Hon. Denise Batters: Honourable senators, we have all seen the horrific images broadcast from Ukraine, the record of a people under siege. Reports speak daily of thousands killed and thousands more wounded, the bombing of schools and of a children’s cancer hospital, apartments and other buildings obliterated while hundreds of Ukrainians are trapped in bunkers beneath and of unspeakable horrors on the streets of Bucha.

After seeing these images and after President Zelenskyy’s heartfelt address to our Parliament, it is impossible not to be moved. We all want to help, and we all feel helpless. In this kind of chaotic emergency, medical assistance is badly needed.

That is why a group of Canadian MPs and senators — including Senator Larry Campbell and I — have paired up with Health Partners International of Canada, or HPIC, a Canadian charity licensed by Health Canada that handles and distributes medical supplies into crisis zones like this one.

Supplied by major medical and pharmaceutical partners, HPIC is working in partnership with Canadian Medical Assistance Teams to deliver their Humanitarian Medical Kits into needed regions in and around Ukraine. For a sponsorship cost of $600, each medical kit contains about 600 treatments — a value of about $6,000 per box. The current medical kits to Ukraine contain supplies like antibiotics, antihypertensives, anti‑inflammatories, analgesics and products to treat dermal infections, asthma, heart conditions and first aid. HPIC has set a goal to mobilize 400 medical kits for Ukraine and refugee camps in neighbouring countries in the next few weeks with a donation target of $240,000.

Many of you have charities you support generously, but we ask you to consider this one. If many senators and MPs donated to this cause, we could make a huge impact.

Honourable senators, it is an extraordinary privilege for us to sit in this chamber of democracy. Recently, five Ukrainian members of parliament travelled here to Parliament to show Canada how critical it is that Ukraine receives more help. I was able to meet them. They were all moms who had to leave their kids behind in Ukraine to travel to Canada. One MP received an air raid siren notification on her cell phone during her Parliament Hill meetings, notifying her that her child would not be going to school that day but, instead, to a bomb shelter. It’s unimaginable.

Honourable senators, let us, as Canadian parliamentarians, join hands to help ease the pain of the Ukrainian people at this dire time when they need it the most. If you are able, please donate a medical kit at hpicanada.ca or by contacting Senator Campbell or me. It’s a great way to make a meaningful contribution to the people of Ukraine.

Hon. Denise Batters: Senator Gold, as Senator Plett mentioned, it is being reported today that members of the NDP were briefed earlier this week on measures that will be found in this afternoon’s federal budget. It has also reported that the NDP briefing came before members of the Liberal caucus received their briefing on the contents of this “NDP budget.”

Senator Gold, you are the Liberal government’s representative in the Senate, so could you tell us if you have received a budget briefing yet? If so, did it take place before or after the third place opposition party in the House of Commons received theirs?

Hon. Mary Jane McCallum: Honourable senators, I thank the Canadian Senators Group for giving me space to speak today.

When I was in residential school, I began to disbelieve this Catholic God that the nuns and priests spoke of. How could a good and just God see me as a savage when he made me? When I went to confession at the age of 12, the priest asked if I let boys do bad things to me. I rarely entered the church after that and never went back to confession, thinking, “Why should I confess to another sinner?”

Over the decades, I didn’t believe I needed an apology, but, in listening to the words of the Pope on Friday, I was shocked when I burst into tears. Unexpectedly, it brought me peace and relief. Through this acknowledgment of past harms, people can finally accept that something life-changing and devastating happened to us at the hands of Church representatives. We are no longer burdened with the task of trying to convince others.

Do I forgive the Church? Not at this moment, and I’m okay with that. It took me 62 years to forgive the nun who had caused me immense and violent trauma at residential school. After going through a ceremony two months ago, I was finally able to let go of that violent energy I carried with me most of my life. I believe this is why I was able to embrace the Pope’s apology in the way that I did.

Now, I and other former students need the space to sit with his words, free from perspectives, dissecting it from a place of colonial thinking. In speaking to many former students, we are all at different stages of understanding the apology’s impact. There is discussion of whether it was needed and whether it is accepted. Despite our shared experience, we all have our own interpretations and lingering impacts.

