Hon. Tony Dean: Honourable senators, on the same point of order, if I could briefly respond for the record and for context, because context is always important.

The context last week — and I was sitting here listening to the discussion — was one in which Senator Housakos spent a considerable period of time, Your Honour, insinuating that hybrid sittings and those who are supportive of them were in some way deleterious to the effective operations of the Senate.

I think a number of us sat here listening to that discourse and were rather offended by it. I know I certainly was. Some of the senator’s remarks signified to the public that senators were in some way shirking their responsibilities to Canadians. It’s not a stretch to say that. I’m not reaching to say that. I’m not digging deep to say that. That was the nature of the comments made — that somehow those who support hybrid sittings were not living up to their responsibilities.

Nothing could be further from the truth. This chamber and people on all sides of it, in the context of hybrid sittings, have given of their best, have processed government bills, processed government business and processed private members’ business; have made important statements; have been productive in every sense of the word; have lived up to their constitutional responsibilities. Suggestions to the contrary were, frankly, deeply offensive to many of us in this room. Actually, that’s one of the reasons that I’m grateful for the opportunity to comment on that right now.

Senator Housakos was certainly not speaking in the spirit of unity and commonality that Senator Plett exhorts us to do today. If that had been the case, perhaps those remarks would have been more evenly balanced. It was negative, it was critical and it was far from collaborative.

Your Honour, thank you for the time to say this. There was very little mention made of the health concerns associated with the reasons for hybrid sittings, for the devastation across this country and to people across this country, the devastation to relatives of some people in this chamber, the devastation to one particular person in this chamber who is no longer with us. That’s the backdrop to hybrid sittings.

Senator Dean: I stand by my word. Please do not interrupt me, Senator Plett.

Senator Colin Deacon pointed out to us that there were other reasons to confront the possibilities and virtues of hybrid sittings, which related to the benefits of the use of digitization and digital technology for productivity that could contribute to the savings of costs as we do our work in this place, that could contribute to those who worry about their health as they travel from the coasts and to those who may, over time, be concerned about the environmental impact of long-term travel.

Hon. Yuen Pau Woo moved second reading of Bill S-6, An Act respecting regulatory modernization.

He said: Honourable senators, I’m pleased to be the sponsor of Bill S-6, An Act respecting regulatory modernization, and to speak to it at second reading.

Bill S-6 has been introduced in this chamber so that we can thoroughly study it on behalf of Canadians. I’d like to thank all of you in advance for your wise counsel on this bill, and I look forward to our collective deliberations.

[Translation]

Businesses are the backbone of Canada’s economic success. They create the goods, services and wealth that have made our country so prosperous. As we emerge from the pandemic and look ahead to the economic recovery, Bill S-6 will help Canadian businesses by ensuring that the regulatory system evolves to keep pace with changing technologies and that it reflects today’s realities.

[English]

This bill will make regulatory processes simpler and easier to navigate, moving paper-based or in-person processes online and ensuring Canadian regulations keep pace with international trends.

Specifically, Bill S-6 proposes to modify 29 acts through 46 amendments and it applies to 12 departments and agencies.

While the immediate impact of each proposal is relatively modest, all the proposals aim to eliminate legislative irritants and to reduce the overall administrative burden that have become barriers to innovation and economic growth. What’s more, all of the proposals are cost-neutral and the associated risks are low to non-existent.

Taken together, these amendments represent meaningful change to the federal regulatory system and the need for continued commitment to its modernization.

[Translation]

Before I get into the details, allow me to provide some information on how this bill came about.

[English]

To begin with, the process to modernize regulations is part of the mandate of the President of the Treasury Board of Canada. In her mandate letter from the Prime Minister, Minister Fortier is asked to continue regulatory reform efforts in collaboration with her cabinet colleagues. This includes improving transparency, reducing administrative burden and harmonizing regulations that maintain high safety standards and improve the competitiveness of Canadian businesses.

The bill is meant to be a recurring legislative mechanism that allows the federal government to address overly complicated, inconsistent or outdated requirements and to keep the regulatory system relevant and up-to-date. It is designed to address legislative challenges raised by businesses and all Canadians through consultations and targeted regulatory reviews. Business stakeholders, including the Economic Strategy Tables and the Advisory Council on Economic Growth, have emphasized the importance of regularized mechanisms in order to review and update Canada’s regulatory system.

In addition, the External Advisory Committee on Regulatory Competitiveness, made up of business, academic and consumer stakeholders, has recommended that there be continued efforts to reduce the administrative burden of regulations and to ensure that they are “future proofed,” which means keeping pace with changing technologies and business realities.

By amending laws that are too inflexible, too specific or simply outdated, this bill is an important reminder of the need for ongoing regulatory review and legislation that stands the test of time.

The bill does just that, and it also helps address irritants in regulatory processes, ensuring that our regulatory system evolves with the times.

This bill is a key part of the government’s plan to improve the regulatory system. Initiatives supporting regulatory reform were announced in four successive budgets beginning in 2017. In the 2018 Fall Economic Statement, the government announced that starting in 2019, it would introduce annual legislation to ensure that the regulatory system evolves with changing technologies and reflects the current realities, challenges and opportunities faced by business.

Accordingly, the Budget Implementation Act 2019, No. 1 included a regulatory modernization component that modified 12 pieces of legislation. That bill included measures to digitize paper-based processes; enable innovation through regulatory sandboxes that allow exceptions from certain regulatory requirements to test new products; and to make rule changes in consideration of zero-emission vehicles.

The current Bill S-6 would have arrived in Parliament sooner but for the COVID-19 pandemic. It was, however, foreshadowed in Budget 2021 in which the government committed to table in Parliament the second Annual Regulatory Modernization Bill, which is Bill S-6.

Let me now turn to some of the key amendments proposed in this bill.

There is a change, for example, to the Canadian Food Inspection Agency Act that would allow the CFIA to deliver services and for businesses to interact with the agency using electronic means rather than having to rely solely on paper-based transactions. This will reduce the administrative burden for businesses and allow them greater flexibility in their interactions with government.

In addition, there are amendments to the Canada Transportation Act that would allow for new mechanisms to integrate changes more quickly to international safety standards. This would ensure that our transportation sectors are meeting the most up-to-date safety standards, keeping pace with changes in technology and innovation. The Standards Council of Canada, on whose board I served for a number of years, examined 34 Transport Canada regulations in 2021 and found that 41% of the standards referenced in those regulations are outdated.

There are also changes to the Department of Citizenship and Immigration Act to enable information-sharing to help administer any federal or provincial law for permanent and temporary residents. This would support collaboration between federal departments, provinces and territories and enable faster processing of applications to address labour market needs. Did you know that 50% of permanent residency applicants already have temporary residency applications approved and, hence, have already provided much of the information needed for their PR applications? This is not trivial, because some forms require the applicants to address more than 100 questions.

There are other amendments, for example, to the Canada Business Corporations Act, the Canada Not-for-profit Corporations Act and the Canada Cooperatives Act to simply change the term “annual return” so that it doesn’t create confusion to stakeholders.

Colleagues, if you are thinking what could be so confusing about the term “annual return” and asking yourself if it isn’t just the tax return that companies have to file every year, the answer is that it is not. If you figured that they were one and the same, you would be among the thousands of Canadian business owners who have been confused by this nomenclature.

In fact, the annual return that is referenced in the Corporations Act and related acts is not the same as the tax return that is administered by the CRA. Rather, it is an annual submission to provide updated information about the entity, shareholders, directors and officers. Not filing this information for a number of years can result in a company being dissolved, as well as expenses to revive the company.

A simple, possibly innocent, error due to confusing nomenclature can result in significant consequences, and the proposed amendment in Bill S-6 seeks to eliminate the likelihood of such errors.

Adding clarity through these amendments would reduce the risk of active corporations becoming dissolved because they did not file.

I would also mention the amendments to the Electricity and Gas Inspection Act to allow the use of different sampling methods to verify electric and gas meter measurements. Electric and gas meters are used by utility companies in residential and commercial properties to track energy usage for billing purposes. Allowing greater flexibility in the sampling and testing approach would help ensure that Measurement Canada — the agency responsible for regulation — only samples what is required to verify accurate readings, saving time and money.

There are also amendments to the Fisheries Act that would clarify that fisheries officers have the authority to use alternative measures in response to minor violations, which is an authority that was unclear in the existing legislation. This change could not only reduce the number of lengthy and costly court processes but also ensure that small violations don’t result in criminal records and the stigma and barriers that can come with it.

The use of such alternative measures has been supported by the fishing community and by Indigenous groups. In fact, all of the proposed amendments come from either the advice of multi-stakeholder groups that are involved in ongoing consultations or targeted regulatory reviews, or from the recommendations of our very own Standing Joint Committee for the Scrutiny of Regulations. I have been a member of the Scrutiny of Regulations Committee almost the entire time that I have served in the Senate, and I’m very pleased for the recognition that this bill gives to the important work of that committee.

