to our attention.

What you are really telling us is that in putting forth Bill C-66, without consulting either the Privacy Commissioner or the Information Commissioner, Mr. Gagliano, or the Department of Labour, were remiss in their duty as they did not follow the guidelines of their own government. Is that fair?

Senator Bosa: Madam Chair, that is not correct.

Senator Cools: Let him answer.

Senator Cogger: He reports to us.

Senator Bosa: That is a political question.

Senator Cools: Mr. Audcent is very skilled.

Senator Bosa: If he wants to answer the question, that is fine.

Senator Lavoie-Roux: It is a matter of fact, it is not political.

Senator Bosa: It is not political?

Senator Lavoie-Roux: No, it is a matter of fact.

Senator Cools: Mr. Audcent is used to dealing with politics.

The Chair: Would you like to answer that, Mr. Audcent?

Mr. Audcent: I should like to leave honourable senators to draw their own conclusions.

However, I did some research on another area that I found of interest in Senator Cogger's questioning this morning. Senator Cogger alluded to the fact that your committee has had interventions from two officers of Parliament who expressed concerns about portions of the bill. That, of course, led me to the question "officers of Parliament", whereupon I searched the statute base by computer. I found out that the expression "officer of Parliament" does not exist. As matter of law, there are no officers of Parliament.

Senator Lavoie-Roux: What are they?

Mr. Audcent: I searched for "Officer of the Legislature" as well and found that in a province there is an ombudsman who is an "Officer of the Legislature".

In the statute base, you will find the expression "Officer or employee of the Senate, the House of Commons and the Library of Parliament", which is an interesting point. Parliament comprises three units, the Queen, the Senate and the House of Commons. An officer of Parliament begs the question: Are you an officer of the whole institution or one of the three institutions that make up Parliament; that is, the Queen, the Senate or the House of Commons.

Beauchesne's, under "Officers of the House" devotes most of the chapter to the political officers and a few references to the officers of the House, being the clerk and the sergeant at arms.

In the Debates of the Senate, the four officers of the Senate are listed as, the clerk, the deputy clerk, the law clerk and the gentlemen usher.

That brings me to the question of what did Senator Cogger mean. We all know that expression "officers of Parliament" and we all use it. Who do we use it for? The Chief Electoral Officer, the Auditor General the Commissioner of Official Languages, the Access to Information Commissioner, the Privacy Commissioner, the Human Rights Commissioner. We know we use that expression. The question is: What is meant?

The only common thread I could find is that for the people who carry this title, there is usually a special provision in their act that deals with either their nomination or removal. There will be a resolution of the Senate and the House of Commons that will be part of their nomination or they can be removed on resolution of the Senate or the House of Commons. That seems to be the link. Of course, they report to Parliament.

Finally, the last item on this issue of "officers of Parliament" that I was able to uncover for you was a law suit before the Federal Court of Appeal. It was about the Chief Electrical Officer. The court noted that the premise that the Chief Electrical Officer is an employee of Parliament appears to be doubtful. After that, they went on for ten pages explaining why, although he was an officer of Parliament, they would not invoke privilege in that particular case. The case is inconclusive as well.

That is the information that I was able to uncover for you on the subject of "officer of Parliament".

Senator Bosa: Thank you, Mr. Audcent.

Senator Maheu: Mr. Audcent, perhaps you could voice an opinion on something, although, if you do not want to, there is nothing I can do about it. I will not try to push the matter.

We have a letter from the Office of the Information Commissioner of Canada. It is not signed by him personally but by the general counsel. It refers to Bill C-66, clause 54, no disclosure of notes, et cetera. He writes to Thomas Joseph, the clerk of the standing committee.

The Chair: Do you have a copy of the letter?

Mr. Audcent: I am looking for my letter. I do have a copy.

Senator Maheu: He says in the very first sentence of his letter, "I am writing concerning Bill C-66, which is presently being studied." He then goes on to refer to a section that provides for the non-disclosure of notes.

Since you have a copy, I do not know that I have to read the letter. Counsel was speaking on behalf of the commissioner. The commissioner evidently saw the bill, read the bill, knows what is in the bill. He did not choose to mention any other paragraphs or any other parts of the bill, just clause 54.

It states:

The Information Commissioner shares the view expressed by the Federal Court in the matter of Canada (Privacy Commissioner) versus Canada (Labour Relations Board)...that records of this nature are not generally accessible under either the Privacy Act or the Access to Information Act.

Although he was not specifically consulted by the minister, he intervened at his own option and because he is supposed to review the bills, he specifically touched one point of concern and that refers to the section on the Information and Privacy Law Section on page 99, which you just gave to us.

Again, the consultations were open to everyone. If I understand the paragraph that you gave us, it says that the Information and Privacy Law Section must review. It does not say the minister must go and say, "Would you please review this?" Part of their job is to review. Am I right in my opinion, since he never raised any opposition to the off-site workers issue?

Mr. Audcent: Honourable senators, the Information and Privacy Law Section referred to in the document I handed out to you is a section of the Department of Justice. That is different from the Information Commissioner.

The Information Commissioner is the officer of Parliament running the independent service, whereas the Information and Privacy Law Section which has this obligation to review is a section of the Department of Justice and listed in the Department of Justice manual.

Senator Phillips: Mr. Audcent, you said the term "officer of Parliament does not exist." If we were to follow your hypothesis, the term "cabinet" is not mentioned in the Constitution, and therefore the Cabinet does not exist.

Mr. Audcent: I did not want to imply that officers of Parliament do not exist, I am rather fond of them.

Senator Cools: There are several officers of Parliament.

Senator Phillips: I have the understanding that when the legislation is in the final stages of drafting, it must be referred to the Information and Privacy Commissioners to certify that it does not interfere with the Charter of Rights. Someone has that responsibility along the way, if it is not them. Can you clarify that for me, please?

Mr. Audcent: Yes, senator. I can help you along that road.

As far as I know, there would be no obligation on the government to consult the Information Commissioner or the Privacy Commissioner. Whether they would want to do so would be a matter of their good judgment. One of the two commissioners made the point in his correspondence with you that he is used to being consulted by government departments. However, I am not aware of any obligation.

The other matter to which you refer is that all bills coming to the House of Commons, which is where most of them go, are certified as having been reviewed for compliance with the Canadian Charter of Rights and Freedoms and as having been viewed for compliance with the Bill of Rights. That certification is given by the Minister of Justice or an officer of the Minister of Justice. It is filed with the Clerk of the House of Commons. You are quite right that those examinations are done.

I do not think that the certification goes so far as to say that they are compliant, that would be expecting much. However, it goes so far as to say they will be reviewed for compliance.