I have had hate directed at me over my lifetime due to narratives thrust upon me simply because I am Cree. These narratives still exist in Canada today. However, I echo intergenerational Cree knowledge keeper Deborah Young, who states:

Despite all these atrocities and genocide that our people have endured and survived, my heart remains full of love and hopefulness because if I lose hope or love, there is nothing.

Kinanâskomitin. Thank you.

[Translation]

Senator Batters: Senator Gold, you need to answer for us whether you have received a budget briefing, after all, you were sworn in as a Privy Council member and the NDP are not.

I noticed recently also that you’re no longer listed on the PMO website as a member of the Trudeau government’s Cabinet Committee on Operations. Is this actually true? If so, why? Did Jagmeet Singh take your spot? Why does this Trudeau government have more respect for the NDP, which holds only 25 seats in the House of Commons, than it does for its own government leader in the Senate and by extension the entire Senate?

Senator Gold: Thank you for your question and for your concern about the respect with which I am held. But your facts are wrong. I remain a member of the Operations Committee, I attended most recently on Monday. I can’t explain the website. I have other things to do than look for myself on the web.

I repeat, senator, with respect, my understanding is that there was a conversation, there was no formal briefing. Neither I nor my team nor anybody else — unless we attended the budget lock‑up which we organized for all senators, I gather, one senator attended. But apart from that, no, I did not receive any briefing, as none of us would have. Thank you.

Hon. Mary Coyle: Honourable senators, my question is for the representative of the government in the Senate.

Senator Gold, we know that Russia has been spreading false propaganda about its brutal and illegal invasion of Ukraine, and that it and other non-state actors are using social media to amplify these messages as well as other messages which specifically target Canadian domestic issues as well.

Overall, we’re seeing a rampant uptick in the spread of misinformation, intentional disinformation and what some experts are calling malinformation — all very dangerous to our democracy and global stability.

Our colleague, Senator Simons, spoke to the many emails we have been receiving around Bill S-233, An Act to develop a national framework for a guaranteed livable basic income and the impact those disinformation campaigns are having on misleading Canadians.

In my climate solutions inquiry, I highlighted my concerns about the dangers of disinformation as it relates to undermining public confidence in scientific, evidence-based climate data, climate policy and climate actions.

In response to Senator Housakos’s recent question regarding Russian propaganda, you noted that the Communications Security Establishment, CSIS and the RCMP and others are working with the government and partners to ensure that we remain safe.

Senator Gold, given the very real consequences of a rise in this type of disinformation, what else is the Government of Canada doing to counter these well-orchestrated campaigns and what concrete actions are being taken to promote awareness of these dangers amongst Canadians active on social media platforms? Thank you.

Hon. Pierre-Hugues Boisvenu: Honourable senators, I rise today to pay tribute to a victim of crime and to her family, who have been struggling for years to ensure that her memory is honoured.

In October 2007, Francesca Savoie, who was only 17 years old, died suddenly and tragically in a car accident in Bas‑Caraquet, New Brunswick. The accident was caused by an impaired driver.

Since that tragic day, Francesca’s mother has had lingering questions about the circumstances surrounding her beloved daughter’s accident. For 15 years now, she has been fighting to obtain information from the RCMP investigation file in order to gain a better understanding of the circumstances surrounding her daughter’s death, so she can finally grieve in peace as she deserves.

At this point, there are still some unknowns about what happened on that night. Francesca’s mother just wants to be told the truth about her daughter’s death. Her legitimate and entirely understandable efforts have been blocked by the RCMP, which denied her request on the grounds that the victim’s personal information is protected under the Access to Information Act, and that disclosing it would be an unreasonable invasion of the deceased girl’s privacy.

The RCMP’s response, which was confirmed by a Federal Court ruling, is an assault on the supra-constitutional principle of the Canadian Victims Bill of Rights and, more specifically, on the right to information that Francesca’s mother is asserting.