Perhaps next time there is committee selection, there will be a rush of applicants to join the Scrutiny of Regulations Committee.

Since the amendments are both disparate and quite technical, I will not be able to address all of them in this speech nor likely even to address all of the questions you may have on very specific items in the bill, which is why I think the best place to study the specific amendments is in committee. I would encourage us to send the bill to the relevant committees as soon as possible so that they have sufficient time to do their work.

Honourable colleagues, these are just a few of the amendments included in the bill, but I think they give you a sense of the breadth and the potential impact of having it passed.

Looking ahead, the Treasury Board Secretariat is already considering proposals for the third Annual Regulatory Modernization Bill. A key theme of this next round of modernization will be how it might contribute to the response to COVID-19 and recovery efforts to that end. Businesses and all Canadian stakeholders will have the opportunity to share their views on improving the regulatory system. A consultation will take place this fall to collect ideas for potential amendments to be included in subsequent regulatory modernization bills.

Let me add that because this is meant to be an annual exercise with an Annual Regulatory Modernization Bill introduced each year, passing this Bill S-6 as a stand-alone bill will help establish a precedent for future bills and, I hope, establish the commitment that Parliament has to ongoing improvements to our regulatory system.

Colleagues, in addition to the Annual Regulatory Modernization Bill exercise, there are other ongoing initiatives to modernize our regulatory system. For example, there is a process of targeted regulatory reviews to reduce barriers to economic growth and competitiveness, and to advance novel regulatory approaches to support innovation.

Federal regulators are also implementing regulatory road maps for two rounds of reviews. Some of the areas of focus for these regulatory reviews have included agri-food and aquaculture, health and biosciences, transportation, clean technology and international standards to name just a few. Indeed, some of the changes proposed in Bill S-6 stem from the regulatory reviews that I just described.

There is also within government something called the Centre for Regulatory Innovation that promotes a whole-of-government approach to regulatory experimentation to support innovation and competitiveness, and help regulators and the regulatory system keep pace with technological advances.

Finally, Canada is actively engaging with partners in the United States and the EU, as well as with provinces and territories, to reduce unnecessary regulatory differences and eliminate duplicative requirements among jurisdictions.

Honourable senators, this bill is about modernizing Canada’s federal regulatory system. It seeks to make the system more efficient and less burdensome, while maintaining protections for consumers, health, safety and the environment. I look forward to working with all of you on this bill, and I hope we can soon send it to the committees for their detailed scrutiny of the proposed amendments.

Thank you.

Senator Quinn: Honourable senators, I rise this afternoon on behalf of our honourable colleague Senator Robert Black who can’t be with us this afternoon. The question is as follows:

For the past few years, there has been extensive work highlighting the importance of regulatory modernization to Canadian agriculture and, by extension, the Canadian economy. Starting with the Advisory Council on Economic Growth, the Barton Report, and followed by the Agri-Food Economic Strategy Table, this work culminated in the Agri‑food and Aquaculture Roadmap and regulatory review that involved significant consultations with agri-food stakeholders.

How does this bill, which touches on many critical pieces of legislation for Canadian farmers, relate to that road map and reflect the voices of Canadian farmers that informed that work?

Senator Woo: I thank you, and I thank Senator Black for being the originator of the question.

By my count, 22, possibly 23, of the amendments out of the 46 in the bill, apply to the agriculture and agri-food sector. Many of those amendments derive precisely from the regulatory efforts and consultations that you reference, both the agriculture and aquaculture regulatory review process, as well as the so-called Barton Report.

To give you some examples, number 17 on the Feeds Act and number 25 on the Seeds Act — feeds and seeds — will bring about changes in the legislation to allow for mutual recognition of feed and seed safety guidelines between Canada and a partner country — in what they call equivalents or mutual recognition agreements — in order for processes in seeds and fertilizers and other materials to be shared between the two countries without repeating the testing and approval processes. That is believed to be helpful to our industries and to augment and enhance trade between Canada and trading partners.

Another example would be amendment 30, which has to do with the control of breakouts of animal disease. The current legislation is a bit unclear in terms of what a control area is and whether a place that has an incidence of this disease would be considered to be subject to the regulations, even if it is outside the control area. The amendment makes clear that a so-called place that is designated would be subject to the same restrictions, even if it were not part of the so-called control area.

Hon. Denise Batters: Senator Woo, I actually had the privilege of being the joint chair of the Scrutiny of Regulations Committee in 2014 and 2015, prior to that election. I was a member for a couple of years before that, from the time that I came to the Senate. I certainly know and understand that it is a very important committee where this type of technical work gets done.

Stemming from my work for the Government of Saskatchewan, I saw it as a real benefit to have these types of regulatory statutes, which are brought forward quite often — in Saskatchewan, generally they try to do this every year or two — where they tidy up these regulations and statutes. When I was joint chair, I suggested strongly that this be done by the federal government to ensure these types of corrections to statutes can be made in a timely way.

However, I don’t think that has happened. Since the Trudeau government has been in power, I’m not sure how many times these types of regulatory statutes have been tidied up. Could you please answer that question?

Just yesterday the Scrutiny of Regulations Committee had its first meeting of this parliamentary session, already several months into it. Has that also been a problem, that we haven’t had many Scrutiny of Regulations meetings? We used to have them every two weeks when I was joint chair.

Senator Woo: Thank you, Senator Batters, for the question. Let me start with the question about the committee’s constitution.

We did, in fact, meet yesterday for the first time in this Parliament. I’m honoured to have been elected joint chair, together with MP Blake Richards from the House of Commons. We will meet every two weeks now until we rise for the summer and we hope to get as much work done as possible.

Some of the work of the Scrutiny of Regulations Committee can translate into immediate change on the part of the government if it doesn’t require a change in legislation. You will know, since you were a former joint chair, that a number of the requests the committee has made to departments pointing out errors in their drafting of regulations has resulted in their making the changes. Sometimes it’s like pulling teeth, you will remember. That kind of progress can be made without, in fact, changing the acts.

Of course, if errors spotted by the Scrutiny of Regulations Committee require changes in legislation, then we are into this kind of process here. Indeed, Bill S-6 contains at least a dozen measures that derive directly from the direct or indirect advice of the committee. I would be happy to provide more information on what specific advice was given. Those of us who have served on this committee should take pride that our observations in the committee — with the blessing of this chamber and the House — will result in changes to legislation.

However, Bill S-6 is much more than just cleaning up of regulations and laws based on the comments of the Scrutiny of Regulations Committee. The majority of changes in Bill S-6 derive from either the regulatory review process that is held with business and consumer stakeholder groups, which Senator Quinn referred to, or they derive from targeted Regulatory Reviews that the government has launched in particular sectors.

We have three streams of material that have fed into Bill S-6. We have the work of the Scrutiny of Regulations Committee, often of a technical nature and to do with the integrity of the bill; we have the regulatory review consultation process with stakeholders and, finally, we have the targeted Regulatory Reviews that are led by departments.

Hon. Jim Quinn: Would the Honourable Senator Woo accept a question?

Senator Woo: Yes, of course.

The Hon. the Speaker pro tempore: Honourable senators, I am informed that the console is now functioning. It is not an issue of our hybrid sitting, to make sure you understand the technical issue.

On the Order:

Resuming debate on the motion of the Honourable Senator Jaffer, seconded by the Honourable Senator LaBoucane-Benson, for the adoption of the fourth report of the Standing Senate Committee on Legal and Constitutional Affairs, entitled Report relating to Government motion 14 (taxation of the Canadian Pacific Railway in Saskatchewan), presented in the Senate on March 31, 2022.

Hon. Paula Simons: Honourable senators, I want to start today with some history. In 1880, the Government of Canada signed a contract with the Canadian Pacific Railway, or CPR, granting to the railway the right, in perpetuity, to be exempt from paying taxes along its proposed route through the Canadian Prairies.

In 1880, let’s remember, the provinces of Saskatchewan and Alberta did not exist. It had only been in 1869, just 11 years before, that the Hudson’s Bay Company sold the territory it called Rupert’s Land to the government of the new nation of Canada for the fire sale price of £300,000 or $1.5 million — although you could argue that the Hudson’s Bay Company got a pretty good deal since the land in question didn’t actually belong to them. The land had never been conquered by the British Crown. It was Hudson’s Bay Company trading territory, but it had been, until that moment, the territory of the First Nations and the Métis Nation, who called it home.

Eventually there would be treaties that covered the land where the CPR would lay its rails, but those treaties weren’t signed until years after the land sale: Treaty 4 in 1874; Treaty 6 in 1876; and Treaty 7, not signed until 1877, just three years before the government signed its deal with the CPR.

