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.

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.

Some Hon. Senators: Agreed.

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, I rise to speak to Bill S-5, known by its short title as the strengthening environmental protection for a healthier Canada act.

Our colleague Senator Kutcher, the sponsor of the bill, pointed out that the long title is a mouthful, so I will take his lead and just refer to it as Bill S-5.

Given what we have been through these last two years, it is hard to imagine anyone being opposed to legislation or anything else that looks to provide all Canadians with as healthy an environment as possible. Health is at the forefront of all our minds and will be for some time to come.

Protecting the environment has always been at the forefront for Conservatives. After all, it was Brian Mulroney — voted Canada’s greenest prime minister — who took strong and successful action to stop the acid rain problem. Successfully navigating that issue was no small achievement at the time.

However, if the coronavirus pandemic demonstrated anything, it was the limits of governments to deliver on such promises as the right to a healthy environment. Yet this is what the government has, with great fanfare, made a cornerstone of this bill.

It’s not that I don’t applaud the effort, but we all know there are limits to what the government can do to protect that right — limits that stem from environmental threats beyond their control, obviously, but also from government ineptness, which has been a hallmark of this NDP-Liberal government in particular. Their handling of the pandemic is a good example. No government should have been better prepared to deal with a pandemic, given our experience with SARS and H1N1. But still, we were totally unprepared.

Not only were we unprepared, but the NDP-Liberal government’s actions in the year leading up to the pandemic made things worse by closing down three of our emergency stockpile warehouses and throwing out millions of items of PPE that could have been used to deal with the first-wave surge, effectively shutting down our world-renowned infectious disease early warning system in the six months prior to the outbreak and sidelining scientists at the Public Health Agency in favour of administrators.

I don’t want to belabour the point, but suffice it to say that while we all support Canadians having the right to a healthy environment, I am less than confident that this government can deliver on that promise.

Remember, too, that the right to a healthy environment, as recognized in Bill S-5, is not a legal right like a Charter right. It is entirely confined to areas under the Canadian Environmental Protection Act, or CEPA. It remains to be seen what exactly is accomplished by recognizing this right in the legislation.

I am not arguing against it. I am just somewhat worried that the government is claiming more by it than is justified, that there is less here than meets the eye, but that can be sorted out at committee.

Honourable senators, as Senator Kutcher informed you, this is the first time that the Canadian Environmental Protection Act has been updated since 1999 — so, it has been more than 20 years. Again, it is hard for me not to look at this through the prism of the pandemic where we — this government, in particular — clearly let our guard down in the 20 years that have passed since the SARS report that, in fact, established the Public Health Agency.

It is hard to argue with finally updating CEPA after 20 years. From what I have seen, most stakeholders agree. Many of you, like me, have probably heard from some of them. Stakeholders like the Chemistry Industry Association of Canada support the bill as a good way to address the shortcomings in CEPA. Cosmetics Alliance Canada supports it as well, as long as decision making continues to be based on sound science and risk assessment.

Furthermore, they wrote in their letter in support of the bill that they believe it is important to review any and all regulatory frameworks from time to time. That is good advice, and taking a look at the entire regulatory framework will hopefully be a by‑product of our study of the legislation when it gets referred to committee. However, what they didn’t support were amendments to the legislation that do not have the support of all the stakeholders, most of whom, from what I gather, were consulted in the preparation of this legislation.

Honourable senators, this bill is really a housekeeping bill. It deals with regulatory modernization and is not in any real sense an expansion of environmental protection in spite of what the government has freighted on to it. For instance, there is nothing wrong with specifically singling out vulnerable Canadians for mention in the right to a healthy environment, but even if they were not specifically mentioned, they would have that right by virtue of simply being Canadian. But this government cannot resist any and all opportunities to signal its own high virtue. That is not always in the best interests of science.

Honourable senators will recall that the government allowed virtue signalling to get in the way of science when it refused to ban foreign flights from China in the early days of the pandemic, calling it racism. Yet the SARS report was clear that “. . . travel plays a pivotal role in the rapid dissemination of disease.”