Honourable senators, the Canadian Victims Bill of Rights was created to redress the perpetual injustices inflicted on victims’ families and to prevent them from having to endure a lengthy process to have their rights respected. This sad story is just a reflection of a system that does not take the suffering of these families into account. It is another indication that there is still a lot of work to do to enforce the Canadian Victims Bill of Rights.

The RCMP is not above federal and constitutional laws, as we heard last week from Marco Mendicino, the minister responsible for the RCMP.

The courts have a duty to enforce laws democratically passed by the Parliament of Canada, and this additional assault on the Canadian Victims Bill of Rights is simply outrageous.

As we approach the second anniversary of the Portapique massacre, my thoughts are with all these families who should not have to fight to be respected by federal institutions. I offer my support to all these families, and I will fight to ensure that the Senate of Canada, the upper house of Parliament, upholds their rights and the rights of all victims of crime. Thank you very much.

Hon. Marc Gold (Government Representative in the Senate): Thank you for your question. I hope your grandson is watching. He should be very proud.

Canada is providing a comprehensive suite of military aid to Ukraine and is constantly and continuously reassessing the needs. That’s why it has announced several new tranches of military aid, both lethal and non-lethal, to Ukraine.

The government has also been assisting our allies in delivering aid to Ukraine by over 40 flights on the C-130s Canada is providing for airlift support. I’m also advised that the government is in touch with a range of industry partners about further support for our Ukrainian partners.

Finally, I’m also advised that the government is currently working with Canadian companies to evaluate military aid options for Ukraine. Minister Anand will remain in close contact with Minister Reznikov regarding Ukraine’s evolving needs.

Hon. Marc Gold (Government Representative in the Senate): Thank you, senator, for your question. As we all know, far too well, Indigenous people, visible minorities, including Black Canadians, are overrepresented in our criminal justice system and this needs to change.

The government is working to create the conditions for everyone who works within the criminal justice system to take the necessary steps to redress this and to produce more equitable outcomes. I’m advised that the government is also providing Black-Canadian offenders with services aimed at supporting their reintegration, including addressing cultural employment and mentorship needs.

I’m further advised that the Correctional Service of Canada is studying the in-custody experience of racialized inmates including Black Canadians, which is expected to produce a full research report this fall.

As we know, the government has also introduced Bill C-5, which represents an important step forward. These changes, if and when the bill passes, will ensure that our criminal justice system is more fair, effective and will keep Canadians from all communities safe.

Finally — and this goes without saying — there is more work to be done. The government knows it. The government is committed to doing it.

Hon. Marc Gold (Government Representative in the Senate): Thank you, senator, for your question. I’m advised that the minister continues to be in close contact with both her Ukrainian counterpart and our NATO allies, including at multiple NATO defence minister’s meetings, to see how Canada and the alliance can continue to provide support to best respond to Ukraine’s evolving security needs and to coordinate our current and future efforts.

I note that following meetings of NATO Ministers of Foreign Affairs, NATO confirmed today its commitment to provide more aid to support Ukraine, including stepping up humanitarian aid and financial support.

Colleagues, the discussions are ongoing and I understand that consideration is being given to provide equipment to help Ukraine protect against chemical and biological threats.

Hon. Larry W. Campbell: Honourable senators, my question is to the Leader of the Government in the Senate.

I would like to start with the first two lines of a Johnny Cash song:

There’s a man going ’round taking names

And he decides who to free and who to blame.

Leader, as a fine musician, I’m sure you’re familiar with this song. I ask you to consider it in the following context: In 2014, Canada expelled Russian diplomats after the illegal and immoral attack and occupation of Crimea in Ukraine. In 2018, Canada expelled Russian diplomats after the Kremlin poisoned a Russian and his daughter in England.

The world now watches as Vladimir Putin — who will forever be known as the “Butcher of Bucha” — murders, rapes, burns and destroys the citizens of Ukraine. There can be no doubt about this, despite the words of the butcher’s henchman ambassador to Ottawa.

The government asserts that if we expel, the Russians will retaliate and we will lose the ability to gain backdoor information on the situation or, God forbid, lose our ability to be influential. Yet, on at least two other occasions that were horrendous in nature, the government did expel the diplomats.