It was an act of no small colonial hubris for the government of Sir John A. Macdonald to award Canadian Pacific Railway the eternal freedom from paying taxes on land it had been given by the Crown for its right-of-ways. Yes, that’s right — the CPR got the land for free and an everlasting tax holiday, too.

That same colonial spirit was strongly at play when Saskatchewan and Alberta finally entered Confederation in 1905, not as full-fledged provinces with the same rights as the others, but with slightly second-class status when it came to the governance of their own lands and natural resources. That same central Canadian colonial mindset helps to explain why the CPR tax exemption was written right into The Alberta Act and The Saskatchewan Act, and thus into the British North America Act itself.

I mean, it is absurd, when you think about it. We actually wrote a corporate subsidy — a perpetual tax holiday — for one private company right into our Constitution, our nation’s supreme piece of legislation. And we left it right there in 1982 when we repatriated our Constitution, making the taxpayers of Alberta, Saskatchewan and Manitoba, too, perpetual second-class citizens, perpetually on the hook, committed to subsidizing the cost of Sir John A. Macdonald’s crony capitalism forever and ever, amen.

Perhaps the reason this issue didn’t come up 40 years ago when we brought the Constitution home is because the CPR actually started paying its taxes on the Prairies voluntarily in 1966. Perhaps that’s why no one dealt with this oddball anachronism in 1982 when we opened up the Constitution for review and restructure.

Indeed, this whole matter might have been consigned to the history books if the CPR hadn’t sued the three Prairie provinces in 2008, demanding the return of the taxes they had already voluntarily paid, or, to be more precise, for six years of back taxes, the most they could claim under the statute of limitations.

Their logic was based on a 2007 Supreme Court of Canada decision called Kingstreet Investments Ltd. v. New Brunswick (Finance). In that case, the Supreme Court held that restitution should be generally available for the recovery of monies collected under legislation that is subsequently declared to be ultra vires because it would be fundamentally wrong for a government to retain taxes it collected under a regime that was beyond its legal powers. To use a non-Latin phrase, CPR’s interpretation of Kingstreet stirred up a hornet’s nest.

Today, we are specifically discussing a motion to end Canadian Pacific Railway’s tax-free status in Saskatchewan, but let’s note that the CPR sued Alberta, too, filing its statement of claim against my province on August 13, 2008. That was back when Ed Stelmach was Alberta’s premier.

Though the case has yet to go to trial, or even to proceed to examinations for discovery, that lawsuit has stayed active throughout the premierships of Ed Stelmach, Alison Redford, Jim Prentice, Dave Hancock, Rachel Notley and Jason Kenney. Indeed, the CPR filed an updated statement of claim against Alberta in December 2020, demanding that it be exempt from paying carbon and fuel taxes, too.

So I’m speaking today very much as an Alberta senator and an Alberta taxpayer with a keen interest in ensuring that other Alberta taxpayers are getting their own fair deal from Confederation.

With that framing in mind, let me make three points.

First, despite the wording of The Alberta Act and The Saskatchewan Act, and despite the incorporation of this never‑ending corporate subsidy into the Constitution, the deal is not written in stone, and legal authorities seem to agree that the Parliament of Canada has the right and power to amend it. Parliament, after all, is sovereign, and no parliament, one could argue, has the power to bind a future parliament in this perpetual way, because no one parliament — even one led by Sir John A. Macdonald — is superior to another.

This isn’t a fairy tale from The One Thousand and One Nights or the Brothers Grimm, where a kingdom is cursed because its king signed some kind of blood contract with a jinni or Rumpelstiltskin. We have the power to break this spell.

This was a business deal inked in 1880, in a completely different world — one where Saskatchewan and Alberta didn’t even exist and where no one imagined that CP would be changing its name to Canadian Pacific Kansas City Limited or be running trains all the way to Mexico. How logical is it for such an agreement to be binding 142 years later?

Second, there is, at the same time, a question of procedural fairness and what you might call natural justice. CP and the Government of Saskatchewan have been locked in an active legal dispute over this issue since 2008. For the Government of Saskatchewan and the Parliament of Canada to short-circuit that legal process by changing the rules so radically in the middle of the game isn’t exactly sporting. To use an 1880 colonial idiom, it is “hardly cricket.”

Now, maybe you don’t feel particularly badly for CP. After all, they opened this can of worms when they sued back in 2008. They might have anticipated that Saskatchewan, rather than pay back millions in taxes, might use this nuclear option. Also, given that CP reported $8 billion in revenues for 2021, maybe you’re not feeling deeply sympathetic.

But I feel uneasy at the thought of amending the Constitution retroactively, as this motion proposes, backdating this change to 1966. The Constitution is the moral code and the DNA for our country. It has to be treated with respect and with the understanding that our actions have long echoes. For a government to reverse a constitutional entitlement in this ex post facto way sets a problematic precedent. What other constitutional rights or entitlements might a future government attempt to antedate in this fashion?

In its 1988 ruling in Ford v. Quebec, the Supreme Court of Canada held that the Constitution’s “notwithstanding” clause could not be applied retroactively but only as an act of prospective derogation. I am no expert in constitutional law, although many here are, but from a common sense perspective, I can’t help but wonder if a parallel philosophical argument for prospective derogation might not apply here also. I am happy to argue that we should change this deal going forward for the benefit of Saskatchewan’s future. I am considerably less comfortable with a motion that seeks to time travel some 56 years into the past, not just to rewrite the Constitution but to rewrite history. It may be valid, but I’m not sure it’s good public policy.

Here is my third concern: This is a stand-alone deal for Saskatchewan, a constitutional carve-out for one province, but Saskatchewan is flanked by Alberta and Manitoba, two provinces that share the same CP conundrum. Does it make sense to amend the Constitution for the benefit of only one province when two other provinces are in the same boat — or a rail car? There’s an old expression, “That’s no way to run a railroad.” I can’t help but feel that adage applies here.

Amending the Constitution in this patchwork, piecemeal way leaves us with an uneven and uneasy Confederation. As an Albertan, I’m upset that my own province has been left at the station, as it were, shunted to the side. This is not fair to Albertans, and it’s an imbalance that cannot be allowed to stand.

I have attempted to reach out to the Alberta government to discuss this, and I’d be very willing to work with the province to see what can be done to address this imbalance. That might well include volunteering to move a motion in the Senate to ensure that Albertans get their just deserts.

In the meantime, I’m concerned that by doing these amendments bit by bit, we’re missing a chance for a more coherent examination of these constitutional irregularities. I fear, too, that we’re forfeiting the chance to address the role and the rights of Indigenous peoples through whose traditional lands in Alberta the CP main line runs, including the five nations of Treaty 7: the Siksika, the Kainai, the Piikani, the Stoney-Nakoda and the Tsust’ina.

Thank you for giving me, as an Alberta senator, this opportunity to speak up for the rights of all my fellow Albertans. It is long past time to correct a legal anachronism that denies the three Prairie provinces their constitutional right to levy and collect taxes on their own territories. We can’t be a modern Confederation while Alberta, Saskatchewan and Manitoba are still treated like second-class colonies. I just wish we were tackling this problem in a somewhat different way.

Thank you, hiy hiy.

Hon. Kim Pate: Honourable senators, I thank my colleagues for their speeches on this matter.

I speak today to urge that we work together to uphold one of our most important duties as senators. As we well know, we share a responsibility to ensure that all perspectives are heard. Far too often, the perspectives of those most marginalized seem to be intentionally ignored. Today, we have an opportunity to ensure they are not.

Here are some important facts.

The 1881 agreement between the Government of Canada and CP Railway provided CP Railway access to traditional territories of First Nations peoples, both unceded lands and treaty lands. Clause 12 of the contract between CP Railway and the Government of Canada states:

The Government shall extinguish the Indian title affecting the lands herein appropriated, and to be hereafter granted in aid of the railway.

This blatant disregard for the rights of Indigenous peoples underpins and forms crucial context for Motion No. 14.

The lands transferred between CP Railway and the Government of Saskatchewan are governed by three treaties — 4, 6 and 10 — signed with the Cree, Saulteaux, Chipewyan, Ojibwe and Assiniboine. These were agreements negotiated in good faith between the Crown and Indigenous peoples but that have not been honoured by the Canadian government.

Tempting as it is to try to list the depth and breadth of all these broken promises, time today does not permit it so, for additional details, I will urge anyone interested to review the documents of the Royal Commission on Aboriginal Peoples, the Truth and Reconciliation Commission and the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

In order to provide you with just a taste of the sorts of issues involved, however, I feel it is important to give a few examples.

The first breach concerns the settlement on an area known as the “treaty ground,” a place that was agreed to be set aside to conduct treaty business. It was the site where Treaty 4 was signed and where Indigenous peoples received their annual treaty compensation.