Senator Cools: Mr. Audcent, I was hoping you would not be so frugal. I would encourage you to not be so economical and to give us a bit more information.

You have said some quite extraordinary things. You talked about the officers of Parliament. There certainly are officers of Parliament. I was under the impression that this terminology "officer of Parliament" has its origins in the way that these roles were historically derived. For example, the job of the Chief Electoral Officer used to be done by the Speaker of the House of Commons. The Speaker of the House of Commons used to run elections. Historically, that terminology derived as the functions of those particular jobs evolved over time. We, by statute, distanced them from the actual political practices of the chambers themselves. I was hoping that you would go into that area.

Some people have been concerned with the question of with whom the minister has an obligation to consult? One must conclude that a minister has no obligation to consult with anyone, if one follows what you said to its logical conclusion. If I were the person scripting the questions, I would have put it to you the other way. What is the legislative function of the Privacy Commissioner or of Mr. Phillips? What is their legislative function for giving advice? We know that the minister does not require their consent.

Senator Cogger: Of course not.

Senator Cools: In terms of their legislative functions, what is the obligation of the minister and the Privacy Commissioner to receive advice? There is a difference. Parliament gives advice and consent. Clearly, there is a legislative function. If there is not, we should abolish the offices.

Mr. Audcent: I have left a misimpression that I wish to correct immediately. It was too loose language to say that a minister must not consult anyone. It is common constitutional knowledge that a minister cannot make a proposal that is not the proposal of the government. Every government bill has been taken to cabinet and has the approval of cabinet. When we say that a minister must not consult with any one, that is not to say that a minister is entitled to act under our constitutional conventions as an individual member. The bills of ministers come forward as government bills.

Senator Cools: Some ministers will tell you they have no obligation to consult with caucus either. We must be careful because we are opening up many wider areas here.

This is a political judgment. Perhaps we should include one or two words in our report as we go forward on this. When ministers bring forth bills to Parliament for consideration, they are quick to tell us that they have consulted all across the country for two or three years. We have three days to work on this bill, but they have been working on it for two or three or four years. We need more time. Perhaps we could put into our report that, in the preparation of bills, the minister may contemplate and consider receiving advice, though not consent, from these particular officers.

Also, I would suggest that at some point perhaps a Senate committee should review the tasks of these individuals. I have deep concerns that Parliament and the powers of Parliament in general are being eroded. We have a much greater function to perform than to simply come once in a while and stand with the rubber stamp and give our vote without thinking.

At some point, we will have to look in an important way as to what is the role of Parliament. That was one of the reasons that many of us wanted you to come before our committee here. Perhaps you are right in a technical, narrow, legalistic way, and perhaps a minister has no obligation to consult. However, in the real world of politics, of Parliament and of the responsibility of ministers under responsible government, they definitely do have an obligation.

If nothing else, perhaps these experiences will show those who think they do not have an obligation that it is politically prudent for them to adopt an obligation and to govern themselves accordingly.

The Chair: Senator Cools, as you know, before a bill comes before any committee, we do say, "Does it meet the Charter of Rights and Freedoms? Is it constitutional?"

Senator Cools: I follow that completely.

Perhaps we could step out of our various hats for a moment or two. It is quite clear across this country that we as members of Parliament must uphold the rights and duties of Parliament to have input into legislation. I take strong objection to this phenomenon of ministers taking for granted that they can run roughshod over senators, give orders, take this person off committee, take that one off committee, and that they can keep bills around the House of Commons for one or two years and then suddenly, at the eleventh hour, pass it to the Senate, leaving us with no time to study it, and then invoke all the political reasons in the world why a senator is being obstructionist if he or she wants to study this bill seriously.

Certainly we have some intelligence here. Certainly Her Majesty summoned us here to the Senate because we have some intelligence, because we have opinions and therefore something to say, and, with respect to all concerned, because we are political leaders in our own right.

Thank you, Mr. Audcent, for giving me a opportunity to pontificate, although I do it quite often. All of us feel deeply committed to our various sides and political parties. It is time for those ministers on the other side who are passing us these bills to stand up and take a look.

Senator Cogger: Hear, hear.

Senator Cools: Honourable senators, it is an extremely serious matter. Ministers must come to terms with the fact that the business of passing such complex legislation is a serious task, and we senators need time to review it.

Senator Cogger: Mr. Audcent, did you read the testimony of Mr. Phillips?

Mr. Audcent: I have Mr. Phillips' notes, but I have not read his testimony. I was given his notes to read.

Senator Cogger: I will ask you something which may be unfair, so do not answer if you feel that you cannot.

Having heard or read what Mr. Phillips said to this committee, should one not reach the conclusion that every time a list of off-site workers, for example, 100 names, is provided to a union, Mr. Phillips will have to file 100 complaints to the courts? Would you care to comment on that?

Mr. Audcent: All I can say is that in the notes that Mr. Phillips circulated for his appearance, he recommends that clause 54 be deleted. I believe clause 54 is the board notes.

Senator Cogger: That is a different story.

Mr. Audcent: That was the thrust of his notes, and that is what I addressed myself to.

The Chair: We questioned him on the off-site workers, and he responded.

Senator Phillips: The information you provided to us, Mr. Audcent, stated that these proposals must also be brought to the attention of the Treasury Board's Legal Services Division. Have you found any indication that legislation was referred to them? The minister said he had consulted the Department of Justice but he did not mention the Treasury Board. Is there any indication of that?

Mr. Audcent: I would take this document entitled "A Guide to the Making of Acts and Regulations" as being an overall guide to how government conducts itself and how government wants to conduct itself. I am quite sure that on every file there are variations and permutations and different paths. What happens in government is confidential to government. I would not know on this particular file who was consulted. All I can do is draw your attention to the general policy saying who, in an ideal world, they think they should consult as they go through this process.

Senator Bosa: I should like to make a comment about what Senator Cools said earlier. I think she is completely right. We get these bills at the last minute and then we are supposed to pass them holus bolus without any changes or without studying them properly. The Senate has a way to deal with that situation. We could do a pre-study. In fact, the Senate used to do pre-studies but abandoned them four or five years ago.

Senator Cools: This is not the time to raise pre-study.

Senator Cogger: That was abandoned under the leadership of Senator MacEachen when the Tories came into power. It was nine years ago.

Senator Bosa: There was a good reason for that, Senator Cogger.

Senator Cogger: Your facts are right; your dates are wrong.

Senator Bosa: There was a good reason for abandoning it, because the Senate was always maligned by the media.

Senator Cools: Yes, and ministers.

Senator Bosa: If we adopted the bills right away, they would say we are just rubber stamping them. If we did a pre-study, we would not get credit. That was the reason behind that change.

Senator Cogger: If you want to bring back pre-study, you will find no one opposed on our side.