The invasion of Ukraine is far beyond the horror of these two occasions. The right thing to do is to admit that Russia has systematically committed crimes against humanity and say so. The right thing to do is have our UN ambassador work tirelessly to have this country known as Russia thrown off the Security Council where it has veto power. The right thing to do is to the remove the murderous regime from the United Nations Human Rights Council. But first, when will this government expel all Russian diplomats from our country? I started off by saying, “There’s a man going ‘round taking names and he decides who to free and who to blame.”

Where will the government be on this list? Thank you.

Hon. Marc Gold (Government Representative in the Senate): Thank you for your question.

I begin my answer by reminding this chamber that the Government of Canada and the previous governments of Canada have always worked hard to defend Canada’s forestry industry. In that regard, as we’re all aware, the U.S. has indicated it would maintain its unjustified duties on Canadian softwood lumber. And as many in the chamber know, the government launched litigation under chapter 10 of CUSMA in December to fight those duties.

I note that for the past 13 months Minister Ng has been advocating with her counterpart that Canada stands ready to start discussing proper and potential resolution to the softwood lumber issue.

The government is encouraged by Ambassador Tai’s recent comments, recognizing the importance of reaching a softwood lumber deal. And the government will continue to defend our forestry workers and our industry to ensure it gets a good deal with our U.S. counterparts.

Senator Campbell: There’s a French proverb that reads:

[Translation]

“It is madness for sheep to talk peace with a wolf.”

[English]

If my French is as poor as I believe, it worked. If, as the government says, they fear the Russians will retaliate, how do you explain that Germany has expelled 40 diplomats; France, 35; Italy, 30; Spain, 25; and, in fact, the European Union countries have expelled more than 230 Russian officials since the Ukraine invasion began.

I would suggest that these countries that share close space with Russia will be far more at risk of retaliation than Canada. Are they wrong or is it simply a fact that this government talks a good story but lacks the will or the courage to take action against the diplomats of this murderous regime? Thank you.

Hon. Percy Mockler: Honourable senators, my question is also for the government leader in the Senate.

Senator Gold, the President of the Forest Products Association of Canada recently told the House of Commons Standing Committee on International Trade of the industry’s concern with anti-Canadian forestry legislation that is currently being advanced in the state legislatures of California and New York. Mr. Nighbor said that these bills, if passed, are designed to restrict Canadian forest exports to those states through their own procurement channels.

The industry is very concerned. And we saw the Forest Products Association of Canada, Unifor and the United Steelworkers calling out the anti-Canadian forestry legislation in California and New York, knowing that it would devastate our forestry sector and our communities. Mr. Nighbor told the committee that they want to see action and engagement on this file from the senior political level of the Government of Canada itself — the cabinet.

Senator Gold, will the Prime Minister and his cabinet defend our forestry sector against these bills going through legislatures in the United States? We know the impact that would have on the livelihood of hundreds of thousands of Canadians.

Senator Mockler: To the Leader of the Government in the Senate, Senator Gold, let’s take this into consideration: The Forest Products Association is also asking the Department of Global Affairs to carry out a formal, legal review of both bills currently on the floors of the legislatures in Albany and Sacramento to clearly understand this impact. Mr. Nighbor told the House committee that Global Affairs has so far refused to do this work.

Mr. Leader, I understand, however, that the Forest Products Association of Canada’s own independent review of these bills suggests that concern about the potential impacts of these bills go well beyond Canada’s forest sector.

There could be precedent-setting impacts in Canada, such as on Canada’s agriculture, energy, hydroelectric power and mining sectors, as well as their workers.

Leader, this doesn’t appear to be an unreasonable request. Can you tell us why Global Affairs won’t review these bills? Will your government intervene to request that the department conduct these reviews? There is much at stake. This will impact hundreds of thousands of Canadians working in those sectors.

Hon. David Arnot: Honourable senators, I am speaking to you from Treaty 6 territory and the homeland of the Métis. In treaty territory, I can tell you the sun is shining, the grass is growing and the river is flowing, and that’s the way it should be.