In fact, the science on this was well established even before SARS, but the government that supposedly follows the science, as they like to tell us, ignored that.

So while the bill ticks off the usual boxes for virtue signalling to the NDP-Liberal government, it does not address the environmental committee recommendations around national standards for clean air or clean water.

Honourable senators, we cannot let the science get sidelined or hijacked by activist causes. The danger from toxic substances is real. Senator Kutcher, in his speech, provided us with two stark examples of the damage done to a community by toxic chemicals: one in Japan and the other in Grassy Narrows in northwestern Ontario. In both instances the cause was mercury dumped into the water, and the results were tragic.

There are other well-known instances of toxic chemicals wreaking havoc that I will mention. We have all heard of the Love Canal, an abandoned waterway in New York State, into which the Hooker Chemical Company dumped 21,000 tons of chemical waste in the 1950s. Twenty years later, in 1976, the canal overflowed its banks and the chemicals made their way into the developed area in the surrounding neighbourhood. Area residents began to report children suffering from chemical burns, foul odours, including nausea, undrinkable water and black sludge due to the resurfaced chemicals. One local resident, the president of the Love Canal Homeowners Association, began to mobilize public attention, organizing petitions, protests and speeches, culminating in the passage of the Comprehensive Environmental Response, Compensation, and Liability Act. The New York State health commissioner declared a public health emergency. He sought to relocate particularly vulnerable pregnant women and children out of the area.

In 1978, he published a report entitled Love Canal: Public Health Time Bomb describing Love Canal as a modern-day disaster, both profound and devastating. The governor of the state of the New York, Hugh Carey, in the midst of an election, got involved and agreed to relocate 239 families living close to the canal.

Not long after, President Jimmy Carter declared an emergency in the area. The Love Canal incident galvanized U.S. public opinion about hazardous waste sites that persist to this day. Billions of dollars have been spent to clean up abandoned waste sites, all galvanized by the Love Canal.

Similarly, in the late 1980s the Natural Resources Defense Council, an environmental think tank, concluded that the continued use of Alar, a pesticide long used on apples, would cause cancer in 1 out of every 4,200 preschool children. That finding made its way on to the news show “60 Minutes,” whose host Ed Bradley called Alar the most potent cancer-causing chemical in our food supply.

Celebrities like Meryl Streep became involved, as did an activist group called Mothers and Others for Pesticide Limits. The demand for apples plummeted, and they were removed from store shelves and widely banned in schools.

The problem with both Alar and the Love Canal story is that the dangers were non-existent in both cases, or at the very least vastly overexaggerated. In the Alar case, the U.S. Environmental Protection Agency, EPA, estimated the risk for preschoolers not to be 1 in 4,200 but in fact 1 in 111,000. In the Love Canal case, peer-reviewed follow-up studies conducted by the New York State Department of Health uncovered no abnormal health trends in Love Canal residents.

This finding was later supported by analyses done by the American Medical Association, the National Research Council and the Centers for Disease Control and Prevention. In fact, an exhaustive study by the Environmental Protection Agency in 1982 found no evidence of environmental contamination at the Love Canal. But in both instances, the science and politicians were overwhelmed by an activist-led outcry that caused great social panic and cascaded into real-world consequences with no basis in fact.

Honourable senators, I say this neither to undermine Senator Kutcher’s very legitimate examples of the damage that can be done nor to undermine Bill S-5. I say this to you to underscore the complexity of the issue we are facing, the need for, as the cosmetics association said, decision making to be based on sound science and risk assessment, not on activism, and to urge the committee that studies this bill to undertake a thorough and careful study of all the issues involved and to bring all the stakeholders to the table.

Colleagues, the Conservative caucus supports this bill going to committee for extensive study, and I also support it at second reading. Thank you, honourable senators.