In 1882, Treaty 4 peoples were told to receive their payments on their reserves instead of on the ground. Although this decision was met with resistance by the First Nation, Indian Affairs unilaterally transferred the treaty ground to the Department of the Interior in 1894. It took more than a century for Treaty 4 peoples to get this land back.

Treaty 6 was signed when the Cree were in constant threat of starvation, as the bison population, their main source of food, was being hunted to extinction by arriving settlers. This was such a serious issue to the Indigenous peoples that they included a “famine and pestilence clause” in the treaty. Despite negotiating that provision, successive governments have failed to ensure First Nations enjoyed food or health security. Indeed, these, as well as economic insecurity, remain serious issues, with food insecurity alone ranging from the horrific average rate of 48% to the genocidal figure of 60% in too many First Nations communities.

Treaty 10 was not signed until 1906 — 25 years after the agreement between CP Railway and Canada. Even then, this treaty was nearly immediately breached with both the Canoe Lake Cree First Nation and English River First Nation not being given the full amount of reserve land promised.

There are also further concerns. Although, according to the government, treaties extinguished Indigenous land “ownership,” all the First Nations involved maintain that they agreed to share, not sell, their lands.

There are also disputes about the nature and extent of the rights covered by these treaties. It is well recognized that during their negotiation, government representatives made oral promises that were not then reflected in the written versions of the agreements, otherwise known as the treaties.

The Supreme Court of Canada in R. v. Badger created the principles to govern treaty interpretation in light of these facts. Furthermore, Justice Sopinka wrote that even when the written version of an agreement was faithful to the oral promises, there were still linguistic and cultural barriers and unfamiliarity with the common law system that created an obligation to examine treaties in a special light. Treaties must be interpreted in the sense that they would naturally have been understood by Indigenous peoples at the time of signing.

These facts may be uncomfortable for Canadians to hear and learn. However, Canadians agreed to grapple with this difficult past in pursuit of a brighter future. Canada has adopted the United Nations Declaration on the Rights of Indigenous Peoples, many articles of which focus on remedying past colonial wrongs and rely on the good-faith negotiation of nation-to-nation relationships with Indigenous peoples. The government has committed to implementing the Calls to Action of the Truth and Reconciliation Commission and the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

Most recently, Canada’s commitment to reconciliation with Indigenous peoples was tabled as a top priority for the Canadian government and is included in the mandate letters of all 36 current members of the cabinet. Part of reconciliation requires that Canadians know, understand, acknowledge and work to rectify the truths of our racist colonial past that were for so very long ignored. Only then can we move on in the spirit of reconciliation.

This motion deserves this contextualization and more, dear colleagues, and I thank you for your time.

Meegwetch. Thank you.

Hon. Brian Francis: Would the honourable senator take a question?

Senator McCallum: Yes.

Hon. Mary Jane McCallum moved third reading of Bill S-219, An Act respecting a National Ribbon Skirt Day.

She said: Honourable senators, I rise today to speak to third reading of Bill S-219.

I would first like to thank my honourable colleagues for their support in having this bill sent to committee. In doing so, you helped to facilitate and hold space for youth.

This case concerns a young First Nations girl named Isabella Kulak. We hold space for her and, in doing so, we also hold space for other youth. This is so for two reasons: The first is to explore and understand why that violence occurred. The second is to focus on Isabella’s responses, of which there were two: Shame initially, followed by a swift movement toward peace and conciliation.

I would like to begin my remarks today by explaining why I say that a violent act was committed. The gender violence committed was, and continues to be, transmitted through to future generations.

In her PhD entitled A Feminist Poststructural Analysis of Aboriginal Women’s Positioning in a Colonial Context: Nehinaw Iskwewak E-pikiskwecik, or “Cree women’s speak,” author Dr. Marlene Elizabeth McKay stated:

This group of women was interviewed to give them an opportunity to share how they see their lives being produced for them. Aboriginal women’s marginalization has become normalized through the systems, practices, and institutions that have materialized through the Indian Act, Christianity, Indigenous knowledges, and colonial relations with non‑Aboriginal society. Discursive practices located in these structures establish and maintain ideas of how and who these women are supposed to be. How these women are positioned is largely a product of our Canadian colonial history.

The work of Michel Foucault informed this research. Foucault’s rules and norms served as a lens to demonstrate how Aboriginal women are produced as unimportant and inferior. The notion of rules and norms is a social production that requires effort, and in this way these rules and norms are continuously being reproduced.

This socialization is learned and reproduced and therefore, appears normal and natural. . . .

. . . the outright daily racism that is imposed on them as a result of the social production that they do not matter, are unimportant, or are disposable. . . .

The discourse of the “dirty squaw” has become a dominant marker of Aboriginal women’s identities.

Honourable senators, this is the reality that we are born into as Indigenous girls. We are marked even before we are born. Young Indigenous girls have to overcome the perception of the dehumanized Aboriginal woman as a dirty squaw. Intergenerational trauma experienced by First Nations girls and women is unique and it is violent.

I know this first hand, because I have had to deal with it all my life and continue to face it to this day.

As Dr. McKay states:

The political implications of producing the Aboriginal subject as subordinate have been immense, leaving Aboriginal people with the task of undoing the damage done by colonialism.

That is why Isabella’s response is remarkable and points to the progress made by her parents, elders and the community. Women have continuously resisted oppressive systems to work toward a better future for themselves and their children. It speaks to the unrelenting power and spirit of First Nations women.

Colleagues, holding spaces is a concept that has been long practised and modelled by my people. For generations, holding spaces allowed children to learn from the land and nature with the ability to do so with fluidity, safety and purpose. It allowed children to learn traditions and life skills through land-based teachings and to learn collective laws.

Some of these teachings from Elder D’Arcy Linklater include the following: wakotowin, or social capital; Nehetho Tipethimisowin, the exercise of sovereignty, belonging to yourself and the responsibility of decision-making roles that come with this exercise; and Kistethichikewin, the idea that the conduct of a person must be based on the sacred responsibility to treat all things with respect and honour.

I was taught by my elders, in the past and today, to be intentional about the conversation brought forward in these spaces. I have also been taught to encourage the asking of big questions and to sit with brokenness and discomfort, but also with joy and resolution. I would like you to join me and do the same as we create space for youth through this bill to give them voice at the national stage.

Honourable senators, Donald Winnicott is quoted in author Heather Plett’s book The Art of Holding Space: A Practice of Love, Liberation, and Leadership where he states:

. . . “holding” is what teachers and parents do when they create safe and supportive environments for children to learn while not jeopardizing the autonomy and individuality of those children.

Colleagues, while holding space was developed in a teaching and home environment, we, as senators, also have a vital role to play in bringing the voices of the marginalized to Parliament. This is, at times, a complex and difficult proposition. We are part of a public institution that is currently holding space to spotlight deep-rooted prejudice and racism. As a Senate whose role is, in part, to speak for the marginalized, we need to look at ways of addressing and challenging the ongoing victimization of women and girls in a timely and responsible manner.

Honourable senators, I would now like to bring forward a matter that was raised during this bill’s study at the Standing Senate Committee on Aboriginal Peoples. Specifically, it was brought forward that the ribbon skirt is not regalia common to all First Nations, Métis, Inuit and non-status women and girls, as well as the LGBTQ community across Canada.

I would like to address this issue by saying that we must remember the focus of the bill, that being to highlight, then combat, gender violence while also promoting reconciliation and familiarity with Indigenous culture and tradition. It was never the goal of Bill S-219 to try to accommodate all of the various regalia worn across the country. That would be an impossible task. Attempting to do so would fundamentally alter the bill and detract from its initial intents: to understand the impact of violence against Indigenous women and girls, to celebrate the family’s subsequent actions toward inclusion and to facilitate dialogue between Indigenous and non-Indigenous citizens of Canada to encourage small and large acts of reconciliation and relationship building.

I would like to stress that I am not trying to convey the message that the ribbon skirt is pan-Canadian regalia. Conversely, it would be encouraged for other Indigenous nations, communities and groups to use January 4 as a day to bring forward their own forms of dress and regalia and to educate Canadians on their origins, use and importance.

This is what happened this past January 4, 2022, when Isabella Kulak was joined by a young Ukrainian schoolmate who also modelled her country’s own regalia. What better way to demonstrate reconciliation? Isabella and her family helped to create space and mentorship to allow other youth to do the same. We cannot stand by and fail to support her and other youth in their journey toward self-determination, which this bill aims to do.

Isabella is facing her and other Indigenous girls’ difficult history of colonialism, and in doing so, she is writing a different ending. She is entering a different world, one I could never have imagined was possible when I was her age. Isabella’s individual right to self-determination was supported by the collective determination that is the leadership, family and community that rallied around her and helped to turn a contentious issue into a positive movement. They embraced this issue and have used it as a tool for teaching and connecting with the surrounding non-Indigenous community.