I rise to speak in favour of the recommendation of the Senate Standing Senate Committee on Legal and Constitutional Affairs that the Senate adopt Motion No. 14. I would like to say that it made good sense for the Senate to send this to the committee. I appreciated the opportunity to attend meetings of the committee to hear witnesses.

The witness for CP Rail advised that the corporation launched the litigation in Saskatchewan with intent to eventually achieve a win-win result. By that, he meant investment or partnership between Canadian Pacific and the Saskatchewan government to develop rail-line infrastructure. My interpretation of that is this: CP is attempting to lever additional monetary subsidies for rail‑line maintenance.

The question of fairness has arisen in this debate. I ask my colleague senators these questions: Is it fair for a corporation to claim recovery of taxes it paid since 1905 based on a historic anomaly created 142 years ago? Is it fair for that same corporation to assert a claim to be exempt from taxes in perpetuity today? Is it fair to give one corporation a huge advantage in the marketplace — a place where other competitors must pay their fair share of taxes but not Canadian Pacific? Is it fair to force the taxpayers of Saskatchewan to provide an unjust, unfair enrichment to a corporation listed on the New York Stock Exchange that recorded a profit of $2.8 billion in 2021?

The answer to each question is a resounding no, in my opinion. It is absolutely patently unfair and unconscionable to foist that burden, that responsibility, on the citizens of Saskatchewan.

In my view, “CP Kansas City,” as its name will become, comes to court seeking fairness with “unclean hands,” and that should never be rewarded. To explain, CP was allowed to abandon passenger service in Canada. They were allowed to abandon branch rail lines throughout Canada, and particularly Western Canada. They obtained subsidies to their liking in 1966. They were described in 1966 by Minister of Transport John Pickersgill as a fine example of good corporate citizenship when they agreed to end the in-perpetuity tax exemption.

Today, I say to you that it is open to draw the opposite conclusion from CP’s current actions. In my opinion, if we balance the scales of justice today in the modern era, those scales weigh heavily in favour of the taxpayers of Saskatchewan and not Canadian Pacific Kansas City rail.

The question of retroactivity has arisen in this debate. Concern about questions related to retroactive application of law is valid. Legitimacy of retroactivity is always open to debate. It deserves examination. The courts and the public are well aware of the unfairness of the concept unless there is a legitimate reason. Retroactive application of tax law is legitimate in some narrow circumstances.

The Supreme Court of Canada dealt with this issue in 2007 in the Kingstreet case. The court specifically noted the possibility for Parliament or a legislature to enact valid taxes and apply them retroactively to limit the recovery of previously paid ultra vires taxes. The Supreme Court of Canada made it clear that retroactive application of tax law is possible, lawful and constitutional.

In some circumstances, that mechanism may provide an equitable remedy. In my opinion, it is a legitimate remedy to an obvious inequity in the situation we have before us.

The amendment sought by the people of Saskatchewan will not provide a blanket precedent that would allow a hypothetical rogue government to pass laws with retroactive application for some nefarious purpose. The case is far too narrow and very unique. Its wide application is extremely unlikely.

Retroactivity in this case is the only fair way to protect the innocent taxpayers of Saskatchewan from the heavy fiscal responsibilities created by historical anomalies and the fact that CP took up the cudgel of litigation.

I’d like to pause there for a second to consider this historical context. Sir John A. Macdonald did not want one thin dime of financing for the railway to come from the United States of America. He needed Canadians to form a consortium of investors. Canadians George Stephen, from the Bank of Montreal, and Donald Smith, from the Hudson’s Bay Company, stepped up. They sought investors from the United Kingdom, France, Germany and the Netherlands.

The Canadian consortium needed the kind of incentive Macdonald provided — a tax exemption in perpetuity. In February 1885, George Stephen wrote to Macdonald that he and Smith would be considered fools by every businessperson in Canada for taking on such a high-risk venture. Why? Because they did not know the exact cost to build a rail line north of Lake Superior and through the Rocky Mountains. They did not know with any real certainty when revenue would flow to repay that debt. In fact, at one point, Stephen left Parliament Hill in Ottawa — he was an MP — to go home to Montreal, believing that he was about to go bankrupt; he was disillusioned and despondent. But that story changed miraculously.