Senator Cools: He is not bringing it back. That would be better raised at another time.

Senator Maheu: Mr. Audcent, you covered this point when you spoke about the Privacy Commissioner's notes. In this same context, when he wrote to the minister, he did not talk about off-site workers; you are quite right. I want to read into the record that neither of our "non-officers" of Parliament, if you will -- that is, from the Office of the Information Commissioner of Canada and the Privacy Commissioner of Canada -- after having looked at the bill, chose to raise anything else other than clause 54 concerning no disclosure of notes.

I thought it was important that it be in the record. I have both letters in front of me.

Senator Cogger: I only have one letter. Why do you have two?

Senator Maheu: You have the letter from the Office of the Information Commissioner?

Senator Cogger: I have never seen a letter from Bruce Phillips.

Senator Maheu: I have a letter from Bruce Phillips to the minister.

Senator Cogger: I have never seen one.

Senator Maheu: You do not have this one either?

Senator Cogger: Wait a minute. Senator, you cannot quote a document or argue about it when no one else has seen it. The only document that is public in this committee is the one signed by Mr. Daniel Brunet.

Senator Maheu: May I ask the clerk to photocopy the letter and distribute it to the committee?

The Chair: We did not have an opportunity to receive that letter.

Senator Maheu: I am sorry. I thought everyone had it.

Senator Cogger: That is the first thing. I have not seen Mr. Phillips' letter. However, if you will read the committee transcript, you will see that I questioned him. He commented at length on the difficulties he had with clause 50.

Senator Maheu: Yes, but he did not raise that in his letter.

Senator Cogger: Maybe his letter only addresses clause 54, but his verbal comments address clause 50. Let us not leave the wrong impression here.

Senator Maheu: However, he has the right to read the bill.

With all due respect to Senator Cogger, neither of these two letters touches anything but the non-disclosure of notes, which is clause 54. I agree that he did raise another clause after the fact but it means that he read the bill in March.

Senator Cogger: Read the comments. He read the bill when I called him. That is what he said.

Senator Maheu: His letter is dated in March.

Senator Cogger: He said, "I have not been consulted and no one had drawn the bill to my attention until a member of the committee raised it with me." If you must know, I was the one who raised it.

Senator Maheu: I know. When did you call him?

Senator Cools: It was last week. This is a very valuable comment.

The Chair: If no one else has a question for Mr. Audcent, I wish to thank you for coming here this morning.

Senator Cools: I should like to make one minor point concerning the terms "officer", "officers of" and "law officers". There is so much confusion, perhaps senators could clarify these terms some time.

Yesterday, I heard someone refer to you, Mr. Audcent, as a "law officer of the Crown." The only law officers of the Crown are the Attorney General of Canada and the Solicitor General. These people are not law officers of the Crown. There is so much confusion, I should like that clarified at some point.

The Chair: On behalf of the committee, we thank you.

Mr. Audcent: Madam Chair, it is always an honour to address honourable senators.

The Chair: I wish to remind the committee that Mr. Grace is here with his staff. He is also prepared to come before the committee this morning.

Senator Cools: Perhaps we could discuss the time for a few moments. It is now almost twelve o'clock. I am quite prepared to listen to Mr. Grace, but I also have some proposals that I should like the committee to consider. I believe they might help us resolve the situation in which we find ourselves. I have wrapped my mind around this for the last two days. I have consulted with many of the witnesses who presented briefs to us. I am declaring very clearly what I am thinking and where I am going.

I have put pen to paper and, after the proper consultations, as I said before, I drafted a document which I would ask members of the committee to consider for inclusion in the committee report on this bill. If that is acceptable to members here, I would then move a motion that we report the bill this afternoon with my proposals in the report.

The Chair: In the meantime, I will call our witnesses to the table. Mr. Grace, please take a seat at the table.

Senator Cools: After we finish with Mr. Grace, we can move swiftly on to this matter. Perhaps the Clerk of the Committee or one of the committee staff could circulate my proposals. I was very attentive to Senator Lavoie-Roux's wishes and I had the best job done on the translation.

The Chair: With us now is Mr. Grace, Commissioner, Access to Information; and Mr. Leadbeater, Deputy Minister.

Senator Bosa: Madam Chair, how long will we be sitting? Senator Cools asked how much time you will allow for the questions.

The Chair: Until senators have finished asking their questions. We may go on for half an hour or more.

Senator Bosa: Yes, even close to one hour.

The Chair: Fine. Order, please!

Senator Cogger: With all due respect to the witnesses, Senator Maheu circulated a letter that was addressed by Mr. Phillips. You referred to it. Is it now your intention to make it part of the record?

Senator Maheu: Yes.

Senator Cogger: I thought it was interesting. It also underlines the fact that the minister was aware of the concerns of the Privacy Commissioner as early as March 14 and evidently chose to do nothing about it.

Senator Maheu: He does not have to consult.

Senator Cogger: I am not suggesting that he has to consult. I am saying that the Privacy Commissioner, without having been consulted, which is clear, went out of his way to raise his concerns with the minister. The minister chose to ignore his concerns.

Senator Maheu: The issue was before the courts.

The Chair: Order, please.

We now have before us Mr. Grace, Information Commissioner. His Deputy Minister, Mr. Leadbeater, is with us, as well as their legal counsel, Daniel Brunet, the author of the letter we received.

Please proceed.

Mr. John Grace, Information Commissioner, Office of the Information Commissioner: Madam Chair, thank you for your invitation to appear before you. This is the first time I have been invited to appear before a Senate committee in my 14 years in public office, seven of which I was Privacy Commissioner and the other seven of which I have been Information Commissioner. I am glad to be here.

I realize our intervention has come quite late, as did that of Mr. Phillips. It was fortuitous that we picked it up in a rather routine review of legislation. We were not consulted at any time earlier, something which I regret. These matters could be handled much easier with earlier consultation.

I have no general statement other than to say that, as far as the court case is concerned, we agree completely with the learned judge of the Federal Court. That decision exempting aide-mémoires and notes of members of administration was quite in accord with my own decisions and views as Privacy Commissioner for seven years. I have no problem with that.

I have problems with the sweep of this legislation, notwithstanding the conflict with the legislation which covers the Privacy Commissioner and the Information Commissioner. Our act begins with the word "notwithstanding". The two notwithstandings equal zero, perhaps.

The clause about which we are worried is too broad. It goes beyond mere aide-mémoire in that it would apply to drafts of anything. I would worry about drafts of anything being exempted from the bill. I do not like back-door exemptions from the Access to Information Act. I have been fighting that from the beginning. When Parliament passed the act, it said, "The act covers everything except narrowly-defined exemptions." If legislation comes along chipping away at it, then Parliament's will and the act have been weakened.