Moreover, it should be remembered that culture is dynamic across Canada and throughout the world. It is not stagnant. We were made aware by Senator LaBoucane-Benson that First Nations adopted the scarf as part of the regalia from the Ukrainian community. People, for generations, have embraced and celebrated other cultures as will continue to happen.

Said to have its roots in the 18th century, the symbol of womanhood tells a story of adaptation and survival – showing that tribal communities have adopted western culture and made it their own.

Several museums report the materials used to make ribbon skirts aren’t Indigenous in origin, “but the method of applique done to create the folded look of the ribbon has become a visual marker of identity for centuries.”

Honourable senators, there are many intersectionalities that exist with the regalia of ribbon skirts. Race and gender are closely connected to self-care and self-determination. It is critical to understand that the liberation of oppressed peoples begins with the critical understanding of how they are oppressed.

In her 2012 article entitled “Self-Determination and Indigenous Women’s Rights at the Intersection of International Human Rights,” author Rauna Kuokkanen states:

Self-determination (both individual and collective) and gendered violence are among the most important and pressing issues for indigenous women worldwide.

She further contends that for Indigenous self-determination to be successful, it must also “address the question of violence against Indigenous women” and girls.

This violence hasn’t been addressed in Canada but continues to infiltrate into the lives of our women and, of greater consequence, our youth. Left unaddressed, this violence will continue to impact negatively and cumulatively on the future of their civil, political and cultural rights.

Colleagues, violence is a health issue. Health is a basic human right and is an enabling right that, when respected, allows for the fulfillment of other human rights, including self-determination.

In her 2016 article entitled, “Red Intersectionality and Violence-informed Witnessing Praxis with Indigenous Girls,” author Natalie Clark states:

. . . I have joined the voices of other Indigenous scholars . . . in calling for a more complex understanding of policy and programming as it affects Indigenous girls. Carolyn Kenny describes the impact of what she calls the “double bind” . . . in the lives of Indigenous women and girls of being silenced in key decisions and policies that have an impact on their lives while, at the same time, their participation is essential to social change, leadership, and healing in their communities.

Honourable senators, Isabella Kulak made a “key decision” to wear her ribbon skirt and that is an act of self-care. Being silenced in this “key decision,” made in her private life, had the potential to lead to being silenced in public and political life. We have witnessed the silencing of Indigenous voices on issues that impact health and self-determination in our own committees. We must not continue to be complicit, as silencing will eventually filter to the intergenerational group.

Author Natalie Clark continues:

Furthermore, any social justice action or outcomes must be situated within a framework that holds onto tradition and intergenerational knowledge while making meaning of modern Indigenous struggles. . . .

To this point, the solutions that Chief and Council of Cote First Nation — Isabella’s home community — devised were rooted in the community and in their traditions. This was affirmed in Chief Cote’s committee testimony wherein he said the community’s hope is to:

. . . teach non-First Nations the identity of the Anishinaabe people in our territory and also learn about the other cultures that our young First Nations students are going to meet when they go to the non-First Nations schools.

In this way, Cote First Nation is already modelling what this bill seeks to accomplish — valuing and practising tolerance, acceptance and understanding of cultures and traditions that are different from your own.

Colleagues, author Natalie Clark also speaks about violence and safety as it relates to Indigenous girls, writing:

Community-based approaches, such as models of . . . ceremonies, are important since they provide spaces in which girls can be seen in the circle, and because they allow us to understand their experiences of violence, as well as naming and situating their resistance to such experiences. . . .

The author continues:

. . . the so-called trauma industry has continued a colonial legacy of labeling and pathologizing Indigenous girls that manages their behavior through criminalization, medication, and talk therapy programs which ultimately serve “to reinforce a sense of powerlessness and undermine women’s ability to resist”.

Honourable senators, I cannot help but wonder if Isabella and her family had not dealt with the shame she felt, could it have been internalized as a festering wound that would have resulted in the need for medication and counselling in the years to come? It might seem a small incident to some, but I will tell you that the cumulative impacts of racism and violence from a young age do lead to soul wounding. Such disproportionate impacts have the capability of having long-term and far-reaching consequences if not addressed.

In Isabella’s situation, her family and community were proactive, which deserves acknowledgment and celebration. At the same time, we also need to highlight and bring the perspective of the youth who are less supported because they have fewer resources. Bill S-219 provides an opportunity to promote gender equality and a more inclusive society, with women and girls at the centre of this effort. The earlier that girls and boys understand equity, equality and inclusiveness, the better for their future as well as the future of Canada.

Colleagues, inequity is one of the most pervasive problems in Canadian society. Inequity has a multitude of causes with the result that it creates differences in access to schooling, health, opportunity, food, water, housing, geography, self-determination and quality of life. Equity is very important in understanding and practising self-care and self-determination.

These inequities do not occur naturally. They are the result of laws and policies that do not consider equality and equity. When youth find little meaning in social policies, they tend to disengage from the system. If we do not act accordingly to address this serious issue that affects youth throughout Canada, our systems will be doomed to continue to reproduce social and economic inequity, further disenfranchising large segments of Canada’s youth population.

Society is used to seeing and hearing about the Indigenous youth who suffer the most inequity, that is, they have few or no resources or supports to be able to think and act positively, let alone to do what Isabella did. These youth have undergone and continue to undergo a different history and hence a different trajectory in their lives.

There have been countless reports on Indigenous youth, whether they focus on children in care or in juvenile centres. There have been many reports, inquiries and commissions on Indigenous women — reports that were built on their bodies. While these reports have had varying degrees of publicity, whatever knowledge and awareness they have raised have not resulted in timely, meaningful policy reform. Moreover, the subject of juvenile justice for these Indigenous youth has largely gone ignored. Such inaction positions Indigenous youth, including Indigenous girls, in a severe deficit. All the while, our laws and policies refuse to address the root cause, namely the legacy of colonial structures, whether they be legal or otherwise.

Honourable senators, history tells us that Indigenous peoples needed to be tamed from their savage ways. This was accomplished by Christian missionaries who blatantly refused to accept the legitimacy of Indian culture and religion. As a child going into residential school, for the 11 years I was there, all our clothing and property were removed when we entered on our first day. We were given clothing that would take away our uniqueness. We were all dressed the same with the same bowl haircut. We were forced to adopt a foreign language. We were meant to see ourselves as invisible, with no history, no culture, no traditions.

Something as simple as removing your right to dress in a way that expresses and celebrates yourself does have lasting impacts. It starts that road towards dependence, blind obedience, shame and learned helplessness. In reality, government and religious organizations took children with rich culture and unilaterally created impoverished cultures.

Colleagues, this bill celebrates the resistance to violence and the promotion of peace in its stead. Within the December 2020 news article “‘It’s like armour’: A look at the resurgence of ribbon skirts” by Kathleen Martens, Ms. Isabella Kulak states:

I didn’t want it to turn into ugly hate for the (educational assistant). She’s a person. Maybe she made mistakes with what she said. I’m sure she regrets it.

Isabella’s father said his family was invited to help improve the education-system knowledge of First Nations issues, including clothing.

In the same article, Helene Cote of Kamsack states:

As an educator I know the importance of accepting students for who they are. . . Empowering students and building confidence is what molds successful students.

Grandmother Ketchemonia-Cote said, “What happened shouldn’t have happened. But let’s see something good come of it.”

Colleagues, I have spoken to many people and heard of their initiatives directed at the ribbon skirt and in support of Isabella. Some of these include ribbon skirt classes held at a Turtle Island business where they teach six women at a time the wisdom behind the ribbon skirts; ribbon skirts being made for choir members and the choir mistress for an upcoming arts festival this spring in Prince Albert, Saskatchewan; and ribbon skirts for a bride and her grandchildren; and a Canadian university’s Indigenous people’s centre initiated by women will look at this bill and discuss the spiritual components of the ribbon skirt.

Honourable senators, holding space for Isabella Kulak and other youth has been a multi-layered endeavour for me. All who spoke, commented on or questioned Bill S-219 inside and outside of the Senate added a layer to the collective understanding of the impacts Canadian history has had on Indigenous youth. In doing so, we thereby develop compassion and move towards reconciliation and conciliation. These conversations added contour, depth, colour and clarity to this issue through both second reading and committee study as well as through the debate and vote yet to come.

I would like to close by reiterating that the goal of Bill S-219 is to bring people together and not to divide. The bill names the ribbon skirt because that was the regalia used as a conduit of violence against young Ms. Kulak and by extension against all Indigenous women and girls who proudly wear and honour their own cultural dress. The intent now is to use this one moment of prejudice, racism and discrimination as a springboard from which we can encourage understanding, respect and reconciliation. We thank Isabella, her family, the leadership and community for their strength and determination to turn this challenge into a positive experience.

Kinanâskomitin. Thank you.