Stephen and Smith became billionaires in today’s meaning. They retired in the United Kingdom and were appointed to the House of Lords: Stephen as Lord Mount Stephen and Smith as Lord Strathcona.

Historical context is very important. I want to remind you of this historical fact. When government surveyors came to the west to survey the land for the railway and the newcomers, they were turned back peacefully by the First Nations people. They were told they were not welcome on the land. That act accelerated the making of treaty with the First Nations in order to fulfill the national dream of a coast-to-coast railway.

As Senator Pate has mentioned in debate, and as Senator Clement raised in the committee and in public, there is much unfinished treaty business in this country. There is a lot of history to examine. The good intentions of the treaty parties were replaced by the paternalistic policies inherent in the Indian Act just a few weeks after Treaty 6 was created.

Now back to the CPR. I do not believe one can find a government in the last 200 years in the Western world that has given a corporate tax exemption to a single corporation in perpetuity and, in addition, incorporated the exemption in the Constitution of the said country. The clause in question is extremely rare and is probably the only example of its kind. The Legal and Constitutional Affairs Committee heard expert opinions of three constitutional law experts. I can say, in my opinion, it is extremely rare for Canadian constitutional law experts to be able to agree on one idea concisely and congruently. They found motion 14 is wholly constitutional.

In addition, the Senate has four constitutional experts, not all lawyers, in our midst: Senator Gold, Senator Harder, Senator Cotter and Senator Dalphond. I believe the first three senators have all commented favourably on the constitutional legitimacy of motion 14.

I have a caution. I believe there is one precedent the Senate should be loath to set. That precedent is the Senate rejecting the report of the Standing Senate Committee on Legal and Constitutional Affairs and, in effect, thwarting the will of the elected members of the Legislative Assembly of Saskatchewan and the will of the elected members in the other place. That will cause major public opprobrium in Manitoba, Saskatchewan, Alberta and, I believe, elsewhere in Canada. I ask any senator thinking about voting against the motion to give due consideration to that precedent-setting consequence. Thank you.

Hon. Jim Quinn: Honourable senators, when I hear the words “constitutional amendment,” I believe the matter being considered to be a serious one. We have heard that there have been constitutional amendments in the past, such as when the name of the province of Newfoundland was changed to Newfoundland and Labrador. We also heard other amendments being referenced by honourable colleagues during earlier debates, and we have heard that some of these amendments have been legally challenged after the adoption of the amendment.

The amendment now under consideration has been approved by the Saskatchewan legislature and the lower chamber without debate or committee consideration, including witness input. Only the Senate of Canada has really spent time studying the bill with the involvement of witnesses.

I have two issues that I think we as senators need to reflect upon. First is the retroactivity consideration contained in the bill and the fact that we have the issue before the courts in Saskatchewan. The question of retroactivity for me is a question of fairness. We have heard that there have been numerous occasions over the past decades when a constitutional amendment could have been initiated but was not. Now we’re being asked to make the amendment while, at the same time, a court case could be influenced by such an action.

When witnesses at our committee were asked if they felt the current court case could be influenced if this amendment were passed before the conclusion of the court case, there was, I would propose, some belief that the amendment could in fact have an impact on the case. I questioned the Attorney General of Saskatchewan. I asked if he believed, given the primacy of the Constitution, that the amendment of the Constitution could in fact have an impact. His response was:

It would be our position, senator, that it would have some effect on the litigation, but we’re not sure what effect it is going to have.

In conclusion, honourable senators, why would we put the Senate in the position of agreeing with the proposed amendment when even the Attorney General of the Province of Saskatchewan is certain there will be some effect on the court case, but to what extent he’s unsure?

After all of these decades, the urgency of this bill on the eve of a court decision seems to be a way to make a change today that could influence tomorrow. Why would we not simply allow the court case to come to a conclusion over the next few weeks, after which the appropriate amendment could be introduced to allow for the request of a constitutional amendment?

Hon. Scott Tannas: Honourable senators, I wish to make some comments on this matter.