Those are my comments.

Senator Cogger: Mr. Grace, thank you for appearing here on such short notice.

Earlier this morning, we heard from Mr. Mark Audcent, who is a legal officer with the Senate. He provided us with a document entitled, "A Guide to the Making of Federal Acts and Regulations". It lists the various sections of Justice and other departments involved in the approval process of draft legislation. In there, is a section called, "Information and Privacy Law Section". This guide is signed by Allan Rock, MP, PC, Minister of Justice.

It states:

The Information and Privacy Law Section must review any legislative proposal to restrict access to Government information under the Access to Information Act or reduce the protection of individual privacy granted by the Privacy Act.

One must assume that Bill C-66 has, indeed, been reviewed by a branch of the Department of Justice. Yet, the minister told us that he had consulted with Justice and everything was fine.

Mr. Grace: What is your question to me, sir?

Senator Cogger: Although we have not seen a seal of approval from the Department of Justice, one must assume from the letter by Mr. Brunet that you have a substantial difference of opinion from the one held by the Department of Justice.

Mr. Grace: If the views of the Department of Justice are represented by the section we are talking about, then we have a difference of opinion. We have put our opinion on the record. I can tell you that we were not consulted by the Information and Privacy Law Section of the Department of Justice at any time on this matter.

Senator Cogger: If the bill were to be passed as is with the offending clause, what recourse would you have? What action would the commissioner, your office, take as life were to go on under this bill?

Mr. Grace: I do not see what action we could take, subject to the views of my colleagues. We are subject to the laws of Parliament. If, in its wisdom, Parliament were to pass such a law, we would have to live with it.

Senator Cogger: For instance, would you feel free to challenge the bill before another court, saying, "They cannot legislate this way when they have already legislated the other way"?

Mr. Grace: I do not think I would challenge it. I think it would be pushing the role of my office too far to be challenging the will of Parliament on this matter.

Mr. Alan Leadbeater, Deputy Information Commissioner, Office of the Information Commissioner: Madam Chair, it could well come before the court in another way. For example, suppose a citizen of Canada made a request under the Access to Information Act for some kind of a draft document from the board and the board were to take the position that, because of this amendment and this legislation, you have no right of access to that and we subsequently received a complaint. We would be looking at our own act, which states, "notwithstanding any other act, you have a right of access, subject to exemptions in this act". The court would then be called upon, if the department still remained intransigent on the issue.

Yes, we do think it would increase litigation. However, it would not be as a result of the commissioner challenging the bill.

Senator Cogger: I guess the answer to the question is that you would not challenge the bill, but you might be forced into a position as a result of third party complaints.

Mr. Grace: The answer is yes.

Senator Lucier: Does that not apply to every bill?

Mr. Grace: Every bill having something to do with our act, I suppose. Do all bills have notwithstanding clauses? I am not a lawyer.

Senator Cogger: Senator Lucier, in this case, the complainant, if he were quick enough, would be aware of the position of the Privacy Commissioner ahead of his going to court.

Senator Forest: I would like to go back to the section of this paper to which Senator Cogger referred. It states:

The Information and Privacy Law Section must review any legislative proposal to restrict access to Government information under the Access to Information Act or reduce the protection of individual privacy granted by the Privacy Act.

I should like to have some clarification with respect to the practice. Does it have to be referred to your office? You referred to a section of the Department of Justice. The minister said he had run it by the Department of Justice. Are there two routes to take? What is the practice?

Mr. Grace: That is a good question, senator. There is no obligation on that section of the Department of Justice to consult our office. I regret that we were not consulted. I think we should be consulted routinely, but we were not. I think this group takes it upon itself to speak for us which, again, I regret.

It was just by happenstance that one of my colleagues discovered this section, which I believe is offensive. I believe that the place to make changes and receive the input of professionals in the field is at a much earlier stage than around this table.

Senator Forest: As a former Human Rights Commissioner, I appreciate that. We can deduce that the minister consulted his department and figured it was clear.

Mr. Grace: That is correct.

Senator Forest: Your department disagrees.

Mr. Grace: That is correct.

Senator Bosa: Do you automatically examine every bill that is presented in Parliament?

Mr. Grace: No. We try to keep up. Mr. Brunet is the only full-time lawyer I have on my staff. He goes to court and everything else. Frankly, I do not know where he would start. I wish there were something built into the system that would require consultation at an earlier stage.

Senator Bosa: That is an excellent suggestion to make to the other place.

Mr. Grace: Yes.

Senator Maheu: Thank you for appearing on such short notice, commissioner.

You said that you do not normally study bills coming before the House of Commons and the Senate. The letter from Mr. Brunet of April 18 refers to clause 54, although you were not consulted. Can I correctly assume that you read the bill when you issued this letter on clause 54? You raised no other points. You had only one point of concern. Consultations were open to everyone. Had you looked at the bill prior to or on April 18? Why was there nothing other than clause 54 with which you felt ill at ease?

Mr. Grace: I will ask Mr. Brunet to answer that question. That clause is the only one that is in our sphere of operation, and I think that we have no mandate to go beyond at that. I will ask Mr. Brunet to explain how it all happened.

[Translation]

Mr. Daniel Brunet, counsel, Office of the Information Commissioner: If I may, I will do so in French. Here is how it works. There are very few employees at the Office of the Information Commissioner of Canada. We try and work in a very cost-effective manner. So, when legislation is passed in third reading in the House of Commons, we check to see whether there might be something that would affect access to information.

Senator Maheu: You do this for all bills?

Mr. Brunet: Whenever the word access to information is mentioned, whenever there is an indirect amendment to the Act, as was the case with this bill where the proposed name of the Canada Labour Board was replaced by a new name, which I do not recall. That is what triggers our review.

[English]

The Chair: Do you mean the industrial relations board?

Mr. Brunet: Yes. It is because there was a change to the name of the board in the legislation that our attention was drawn. If the Access to Information Act is not touched in legislation, we would not be aware of it. For example, in that situation, if the name of the board was not changed, we would have never read that legislation.

We look at the subject-matter of the bill. The subject-matter of this bill has nothing to do with the Access to Information Act, except for clause 54. We saw the change of the name of the board and then we saw that measure, which looked very incidental compared to the substance of the bill. It is a very incidental matter. Clause 54 provides for a new section 119(2) which provides:

Despite any other provisions of any Act, no notes, draft reasons or draft reports of the Board, of any of its members or of a person appointed by the Minister or the Board under this Act may be disclosed without the consent of the person who made them.

That brought to our mind the state of law. We saw that this would change the state of law dramatically. It changes the common law and affects the decision of the Supreme Court of Canada dealing, generally speaking, with adjudicative privilege. It extends the adjudicative privilege. That is how we became aware of it.