Senator Francis: Senator McCallum, I note that in the previous iteration of your bill, which was introduced last Parliament, there was a clause that is no longer found in the current bill. That clause explicitly stated that the National Ribbon Skirt Day is not to be considered a legal holiday or non-juridical day. Would you be able to explain why this clause is not found in Bill S-219?

Senator McCallum: Thank you for this question, Senator Francis. This clause was removed by the office of the Law Clerk and Parliamentary Counsel when they prepared this bill for reintroduction into this current Parliament. As we were informed by the Law Clerk’s office, it was removed because it has no legal effect. “For greater certainty” clauses serve to resolve ambiguities in legal texts. These clauses do not actually have any substantive legal effect. They simply reiterate the law as it already exists.

This is the case here. National Ribbon Skirt Day is not a legal holiday or non-juridical day. Legislation establishing a holiday is very explicit that it is creating a legal holiday — the Holidays Act being a prime example — or else it modifies relevant statutes directly to produce the effects of a holiday.

For example, the recent legislation to establish the National Day for Truth and Reconciliation amended the Canada Labour Code to make that day a holiday for federally regulated workers. The prevailing view in the Law Clerk’s office is that if the bill does not amend anything else or explicitly state that it is a legal holiday then there is no reason to believe the legislation would create a legal holiday.

As for the meaning of non-legal or non-juridical days, these are days that do not count for the purpose of determining deadlines for court filings. As an example, weekends are non-juridical days as are legal holidays like Canada Day or Victoria Day. A National Ribbon Skirt Day would not fall under this category.

Additionally, there is precedent in federal statutes that create special days without using this type of for-greater-certainty clause. These include the Holocaust Memorial Day Act and the Merchant Navy Veterans Day Act, and it appears that nobody has been confused as to whether these establish legal or non-juridical days, which they do not.

As my office has been advised by the Law Clerk’s office, they, along with their counterpart in the House of Commons as well as the Department of Justice, work under the principle that legislation should say no more than is necessary for them to operate. This reduces the possibility of ambiguity or error when people read a bill, but it also saves us senators time at committee and in the chamber as there is less to review and less to vote on or possibly amend. As such, in this case, the Law Clerk’s office is starting to remove this clause as it has no impact on the bill and does not add any requisite clarity.

As a final relevant point, you will note that this clause is also missing from two other day bills in this session, Bill S-227, An Act to establish Food Day in Canada and Bill S-209, An Act respecting Pandemic Observance Day. It is my hope that this provides clarity to your question.

(On motion of Senator Hartling, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Boisvenu, seconded by the Honourable Senator Plett, for the second reading of Bill S-205, An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders).

Hon. Hassan Yussuff: Honourable senators, I rise to speak in support of Bill S-205. We all want a world without domestic violence, where supports and systems are in place to prevent men from committing abuse and to assist women in leaving relationships easily if they feel threatened with abuse.

This will be the world we aspire to. In the meantime, we must try to deal with the imperfect world we have, a world where 4 out of 10 women have experienced some form of intimate partner violence in their lifetime; where roughly every six days a woman in Canada is killed by her intimate partner; where every night almost 6,000 women and children sleep in shelters because it’s not safe for them to sleep at home; and where thousands are not able to access shelter because space is not available.

I speak as the father of a young daughter, as a husband and as a legislator who has the power to make a difference not only in my daughter’s future but in the lives of thousands of women and girls who are experiencing domestic violence right now.

This discussion is not about whether a person supports measures to help reduce the chances of domestic violence, such as the measures proposed by Bill S-205. It does not mean that other measures to address the root problems of domestic violence cannot be developed as well. We must keep the focus on the victims of domestic violence who are living it right now, and give them every tool available to help stop or reduce the chances of continued abuse or death.

According to the 2017 Department of Justice report, gender‑based violence against women is identified worldwide as one of the most pressing social human rights challenges. The root causes of domestic violence include coercive control, defined as a pattern of controlling behaviour used to instill fear or intimidation; the underfunding of shelters and housing, or the lack of resources for prevention; and the role of police in investigating domestic violence.

The problem of domestic violence has been exacerbated during COVID. The United Nations calls the pandemic’s impact of violence against women a shadow pandemic in which the isolation and financial precarity resulting from the lockdown tether mainly at-risk, female-identifying people to abusive situations. If gender-based violence against women is one of the world’s most pressing social human rights challenges, should we not use every tool possible to combat it?

Many protections and supports are needed for victims of domestic violence. Domestic violence can carry over into the workplace, threatening women’s ability to maintain economic independence. During my time at the Canadian Labour Congress, I was part of a campaign to create paid leave for the domestically abused, culminating in the federal legislation in 2017 that provided 10 days off, 5 paid, per year for victims of domestic violence. I have to say, today, right across this country, in every jurisdiction across Canada, including the three territories, legislation now exists to provide for paid leave for victims of domestic violence — except Alberta, which is the only place where they are yet to get paid leave. We’re continuing to work on that.

As part of the campaign, the Canadian Labour Congress partnered with researchers at the University of Western Ontario and conducted the first ever Canadian survey on domestic violence and the workplace. Some 8,429 workers were asked if they experienced domestic violence. One third said yes. Of those, 82% said the violence negatively affected work performance. Almost 40% said it kept them from getting to work. For almost 10%, it meant losing their jobs. More than half said the violence continued at their workplace in the form of harassing emails, calls and texts, stalking or physical violence.

Paid domestic violence leave is one support, one tool, just like the measures in Bill S-205 are different supports for victims of domestic violence. What is Bill S-205 trying to achieve? It attempts to put the victims first. What does it not do? It will not address the root problem of domestic violence. It will not stop the initial abuse. It is not 100% effective in stopping every abuser from hurting their victim.

Bill S-205 is intended to give victims some space to make a safety plan, to reassess their relationship and their options for the future, to increase the safety and freedom of victims by reducing the levels of harassment and stalking, to make the victims more visible in the justice system by requiring them to receive more information on the release of the accused, to provide judges more ability to require the accused to get treatment and to help mitigate victims’ feelings of fear.

One woman who took part in a U.S. study on the use of electronic monitoring devices said:

I always felt he was going to come out from nowhere and cut my throat or shoot me.

Before he was put on [electronic monitoring], I went down to 96 pounds . . . . I couldn’t eat from nerves, worrying if he was just going to break into my home, (or) where he’s going to show up. He would stalk me, he would drive down (to) my home, he would show up in places—if I would go out he would show up.

Violations and presumptions of innocence apply to those accused of a crime under a peace bond. So there are some criticisms of the bill, and I want to address that, also.

Electronic monitoring neither deals directly with the most common root cause of domestic violence nor does it provide, of course, preventive solutions for women not to have to deal with domestic violence in the first place. For example, economic, racial and gender inequalities must be addressed. These play a part in violence and a person’s ability to escape it.

For the victims, the electronic monitoring system, EMS, can provide a false sense of security. It is not 100% foolproof, neither in the technology, the response time by police nor in remote areas where technology may not be effective or reliable.

I don’t necessarily disagree with any of these criticisms or concerns. We do not live in a world where we can have a perfect policy solution. This legislation isn’t perfect; none is. It is our job to provide a proper balance — a balance between the safety and security of victims and the rights of the accused.

There are a number of countries that have implemented GPS tracking devices to address domestic violence, including Australia, England, France, Portugal, Spain and the United States. I believe we need to be guided by the evidence of electronic monitoring from those countries.

There is not a lot of quantitative research on the effectiveness of electronic monitoring for accused perpetrators of domestic violence who are on bail or under a peace bond. However, there are many reliable quantitative studies that have suggested that the use of EMS is victim-centric; it improves the victim’s perception of safety and allows victims to feel better informed and better engaged in the justice system. Evidence of breaches is more easily shown by electronic-monitoring technologies. Victims may feel more supported to report breaches.

A national survey of practitioners from the U.S. provided that 75% of criminal justice professionals working with electronic-monitoring methods felt the victims were more empowered by such systems. It can restore a victim’s faith in the justice system. The same survey found that the majority of electronic-monitoring practitioners were positive about its use in domestic cases, stating that it improved the quality and efficiency of monitoring perpetrators and holding them accountable. The majority believed that electronic monitoring effectively deterred perpetrators from initiating in-person contact with the victims.

Interviews in a 2012 research study showed that, prior to the use of electronic monitoring, perpetrators were able to continue to abuse victims more or less undetected, with impunity. Once perpetrators were subjected to electronic monitoring, victims reported feelings of increased safety and freedom and reduction in the levels of harassment and stalking.

Other U.S. research notes that domestic violence cases have higher levels of dismissal than other crime types due to the unique dynamics of domestic violence abuse and pressures on the victim. Empirical research from the U.S. has shown an increased level of victims’ attendance at court and a decreased likelihood of dismissal of cases that were continued over a long period of time, as compared to the cases where the perpetrators were released on bail without electronic monitoring.