Hon. Dennis Glen Patterson: Honourable senators, I too rise to speak to Bill S-5, with the short title “Strengthening Environmental Protection for a Healthier Canada Act.” This bill proposes to do three things. If passed, it would make over 100 changes to the Canadian Environmental Protection Act, or CEPA, as we fondly know it. It would make related amendments to the Food and Drugs Act, and it would repeal the Perfluorooctane Sulfonate Virtual Elimination Act.

I would like to focus my remarks on the first slough of amendments related to CEPA. It is known internationally as a world-leading, flexible and risk-based piece of environmental legislation. It declares that:

. . . the protection of the environment is essential to the well‑being of Canadians and that the primary purpose of this Act is to contribute to sustainable development through pollution prevention.

According to the Environment and Climate Change Canada website, “Canadians have indicated that the Act is fundamentally sound.”

That said, no legislation is perfect. Between 2004 and 2007, consultations were undertaken by Environment Canada and Health Canada in an effort to identify issues with CEPA that could be addressed during a comprehensive review of the legislation.

According to a 2017 paper posted by Environment Canada entitled The Canadian Environmental Protection Act, 1999: Issues, these consultations identified 12 specific concerns and 3 broader ones.

The 12 specific concerns all sought to bring clarity and certainty to the bill, as well as to alleviate unnecessary bureaucratic red tape by streamlining certain processes. How, for example, would the government deal with substances added to the Domestic Substances List created in 1988, prior to the requirement for rigorous testing established by CEPA?

There was also the question of national consistency. The report states that national consistency with regard to regulations:

. . . creates a more level playing field by reducing problems associated with having a patchwork of different regulations across the country being applied to the same industry sectors.

This overall desire for more certainty and consistency across jurisdictions in an effort to mitigate a guessing game by potential investors and proponents is what has helped shape my opinions on this bill.

Colleagues, Bill S-5 seeks to add a preambular clause that would recognize the right of all Canadians to a healthy environment. Clause 5 of the bill then goes on to outline the multi-year consultative process that will set out how to implement this right.

However, as we look at this bill, my question is this: What does that right actually mean for Canadians? To explore this question, we must first look at Canadian jurisdictions that have similar provisions and look at the body of jurisprudence we currently have available.

Ontario, Yukon, N.W.T. and Nunavut all recognize the right to a healthy environment in their legislation in preambular clauses. Quebec put the right into its Environment Quality Act in 1978 and added it to its provincial Charter of Human Rights and Freedoms in 2006. This has resulted in the ability of cases to be brought against CEOs of companies, who, in that province, can be held personally liable for any detrimental environmental effects resulting from their companies’ mismanagement.

In recent years, four actions have been launched in Canada asserting that the Constitution guarantees Canadians a right to a healthy environment. In late 2018, a group called ENvironnement JEUnesse launched a class action, alleging that the Government of Canada, by adopting what they felt were ill-conceived GHG emission targets, failed in its duty to protect the right of Canadians to a healthy environment. They argued that this right is inherently granted under section 7 of the Charter of Rights and Freedoms, which lists a right to “. . . life, liberty and security of the person . . . .” In their submissions, they stated that:

. . . by adopting inadequate targets and failing to put in place the necessary measures to achieve these targets, the government is violating the class members’ right to live in a healthful environment in which biodiversity is preserved, protected by the Québec Charter.

The Government of Canada submitted, in turn, that this issue was not justiciable, as those were inherently political arguments. In the end, the class action was not certified. The July 11, 2019, decision did not disagree with the substantive issues but instead found that the age group of Québec residents, 35 years or younger, that the organization claimed to be representing was an arbitrary one. So Justice Morrison did not certify the claim based on procedure, and the substantive question about what a right to “a healthful environment” entails went unanswered.

In 2019, La Rose v. Her Majesty the Queen and Mathur, et al. v. Her Majesty the Queen in Right of Ontario were launched in quick succession of one another. They were both launched by children throughout Canada and Ontario, respectively. Some of the plaintiffs were Indigenous children, while others were vulnerable children whose medical conditions or geographical locations made them more susceptible to pollutants or drastic changes in the environment. Both claims stated that section 7 of the Charter created a constitutional obligation to protect the right to a healthy environment.