Senator Maheu: You read the lower court decision?

Mr. Brunet: Oh, yes.

Senator Maheu: Did you agree with it?

Mr. Brunet: That is exactly what we said. In the second paragraph of the letter we say:

The Information Commissioner shares the view expressed by the Federal Court in the matter of the Canada (Privacy Commissioner) v. Canada (Labour Relations Board) (1996), 3 F.C. 609, that records of this nature...

When we talk about records of this nature, we mean draft decisions by adjudicators. Clause 54 goes further than that. It goes to draft reports of the board. The adjudicative privilege covers the draft decisions, the notes that the adjudicator will take during a hearing.

In that respect, he is like a judge. The Supreme Court said he does not have quite the standing of a judge, but almost, so for that aspect of your function you have privilege, and the draft decision and the notes you take are yours. They say they are yours, so they are subject to privilege.

This privilege is not absolute. It is not like a court of justice. There may be circumstances in which you might lose the privilege. That is the Supreme Court of Canada decision to which we referred at the end of the paragraph, the Tremblay decision.

Senator Phillips: Mr. Leadbeater said that he expected this to result in an increase in litigation. Does an individual making an application receive any assistance from the commissioner with regard to legal fees?

Mr. Leadbeater: If on investigation of a complaint, the commissioner feels that a record should be disclosed, and the government institution refuses to disclose it, then it has been the commissioner's practice to offer to take the matter to court on behalf of that individual and pay the associated fees, on the belief that this act was not intended to impose hardships on individuals in order to get their rights of access.

That being said, a handful of cases have gone to court. Usually, the mediation-persuasion process works. However, in a case like this where you would have in effect two quasi-constitutional pieces of legislation, a notwithstanding clause in both, I am not sure how that could ever be worked out by negotiation. That will have to end up in front of the court.

Senator Phillips: Would the person making the application, if it was felt there was a case, receive assistance.

Mr. Leadbeater: That is right. We would take the case and pay the associated fees.

Mr. Grace: The taxpayers of Canada would pay the associated fees.

The Chair: In our hearings, clause 54 seemed to be of grave concern to many of our witnesses but so did clause 50 and proposed section 109.1 which deals with an application by the trade union regarding off-site workers, and it says that the board may by order require the employer to give an authorized representative of the trade union the names and addresses of employees whose normal workplace is not on the premises owned or controlled by the employer, and allows the trade unions to use any electronic communications system that the employer uses to communicate with its employees.

The concern of the witnesses was that the board can give the names to the union without the member's consent. We are wondering if that also goes against the Privacy Act or Access to Information Act.

Mr. Grace: It would not contravene the Access to Information Act. That is clearly beyond the mandate of my office and the authority of the Access to Information Act. It falls squarely under the Privacy Act. I do not think it would be appropriate for me to venture an opinion. It would not mean anything.

The Chair: Of course this is a new section. I think in the Sims report they said they felt the time has come in our new era, with so many off-site workers, dealing with the Internet and so on, that something should be done. This area would have to be looked at. I do not think it was a total recommendation of the Sims report at the time. They felt the time was coming that we seriously had a look at this issue, but it is in the bill and it is a concern of some of the witnesses so I wanted to bring it to your attention.

Does anyone else have a question?

Senator Cogger: Is it fair to say, then, that if Bill C-66 is adopted as is, it is, with certainty, headed for the courts of law to determine the prevalence of one of the two notwithstanding clauses?

Mr. Grace: I am not sure that it is a certainty, but it is certainly highly probable. It depends on whether anybody asks for the information that would bring this to court.

Senator Cogger: The minister told us that the Labour Code had not been amended or touched in any major way in the last 25 years. If Bill C-66 is to have a life of 25 years, chances are that this clause will be before the courts in the course of its long life.

Mr. Grace: Your view is as good as mine on that.

Senator Maheu: Mr. Grace, when you made the comment that you assume that some day there probably could be court cases, were you talking about the notwithstanding clause itself? In other words, because of the notwithstanding clause there could be court cases on the non-disclosure of notes?

Mr. Grace: Perhaps I should turn this over to a lawyer but I would think the courts will have to decide which act of Parliament has precedence here. As Mr. Leadbeater said, that would be a very tough decision for the courts.

Senator Bosa: Madam Chair, I think we should thank the commissioner and his assistants for being so accessible. He is the commissioner responsible for access to information but he is also very accessible.

Mr. Grace: Thank you. We try to be.

The Chair: Honourable senators, we have been given two letters. The first letter was written to the minister. The other is the minister's reply. The minister replied to Mr. Phillips on April 7. We feel it would be appropriate to put them both on the record. You have the reply from the minister to Mr. Phillips.

I believe I need a motion to have the second letter put on the record.

Senator Maheu: I so move.

The Chair: I think everyone agrees that the letter be put on the record.

An Hon. Senator: Agreed.

The Chair: We now have before us a proposal by Senator Cools.

Senator Cogger: What is the proposal?

The Chair: I think it is to be attached to the bill.

Senator Cools: What I am asking honourable senators to consider --

The Chair: Observations?

Senator Cools: It is more than some observations. It is a collection of concerns with an eye towards amendments in the future. I attempted to crystallize my proposals as clearly as I could, and to capture the concerns of the many witnesses we heard. I would ask senators to consider these proposals and then we could report the bill this afternoon with them forming the body of the report.

There are one or two other issues which could be inserted, also drawn from what the witnesses had to say.

Senator Maheu: Is that in the form of a motion?

Senator Cools: I have not made a motion yet. I am a great believer that motions come once you are moving forward with a resolution. If people are favourable to this, I will proceed with a motion.

Senator Cogger: I have no difficulty with the document submitted by Senator Cools.

With all due respect, Senator Cools, this is only a partial solution and ought to be expanded. The bill, in my view, is flawed and needs major fixing, not only in these areas but in others as well. I would like our report to indicate as much.

The Chair: You are suggesting that clause 54 should be attached to this and perhaps some others?

Senator Cools: I am not suggesting that this is total and comprehensive. If others have concerns, they can propose that they too form part of the report. I am asking that the report include my proposals. If anyone wants to add to this, they are welcome to do so.

Senator Cogger: I would like to see in the report an underlining of the concerns of all the non-grain shippers, the people referred to by Senator Perrault, for instance.

Honestly, we do not have the time, at this point, to propose how to fix the bill, but it is certainly a major concern throughout this country that we are giving grain special treatment and guaranteeing its perpetual movement at the expense -- perhaps that is the wrong term -- of other commodities. That ought to be addressed in the report.

We have talked about replacement workers and off-site workers.