First, I want to thank Senator Jaffer for her leadership and the Legal Committee for their efforts on this file. In terms of committee meetings, witnesses and questions by senators, it was all a textbook exercise of the due diligence we undertake in the Senate of Canada, and it was done well.

I had a couple of reflections that I wanted to express. As has been said — and I think will be said more — the experts left us with absolutely no doubt about the legality of this action. It is entirely legal for Saskatchewan to do what they did, and we should not be troubled by that at all.

However, one of the legal scholars, an eminent fellow from the University of Ottawa, did draw a distinction. He talked about the difference between legality and legitimacy, particularly as to the retroactive extinguishment of what is a legal right under a valid contract today. This is the piece that continues to trouble a number of people, including a number of senators, and it troubles me as well.

It also became clear — and Senator Quinn has just referred to this — that this action is intended to have an impact on legal proceedings and on the imminent judgment of a court in this matter. This has helped to highlight the issue for me.

As you may know, I have been troubled by this motion and its potential consequences since it was first delivered to us. I have to say that in my heart I wish it did not have to come to this. For a while I wanted to find out how and why it came to this. However, in the end and on reflection, it really doesn’t matter for our deliberations if the government moved too quickly or if the company, as was just suggested, was trying to overplay a hand. It is here and we need to deal with it.

I am offended by the notion of retroactivity and the obvious intention to circumvent court proceedings — not just to put a finger on the scale of justice, but to actually knock the scale off the table.

I am also troubled by the issue of CP being the big, bad company that has unjustly enriched itself through an illegitimate perpetual benefit. I don’t think there is another company in the history of our country that has contributed more to the building and preservation of this country through its actions — well over one hundred years ago, but through the actions it took way back then.

Today, Canadian Pacific employs 10,000 Canadians. Ninety‑one per cent of the shares of CP are lodged in Canadian financial institutions, which leads me to believe that most of the shares are owned by Canadians — most of them probably in pension funds, mutual funds and so on. I would not be surprised if a significant percentage of Canadians, if not a majority, have some ownership in Canadian Pacific.

The committee meetings, the debates and the extra time we’ve had for reflection, rather than passing the bill with alacrity — hurrying up and passing the bill, as was suggested earlier — have been helpful to me as I consider what my job as a senator is: sober second thought, but also humility and respect toward other orders of government, especially in my own region. We had a job to do and I think we’ve done it. I believe that today is the time to vote.

I cannot bring myself to support this motion; however, I do not think it is legitimate for us to vote this motion down. It may be legal, but it is not legitimate. By the same arguments we heard in committee, there are things we can do legally that are not legitimate. I believe that in this case we must do the legitimate thing.

While I cannot support this motion, I do not think it is right to oppose it and risk it being voted down. I will make my own small statement on this issue by abstaining. Thank you, colleagues.

[Translation]

Hon. Brent Cotter: Honourable senators, I wish to speak briefly in support of motion 14, which will adopt a resolution to amend The Saskatchewan Act.

The Legal and Constitutional Affairs Committee heard and reported that the proposed constitutional amendment is legal, including its retroactive aspect, and has recommended its adoption.

My remarks will focus on two process points and two points on the policy dimensions of the issue, which I will call the equities process.

First, our process. I want to thank Senator Tannas for his determination in seeing this motion referred to the Standing Senate Committee on Legal and Constitutional Affairs for consideration. As others have said, the Senate appears to have taken this important question more seriously than others, and this does honour to this chamber.

We learned a good deal about the motion from the parties significantly affected by it, giving them a hearing in a sense, and from experts. All of us from the committee came away better informed, more able to advise the Senate as a whole and more able to make the best possible decision with respect to this motion.

Thank you, Senator Tannas.

A second process point related to the substance of the issue itself. A multi-province approach to this historical anomaly, as Senator Simons suggested two days ago in her very fine speech, is or would be good policy but not an immediate option for a couple of reasons.

First, as Senator Dalphond has noted, this is a bilateral constitutional amendment, a Canada one-province amendment, and any motion and resolution therefore needs to be province specific. They have to be individual motions.