Finally, Spain, which pioneered electronic monitoring, has been mentioned already in this debate. They have used electronic monitoring there in domestic violence cases since 2009. One researcher who studied Spain’s system extensively has determined that, after a decade of growing use of EM in Spain, restraining orders appear to be more successful.

Colleagues, I want to conclude. I agree that more should be done to address the root cause of domestic violence. By putting the victim first, we should use every tool possible to tackle the problem from every single angle. Electronic monitoring should not be considered a silver bullet to prevent domestic violence. The positive impact of electronic monitoring is enhanced in this bill with complementary intervention, such as mandatory treatment strategies, but must also make sure that electronic monitoring includes rigorous surveillance and case management through probation or correctional services. Electronic monitoring provides a structure and can be ritual-breaking by keeping offenders away from the place, people and activities that lead to offending.

I believe this strikes a balance between the rights of the accused and the protection of victims. It also provides for treatment should a judge feel it would be of help.

I will support this bill to get to committee so that more fulsome study can be done to make sure its measures are best to make a difference in the protection of victims. Thank you so much.

[Translation]

Hon. Pierre-Hugues Boisvenu: Senator Yussuff, thank you so much for your speech. I can tell you’ve done some very in-depth research that will really help us define the scope of this measure.

You talked about more support for women who are victims of intimate partner violence. You are correct. A woman in hiding is a woman in poverty, because she will likely have to leave her job, her family and her home. Those are economically unacceptable conditions.

In 2013, I succeeded in passing Bill C-44 to give the parents of missing or murdered children up to 35 weeks of benefits in addition to 16 weeks of EI, which is a total of 52 weeks.

Senator, would you want to work with me to modify the program so that women who are victims of violence and have to go into hiding can get benefits for six or eight months, so they don’t succumb to poverty after reporting their abuser?

[English]

Senator Yussuff: Thank you for your question, Senator Boisvenu. The reality of domestic violence is a societal issue, and society has to bear the full cost of domestic violence. It can’t be women in this country and throughout the world who have been at the forefront of this struggle — it’s fundamental that the state take responsibility to address domestic violence. Senator Boisvenu’s point of using the EI system to ensure women can access income during this period of difficulty is fundamental to bringing quality to the suffering of domestic violence.

(On motion of Senator Duncan, debate adjourned.)

[Translation]

On the Order:

Resuming debate on the motion of the Honourable Senator Bovey, seconded by the Honourable Senator Cordy, for the second reading of Bill S-208, An Act respecting the Declaration on the Essential Role of Artists and Creative Expression in Canada.

Hon. René Cormier: Honourable colleagues, today I rise at second reading of Bill S-208, An Act respecting the Declaration on the Essential Role of Artists and Creative Expression in Canada.

I want to acknowledge that the land on which I am speaking to you today is part of the unceded territory of the Anishinaabe Algonquin nation. I strongly agree with the Canada Council for the Arts that the arts contribute to the healing and decolonization process, a process in which we must all engage together.

[English]

I would like to congratulate Senator Bovey for introducing this ambitious bill on November 24. With the Minister of Canadian Heritage preparing to hold a national summit on the recovery of the arts, culture and heritage sectors, now is the time for an important and long-awaited discussion on the place and role of the arts and culture in Canadian society.

I would also like to thank Senator Ataullahjan for shedding light on the precarious working conditions of artists and cultural workers in her speech at second reading, which is a subject matter that also concerns me a lot.

Bill S-208 creates a declaration on the essential role of artists and creative expression and provides a framework for its implementation in the form of an action plan. The action plan is to be developed by the Minister of Canadian Heritage following consultations with other federal ministers and stakeholders, including but not limited to those listed in the bill.

Although I applaud the bill’s overarching objectives, I want to share with you, colleagues, my thoughts and concerns about the following aspects, which could be addressed in committee.

These aspects are the lack of attention in the bill to the collective dimension of Canadian culture and the importance of protecting and promoting the diversity of Canadian cultural expressions; the place of this bill within federal jurisdiction; the link that this bill could make between culture and sustainable development; the challenges of developing the proposed action plan and holding consultation to ensure its implementation; and the merits of this bill at a time when artists are facing great uncertainty.

[Translation]

Let me say at the outset that I think it is vital to recognize that a declaration on the essential role of artists and creative expression across Canada must take into account the cultural ecosystems in which artists practise their art, and the social groups to which they belong. In other words, taking into account the collective dimension of Canadian culture and its plurality is essential to understanding the issues affecting artists in Canada. However, I believe the current version of the bill does not properly take this dimension into account.

Allow me to remind the chamber of UNESCO’s definition of this dimension of culture, and I quote:

 . . . in its widest sense, culture may now be said to be the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group. It includes not only the arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs . . . .

Beyond that definition, by ratifying UNESCO’s 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Canada has committed to creating an environment that encourages individuals and social groups “to create, produce, disseminate, distribute and have access to their own cultural expressions.” To this end, Canada is committed, and I really want to emphasize this, to paying due consideration to the various social groups, including persons belonging to minorities and Indigenous peoples.

[English]

As you know, colleagues, the Canadian identity is anything but homogeneous. It is the product of culturally different social groups, majorities and minorities, all coexisting in this country. It stems from our historical context, the evolution of Canadian society, the cultural development of our vast territory and the choices we make.

In that sense, I am pleased that Bill S-208 pays special attention to Indigenous peoples in its preamble and consultation provisions. The preamble specifically states that:

. . . any measures to implement the Declaration in Canada must take into account the diversity of Indigenous peoples and, in particular, the diversity of the identities, cultures, languages, customs and practices of First Nations, the Inuit and the Métis and of their relationships to the land and their Indigenous knowledge, all of which find expression in rich artistic traditions . . . .

Yet, I wonder whether this clause in the preamble and the consultation provisions with Indigenous artists and organizations prior to developing the action plan are enough. We ought to hear the views of our Indigenous colleagues in the Senate, especially as we work to advance Indigenous self-determination, which is recognized in the United Nations Declaration on the Rights of Indigenous Peoples.

[Translation]

With respect to the declaration itself, I see the intention to include the individual cultural diversities and backgrounds of all Canadians, which is very positive on the face of it. All the same, when this bill is implemented, I wonder how it will be able to address each of us and especially how it will embody our collective cultural dimension in all of its plurality and complexity. For example, how will the action plan simultaneously respond to the needs of the Indigenous peoples, the Acadian people, the Quebec people, official language minority communities and ethnocultural minorities? Each of these cultural entities that embody the Canadian identity has its own cultural expression and must be promoted and protected.

What is more, each of these entities within which artists create and meet their audiences comes with its own interconnected and inseparable set of cultural infrastructure, organizations and businesses, which have to be taken into account if we want to meaningfully improve the status of artists and access to their works. In my opinion, this bill should do more to recognize the collective and plural dimension of Canadian culture, as complex as it is, reiterate the importance of protecting and promoting the cultural expressions of the different social groups that make up our country, and set out a clear obligation to work on that.

[English]

Bill S-208 must also be examined through the lens of jurisdiction within the Canadian federation. Cultural matters — including access, participation and learning — generally fall under the legislative authority of the provinces and territories, with some exceptions.

With that in mind, and given that the bill affects rights that fall under provincial and territorial jurisdiction — for example, the right to learn any art form or the right to access creation spaces — I wonder how this bill will be received by the provinces and territories.

Although clause 4 of Bill S-208 provides for consultations with provincial representatives, what will be the true nature of this collaboration? How will the federal government improve on what these legislatures have already put in place in terms of policies, while considering the specific cultural development of each province and territory? These questions need further assessment.

[Translation]

Colleagues, I am not suggesting that the federal government has less of a responsibility towards culture than the provinces and territories do. It is clear that broadcasting, copyright, intellectual property, support for our major national cultural institutions and several other sectors fall under its jurisdiction. However, I believe that the federal government’s efforts with respect to culture within these areas could be better targeted in terms of sustainable development, in order to respect the commitment it made in ratifying the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

In its current form, Bill S-208 does not clearly establish this link between culture and sustainable development. If it were to do so, it could provide real value added to our Canadian cultural policy, which would help promote culture more widely within the federal government.

I remind senators that Article 13 of the UNESCO convention states, and I quote:

Parties shall endeavour to integrate culture in their development policies at all levels for the creation of conditions conducive to sustainable development and, within this framework, foster aspects relating to the protection and promotion of the diversity of cultural expressions.

Esteemed colleagues, as you know, the term “sustainable development” refers to the ability to meet the needs of the present without compromising the ability of future generations to meet their own needs. Under this approach, any decision about growth should take the economic, environmental and social pillars into account. The UNESCO convention adds that although culture is not a pillar of sustainable development, it is a vector for it, and we must try to better integrate it into our policies to improve sustainability. I also want to point out that this is a mutual relationship, in that culture without a doubt contributes to sustainable development, but sustainable development also allows culture to flourish.