Senator Cools: I worked at this quite hard. I address the issue of the replacement workers. I address the issue of certification as a remedy. I also address the issue of the off-site workers. I even made reference at the top of page 2 to the concerns about the application of the Wal-Mart decision, which was raised again and again.

This is what I am bringing forward. It is not totally carved in stone. It is fairly exhaustive and thorough. Perhaps we could arrive at a consensus on this. If others have concerns, they can be stated. Our researcher, in addressing the concerns raised by Senator Cogger, could be scripting that into some chamber-presentable language. Then we can move the whole package in the next few minutes. That might be a solution for all.

Senator Cogger: Do you think we could have something in writing by about four o'clock this afternoon and meet quickly? Are we supposed to adopt a report we have not seen?

Senator Cools: We have seen my proposals. They are before you now.

Senator Bosa: Madam Chair, I have read them. They were just made available to us. It seems to me they portray the major concerns expressed by the witnesses who appeared before this committee. This is a good recommendation.

I disagree with Senator Cogger's thinking that amendments to the labour bill will not be made for another 20 years. If the necessity arises, I am sure amendments will be made to the bill to correct whatever imperfections there may be.

Senator Cogger: I have read the document, but what does it mean? Do we recommend that the bill be amended this way? What is it?

Senator Cools: Senator Cogger, we have already voted on the bill clause by clause. We cannot now say in the context of this discussion that we will go back and bring amendments to those clauses. I am proposing that my document be included in the report on the unamended bill. There is no barrier or bar on what can actually go to the floor of the chamber.

The Chair: I remind you that you can amend a bill, as we did with Bill C-41. We took amendments from the minister. However, this is a good beginning.

Senator Cools: What happened here is the reverse of what happened with Bill C-41. We did amend but not until after.

The Chair: Clause 1 was reconsidered.

Senator Cools: Yes. I am not proposing that we re-open votes on the clause-by-clause study.

The Chair: I understand that.

Senator Cools: I am attempting to speak to the issue of the reporting of the bill. I am hoping that these concerns will be forwarded.

Senator Cogger: Might I ask a question of you, senator?

Senator Cools: Certainly.

Senator Cogger: In your mind, what should the report say?

Senator Cools: I would like this document to form the bulk of the text.

Senator Cogger: In what form? Are you saying that the bill should be amended along those lines?

Senator Cools: No, I cannot say that. The issue before us now is the report of the bill.

The Chair: Senator Cools is saying that the bill should be reported with this document attached.

Senator Cogger: Are we saying that the bill should be reported without amendment?

Senator Maheu: The bill should be reported unamended but with recommendations.

Senator Cogger: Why do we not say so if that is what we want to say. The bill is reported unamended, however, we have these concerns. Is that what you are saying?

Senator Cools: Yes. I will do that in a moment. Just leave it with me.

If we can agree that my proposals should form the body of the report, along with the concerns of other senators, then I will move my motion.

The Chair: These are our observations. They should include Senator Cogger's concern with grain shipments.

Senator Cools: I urge senators to read this carefully because some of the statements are worthy of consideration. I submit that some of this language is of lasting value.

The Chair: Honourable senators, the suggestion is that we report the bill, which has not yet been done, along with these observations plus whatever other observations should be attached.

Senator Cools: My observations are not exclusive.

The Chair: Senator Cogger is suggesting that we do something about the grain-handlers, and any other suggestions could be written up and incorporated into this report.

Senator Bosa: I want to draw the attention of the committee members to one commitment made by the minister, that he will review the grain provision in 1999. That commitment was made by the minister.

Senator Cools: Do you have that in writing, Senator Bosa?

The Chair: When the minister came before our committee, he mentioned that.

Senator Cools: Madam researcher, you could also script that into the committee report, because a minister's letter or statement means nothing. Once it is in the report, it forms the body of the order once adopted. I am trying to bring it from that record into the report. Perhaps our researcher could script something to that effect that we could adopt now.

Senator Cogger: I have no major difficulty with what Senator Cools proposes. However, I still suggest the proper way to do these things is that at some point, in a few hours, we be given a draft report. Let us look at the draft report and determine where we are going. I do not disagree with the procedure suggested, but surely no one will suggest that we vote on a report that we have not seen.

Senator Cools: My draft report is here. The only draft which is not before us is the draft that you are now proposing.

Senator Cogger: Give me the benefit of having seen it.

Senator Cools: Perhaps you could do a few minutes of work on that and bring it forward. Mine is here for members of the committee to see.

The Chair: What is the wish of this committee at this time? What other comments would you like to include in the report besides the one about the grain handlers?

Senator Phillips: Again, I raise the question of rescinding the vote of the other day. I would point out that --

The Chair: There has been no decision made.

Senator Phillips: -- the report of the subcommittee recommending reconsideration was not accepted by the committee today. I do not understand how we are proceeding to rescind a motion and --

The Chair: Reconsider.

Senator Phillips: Yes, reconsider. It does not matter, because it is the same thing. The subcommittee report was rejected, so we have no authority to reconsider.

The Chair: You must remember that the rules say we must report the bill.

Senator Phillips: The rules do not say "today".

Senator Cools: I am proposing that now is a good time for senators to bring forth considerations they want included in the report. Our committee could monitor the process on Bill C-66, as we did with Bill C-41, and revisit the issues in a few months. We must be aware that my draft document was a difficult piece of work. It took a long time yesterday to pen this document. I could not have thought of every single issue.

The Chair: Senator Cools, we still must get back to the bill itself, and the bill must be reported without amendment.

Senator Bosa: When this committee accepted Senator Cools' motion --

The Chair: She has not made a motion yet.

Senator Cools: I made a suggestion.

Senator Bosa: She made a suggestion to hear the law clerk and the Access to Information Commissioner. The motion, once accepted, reopened the whole thing.

Senator Maheu: Can we do clause-by-clause again?

The Chair: I did not say that. I said we needed a motion to report with the observations attached, but we do not have all the observations yet.

Senator Bosa: There is just one observation, Madam Chair.

Senator Cools: Let the honourable senator make his recommendation.

Senator Forest: I have just read this document, like everyone else, and it certainly addresses my concerns. I am wondering if we cannot report the bill as we voted yesterday, without amendment, and with the attachment of this report, which contains strong recommendations, and whatever else goes into it. There is precedent for this action, if we wish to have this committee review these matters, to keep a watching brief over it, as we did with another bill.

Senator Cools: Perhaps we could articulate that proposal. I did not think of that.

Senator Forest: There is a precedent for this action.

The Chair: Order, please. We are moving all around this issue.

Senator Forest: Madam Chair, I have asked to speak for the first time, and I think I should be allowed to do so.

The Chair: Please proceed.