According to the summary by climatecasechart.com regarding La Rose:

On October 27, 2020, a Federal Court judge dismissed the lawsuit by Canadian youth against the Canadian government on a pretrial motion to strike for failing to state a reasonable cause of action. . . .

A similar motion was put forward in Mathur, but it was rejected by the Ontario Superior Court of Justice, so that case has yet to be heard.

The final case that follows this theme is Lho’imggin et al. v. Her Majesty the Queen, which was launched in February 2020 during the blockades resulting from some Wet’suwet’en opposition to the Coastal GasLink pipeline. The plaintiffs argued that Canada has failed in its international obligations under UNDRIP, and that the government’s inaction on climate change has caused irrevocable damage to their traditional lifestyles and land. They also contend that Canada “. . . has a constitutional duty to maintain the peace, order and good government of Canada . . .” The case has not yet been heard.

Honourable senators, I am concerned by what I have learned. With two cases looking to define what the right to a “healthful environment” would afford, it seems prudent to wait to introduce such a right in legislation.

It brings me back to the need to preserve the certainty that so many have lauded in CEPA. Environment and Climate Change Canada, on their own website, describes CEPA as providing:

. . . a structured predictable approach to risk management decision-making that provides for the input and full consideration of public values and concerns at all stages of the decision-making process. . . .

In my opinion, if we are to agree to put the official recognition of this right into a bill that industry relies upon for clarity on process and policy, we must ensure we know right here and now what that right means. We should not be waiting years for answers regarding how to implement this right or what actions and expectations that right entitles Canadians to.

There are many other concerns that I have with this bill, colleagues, that will not fit into the short time that I have in speaking to it today. I have not had a chance to discuss my concerns regarding the potential infringement on provincial or territorial jurisdiction, nor do I have time to fully discuss concerns regarding the change in how substances are labelled “toxic” or, as clause 75.1 states, “. . . capable of becoming toxic.”

I will close in saying that I believe careful and thorough study of this bill must be done in committee. I sincerely hope our committee is not rushed as it considers this important bill since I, for one, am hoping to gain more clarity and comfort through that process.

Thank you.

Senator Simons: That might be a good idea. That request could be addressed to Senator Patterson, or maybe you want to move a motion in amendment yourself.

(On motion of Senator Martin, debate adjourned.)

[English]

Hon. Peter M. Boehm moved the adoption of the report.

He said: Honourable senators, I rise today as Chair of the Standing Senate Committee on Foreign Affairs and International Trade to explain amendments to Bill S-217, as adopted by the committee.

Bill S-217, An Act respecting the repurposing of certain seized, frozen or sequestrated assets, otherwise known as the frozen assets repurposing act, or FARA, was referred to the committee on March 1 after being introduced in the Senate on November 24, 2021, by Senator Omidvar.

The committee began its study on March 24 and welcomed three panels of officials and experts over two meetings. We completed clause-by-clause consideration on March 31.

I wish to thank all the witnesses, especially the bill’s sponsor, and all committee members and staff for their work in ensuring the committee discharged its duties effectively and in a timely manner. This was very important, honourable senators, given the grave geopolitical conflicts, wars and refugee and humanitarian crises we see all around the world.

Honourable senators, as stated in the summary of Bill S-217, it:

. . . provides for the reporting and disposition of assets seized, frozen or sequestrated under the Special Economic Measures Act, the Freezing Assets of Corrupt Foreign Officials Act, and the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).

The committee adopted two amendments based on recommendations of expert witnesses. Both were moved by Senator Coyle and fully supported by the bill’s sponsor, Senator Omidvar. The first amendment is to clause 2 and the second amendment to clause 6.

Ultimately, colleagues, both amendments have the effect of strengthening the bill by harmonizing its language and conditions for repurposing assets with that found in its enabling legislation, the Special Economic Measures Act, also known as SEMA.

These amendments, if approved by the Senate, will help to ensure that courts tasked with repurposing assets frozen in Canada are able to do so fully and in the fundamental spirit of Bill S-217. Therefore, I move the adoption of the report.