Second, the one before us is specific to Saskatchewan. Even if we would like to form a common front on this issue, despite efforts, none has been developed, and we have little choice but to deal with the amendment before us.

With respect to the equities, in one aspect of this, I hope to answer Senator Quinn’s concerns and, quite frankly, some of Senator Dalphond’s suggestions.

The first point is legal. CP gave up its provincial tax exemption in 1905. By that time, CP was doing just fine, thank you very much, and its initial investors, according to Pierre Berton and others, had become immensely wealthy and quite distinguished as a result of the transcontinental railway.

CP has paid provincial taxes uninterrupted for over a century. As Senator Arnot noted, it was lauded as a good corporate citizen by then Minister Pickersgill for additionally giving up the municipal tax exemption in the other place in 1966, having already given up the provincial tax exemption.

I want to suggest to you that any other understanding of provincial taxes is not plausible. How likely is it, for example, that Tommy Douglas, a provincial-rights premier and notoriously careful about his government’s finances, would only have lobbied Ottawa, as he did, for an end to CP’s municipal tax exemption if, at the same time, CP was still claiming an exemption for provincial taxes? Not a chance.

CP abandoned this provincial tax exemption long ago. Let me just say, as a matter of contract law — which you have just heard Senator Dalphond speaking to — if this was just a contract, the fact that CP abandoned its tax exemption would be today held against it. In any other context than constitutional law, legal doctrines of estoppel would prohibit CP from now coming forward and claiming this exemption.

The concept of estoppel, simply put, is that you are estopped from asserting a right that you have abandoned, which CP did, and that someone else has relied upon, which the Province of Saskatchewan has done. Unfortunately, estoppel is recognized everywhere except with respect to constitutional rights. With the CP tax exemption, long abandoned, embedded in the Constitution, CP has been able to get around this estoppel problem and raised, a century later, something that in any other context it could not do.

As Senator Dalphond has noted, the Supreme Court of Canada decision in Kingstreet enabled taxpayers to go after present and back taxes that are found to be ultra vires. CP combined these fortuitous developments to reassert its long-abandoned exception from provincial taxes and now seeks to pocket in its claim up to $340 million from the Government of Saskatchewan, but essentially from the taxpayers of Saskatchewan.

Perhaps it is what corporations, or at least the Canadian Pacific and Kansas City Southern Railway, think they should be doing on behalf of their shareholders, but it is unprincipled. If the idea of making the constitutional amendment retroactive sticks in your craw, this corporate manœuvre should stick in your craw even more — we have the authority to prevent it from happening.

My second policy or equities point is this: Only Saskatchewan, Alberta and Manitoba are exposed to this vulnerability. No one, for example, exempted the headquarters of CP from tax — wherever it might have been — in 1881. This has exposed these three provinces, since 1905 and 1881 respectively, to a vulnerability that is unacceptable in principle.

If nothing turned on it, we might have just left this to be a curious relic of Canada’s peculiar constitutional history, as, in fact, we have done since 1905, but something does turn on it. When a company revives this relic of history to try to assert a claim it has long since abandoned, this is nothing less than an attempt to exploit an unintended loophole to avoid paying taxes that, like other taxpayers, it has actually been paying for a very long time. What turns on it is a financial risk to three provinces that should never have been imposed on them in the first place.

Senator Dalphond argues that it’s a small financial risk. As a matter of principle, that’s irrelevant. The basis on which he makes that argument is an interpretation by a trial judge in another case that has no binding effect at all on Saskatchewan or the people of Saskatchewan.

In public finance terms, what turns on this is a potential burden of hundreds of millions of taxpayer dollars, a responsibility they should never have been asked to shoulder in the first place.

Your vote on this issue is significant, in part on the basis of what you will be saying to the people of Saskatchewan and what you will be saying about tax fairness to three provinces that Ottawa burdened unfairly over a century ago.

If you are inclined to vote against this motion because of its retroactivity, I ask to you keep in mind these two things: first, the unfairness of this burden from the get-go; and second, the opportunism pursued by CP in this venture. Thank you. Hiy hiy.