Senator Forest: My recommendation would be that the bill be reported without amendment, as voted yesterday, but with the report, this list, and whatever else is considered necessary, as a strong recommendation of the committee. We may also wish to have included in this document the recommendation that we have the opportunity to present a watching brief on this bill. There is a precedent for that, and we have had good results from that precedent.

Senator Phillips: I feel the motion is out of order.

Senator Forest: It was not a motion; it was a suggestion.

Senator Bosa: That was Senator Cools' motion.

The Chair: Senator Cools did not make a motion. Senator Forest suggested a method by which we could proceed. We still need a motion.

Senator Cools: Perhaps we could see the script of the researcher's version of what Senator Forest proposed.

The Chair: The motion must be very clear as to how we are to proceed. Would someone like to write something down so we know exactly how we will proceed?

Senator Forest: I am prepared to make a motion.

Senator Cools: Why can we not hear the wording of the researchers? The wording of my proposals is before everyone here. Let us hear the wording of your proposal, Senator Forest.

Senator Bosa: I have already voiced my opinion. We like the proposals made by Senator Cools.

The Chair: Senator Forest is prepared to move to report the bill unamended but with the recommendations by Senator Cools and the one coming from Senator Cogger.

Senator Maheu: When will we see those?

The Chair: We will wait for that. Are you ready for the question?

Senator Cogger: Before we go on, I have a minor point. Both the Privacy Commissioner and the Commissioner of Access to Information had the decency and graciousness to appear before us, one on extremely short notice. If we express concerns in our report, we should pick up their concerns as well and indicate in our report that we feel it is worth fixing.

Senator Maheu: Is not that Senator Cools' recommendation on clause 50, grosso modo?

Senator Cogger: Clauses 50 and 54.

Senator Maheu: Clause 54 is before the courts.

Senator Bosa: Madam Chair, we must conclude this issue. Senator Cools came in with a prepared text, translated. If you add anything to this recommendation, then it must be translated and approved. We will never finish this.

The Chair: Senator Cools brought in a recommendation, and everyone on this committee has a right to make recommendations. We have accepted her recommendations. We are waiting for one more, and it is being drafted at this moment. If we need to have it translated, we could have it by three o'clock, and we could revert and --

Senator Bosa: No, we will go right through.

Senator Cools: Could I hear the wording of Senator Forest's recommendation?

Senator Forest: I believe that I should defer to Senator Cools to make the motion if she wishes.

Senator Cogger: Senator Bosa, do you not agree with our Chair that we reconvene at three o'clock? Do you intend to keep us here until three o'clock just so we can look at something in French and English?

The Chair: Perhaps we should take a five minute recess.

Senator Cools: Honourable senators, to ensure this gets into the record, I will begin. There is much confusion about the substance of issues and appendixes, so perhaps I could go ahead and read this into the record.

Honourable senators, I will move my motion by reading this document into the record.

The Chair: Go ahead.

Senator Cools: Honourable senators, I move, in obedience to the reference of the Senate:

That we report Bill C-66 without amendment and with the following observations and recommendations:

Clause 42(2) -- Replacement Workers

The use of replacement workers is one of the most difficult issues in the collective bargaining process and the proposal in clause 42(2) to circumscribe their use is worthy of particular attention.

As noted by a number of witnesses, Clause 42(2) does not include the complete wording used by the majority of the Task Force for the Review of Part I of the Canada Labour Code (Sims Tasks Force) with respect to the use of replacement workers. This has raised concerns that the provision could be interpreted as to prohibit the use of replacement workers in circumstances other than those contemplated by the majority of Task Force members. Your committee is sensitive to these concerns.

We have taken full notice of assurances from the Minister of Labour that the provision has been drafted with the objective of capturing the narrative of the majority recommendation of the Task Force with an unequivocal burden of proof resting with the complainant. There is a fundamental difference between using replacement workers to ensure that the employer may carry on its normal business during a strike, and using them for the purpose of undermining a union's representational capacity. The mere use of replacement workers does not, in and of itself, raise the presumption of unfair bargaining practices.

We strongly recommend, therefore, that the Canadian Industrial Relations Board, in applying and interpreting Section 94(2.1) take cognizance of the full text of the majority recommendation of the Task Force, and recognize that employers may use replacement workers to pursue legitimate bargaining objectives.

Clause 46 -- Certification As A Remedy

Your committee has heard concerns that the provision in Clause 46 which would allow the Canada Industrial Relations Board to certify a trade union as a remedy for employer unfair labour practices, runs counter to the principle that certification should be based solely on the majority support of the employees in the bargaining unit. We strongly endorse the principle of majority support as a basis for certification and note that Bill C-66 retains the Board's authority to verify support by holding a representation vote in any case. We strongly recommend that the Board exercise the jurisdiction it has under section 29(1) of the Canada Labour Code and order a representation vote as a matter of course.

We believe that the concerns that have been expressed expressed to the Committee on this clause are serious and urge the utmost caution in applying this exceptional provision. Though a number of provincial labour statutes include similar provisions, they are used by provincial labour boards in rare cases, where an employer commits a serious unfair labour practice and where a representation vote is unlikely to provide a true measure of the employee's wishes.

We recommend, therefore, that in interpreting and applying section 99.1, the Canada Industrial Regulations Board should respect the findings of the Sims Task Force, namely, that this is an unusual remedy which should be reserved for "truly intolerable conduct" by an employer. Your committee has concerns about whether the recent use of a similar clause by the Ontario Labour Relations Board in the Wal-Mart case is in fact an appropriate use of such a measure.

We also urge the Minister to monitor carefully the future application of this provision to ensure that it is used only in the most exceptional cases. It should not be seen as an alternative to the normal certification process. But if it evolves into such an alternative, we strongly recommend that the Minister consider deleting this provision.

Clause 50 -- Off-site Workers

In its review of Part I of the Canada Labour Code, the Sims Task Force found that "Off-site workers will never have the opportunity to consider, let alone acquire, the benefits of collective bargaining while they remain inaccessible to each other and interested unions. But, as individuals, they do deserve privacy and personal security."

While your committee accepts the Task Force's recommendations that off-site workers should have the opportunity to express their views in support for, or against, the unionization of their workplace, we share the privacy concerns expressed by a number of witnesses, including the Privacy Commissioner of Canada.

We have noted assurances from the Minister of Labour that the provision contained in Clause 50 balances the rights of off-site workers to be informed of and participate in workplace decisions, with the rights of these workers to protection of their privacy and safety. We have also taken full account of his further assurances that the bill equips the Canada Industrial Relations Board with appropriate authority to ensure such protection.

We strongly recommend, therefore, that the Canada Industrial Relations Board, in developing and applying its procedures with respect to an application under Section 109.1, ensure that prior to issuing any order, all reasonable steps are taken to make affected employees aware of the application and provide them with an opportunity to raise concerns as to their privacy and safety. At the very least, the Board should treat very seriously evidence of a direct request made by an employee, requesting that certain information not be provided.