Thank you, colleagues.

Hon. Ratna Omidvar moved the adoption of the report.

She said: Honourable senators, Bill S-209, An Act respecting Pandemic Observance Day, would designate March 11 of every year as an annual pandemic observance day. Bill S-209 was referred to the Standing Senate Committee on Social Affairs, Science and Technology on December 9, 2021. Over the course of two meetings, the committee heard from the sponsor of Bill S-209, our colleague the Honourable Senator Mégie, in addition to eight witnesses representing six different organizations. On behalf of the committee, I wish to thank the sponsor and all witnesses who assisted the committee in our study of the bill.

Based on the testimony received, the committee is recommending one amendment to strengthen the preamble of the bill, explicitly acknowledging the disproportionate effect of the pandemic on certain populations, and adding language around the intent of pandemic observance day. Many witnesses discussed the disproportionate impact of the COVID-19 pandemic on vulnerable populations, including Indigenous peoples, racialized communities, elderly people and members of the LGBTQ2+ communities. The committee also heard the importance of validating diverse lived experiences by including more specific language in the bill.

As amended, the preamble now acknowledges the multi‑dimensional effects of the pandemic on every person in Canada in addition to stating that this pandemic has worsened the various forms of inequality in Canada and has had a disproportionate impact on vulnerable people within society and members of historically disadvantaged groups.

The committee heard from the bill’s sponsor, the Honourable Senator Mégie, that pandemic observance day would have three purposes: recovery, remembrance and preparation for the future. The committee heard from witnesses that they appreciated this intent and found that it could be stated more explicitly in the bill.

The preamble, as amended, emphasizes that the pandemic observance day would give the Canadian public an opportunity to commemorate the efforts to get through the pandemic, to remember its effect and to reflect on ways to prepare for any future pandemics.

Thank you.

Some Hon. Senators: Hear, hear.

Hon. Salma Ataullahjan moved the adoption of the report.

She said: Honourable senators, the committee presented its report, which contains three amendments. I am providing you with the effects of these amendments. Bill S-211 will contribute to the fight against forced labour and child labour by imposing reporting obligations on certain private entities and government institutions. Similar supply chain transparency legislation has been adopted in other jurisdictions, including the United Kingdom and Australia.

The transparency approach encourages the adoption of good practices by giving consumers, shareholders and other stakeholders the information that they need to make informed choices. Clauses 6 and 11 of Bill S-211 set out the specific information that must be contained in annual reports. The required information is similar for private entities and government institutions. It includes but is not limited to any information on any relevant policies, due diligence processes, employee training or measures taken to remediate forced and child labour. The committee heard from several witnesses that forced labour and child labour arise from complex socio‑economic issues. Indeed, child labour often occurs where children need to work to help their families survive. While this bill alone cannot solve these complex issues, it is a starting point that seeks to encourage better practices by both private entities and government institutions.

The first two amendments expand upon the requirements already contained in clauses 6 and 11 to provide information on remediation measures. The effect of these amendments will be to require annual reporting by both private entities and government institutions on any measures specifically taken to remediate lost income for the most vulnerable families affected by measures to address forced labour and child labour.

The purpose of these amendments is to encourage companies and government institutions to think about the impacts of their supply chains on vulnerable families and to ideally go beyond merely avoiding use of forced labour and child labour.

By requiring transparency about good practices relating to remediation, stakeholders will have the information necessary to support good actors, and other actors will be encouraged to adopt better practices.

Finally, for private entities subject to this bill, clause 11 requires that each member of the entity’s governing body sign off on each annual report. The committee’s third amendment is simply a technical amendment to remove the requirement that such signatures be completed manually. The effect of this will be to allow electronic signatures, thereby simplifying the reporting processes.

I would like to take this opportunity to thank all the witnesses who testified.

I would also like to take this opportunity to congratulate Senator Miville-Dechêne on drafting this bill. This marks the first step toward putting an end to forced labour and child labour in our supply chains. Thank you.