Canada has so far introduced a wide range of laws, regulations, programs, subsidies and other financial incentives for the arts and culture sector. In 2017, the government even introduced a cultural policy was designed to stimulate economic growth in the digital age. However, it is difficult to find any sort of umbrella framework in Canada that covers all of these initiatives and provides a clear cross-cutting view of Canada’s arts and culture sector as a vector for sustainable development that benefits artists and Canadians.

[English]

In that sense, I agree with Senator Bovey’s remarks in her speech at second reading that Canada should better integrate arts and culture into all its policies, programs and investments, and that it is time for us to refocus on various international conventions, including the UNESCO Convention for the Protection and Promotion of the Diversity of Cultural Expressions.

How will Bill S-208 contribute to the realignment of Canadian cultural policy with the UNESCO convention in terms of protecting the diversity of cultural expressions and integrating culture into sustainable development? That is less clear to me right now.

Bill S-208 contains many promising and inclusive clauses, which I applaud, but it does not clearly identify strategic areas of sustainable development to which culture could contribute and benefit. In my view, the bill could be strengthened by explicitly adding these considerations in its text.

[Translation]

I would now like to talk about the challenges associated with developing the proposed action plan and consultation process, for which the Minister of Canadian Heritage has central responsibility. While I appreciate the laudable intentions mentioned in Senator Bovey’s speech at second reading, when she said that the declaration would be the foundation for ongoing policy development in multiple ministries, I have to wonder about the feasibility of such an objective at this point.

I am concerned that the mechanism of Bill S-208, which centralizes responsibility solely in the hands of the Minister of Canadian Heritage, will simply perpetuate the process already in place. Since we know that that department has no authority to impose actions on other departments, it seems to me that we need to think outside the box in this particular instance.

[English]

The arts and culture sectors are interwoven areas and cannot be considered in complete isolation from one another. In this sense, and from a sustainable development perspective, is it not time for a paradigm shift where a shared cultural responsibility could be given to several strategic federal departments in collaboration with major cultural institutions, such as the Canada Council for the Arts?

Instead of a consultation process as set out in the bill, should we not take a more innovative approach of co-creation and proactive partnerships? There is a lot to think about here.

[Translation]

I would like to close, colleagues, by reiterating the basic principle that the vitality of the arts and culture sector relies on the artists and workers who make it tick. To state the obvious, there is no art without artists. The precariousness of their working conditions is very real. Calls for the creation of a better social safety net for artists and cultural workers are growing and speak to the urgent need to take action.

Unfortunately, this reality is not new. In a 1980 recommendation concerning the status of the artist, UNESCO was already acknowledging the troubling situation of artists and prescribing a series of measures to its member states to improve their professional, social and economic status. That recommendation shares many similarities with the rights of the artist listed in the Declaration on the Essential Role of Artists and Creative Expression in Canada created by Bill S-208. I sincerely thank Senator Bovey for reminding us of these rights.

That being said, as certain organizations and individuals I consulted pointed out, the question is whether a new declaratory tool like the one Bill S-208 proposes is what artists actually need at this time to reiterate their right to employment equity and economic security. The question is whether implementing Bill S-208 and its action plan will genuinely provide better social protection to artists. That is another question to explore further in committee.

[English]

All that said, colleagues, despite my concerns and thoughts about some aspects of the bill today, I strongly believe that Bill S-208 should be thoroughly studied in committee, and I am really looking forward to it. We could hear from important witnesses — such as the Minister of Canadian Heritage, provincial representatives, Crown corporations and organizations representing artists — so that we can get their insights and expertise.

Senator Bovey has done a tremendous —

[Translation]

Senator Cormier: This gives me the occasion to thank Senator Bovey, who has done a tremendous amount of work in identifying the measures that need to be taken to make sure the essential role of artists and creative expression is fully recognized and taken into account in our country. I would like to conclude by thanking her again for her dedication, passion and courage in introducing this ambitious bill. I appreciate her sincere intentions, which reflect her deep commitment to the arts, culture and heritage in Canada.

[Translation]

I want to thank her for drawing our attention to the place that arts and culture occupy in Canada.

With this bill, Senator Bovey is initiating a passionate and necessary debate that is worthy of the upper chamber’s interest and assiduous efforts. We should send it to committee promptly.

Thank you, meegwetch.

Senator Cormier: Thank you very much for the question, Senator Richards. Actually, what I am speaking about is not at all ideology and politics. What I’m speaking about here is a consideration of the ecosystems in which the artists are working, no matter where they are on the Canadian territory. I think it’s important in that context that we keep that in mind.

In terms of policies and strategies from the federal government, in terms of taking into account what type of ecosystems the artists are working in — and there are different ecosystems depending on where you live in Canada; it’s not ideology, it’s more the context in which they are working — I think it’s important that we take that into account.

I have been working in the cultural sector for 40 years, and I think that although the federal government can be generous to artists, sometimes our policies don’t take enough into account the different realities in this country.

I applaud the content of the bill that speaks about the rights of the artist to express themselves, do the work they want to do and express themselves as they wish to do, but in this type of bill I think it would be great to take into consideration the context and help the Minister of Canadian Heritage to be aware of that. Although I can trust the minister, I think that in terms of federal policies — especially in culture because, as you know, culture is from provincial and territorial jurisdictions. That is where culture is in Canada. I think that’s what I mean by that. But I want to reassure you, Senator Richards, I would be the first person to rise and say, “No ideology for the artists.” The artists have to be free to create, and they have to receive the right tools. To receive the right tools, we have to make sure that —

Hon. Diane Bellemare: I want to add, equally, my voice in favour of Bill S-208 because I believe the arts are necessary in our individual and collective lives.

[Translation]

Dear colleagues,

Artists . . . are indispensable for the survival of humanity in this electronic age, which, through technology, overloads the senses, creating a maelstrom. Art serves as radar, penetrating the indiscernible.

Unfortunately, this quote, which was reported by journalist Marie-Ève Charron in Le Devoir, does not come from me, but from Baruch Gottlieb, the guest curator of an exhibit being held at Montreal’s Fonderie Darling, which brings artists and thinkers together on the subject of media theorist Marshall McLuhan.

This idea of art being vital to the survival of humanity gives us something to think about today, in the era of climate threats and international conflict.

It touches on the essence of the concerns expressed by our colleague, Senator Bovey, who has presented a very important bill to foster the artistic expression of Canadians in all forms.

I would like to thank Senator Bovey for all the work she has done on Bill S-208. The depth of the bill attests to the extensive consultations she undertook and her reflections over a professional lifetime dedicated to artistic expression.

I encourage you to carefully read her bill and the extraordinary speech that she gave in this place on December 9.

This bill deserves our full attention.

Art, in all its forms, is essential to humanity, and Senator Bovey’s remarks addressed many different aspects of this truth, which some people tend to forget or overlook in favour of pragmatic concerns about effectiveness and efficiency.

I will not repeat her remarks, which were so beautifully presented. I invite you to go back and read her speech.

I rise today in support of this bill and urge you to pass it at second reading so that it can be studied in committee.

My speech will be brief. I simply want to share some reflections for consideration at second reading.

I encourage the committee to study this bill seriously and to invite witnesses from a variety of backgrounds. To use a theatre expression, this bill needs to have a spotlight shone on it. I am on the fence at the moment as to whether it needs to be amended. I am certain of one thing, however: The effectiveness of this bill depends in part on the light it receives in the public sphere.

Allow me to explain.

While many are aware of the importance of art in our lives on a personal, psychological, social, economic and political level, there is certainly no consensus on how to encourage artistic expression and give artists an economic status that allows them to devote themselves to their art.

At a time when our economy is much more focused on the individual, many people believe that art must have commercial value to exist. That was not true in the past and cannot be true today or tomorrow. If commercial transactions were behind all the forms of artistic expression around us, we would not be able to appreciate the many sculptures and works of art adorning our parks and cities. We would not be able to appreciate the songs, poems or even films and live shows that move us. Philanthropists have played a major role everywhere and at all times in helping art flourish. However, the sector cannot rely solely on philanthropy or on commercial transactions. Art is more than just a thing to be bought or sold. Art is also at the heart of our cultural identity. This is one more reason to support this bill, which explicitly recognizes that the status of art and artists must be a collective concern and that governments have a role to play.

Bill S-208 is very ingenious. It has three parts: a preamble, a declaration on the essential role of artists and creative expression in Canada, and an action plan for the Government of Canada’s implementation of the declaration.

What is novel about this bill is the fact that adopting the action plan will help confer legal status on the Declaration on the Essential Role of Artists and Creative Expression in Canada.

[English]