Your committee also believes that the Canada Industrial Board must comply with the Privacy Act.

In addition, I have something else to include in the report.

The Chair: Senator Cogger, this would be an amendment to add.

Senator Maheu: Not an amendment, just a recommendation?

The Chair: Yes, a recommendation.

Senator Cools: This is a long-term motion.

I further move that we report the bill today and that the committee report also include the recommendation by Senator Forest.

Senator Cogger: The recommendation is as follows:

As to clause 54, that Bill C-66 include an amendment to Part I of the Canada Labour Code that would have the effect of ensuring that no notes, draft reasons or draft reports of the proposed Canada Industrial Relations Board, board members or persons appointed by the Minister of Labour or the board could be disclosed without the consent of the author.

Your committee heard testimony by both the Privacy Commissioner of Canada and the Access to Information Commissioner of Canada with respect to this proposed provision. Both witnesses expressed concern. It is for this reason that we urge the Minister of Labour to monitor carefully the application of this proposed provision. Moreover, should problems arise as a result, we urge the minister to amend Part I of the Canada Labour Code to achieve a more acceptable abrogation of the provision. Any amendment in this regard should be undertaken only following consultation with both the Privacy Commissioner of Canada and the Access to Information Commissioner of Canada.

Senator Lavoie-Roux: What about the other articles?

Senator Cogger: This recommendation relates to the grain vessels. I also move that we add to our reporting of Bill C-66 further text regarding clause 54. I do not need to read it.

The Chair: Everyone has a copy. You need not read it into the record.

The second paragraph of the recommendation refers to witnesses' concerns. When we spoke about commodities, we did not add potash.

Senator Cogger: We are including coal, sulphur, pulp and paper, and chemicals.

Senator Cools: This recommendation needs a lot of scripting, a lot of work. With all due respect, honourable senators, I came forward with a proposal which is properly scripted. This needs some work.

Senator Bosa: Can you please put the question, Madam Chair?

The Chair: I will put the question if we can have these other things scripted and added.

Senator Bosa: Madam Chair, it is 1:35. We will report the bill at two o'clock. This must be sent to translation yet. It will take three hours to come back. I suggest you put the motion, Madam Chair.

The Chair: I am sorry, but we have a request from Senator Lavoie-Roux.

Senator Bosa: Put the request on the floor.

Senator Cools: I thought Senator Forest made a very reasonable suggestion. I would like to get that in here.

Senator Forest: I move that we report Bill C-66 today without amendment and that we attach to the report the recommendations with respect to the clauses as submitted --

Senator Cools: We have done that. It is your particular recommendation that we are talking about with respect to monitoring.

Senator Forest: I move that we recommend that the committee be given the opportunity to monitor the effects of the bill and the implementation of the bill.

Senator Cools: Honourable senators, I move, in obedience to the reference of the Senate, that we report Bill C-66 without amendment today, with the observations which I just read into the record and, in addition, with the following recommendation:

That the Standing Senate Committee on Social Affairs, Science and Technology monitor the implementation of Bill C-66.

Senator Lavoie-Roux: I am sorry. There is one extra recommendation on which they are working.

Senator Bosa: You omitted the word "today."

Senator Cools: I said "today" three times.

The Chair: With respect to Senator Lavoie-Roux, although the motion is on the floor, she has one more thing she would like to add. She is moving to add another recommendation. Then we will put the motion.

Senator Lavoie-Roux: The recommendation is not to give the board the power to define seniority.

Senator Cools: I tried to script everything very carefully and clearly for members' considerations. I think this version is good, so I move it be adopted.

The Chair: The motion as it stands does not include the recommendation of Senator Cogger. You have to move an amendment to the motion.

Senator Cogger: Will Senator Cools agree that I amend her motion to incorporate my comments and the comments of Senator Lavoie-Roux?

Senator Bosa: No.

Senator Cogger: Fine, then. We will not vote on anything. I expect a written copy in both languages. It is my right. We do not vote.

Senator Bosa: You have it in both languages.

Senator Cogger: Where is it? Where are the comments I just read? Where are they in French? No, sir. I vote only when I see an official copy in both languages, as is my right.

Senator Lavoie-Roux: It is our right.

Senator Bosa: Would you put the motion, Madam Chair?

Senator Cogger: If you push too far, that is what you get.

The Chair: Senator Cogger, there is a motion on the floor. I will put the motion.

Senator Bosa: Would you put the motion?

Senator Cools: I brought my recommendations before this committee today with full translation.

Senator Losier-Cool: That is what is on the floor.

The Chair: Senator Cools, as Chair, I believe the other committee members have the same right.

Senator Bosa: Madam Chair, would you put the question?

Senator Cools: I have not moved anything that was not translated.

Senator Cogger: Senator Cools, with all due respect, you are proposing to us, in both languages, as is perfectly fine, an adjunct to a report which we have not seen.

Senator Cools: That is not true.

Senator Cogger: Where is the report? Show me the report in both languages.

The Chair: The committee is saying it will not accept an amendment from Senator Cogger.

Senator Cools: That is done on the same grounds that Senator Cogger has not provided his amendments translated. I brought my documentation forward translated.

Senator Bosa: Would you put the question, Madam Chair?

The Chair: Senators, I have no choice but to put the motion. The motion is that we report the bill today without amendment including observations and recommendations as submitted by Senator Cools in both languages.

Senator Lavoie-Roux: What about my recommendations? Can we vote on them?

The Chair: I am sorry, senator. You would have to make an amendment and they would vote against it. You can move to amend the motion to include your comments.

Senator Lavoie-Roux: Then I so move.

Senator Bosa: This is a charade. You are supposed to put the motion. You are not putting it.

The Chair: We have a motion in amendment before us.

Senator Losier-Cool: We have to put the motion amendment.

The Chair: Senators, please vote on Senator Lavoie-Roux's amendment. All those who agree that Senator Cool's motion be amended to include the recommendation by Senator Lavoie-Roux, please raise your hands?

Would those senators against so amending the motion, please raise your hands?

The motion in amendment is defeated.

Senator Bosa: Call the main motion.

Senator Lavoie-Roux: You mean I cannot include my recommendation? I like democracy like this! This is just great!

The Chair: All in favour of the main motion, please raise your hand.

[Translation]

Senator Lavoie-Roux: This is not a political game. It's a question of improving a piece of legislation. You never improve a piece of legislation.

[English]

The Chair: Would all those against the main motion, please raise your hands?

Would those abstaining raise your hands?

The motion is carried.

We shall report the bill unamended along with the submitted recommendations.

The committee adjourned.

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